Norwich Trading (Private) Limited v Astrodome Enterprises (Private) Limited

### Preamble
1
HH 159-21
HC 912/21
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NORWICH TRADING (PRIVATE) LIMITED

versus

ASTRODORNE ENTERPRISES (PRIVATE) LIMITED

HIGH COURT OF ZIMBABWE

MUSITHU J

HARARE, 29, 30 March 2021 & 9 April 2021

Urgent Chamber Application

T. Nyamakura, for the applicant

C. Kwirira, for the respondent

MUSITHU J:

INTRODUCTION

The applicant seeks a mandament van spolie against the respondent. Its draft order reads as follows:

“IT IS HEREBY ORDERED THAT:

The application for an order restoring the application to possession of number 750 Gaydon Road, Greystone Park, Harare succeeds.

The respondents and all those claiming occupation through it, are ordered to immediately vacate the premises at number 750 Gaydon Road, Greystone Park, Harare.

In the event that the respondents do not vacate the premises within twenty-four hours of this order, the sheriff of this court is hereby authorized to give effect to this order by evicting the respondents forthwith.

The respondents are ordered to pay the applicant’s costs on an attorney and own client scale.”

The application was set down for 29 March 2021. Respondent opposed the application. The notice of opposition raised defences which applicant felt impelled to repel through an answering affidavit. On the day of the hearing the respondent cried foul. The answering affidavit raised new issues. The new issues touched on matters that respondent had not specifically alluded to in the opposing affidavit. It had been ambushed. It would suffer immense prejudice if the answering affidavit was allowed to stand. Mr Kwirira appearing for the respondent urged the court to strike out the answering affidavit in its entirety. Alternatively, the respondent could be allowed to file a supplementary affidavit to deal with those new matters.

For the applicant, Mr Nyamakura submitted that the new issues were in response to certain averments made in the opposing affidavit. In the event that the court found any issues to be unrelated to averments made in the opposing affidavit, then those could be struck out without jettisoning the entire affidavit. In the exercise of its discretion, and with the concurrence of counsel, the court granted respondent leave to file a supplementary affidavit to deal specifically with the new material in the answering affidavit. The matter was postponed to 31 March 2021 for argument.

FACTUAL BACKGROUND

The background facts, as decrypted in the fairly detailed papers submitted by the parties is as follows. The applicant owns a property known as 750 Gaydon Road, Greystone Park Shopping Centre, Greystone Park, Borrowdale, Harare (the property).  Improvements on the property include a double storey commercial structure. Nighert Savania and her late husband Mahendra Kumar Jivan Savania were originally the directors and shareholders in the applicant. Each held a 50% shareholding. Following the demise of her husband in March 2010, sometime in October 2011, Nighert Savania sold the property to one Nathan Mnaba for $380 000.00. The amount was payable in instalments.  She acted in her capacity as a 50% shareholder, as well as a beneficiary in the estate of her late husband. She secured the consent of co-beneficiaries in the estate to dispose of the other 50% shareholding. Mnaba paid $250 000.00, leaving a balance of $130 000.00.

Nighert Savania and the applicant approached this court under HC 9654/13, seeking amongst other things: the eviction of Mnaba from the property; holding over damages of $7 000.00 per month from the date of occupation to date of eviction, alternatively they sought to retain the $250 000.00 already paid by Mnaba as rouwkoop. Also claimed was an order cancelling the applicant’s Form No. C.R. 14 submitted to the Registrar of Companies by Mnaba. Apparently Mnaba caused the alteration of applicant’s records at the companies’ registry so as to reflect that Nighet Savania and her late husband had resigned as directors, when in fact they had not. Applicant avers that it was this fraudulently acquired Form No. C.R. 14 that Mnaba used to access a loan from Stanbic Bank. By judgment of this court handed down on 7 November 2018 under HH 730/18, mathonsi j (as he then was), ordered as follows:

“In the result, it is ordered that:

The defendant and all those claiming occupation through him are evicted from Stand 750 Greystone Township 10 of Greystone A, also known as 750 Gaydon Road Greystone Park, Harare.

The defendant shall pay holding over damages of $1 000.00 per month from 10 October 2011 to date of eviction together with interest at the prescribed rate from due date to date of payment in full.

The CR 14 Form submitted by the defendant or his agents to the Registrar of Companies in respect of the directorship of the 2nd plaintiff is hereby cancelled and the one that was in place immediately before that reflecting the first plaintiff and the late Mahendra Kumar Jivan Savania as directors is restored.

The plaintiffs’ claim for $250 000.00 paid by the defendant towards the purchase as rouwkoop is hereby dismissed.

The defendant shall bear the costs of suit on a legal practitioner and client scale.”

Mnaba appealed the judgment to the Supreme Court under SC 874/18. The grounds of appeal did not attack part of the order which directed the cancellation of the Form No. C.R. 14. The appeal never saw light of day. It was deemed abandoned following the appellant’s failure to inspect the record in terms of Rule 17(11) of the Supreme Court Rules 2018.

Following the delivery of the judgment, applicant claims to have taken possession of the property in December 2018. It had been abandoned by Mnaba in a sad state. The applicant was enjoying peaceful and undisturbed possession since then. It kept the property under lock and key. Applicant carried out certain renovations to spruce it up. Sometime in October 2019, applicant received information of an attempt to alienate the property by one of Mnaba’s associates, Nyasha Muzavazi (Muzavazi). Muzawazi was a director of applicant in terms of the Form No. C.R. 14 that was cancelled by the judgment of mathonsi j. Applicant’s lawyers dispatched a letter to the appointed conveyancers, Maseko Law Chambers. The letter of 4 October 2019 reads in part as follows:

“NORWICH TRADING (PRIVATE) LIMITED [REG NO. 496/94] ATTEMPTED FRAUDULENT TRANSFER OF 750 GREYSTONE TOWNSHIP 10 OF GREYSTONE A (DEED NUMBER 0011896/98)

We act for Norwich Trading (Trading) Private) Limited.

