Kandrick Investments v Rufaro Marketing (Private) Limited and Blessed Charakupa

### Preamble
1
HH 521-24
HC 1497/24
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KANDRICK INVESTMENTS

versus

RUFARO MARKETING (PRIVATE) LIMITED

and

BLESSED CHARAKUPA

HIGH COURT OF ZIMBABWE
TSANGA & MUNANGATI -MANONGWA JJ
HARARE; 25 July & 14 November 2024

Civil Appeal

R T Mutero, for the appellant
R Mabwe, for 1st respondent
T Mazikana, for 2nd respondent

TSANGA J

This is an appeal against the decision of the Magistrate Court in which the appellant, Kandrick Investments (the Appellant) was evicted from premises known as Stand 5856 Chaminuka Street, Mbare, Harare (commonly known as Vito Bar and Red Room Tavern).  The first respondent, City of Harare, had brought a counterclaim for the eviction of the Appellant from the premises. The background to the counter claim was that the Appellant initially issued summons against the second respondent, Blessed Charakupa for his eviction from what it termed its premises known as Shop No. 94 B Kandrick, Vito Complex, Mbare, Harare. Appellant had sought payment of arrear rentals to the tune of US $12000.00 from Blessed Charakupa. It averred that it had entered into an oral lease with him and that he had neglected to pay the claimed rentals.

Blessed Charakupa pleaded that he had never entered into a lease agreement with the Appellant but had one with the City of Harare, the first respondent. The City of Harare was then joined to the matter.  It pleaded that it had no lease with the appellant and counter claimed for eviction of the appellant whom it said not only did it not have a lease with, but that the appellant had no right to sublet or enforce any claim.

Appellant’s defence to the eviction claim was that it had initially occupied the premises as a sub-tenant arising from the tenancy that TN Holdings had with the City of Harare, which TN had later assigned to it. Appellant’s claim was that it was in fact now occupying the premises by virtue of a lease agreement as well as an addendum it said had been signed with the City of Harare. This was denied by the City of Harare’s representative who told the court that such lease did not exist in its records and that there had in fact been many forgeries.

It was also not in dispute that the lease with TN Holdings came to an end in December 2022. The City of Harare denied the existence of any lease between it and the Appellant in respect of the disputed property.  If such a lease existed, its defence was that the Appellant was in material breach for subletting the property without its consent and further, for non-payment of rentals. The court a quo found for the City of Harare, the first respondent herein. Blessed Charakupa the second respondent chose to abide by the decision of this court and did not file any heads of argument. Effectively the respondent to this appeal is the City of Harare only.

There are 12 grounds of appeal against which Ms Mabwe as counsel for the City of Harare, has raised some preliminary points. The grounds in the notice of appeal are couched as follows:

The Court a quo erred at law in finding that the Appellant had the onus of proving that the signatures on Exhibits 5, 6, and 7 had been forged.

The Court a quo erred at law in failing to find that a party to a contract, for whose benefit conditions are inserted, can waive conditions therein.

The Court a quo grossly misdirected itself on the fact (sic) in failing to find that Exhibit 4, which are the periodical payments made to the Plaintiff, were payments for rentals regarding the Appellant’s occupation of Stand No 5885 Chaminuka Street, Mbare Harare.

The Court a quo erred at law in failing to find that there was a vinculum juris between the Applicant and the first Respondent establishing a landlord and tenant relation considering the way the parties had related to each other.

The Court a quo grossly misdirected itself in granting an order for the ejectment of the Appellant “without notice” which relief had not been sought by the first respondent.

The Court a quo grossly misdirected itself on the facts in finding that the appellant had not complied with clause 1.3 and 12, something that was never pleaded, testified or argued on.

The Court a quo grossly misdirected itself on the facts in finding that non-compliance with clause 1.3 of Exhibit 3 invalidated the lease agreement when the first Respondent itself took the position that non-compliance with a condition in the lease did not have the effect of invalidating it.

