Nyarai Chanakira v Balibantine Jivan and The Sheriff of Zimbabwe

### Preamble
1
HH 467 – 13
HC 10109/13
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NYARAI CHANAKIRA

versus

BALIBANTINE JIVAN

and

THE SHERIFF OF ZIMBABWE

HIGH COURT OF ZIMBABWE

TAGU J

HARARE, 28 and 29 November 2013

Urgent Chamber Application

Ms  L. Rufu, for the applicant

E. Jori, for the first respondent

No Appearance for the second respondent

TAGU J: Sometime in 2010 or thereabout applicant and first respondent entered into an oral lease agreement in terms of which first respondent leased a certain shop known as Bali Shoes No. 28, Angwa Street, Harare. Since then the applicant has been in undisturbed and peaceful possession, use and enjoyment of the said shop. The applicant avers that on Friday 22 November 2013, and in violation of the provisions of s 24 of the Commercial Premises (Rent) Regulations, 1983, the first respondent has unlawfully and wrongfully prevented the applicant from possessing, using or occupying the said shop. She claimed that first respondent’s conduct was unlawful and wrongful in that:-

“a) The 1st Respondent has prevented Applicant from using or occupying the said shop without her consent

b) 1st Respondent has not sought and obtained an order to eject Applicant from the said shop.

Owing to the lengthy period within which applications are dealt with, it is necessary that this Honourable Court intervenes by restoring the Applicant to her status quo ante.”

The applicant therefore seeks a provisional order in the following terms:

“ INTERIM ORDER GRANTED

That pending the determination of the matter, Applicants are granted the following interim relief,

1

1st Respondent be and is hereby ordered to forthwith restore to applicant her possession, use and occupation of a certain shop known as Bali Shoes, No. 28, Angwa Street, Harare so that her status quo ante is restored.

2

Should the 1st Respondent fail to comply with paragraph 1 above, (2nd) Respondent or his lawful Deputy, are hereby ordered to restore possession of the said shop to the Applicant.

3

1st Respondent pay costs of this application on an attorney and client scale.”

The terms of the final order are as follows:-

“ TERMS OF THE FINAL ORDER SOUGHT

That the Respondent show cause to this Honourable Court why a final order should not be made in the following terms:-

1

That the 1st Respondent be and is hereby interdicted from evicting the Applicant from Bali Shoes, Shop No. 28 Angwa Street, Harare without following due process.

2

The 1st Respondent shall pay costs of this application on an attorney and client scale.”

The first respondent through his legal practitioner does not dispute that this is a proper matter to be dealt with as an urgent chamber application. The urgency of the matter is therefore not in issue. However, the first respondent opposes the application.

From the submissions made by the first respondent which the applicant seems not to dispute the position for the past three years has always been that the applicant or her sales employee would collect keys from the first respondent or his representative every morning, open the shop in question and conduct business. At the end of the day they would lock the shop and return the keys to the first respondent.

However, the first respondent submitted among other things that upon close of business on 21 November 2013 the applicant’s sales person returned the keys to the first respondent in accordance with the established practice. On the morning of 22 November 2013 the applicant’s sales person came to take the keys from the first respondent. The first respondent then indicated that he wanted to talk to applicant over his stock that was in the said shop. A stock-take was later conducted by the first respondent’s representative and established that stock worth $15 362. 00 was missing. The applicant then admitted liability and making promises on how to pay back. She did not pay up to 25 November 2013. He submitted that the applicant was leading him on while putting up this application. He denied refusing with the keys. In his submission he stated clearly that he was not willing to release the keys to the applicant because he fears that if he does so the applicant may remove her stock and disappear making it difficult for him to recover his money.

The applicant on the other hand denied the issue of the missing stock and denied that she promised to pay back. What is therefore clear is that the first respondent though he is saying he is not refusing with the keys, and that applicant consensually surrendered the keys to first respondent as per practice, and that applicant did not come to collect the keys, he is not willing to release the said keys to applicant until and unless the applicant makes good the lose he is alleging. The applicant will therefore not have access to the shop as well as her goods worth more than $ 24 000.00 which are in the said shop. In short she cannot continue to trade until she satisfies the demands of the first respondent who has custody of the keys to the shop. It means she cannot enjoy the status quo that existed prior to the 22 November 2013. Cleary applicant’s peaceful, use and enjoyment of the said shop has been disturbed. The established practise that existed between applicant and first respondent over a period of three years prior to 22 November 2013 has to be restored pending the resolution of their dispute which must be done through due process of the law. I am therefore inclined to grant the interim relief sought.

The application for an interim relief sought is granted per draft order.

Dzimba Jaravaza & Associates, applicant’s legal practitioners

Wintertons, first respondent’s legal practitioners