Our clients received documents and information that shows that you were instructed by one Nyasha Muzavazi purporting to act for our client to transfer ownership of the property at 750 Gaydon Road, Greystone Park, Harare to a company known as ASTRODOME ENTERPRISES (PRIVATE) LIMITED.

We advise you that Nyasha Muzavazi is not a director of Norwich Trading (Private) Limited nor is he a shareholder. In fact other than through fraud and forgery, he never held any position in our client.

We have seen the transfer documents including the declarations in which the deponents perjure themselves claiming rights they do not have and going as far as to claim the property is a vacant stand when in fact it is a fully developed property worth way over the measly amount stated in the papers our clients have seen.

When your clients engaged you, they were aware of the judgment of the High Court in the matter of Nighert Savania and Another v Nathan Mnaba HC9654/13, attached hereto. You will note that in terms of the judgment handed down by Hon Justice Mathonsi, the fraudulent CR14 form in which Nyasha Muzavazi appears as a director was canceled and the one immediately existing before it was revived.

We trust that you will read the judgment and make your conclusions regarding the probity of your clients in this matter. We also attach hereto the correct CR14 in respect of Norwich Trading.

Your clients may want to claim that they had filed an appeal against the judgment handed down by Justice Mathonsi. In saying this, they are aware that they filed a limited appeal, and the order relating to the CR14 forms was never the subject of their appeal. In any event, the appeal was deemed abandoned.

More shocking to our clients is the revelation regarding how the caveat on the property was purportedly removed. We are aware that a notice of withdrawal was filed in which Mr Kachere ‘withdrew’ the application filed by our client Mrs Savania whose effect was to place a caveat on the title deeds of the property. We have since ascertained from him that he never drafted the document nor was it filed by his firm. It means that the document used by your clients is a forgery and the affidavit deposed to by Nyasha Muzavazi is part of the scheme of fraud. He has registered his shock and disgust at the conduct of whoever forged the document as you will see in his letter.

The long and short of the above is that the purported ‘directors’ had neither the standing nor the legal authority to enter into any cause in terms of which they could transfer the property. The whole transaction amounts to a scam that smacks of criminality.

We have contacted the Registrar of Deeds and we are informed by their office, that they will not pass transfer further to the fraudulent scheme manufactured by Nyasha Muzawazi.

……….

…………..

As you know, you cannot transact in the manner you did without our client’s express instructions. They place it on record that such instructions have never been given.

The instruction is given to you by the Directors of Norwich Trading (Private) Limited.

Our clients instruct us to inform you that they are considering their remedies including reporting this issue, including your practice to the police.…….”

Maseko Law Chambers responded through their letter of 7 October 2019. It reads:

“ ……………………………..

We refer to the above matter and to your letter dated 4th October 2019, the contents therein are duly noted.

In order to give a wholesome explanation to this matter it is necessary that we give you a background of the matter from our perspective.

An order was given against Norwich Trading (Pvt) Ltd in favour of Stanbic Bank (Pvt) Ltd where the cause of action arose from the none payment of a mortgage bond, and the terms of the order in summary stated the following:

Norwich Trading (Pvt) Ltd to pay Stanbic Bank US$200 126.50

Norwich Trading (Pvt) Ltd to pay interest on the stated sum at the rate of 23,85% per annum calculated from the 2nd of June 2018

Certain piece of land situate in the district of Salisbury called Stand 750 Greystone Park 10 of Greystone Park A held under Deed of Transfer no. 11896/98 in the name of Norwich Trading (Pvt) Ltd be and hereby declared specially executable;

The Mortgaged Property shall be sold by private treaty within 60 calendar days from the date of this order

………………

Pursuant to the above order, two agreements were made and that was to sell the mortgaged property by private treaty and finally an agreement of sale whereby the purported directors of Norwich Trading (Private) Limited who are Nyasha Muzawazi and Nathan Mnaba would sell to Astrodome Enterprises (Pvt) to extinguish the debt as per the mortgage bond. The agreements are annexed hereto as ‘B’ and ‘C’. Please take note that we were only engaged to do the bond cancellation and transfer of the said property after the said parties had concluded their agreement and as far as we were concerned we believed that all documentation was in order and that there were no anomalies.

We were shocked to discover these developments as per your letter and we state that we were not privy to the background as stated in your letter and had we known the true state of affairs we would not have undertaken to do the transfer. We undertake to withdraw the transfer documents filed and we apologise for the any inconvenience caused.…………”

In a letter of 8 October 2019 addressed to applicant’s legal practitioners, the Registrar of Deeds acknowledged receiving the judgment relating to the property and confirmed that “we have now noted caveat 389/2019 and returned the documents without processing them, since the judgment is very clear to us”.

APPLICANT’S CASE

The deponent to applicant’s affidavit claims that on 22 March 2021, he attended to the property and discovered that all locks and keys had been broken and replaced with new sets. He also discovered that respondent had occupied the property. On enquiring how respondent took occupation, he was informed that respondent purchased the property from the applicant in March 2019. This was pursuant to an order of this court granted by mushore j on 17 August 2018, under HC 2755/17. This is the same order referred to by Maseko Law Chambers in their letter of 7 October 2019. The respondent brought to the applicant’s attention a copy of the said court order, and a copy of its letter to the judgment creditor’s lawyers Mawere Sibanda. The letter of 19 March 2021 to Mawere Sibanda Lawyers reads:

“We are facing challenges in transferring the above property to ourselves and have instituted legal proceedings against Norwich Trading.