The Court a quo grossly misdirected itself on the facts in finding that there was no second property in Machipisa at which the Appellant rented when such position had not been put in dispute.

The Court a quo erred at law in failing to find that the first Respondent was not entitled at law to plead in the main that the Appellant was not its tenant because it has no lease agreement with it and in the alternative plead that the Appellant had breached a lease agreement between the parties.

The Court a quo erred at law in failing to find that on the objective theory of contract, the Appellant and the first Respondent has a land lord and tenant relationship.

The Court a quo erred at law in failing to find that the duty to comply with clause 1.2 was extinguished by the reason that it was objectively impossible to perform it.

The court a quo erred at law in discounting the testimony of D Mutiwadirwa and not giving any reason for disbelieving him: a fortiori.

The relief sought is that the appeal be allowed and that the judgment of the court a quo be substituted with an order for the dismissal of the counter claim with costs.

The submissions on preliminary points

Ms Mambwe submitted that the above grounds of appeal fail to comply with order 31 of the Magistrates Court Rules 2019, in particular Rule 31 (4)( b) which provides as follows:

4) A notice of appeal or of cross—appeal shall state-

(a)……

(b) in the grounds of appeal, concisely and clearly the findings of fact or rulings of law appealed against; and….

She submitted that the above grounds of appeal are not concise in that grounds 4, 6,7,8 9, 10, 11 and 12 in particular are a challenge against findings of fact when the position is that a court on appeal will not interfere with findings of fact unless the misdirection is so aberrant. Further, she submitted that an appeal must be against the substantive order and not against the reasons. The above grounds of appeal were said to amount to an appeal against reasons. She submitted that the court below having granted the relief of eviction from the disputed premises, nowhere in the above grounds of appeal were the appellants challenging the order of eviction itself. What they were challenging was the fact that the eviction was without notice which issue had since been resolved by consent.

As for ground 5, she also submitted that the court cannot be asked to determine “without notice” when appellant has not challenged the substantial issue, being the eviction itself.  As such, she argued that the appeal must fail and be struck off the Roll.  Additionally, the appellant was said to have been already evicted from the premises making the appeal moot.

Mr Mutero for the appellant submitted in return that to attack the order one must attack the reasons and that it is the totality of the findings that led the court to its findings.  As to there being no challenge on the order of eviction itself, he submitted that the court’s order granting the counterclaim was granted on the basis of the factual findings that were being challenged. On the grounds being prolix, he argued that the grounds were clear and concise as each ground attacks a distinct finding. He submitted that grounds 1, 2, 7, 9, 10, 11 and 12 relate to purely legal issues and do not attack findings of fact. Citing Christopher Sambaza v Al Shams Global BVI Limited SC 3 /18 he insisted that what is required is whether an issue being complained of can be identified. What is important according to him is to allege a misdirection rather than prove it.

Ms Mabwe’s response was that the eviction was granted on the 19th of March 2024 and that the appeal was already moot at the time of its filing because the appellant had not challenged the eviction itself and as such was taken to have acquiesced. She maintained that the appeal does not challenge the substantive order on eviction but challenges the issue of not being given notice and as such it is therefore an appeal against the reasons.

Analysis of preliminary points

In Nobert Kunonga v The Church of The Province of Central Africa SC 25/17 Garwe JA, as he then was, drew on Stegmann J in Van de Walt v Abreu 1994(4) SA 85 (W) where he made an exhaustive review of case law relating to notices of appeal from the Magistrates Court in South Africa. Garwe JA summarised with reference to that case as follows:

“That case is authority for the proposition, based on the Magistrates Court Rules of South Africa, that there are two distinct requirements, both of which have to be satisfied, for a proper notice of appeal disclosing a valid ground of appeal. Firstly, the notice must specify details of what is appealed against (i.e. the particular findings of fact and rulings of law that are to be criticized on appeal as being wrong) and secondly, the grounds of appeal (i.e. it must indicate why each finding of fact or ruling of law that is to be criticised as wrong is said to be wrong. For example, because the finding of fact appealed against is inconsistent with some documentary evidence that shows to the contrary; or because it is inconsistent with the oral evidence of one or more witnesses; or because it is against the probabilities.”

