Kandrick Investments (Pvt) Ltd v City of Harare and Rufaro Marketing (Pvt) Ltd

### Preamble
1
HH 488-23
HC 7416/22
---------


KANDRICK INVESTMENTS (PVT) LTD

versus

CITY OF HARARE

and

RUFARO MARKETING (PVT) LTD

HIGH COURT OF ZIMBABWE

CHINAMORA J

HARARE, 4 November 2022 and 11 August 2023

Urgent Chamber Application

Mr T Tabana, for the applicant

Mr R Zinhema, for the 1st respondent

No appearance for the second respondent

CHINAMORA J:

The applicant approached this court on an urgent basis seeking interim interdict pending declaratory relief. The relief sought by the applicant is couched in the following manner:

“TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court, if any, why a final order should not be made in the following terms:

IT IS DECLARED THAT:

1. The letter by the First Respondent dated 20 October 2022 is of no force and effect.

Consequently

2. Applicant has full entitlement to the use of Stand 4292 Machipisa in terms of a valid lease agreement between it and Second Respondent.

3. First Respondent is interdicted from interfering with Applicant’s use and enjoyment of Stand number 4292 Machipisa except in terms of an order of court

4. First Respondent to bear costs of suit on a high scale between legal practitioner and own

client.

5. Interim relief granted.

INTERIM RELIEF GRANTED

That pending the finalization of this matter the first respondent is restrained and interdicted as follows;

1. The first respondent and all those claiming through it be and are hereby interdicted from interfering with applicant’s rights of occupation pertaining to the leased premises, namely, Stand 4292 Machipisa, Harare.

2. The first respondent be and is ordered not to demolish or evict the applicant except with the leave of the court.”

When I heard the matter on 4 November 2022, I granted the relief sought. I now give my reasons. The facts peculiar to this urgent chamber application are that the applicant and second respondent entered into a long-term lease in respect of a property known as Machipisa Bar and Silver Room Tavern, Stand No. 4292 Machipisa, Harare. The material terms of the agreement were that: the applicant would pay the sum of US$ 3 500, being the monthly rental payable on the first day of the month. In addition, the lease would expire in 2032, i.e. ten years from the date of signing. The applicant was also authorized to do construction work and to renovate the premises.

The applicant alleges that, pursuant to the aforesaid agreement, it renovated the double storey building by plastering it and putting a roof. According to the applicant, all the designs were approved and supervised by an engineer in the first respondent’s employ. Furthermore, the developments were done in terms of approved plans which were approved by the first respondent. The applicant submits that at all stages the construction work was inspected and approved officials of the first respondent. Consequently, it is applicant’s case that it has religiously complied with the terms of the agreement including paying rentals as and when they became due. As proof of compliance, the applicant attached receipts for rentals received by the second respondent marked Annexure “K5” series. In addition, it is applicant’s case that on 17 October 2022, the first respondent notified it of its intention to demolish the applicant’s building and summarily evict the

applicant. In the notice, the first respondent gave the applicant forty-eight hours within which to vacate and, because of this, the applicant submits that this matter is extremely urgent. The applicant states that the first respondent appears to base its threat to demolish the property on an assumption that the structure is illegal and was built without council approved plans. Additionally, the applicant avers that on 18 October 2022, the Harare Magistrates Court granted an ex parte application interdicting the first respondent from demolishing the applicant’s structure pending the return date, which was slated for 7 November 2022. It is the applicant’s further averment that, whilst the ex parte application was pending, on 31 October 2022, the first respondent wrote another letter reiterating the earlier threat to demolish the applicant’s buildings.

This matter was set down for hearing on 4 November 2022. Mr Zinhema appeared on behalf of the first respondent. There was no appearance in respect of the second respondent. Mr Zinhema who appeared on behalf of the first respondent submitted that the present matter is not urgent. On the other hand, Mr T Tabana argued that the matter is indeed urgent since the applicant may be evicted or be locked out of its property. It is my considered view that the interim order under HREC CG 4050/22 which interdicted the first respondent from interfering with applicant’s rights in respect of the leased premises, and ordered first respondent not to demolish or evict the applicant except with the leave of the court was not set aside and, as such, remained extant. Until such interim order is set aside, the applicant remains concerned with the occupancy and developments at the premises. Having been served with the second letter dated 20 October 2022 by the first respondent, informing it of the intention to evict and demolish the premises in question, the applicant moved diligently to harness the situation by approaching this court on the 2 November 2022, almost ten days later. I observe that, case law has established that a delay of 22 days is not an inordinate delay, because litigants do not eat, move and have their being in filing court process. Resultantly, I dismiss the point in limine in question.

On the merits of the case, the sole issue for determination is whether the present application meets the requirements for the grant of a provisional order. The law requires an applicant for an interdict to satisfy the following criteria:

1. Existence of a prima facie right though open to doubt;

2. A well-grounded apprehension of irreparable harm;

3. The absence of any other satisfactory remedy; and

4. The balance of convenience favours the applicant.

These requirements are set out in the seminal case of Setlogelo v Setlogelo 1914 AD 221, and a number of subsequent decisions like Flame Lily Investments Company (Pvt) Ltd v Zimbabwe Salvage (Pvt) Ltd and Anor 1980 ZLR 378. It is contended in its founding affidavit that the applicant has a prima facie right, by virtue of the lease agreement, to occupy the premises and is carrying out construction work. Let us bear in mind that there is an order issued by the magistrates’ court under HREC CG 4050/22. The order interdicted the respondent from interfering with the applicant’s right of occupation pertaining to the leased premises and ordered the same not to demolish or evict the applicant except with the leave of the court.  In my view, the said order effectively restrained the first respondent from evicting the applicant and/or demolishing his property. If the acts complained of are not interdicted, the applicant will be evicted and the property will be demolished. This will result in irreparable harm to applicant’s rights to the premises in question. It is apparent from the arguments made before me that if the order sought is not granted, the applicant will be evicted and the premises would be demolished.

The respondent initially contended, in its opposing affidavit, that the perimeter wall is meant to enhance the security of the property. However, during oral submissions, it was argued for the applicant that the perimeter wall was intended to be put at the front side of the property in order to block the dust from the nearby site. The question which remained unanswered is why did the respondent immediately become concerned with security or health issues when it had been in occupation of the property since 2011. This makes the applicant’s suspicion well grounded. With respect to whether there is any other effective remedy, my view that there is none that can adequately protect the rights of the applicant. This present application is the most appropriate remedy available to the applicant in the circumstances.

I now have to consider where the balance of convenience lies. It seems to me that balance of convenience favours the granting of the present application for a number of reasons. Firstly, the respondent is not in occupation of the premises. Secondly, the respondent has shown willingness to demolish the property without giving the applicant further notice. Thirdly, the applicant will suffer obvious prejudice if the respondent proceeds to evict the applicant from the property and demolishes it. In my view, it is in the interest of justice that the first respondent be interdicted from evicting the applicant and from demolishing the property until the dispute between the parties hereto has been resolved by this court. Consequently, I see no reason why the applicant should not be afforded the relief that he has asked for. As I have already said, I granted the order sought on 4 November 2022, and the above are my reasons for granting that relief.

Tabana & Marwa, applicant’s legal practitioners

Gambe Law Group, first respondent’s legal practitioners