We are aware from the Agreement of Sale that we bought the property through your execution of a Court Order by yourselves on behalf of Stanbic Bank.

We therefore request confirmation of the sale and that we paid in full and have no outstanding balance and that this transaction was in execution of a court order.

We offer to meet the legal costs the bank may incur whatsoever as we appreciate the bank may not be interested in meeting any legal costs following its full recovery of its funds.

Your cooperation on this matter will be greatly appreciated…….”

Applicant avers that further enquiries from neighbours revealed that respondent occupied the property during the weekend preceding 22 March 2021. It contends that respondent had no right to occupy the property and its conduct was tantamount to spoliation. It occupied the property without a court order. The alleged agreement of sale that grounded respondent’s claim to the property was invalid. It did not give respondent the right to forcibly enter the applicant’s property. No lawful proceedings had been instituted against applicant. The respondent was perpetuating an illegality started by Mnaba and his associates, and the court had already pronounced its position on their conduct.

Regarding urgency, applicant submitted that it did not sit on its laurels. Having established the unlawful occupation on 22 March 2021, it sprang into action. It delivered the documents received from respondent to its lawyers of record. The urgent application was prepared overnight and issued on 23 March 2021. The matter craved for urgent attention in order to restore the status quo ante.

RESPONDENT’S CASE

In opposition, respondent raised two points in limine. These are lack of urgency and non-joinder. As regards urgency, respondent claims that applicant was aware of its interest in the property as far back as 3 October 2019. At that stage respondent was already in possession. Respondent referred to a letter from applicant’s lawyers to the Registrar of Deeds dated 3 October 2019. The letter reads:

“RE: NORWICH TRADING (PRIVATE) LIMITED [REG NO. 486/94] ATTEMPTED FRAUDULENT TRANSFER OF 750 GREYSTONE TOWNSHIP 10 OF GREYSTONE A (DEED NUMBER 0011896/98)

………………………..

Our clients are the owners of a property known as 750 Greystone Township 10 of Greystone A (Deed Number 0011896/98 commonly known as 750 Gaydon Road, Greystone Park, Harare. Our clients are informed that on 30 September 2019, there was an attempt at lodging transfer documents in respect of the above named property. This was done without our client’s consent and in the absence of any valid causa on our client’s part. While our clients are yet to conclude investigations, we have no doubt that this fraudulent attempt is linked to the Defendant in the matter of Nighert Savania and Another v Nathan Mnaba HC9654/13.

We advise you that in the judgment under HH 730/18 handed down on 7 November 2018, our clients were successful with the result that the CR14 in respect of Norwich, hitherto fraudulently amended by Nathan Mnaba was cancelled. We attach the judgment for your information and records. The result of this is that Nathan Mnaba has no legal basis to interfere with our client’s title deeds and any such act by him constitutes a criminal act of fraud. There is no appeal against this judgment meaning that it is extant and binding. We also attach hereto the letter from the Registrar of the Supreme Court confirming that Mnaba’s appeal was abandoned. It does not exist.

We request that you ensure that in future, only persons authorized by the Directors who appear on the attached CR14 form, can deal with our client’s title deeds. In the interim our clients demand to know the details of the purported transferor and transferee including the sponsoring legal practitioners as this case should be reported to the police.……” (Underlining for emphasis).

Respondent contends that the letter confirms that the matter was not urgent. Applicant was aware of its possession of the property all this while. The application was just a ruse to oust competing directors. This was a case of self-created urgency.

With regards to non-joinder, respondent claims that there was a Form No C.R. 14 bearing directors appointed by Mnaba. Such directors were responsible for transactions that involved the applicant. If such transactions were executed by directors whose office had been declared a nullity by the court, then there was need to cite such individual directors in their personal capacities. That was not done. Applicant could not be allowed to scandalize third parties without giving them an opportunity to respond to allegations made against them.

The deponent to respondent’s opposing affidavit, Archibald Machaka (Machaka) claims that on 22 March 2021, a Mr Gatsi of Faramatsi Motors (Private) Limited (Faramatsi) called and informed him that Faramatsi had purchased the property from the applicant in January 2021. If that claim was correct, then it made them an interested party. They ought to have been joined in these proceedings.

On the merits, respondent denied that it unlawfully occupied the property. It claimed to have purchased the property from the applicant in March 2019. Negotiations started in August 2018. The first agreement of sale was signed in September 2018. Further negotiations resulted in a second agreement being signed in March 2019. Respondent claims to have been in peaceful and undisturbed possession of the property since March 2019. It received keys from an employee of Leafy Properties, the estate agent responsible for the sale. Respondent did not recall the name of the agent who handed over the keys. The relief sought by applicant was untenable. The deponent to the respondent’s affidavit claims to have been carrying out routine checks on the property since March 2019. Then, he was living at some property which was a ten minute drive from the disputed property. Respondent only employed a security guard to secure the property in February 2021.

The transfer process commenced in earnest in February 2020. Respondent attached query sheets from the Deeds Registry to confirm that the transfer process was underway. Further, to confirm its possession of the property, respondent claims it obtained a City of Harare rates clearance certificate and a Capital Gains Tax Clearance Certificate from the Zimbabwe Revenue Authority (ZIMRA). The transactions were done with full cooperation of applicants’ officials. If those officials were not mandated to transact on behalf of the applicant, then they ought to have been cited in these proceedings. Applicant’s boardroom squabbles had nothing to do with respondent. It had paid for the property. Throughout 2020, respondent was preoccupied with the transfer of the property until after August 2020 when the last query was raised. The process was stalled by the Covid 19 induced lockdown. Respondent was not privy to the cancellation of the agreement involving Mnaba and the applicant, and neither was it aware of the alteration of the applicant’s documents at the companies’ registry.