In other words, an appeal against facts must show how the finding is inconsistent with any of the following:

some documentary evidence

oral evidence of one or more witnesses; or

it is against the probabilities.

It is also trite that only if a decision on facts is manifestly wrong or misdirected will a court of appeal interfere with such a decision. Given the concession to ground 5, of the remaining 11 grounds, those that specifically allege factual misdirection are grounds 3, 6, 7 and 8. The manner in which the factual findings are inconsistent with any of the above indicators are not spelt out.  In ground 3 for example the record   shows   that appellant’s own witness was in full agreement in cross examination that she did not have evidence of rental payments for a number of months. The thrust of the factual grounds appealed against is essentially that the court ought to have found differently in the manner spelt out by the appellant in those   grounds.  Although grounds 1, 2, 4, 9, 10, 11 and 12 are couched as grounds of appeal emanating from an error in law, they are themselves disguised dissatisfaction with factual findings in the initial instance. In any event the point in limine that the matter is moot as the appellants have since been evicted ought to be the first point in limine for consideration since courts concern themselves with live disputes. It is therefore critical in assessing whether any of the grounds ought to be entertained.

Regarding mootness, in Khupe & Anor v Parliament of Zimbabwe & Ors CCZ 20/19 Malaba CJ, observed at pp. 7-8 as follows:

“A court may decline to exercise its jurisdiction over a matter because of the occurrence of events outside the record which terminate the controversy. The position of the law is that if the dispute becomes academic by reason of changed circumstances the Court’s jurisdiction ceases and the case becomes moot …. The constitutional limits on the exercise of judicial power, combined with notions of the limited nature of judicial power, have evolved into a broad doctrine known as ‘justifiability’.”

In Zimbabwe School Examinations Council v Victor Mukomeka & Anor SC 10/2020 Patel JA, as he then was stated that an overriding consideration in hearing a moot case is whether or not it is in the interests of justice to hear such a case. Regarding the factors to be taken into account in that regard he relied on principles enunciated by the Constitutional Court of South Africa in Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC) at para 11 as follows:

“This Court has a discretion to decide issues on appeal even if they no longer present existing or live controversies. That discretion must be exercised according to what the interests of justice require. A prerequisite for the exercise of the discretion is that any order which this Court may make will have some practical effect either on the parties or on others. Other factors that may be relevant will include the nature and extent of the practical effect that any possible order might have, the importance of the issue, its complexity, and the fullness or otherwise of the argument advanced.”

The matter before the lower court was for an eviction on the basis that there was no lease agreement between City of Harare and the appellant. In the alternative the thrust was that the appellant was in breach of the lease it claimed to exist by subletting and further by not paying rentals. The lower court’s judgment speaks for itself on how it arrived at the conclusion, in analysing the evidence before it that there was no valid lease in existence. In any event even if taking the appellant’s own argument that a lease existed through the said disputed addendum it sought to rely on, the evidence on record and analysed by the court showed months of non-payment of rentals. The record speaks for itself. It also pointed to acts of chicanery and lawlessness attributed to the appellant.

Taking the above into consideration, the appeal is certainly moot. There is no interest to be served where the facts speak of an already terminated lease with the party from who appellant claimed initial occupation, or, a subsequent addendum which the lower court found on the facts to not have been proven as authentic or logical, and where rentals themselves under the disputed lease were not even up-to-date. The appellant has already been evicted. The point in limine on mootness is therefore upheld.

Accordingly:

The appeal is struck off the Roll with costs.

TSANGA J:………………………………………………..

MUNANGATI-MANONGWA J:…………………………………………………AGREES

Tabana & Marwa, appellant’s legal practitioners
Mbidzo, Muchadehama & Makoni, first respondents’ legal practitioners
Lunga Mazikana Attorneys, second respondent’s legal practitioners