Respondent further contends that applicant failed to prove possession of the property at all. The nature of the renovations that were allegedly carried out were not disclosed. No renovations could have been carried out since respondent was already in possession. Respondent denied breaking any locks and keys as alleged by the applicant. Had that been the case, then a police report would have been made. Such a police report would have provided clear proof of the alleged spoliation. Applicant failed to report because there was no break-in.

Machaka claims that during his telephone conversation with Gatsi, the Faramatsi representative wanted to know why a security guard was stationed at the property since Faramatsi had purchased the property from the applicant in January 2021. He further claims that he met Gatsi on 22 March 2021, and furnished him with all the paper work confirming respondent’s entitlement to the property. Gatsi undertook to engage the applicant. Machaka denies handing over any documents to the deponent to applicant’s affidavit, insisting he must have received the documents from Gatsi. Respondent claims that after the encounter with Gatsi, it engaged its lawyers in a bid to assert its rights to the property. The lawyers wrote to Faramatsi on 23 March 2021. The letter informed Faramatsi that the respondent purchased the property in September 2018, pursuant to the order by MUSHORE J. The alleged agreement of sale between Faramatsi and the applicant was therefore null and void. The lawyers also wrote to the Registrar of Deeds on 24 March 2021. The letter informed the Registrar of the circumstances under which respondent purchased the property from the applicant. The lawyers requested the Registrar’s office to place a caveat on the property, whilst it pursued the transfer process.

Respondent claims that after its letter of 19 March 2021 to Mawere Sibanda, the lawyers responded through a letter of 23 March 2021. The lawyers confirmed that the property was mortgaged to Stanbic Bank as security for a debt owed by the applicant jointly and severally with Green Apple Procurement, Charmaine Lees, Kodjoste Sabri and Shadreck Masasa. The lawyers further confirmed that the property was sold to respondent as per the March 2019 agreement. That sale was done by private treaty pursuant to a Deed of Settlement and the Court Order under HC 2755/17. The proceeds of the sale were utilized to settle the Stanbic Bank debt.

APPLICANT’S ANSWERING AFFIDAVIT

Applicant responded with gusto. The notice of opposition was replete with fabrications. On the preliminary points, applicant averred that the effect of the mathonsi j judgment was that no person could lawfully transact on the basis of the Form No. C.R. 14 that had been altered by Mnaba. The illegality of his actions permeated through the agreements of sale his associates allegedly entered into on behalf of the applicant. Mnaba and his associates had no interest in the current proceedings. It was only the party that alleged spoliation and the party they claimed despoiled them who had an interest in the proceedings. As regards urgency, applicant persisted with the averments made in the founding affidavit. The preliminary points had no merit and ought to be dismissed.

On the merits, applicant insisted respondent moved into the premises on the Saturday preceding the Monday that the deponent discovered the development. To demonstrate that respondent could not have been in possession of the property since March 2019, applicant drew the court’s attention to a letter directed to its lawyers by Munangati and Associates on 25 February 2019. The letter reads:

“ …………………..

Yesterday our client discovered that there are some renovations being done at Stand No. 750 Greystone Township 10 of Greystone A also known as 750 Gaydon Road, Greystone Park, Harare.

Please note that there is an appeal pending before Supreme Court of Zimbabwe for ease of reference we attach hereto the notice of appeal. We are of the view that your client cannot continue with the renovations they are doing given the suspension of the High Court Order by the Notice of Appeal.

May we know your client’s attitude to this within 48 hours otherwise we will approach the court on an urgent basis to seek stay of any operations being conducted…….”

Applicant’s lawyers responded on 6 March 2019. The letter reads in part as follows:

“………………………………

We are aware that you filed an appeal against the judgment of the High Court in the above matter. On perusal of the notice of appeal, we note that your client’s appeal is directed against only two parts of the substantive order. The first part relates to the eviction order which your client disputed in evidence on the basis that he was never in personal occupation of the property, as same has always been occupied by the Second Plaintiff (Norwich). That argument is the basis upon which he disputed the order for payment of holding over damages. He never disputed the eviction order on the basis of ownership or any other known right of occupation in our law.

As you know, there is no appeal against paragraph 4 of the order handed down by the court a quo which, relates to correcting the CR14 forms which your clients fraudulently altered. This means that our clients are at large to carry it into effect, which they have done. In any event the effect of that order is to remove your clients’ agents from the directorship of the company. That being the case, how does your client assume standing to question what the Second respondent is doing with its property when its occupation and ownership is not subject to appeal? .……..” (Underlining for emphasis)

Applicant contends that the correspondence confirms that applicant was already in possession of the property even at the time of the alleged sale in March 2019. Applicant attached a bill of quantities, proof of payment and email communication with quantity surveyors to show that site visits were undertaken before the bill of quantities was drawn up. Applicant claims that part of the renovations carried included changing of locks and keys. The keys were in applicant’s possession since 2018. Also attached to the affidavit were City of Harare receipts showing payments made towards rates even after March 2019.

Applicant further contends that in March 2019, Machaka deposed to a declaration for stamp duty purposes in which he described the property as an undeveloped piece of land, when in fact it boasted of a sprawling double storey building. That was clearly a misrepresentation to the ZIMRA. Such a false declaration would not have been made if respondent was indeed in possession of the property.

Applicant dismissed the alleged September 2018 agreement between applicant and respondent as a recent fabrication. It claimed so for reasons that: Machaka himself confirmed that the agreement of sale was signed on 21 March 2019, way after the sixty-day period ordered by MUSHORE J; the letter from Mawere Sibanda also confirmed that the agreement of sale was executed in March 2021. The September 2018 agreement had only been produced at this stage so as to circumvent the order by mushore j. The order directed that the property be sold by private treaty within 60days from the date of the order, failing which the Sheriff was to attach and sale the property in execution by way of a public auction. No proof had been tendered to show that the Sheriff sold the property to respondent by way of a public auction.

Applicant contends that the documents attached to the respondent’s opposing affidavit did not show that respondent was in possession of the property at any stage. Applicant also denied that a security guard was ever stationed at the property. In any case, respondent failed to produce a supporting affidavit from the alleged security guard.  Further, as was clear in the letter from Mnaba’s lawyers, Mnaba did not have possession of the property after the judgment of mathonsi j. It follows that he could not have surrendered possession that he himself did not have. In any case, a fraud could not beget any lawful consequences. The appointment of Mnaba as a director of applicant had been nullified by the court.

Applicant insisted that respondent resorted to self-help. It claims respondent moved onto the property with haste after discovering that applicant intended to dispose of the property. It defied logic to suggest that after having obtained an order for the eviction of Mnaba, the same applicant would still leave him in possession and allow him to sell the property to third parties. The applicant would not have allowed its property to be sold for a song. The purchase price allegedly paid by respondent pursuant to the illegal transaction was ridiculously low. That explains why applicant went out of its way to have a caveat placed on the property.

RESPONDENT’S SUPPLEMENTARY OPPOSING AFFIDAVIT

The supplementary affidavit was detailed. It dealt with the entire answering affidavit, even though respondent had been directed to confine itself to new matters raised in the answering affidavit. Machaka denied deposing to falsehoods. He was not a party to the proceedings that gave birth to the judgment by mathonsi j. He only got to know of the judgment through the application for spoliation. He was never furnished with the judgment at the time he transacted with what he called “Applicant’s purported representatives”. Machaka claims that at the time he transacted with applicant, there was nothing at the companies’ registry to suggest that the Form No. C.R.14 was irregular. The form showed Muzavazi and Mnaba as applicant’s directors. He never dealt with Mnaba, but Muzavazi. There was nothing to suggest that Muzavazi was aware of the judgment. Respondent was not disputing the validity of the mathonsi j judgment. Its only gripe was that it was not a party to that judgment.

Respondent insisted that the September 2018 agreement was valid. It was novated by the March 2019 agreement following further negotiations. In any case, the dispute at this stage was not so much about the validity of the Form No. C.R.14, in terms of which applicant’s rights were passed to the respondent by the supposedly incapacitated directors. The issue was about possession. Respondent claims that “we took possession back then (not effective occupation)”. Respondent dismissed applicant’s claim that it received information concerning respondent’s alleged acts of spoliation from neighbours. The alleged neighbours were not named. Neither did they depose to supporting affidavits. The alleged neighbours must have been aware of respondent’s occupation since February 2021.

Respondent submitted that the Supreme Court appeal by Mnaba suspended the judgment appealed against. The appeal was only deemed abandoned on 17 September 2019. Applicant could not have taken possession in November 2018. The appeal was still alive. If at all applicant took possession before September 2019, then it showed it had no respect for the law. Respondent dismissed the story of the alleged renovations as an attempt to mislead the court. The attached annexures were irrelevant. They did not prove possession. Respondent itself made payments to the City of Harare for purposes of obtaining a rates clearance certificate. The communication by Mnaba’s lawyers to the applicant’s lawyers was also of no consequence. It did not confirm possession. The lawyers only queried some unspecified renovations. Mnaba’s lawyers were not the respondent’s lawyers.

Concerning the alleged false declaration to ZIMRA, Machaka denied that it was made with an intention to mislead. What was submitted to ZIMRA was an agreement of sale. Declarations were only required at the Deeds Registry. The agreement of sale properly described the property as consisting of a double storey commercial building. The alleged intention to mislead was therefore farfetched. Respondent also denied that the September 2018 agreement was a fabrication. Although the parties signed it in September 2018, they eventually settled for the one signed in March 2019. It was not uncommon for negotiations to take long. It was also not uncommon for signed agreements to be overturned after parties agreed on new terms. Respondent claims this is what happened in casu.

THE SUBMISSIONS

At the commencement of oral submissions, Mr Kwirira abandoned the preliminary points raised in the notice of opposition. Counsel proceeded to address the court on the merits.

Mr Nyamakura submitted that two issues arose for determination. These are whether applicant was in peaceful and undisturbed possession of the property, and whether respondent committed an act of spoliation. Counsel submitted that the prevarication exhibited by Machaka in his affidavits showed that he was a crafty and an unreliable litigant. In the main opposing affidavit respondent claimed it was in peaceful and undisturbed possession of the property since March 2019. In the supplementary affidavit it claimed to have taken possession back in March 2019, although such possession was “not effective occupation”. Nowhere in both affidavits did respondent boldly state the date it took occupation. The averment that respondent took possession in March 2019 did not sit well with the facts and reason.

Mr Nyamakura further submitted that the declaration to ZIMRA further showed how duplicitous Machaka was. The declaration was an official communication, yet no attempt was made to regularize the misdescription of the property if at all his explanation was to be believed. The document had to be taken for what it was. It was a misrepresentation.

The fact that applicant continued to pay for obligatory service charges to the City of Harare was consistent with occupation and possession. The risk and profit clause of the alleged September 2019 agreement provided that payment of rates, insurance premiums and other outgoings would pass to the purchaser on date of occupation. It would be illogical for the applicant to continue paying for these outgoings if respondent was already in occupation.

Mr Nyamakura urged the court to draw adverse inferences from the respondent’s evidence in resolving factual disputes respondent attempted to raise. He referred to the case of Truth Verification Testing Centre v PSE Truth Detection CC & Others. For instance, it was common cause that the alleged agreement of sale between respondent and applicant was consummated at a time applicant was being represented by persons whose directorship was nullified by this court. These were the same people that respondent claimed gave it physical possession in March 2019. And this occurred a few weeks after Mnaba’s lawyers complained about renovations being carried out on the property by the applicant.

Mr Nyamakura pointed out that it was important to note that the conveyancer, Maseko Law Chambers undertook to withdraw the transfer papers from the Deeds Registry after the judgment by mathonsi j was brought to the conveyancer’s attention. Mr Nyamakura submitted that: the fact that Maseko Law Chambers withdrew the transfer papers on the strength of a letter from applicant’s lawyers; a complaint was raised by Mnaba’s lawyers about the ongoing renovations; the fact that applicant continued to pay rates in connection with the property, all pointed to possession by applicant. That respondent sought to argue that it also paid rates in connection with the property did not advance its cause any further. The alleged tax invoices and receipts attached to its papers were all in applicant’s name and not that of the respondent. There was nothing to show that the payments were made at the instance of the respondent.

To further illustrate respondent’s cunningness, Mr Nyamakura pointed to the respondent’s failure to attach any supporting document from Leafy Properties to confirm respondent’s possession of the keys to the property. That would have been the easiest thing to do. There was also no supporting affidavit from Muzawazi who supposedly facilitated respondent’s occupation. That made respondent’s defence highly improbable and unbelievable. The only evidence connecting the respondent to the property were the letters of 23 March 2021 from Mawere Sibanda, and one from respondent’s lawyers to Faramatsi. Still the letters did not at once mention that respondent was in possession of the property.

In response Mr Kwirira submitted that the onus lay on the applicant to prove that spoliation occurred. In its heads of argument, respondent cited the cases of Kama Construction (Private) Limited v Cold Comfort Co-op & Others and Chisveto v Minister of Local Government & Town Planning and Alois Chimeri v Nhlanhla Nguluve, to illustrate the requirements for spoliation and the question of onus. Mr Kwirira further submitted that it was not for respondent to satisfy any of those requirements. It was therefore wrong for applicant to shift onus to the respondent to prove the date of possession and occupation. The respondent’s position was that applicant was not in peaceful and undisturbed possession. The alleged dispossession was not unlawful. Respondent was only required to explain defences available to it which is what it had done. It had successfully discharged the onus to show that it took possession lawfully.

Mr Kwirira further submitted that the applicant failed to prove that it was in physical possession of the property. It failed to prove that it was dispossessed and if that happened, who dispossessed it. According to Mr Kwirira, applicant’s evidence did not link the respondent to any act of spoliation. Instead, the evidence was all skewed towards a claim of right and the implications of the mathonsi j judgment. Counsel for the respondent further submitted that the issue of the legality of possession did not arise. Mnaba who is alleged to have been at the centre of the directors’ dispute was not before the court. The applicant was trying to cajole the court into dealing with issues that did not concern it at this stage.

Mr Kwirira argued that the communication between applicant’s lawyers and Munangati & Associates happened before the consummation of the agreement of sale between applicant and respondent. Respondent did not claim that it was in possession at the time those letters were written. The letters did not prove that applicant was in possession at the material time.

Mr Kwirira submitted that the September 2018 agreement between applicant and respondent was not fraudulent. Instead, it was novated by the March 2019 agreement. Mr Kwirira also argued that the thrust of the applicant’s argument was not so much on spoliation, but the legality of the respondent’s possession. That explains why applicant dwelt so much on the judgment by mathonsi j. He further argued that applicant ought to have pursued a rei vindicatio claim and not spoliatory relief. In conclusion, he submitted that the application was fatally defective. It merited dismissal with costs on the higher scale.

In reply Mr Nyamakura submitted that the respondent had misconstrued the question of onus in applications of this nature. The approach was simple. He who made an averment bore the onus to prove the veracity of whatever they averred. It did not matter whether it was the applicant or the respondent. Counsel referred to the authority of Nyahondo v Hokonya & Others. Counsel further submitted that at law a party could not surrender that which they did not possess. The letter from Munangati & Associates proved that Mnaba was not in possession of the property. He could not pass vacant possession to the respondent when he had no such possession. On its part, applicant was unequivocal about its possession of the property following the MATHONSI J judgment.

As regards the September 2018 and the March 2019 agreements of sale, Mr Nyamakura submitted that the court ought to be guided by the parole evidence rule. It was not clear on which of the two agreements respondent based its rights on. The March 2021 agreement did not speak of novation. The respondent could not rely on both agreements.

On the issue of costs, Mr Nyamakura submitted that the prayer for the dismissal of the application with costs on the higher scale was not justified. The prayer was based on the false assumption that the applicant had failed to prove spoliation, when in fact it was the respondent that had failed to prove when it acquired possession and occupation.

THE LAW

The law on spoliation is a well traversed path. In Nino Bonino v De Lange, Innes CJ explained the principle underlying the mandament van spolie as follows:

“It is a fundamental principle that no man is allowed to take the law into his own hands; no one is permitted to dispossess another forcibly or wrongfully and against his consent of the possession of property, whether movable or immovable. If he does so, the Court will summarily restore the status quo ante, and will do that as a preliminary to any inquiry or investigation into the merits of the dispute.”

In Botha & Anor v Barrett, GUBBAY CJ set out the requirements for spoliatory relief as follows:

“It is clear law that in order to obtain a spoliation order two allegations must be made and proved. These are:

(a) That the applicant was in peaceful and undisturbed possession of the property; and

(b) That the respondent deprived him of the possession forcibly or wrongfully against his consent…..”

Applicant bears the onus to prove the alleged spoliation. It must show on a balance of probabilities that it had peaceful and undisturbed possession, and that it was despoiled. The spoliatory relief serves as a tool for promoting the rule of law and a disincentive against self-help. The defences available to a claim for spoliatory relief are: denial; impossibility of restoration and counter spoliation.A respondent bears the onus to prove any defence that it raises.

THE ANALYSIS

Whether applicant was in peaceful and undisturbed possession.

This dispute is only but one in a series of legal contests involving the applicant and the property at the centre of the dispute. This court is alive to the need to avoid getting entangled in other issues that still stand out for determination, in resolving this spoliation dispute. Applicant contends that it took possession of the property in December 2018, following the judgment by mathonsi j. The property was allegedly left abandoned by Mnaba. The judgment by mathonsi j ordered the eviction of Mnaba and all those claiming occupation through him. It also ordered the cancellation of the Form No. C.R.14 that made Mnaba and Muzavazi directors of applicant. In reply to the averment that applicant took possession of the property in December 2018, Machaka’s response was a terse “I do not believe this is true. I was personally handed the keys in March 2019 as aforestated”.

In the court’s view, this kind of response constitutes a bald and hollow denial of the averment confronting the respondent. It even sounds preposterous especially when the same party claims that he was handed the keys to the property in March 2019. How can he then positively comment on events that occurred in December 2018? The person who was closer to the events at the material time was Mnaba. His appeal against the mathonsi j judgment was filed with the Supreme Court in November 2018. Respondent did not see it necessary to get him to comment on this important issue post the mathonsi j judgment.

Perhaps it was out of a realization that Mnaba’s affidavit would have all but thrown a spanner in the works. For on 25 February 2019, Mnaba’s lawyers wrote to the applicant’s lawyers complaining about ongoing renovations at the property. In their response, the applicant’s lawyers were unperturbed. Mnaba could not question what applicant was doing at the property when its occupation and ownership was not subject to appeal. In the court’s view, Mnaba’s lawyers would not have complained to the applicant’s lawyers if such renovations were not taking place. That complaint could only have been instigated by Mnaba. The only reasonable inference this court can draw from the communication between applicant’s lawyers and Mnaba’s lawyers, is that such renovations were being done by someone exercising rights of possession. The applicant’s lawyers did not deny that such renovations were being carried out. Instead, they dared Mnaba’s lawyers by questioning his competency to raise such a complaint.

In his submissions, Mr Kwirira argued that applicant could not have taken occupation in December 2018 since Mnaba’s appeal was still pending at the Supreme Court. That would mean that applicant took the law into its own hands. That submission does not take the respondent’s case any further.  In their letter of 25 February 2019 to the applicant’s lawyers, Mnaba’s lawyers did not raise any issue with applicant’s possession of the property. Their complaint was about renovations being carried out when an appeal was still pending. The manner in which applicant took possession at that stage does not warrant consideration by this court at this stage. The person with the capacity to raise that complaint seemed unbothered about possession. In short, it seems the applicant’s re-possession of the property was not an issue at all at that stage.

The manner in which applicant sought to assert its rights in the property post the mathonsi j judgment is worth mentioning. On 3 October 2019, applicant’s lawyers wrote to the Registrar of Deeds to inform that office of developments relating to the property. To the letter was attached a copy of the judgment by mathonsi j, the latest Form No. C.R.14 and a letter from the Registrar of the Supreme Court advising of the abandonment of Mnaba’s appeal. On 4 October 2019, applicant’s lawyers wrote to Maseko Law Chambers threatening legal action after it emerged that the law firm had been instructed to transfer the property to the respondent by Muzavazi. Maseko Law Chambers expressed shock after having learnt of the past history of the property. They undertook to withdraw the transfer documents from the Deeds Registry. On a balance of probabilities, the court finds applicant’s conduct consistent with a party in possession.

Mr Kwirira argued that on the strength of the dictum by tsanga j in Chimeri v Nguluve & Ors, applicant had failed to prove actual physical control of the property. I am not persuaded by that submission. According to Amler’s Precedents of Pleadings:

“Possession is not possession in the strict juridical sense. It suffices if the holding was with the intention of securing some benefit for the plaintiff. The causa of the plaintiff’s possession is irrelevant; it is also irrelevant whether the defendant has a stronger right or claim to possession. Physical possession, not the right to possession, is protected”.

On the evidence placed before the court, I am satisfied that following the delivery of the mathonsi j judgment, applicant took possession of the property. It had access to the property which enabled it to carry out renovations that Mnaba’s lawyers complained about. Having access to carry out renovations meant that it had the keys to that property. That, in the court’s view, is consistent with physical possession.

This evidence was not disputed by respondent which only claims to have come into the picture in March 2019. The people who could assertively rebut that evidence were Mnaba and Muzavazi. They are the people whose directorship in applicant was impeached in the judgment by mathonsi j. In his own words, Machaka even admits to have verified the directorship of the applicant with the Registrar of Companies. He established that Mnaba and Muzavazi were the directors. How he then failed to get the two to depose to supporting affidavits in order to help clarify the circumstances surrounding respondent’s occupation and possession of the property is somewhat bizarre. Such conduct smacks of dishonesty. Equally alarming is the failure by the respondent to get the security guard on the ground to depose to a supporting affidavit confirming respondent’s possession. Based on the evidence submitted by the parties, the court is satisfied that applicant was in peaceful and undisturbed possession of the property since December 2018.

Whether applicant was deprived of possession forcibly or wrongfully against its consent.

Applicant claims that it was on 22 March 2021 that it discovered that the property had been broken into. The locks and keys had been changed. Respondent does not deny that it took possession of the property. What it denies is that it took possession unlawfully. At the time it claims to have taken possession in March 2019, it asserts that “the applicant was not even in possession”. Respondent further claims that there was no incident at all when it took possession. The question that begs an answer is who then was in possession before respondent allegedly acquired possession?

In my view, the answer is found in the evidence before the court. In its founding affidavit, respondent claims that it was given keys to the property by an agent of Leafy Properties. There is no supporting correspondence or affidavit from Leafy Properties to confirm that the agency handled the transaction between the parties. That is certainly anomalous considering the very nature of the transaction. In Stocks Housing (Cape) (Pty) Ltd v Chief Executive Director, Department of Education and Culture Services and Others, the court said:

“That the element of unlawfulness of the dispossession which must be shown in order to claim a spoliation order relates to the manner in which the dispossession took place, not to the alleged title or right of the spoliator to claim possession.  The cardinal inquiry is whether the person in possession was deprived thereof without his acquiescence and consent. Spoliation may take place in numerous unlawful ways.  It may be unlawful because it was by force, or by threat of force, or by stealth, deceit or theft, but in all cases spoliation is unlawful when the dispossession is without the consent of the person deprived of possession, since consent to the giving up of possession of property, if the consent is genuinely and freely given, negates the unlawfulness of the dispossession……” (Underlining for emphasis)

In its heads of argument, respondent’s claims that when it took possession, it followed due legal process. Whether that due legal process was a legal nullity was not an issue at this stage.  As already stated, the court is satisfied on the evidence that applicant was in peaceful and undisturbed possession of the property. I agree with Mr Nyamakura that respondent bore the onus to prove that its conduct did not amount to an act of spoliation.

This court notes that as late as 19 March 2021, respondent wrote to the Stanbic Bank’s lawyers, Mawere Sibanda expressing its disquiet at the challenges it was facing in pursuing the transfer of the property. It had even instituted proceedings against the applicant in this regard.The letter does not talk about respondent having possession. Coincidentally, that letter was written during the same period the spoliation is alleged to have occurred. When the deponent to applicant’s affidavit visited the premises on 22 March 2021, he found that the locks and keys had been changed. Meanwhile, respondent claims to have taken possession not from applicant, but from an employee of Leafy Properties. Nothing was placed before the court linking Leafy Properties to the property. The identity of that employee was not revealed. It is difficult for this court to accept the respondent’s version of events, other than conclude that the alleged possession was acquired through self-help. This court finds the applicant’s version highly probable.

Mr Kwirira argued that the applicant ought to have made a police report of unlawful entry into premises. Evidence of a police report would have come in handy, so the argument went. I do not find that argument persuasive. A police report is not a sine qua non for spoliatory relief. Spoliation occurs where an applicant is deprived of possession and control of the property through the conduct of the respondent. In Nino Bonino v de Lange the Court held that violence or even fraud is not an essential element in proving spoliation. Any wrongful deprivation, including by force or by stealth suffices.The court is satisfied on a balance of probabilities that respondent deprived applicant of its possession wrongfully.

In the Top Assist 24 (Pty) Limited T/A Form Work Construction v Cremer and Another matter, the court further stated:

“[38]	When an applicant seeks a spoliation order it is not sufficient for him to make out merely a prima facie case for the order: he must ‘prove the facts necessary to justify a final order – that is, that the things alleged to have been spoliated were in his possession, and that they were removed from his possession forcibly or wrongfully or against his consent.’

[39] Furthermore, when the proceeding are on affidavit the applicant must satisfy the Court on the admitted or undisputed facts, by the same balance of probabilities required in every civil suit, of the facts necessary for his success in the application.  The onus of proving the two requisites for the order is on the applicant (or plaintiff).  If he fails to discharge such onus, the parties will be left to their remedy by way of action, and a fortiori where the evidence supports the respondent.” (Underlining for emphasis).

This court is satisfied that on a balance of probabilities that applicant has managed to establish the requirements for a spoliatory relief justifying the granting of the order it seeks. It has proved facts necessary to justify the granting of a final order.

COSTS

Applicant sought an order of costs on the attorney and client scale. In exercising its discretion on the scale at which costs must be awarded, the court takes into account the nature of the case and the manner in which litigation was conducted, amongst other factors. An award of costs on the higher scale is not lightly granted by the court and the tendency is to do so sparingly. I have not been persuaded to find that the circumstances of this case warrant an order of costs at that level. Counsel for the applicant did not pursue the issue with much exuberance.

DISPOSITION

Accordingly it is ordered that:

The application for an order restoring the applicant to possession of number 750 Gaydon Road, Greystone Park, Harare succeeds.

The respondents and all those claiming occupation through it, are ordered to immediately vacate the premises at number 750 Gaydon Road, Greystone Park, Harare.

In the event that the respondents do not vacate the premises within twenty-four hours of this order, the sheriff of this court is hereby authorized to give effect to this order by evicting the respondents forthwith.

The respondent shall pay the costs of suit.

Mtetwa & Nyambirai, applicant’s legal practitioners

Magwaliba & Kwirira, respondent’s legal practitioners