Sharon Noktula Mapfumo v Caroline Meda and Elvis Mungofa and Registrar of Deeds

### Preamble
1
HH 482-13
HC 10193/13
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SHARON NOKTULA MAPFUMO

versus

CAROLINE MEDA

and

ELVIS MUNGOFA

and

REGISTRAR OF DEEDS

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE, 10 December 2013

Urgent Chamber Application

Ms R. Makamure, for the applicant

A.M. Mvuu, for the first respondent

Second and third respondents in default

MATHONSI J: The applicant has approached this court on an urgent basis seeking interim relief interdicting the respondents from disposing of, transferring or selling house number 67 – 12th Crescent, Warren Park 1, Harare, a property which she occupies.  She would also want the respondents to be interdicted from evicting her from the said property until such time that her appeal (CIV A217/08) against a decision of the magistrate court dividing that property between herself and her former customary husband, the second respondent, has been determined and her suits in HC 10803/12 and  HC 10043/13 have been determined.

The applicant was customarily married to the second respondent and that relationship expired some years ago.  The magistrates court purported  to divide their property at a ratio of 65 percent to second respondent and 35 percent to the applicant in 2008, a decision which the applicant contested by way of an appeal, a notice of which was filed on 6 June 2008.  However, that appeal is no longer pending, it having been disposed of by a consent order of 3 September 2012.  Following that consent order, the second respondent instituted fresh proceedings in this court in HC 10803/12 and the applicant counter claimed, which action ended with an order issued on 21 May 2013 in terms of which the applicant’s defence was struck out and her counter claim dismissed with the second respondent withdrawing his claim.

An application which the applicant instituted in HC 7282/13 for rescission of that judgment was withdrawn on 26 November 2013.  Clearly therefore other than the application for rescission of judgment filed on 22 November 2013 in respect of a default judgment entered on 19 November 2013 in HC 7564/11  which discharged a provisional order the applicant had obtained on 5 August 2011 but failed to prosecute, there is no other litigation that is pending.

The applicant says she became aware that the house had been transferred into the first respondent’s name on 2 August 2011, well over 2 years ago.  At that time she says she also became aware that an eviction order had also been obtained against her by the first respondent.  See para 7(h) of her founding affidavit, p 15 of the application.

To her credit, she approached this court and obtained a provisional order staying eviction on 5 August 2011, pending determination of her appeal, an appeal which has since been disposed of by consent.  Having failed to prosecute her application in HC 7564/11 and protect that provisional order, the applicant cannot, seriously return to this court exactly 2 years 4 months later on the same facts and expect to be heard urgently.  There is absolutely no way this matter can be said to be urgent.  It fails that test completely.  Having come to that conclusion, I find it unnecessary to determine all the preliminary points taken on behalf of the first respondent.

However, I have taken a peep into the merits of the application, as I am entitled to do, in order to determine the question of costs.  I take judicial notice of the fact that the applicant has gone about her activities in this long drawn dispute in a very shoddy manner.  She has misled the court in her application alleging the existence of an appeal and matters which have already been disposed of.  Under normal circumstances, she would have to bear the costs of suit on the punitive scale, as a seal of the court’s approval of her actions especially as this application should not have been made at all.  I will however, be lenient to her because she was a self actor when she commenced these proceedings and her present counsel has not persisted in an otherwise hopeless case.  In the result, it is ordered that:-

This matter is not urgent and if the applicant still wants to pursue it she must do so by ordinary application.

The applicant shall bear the first respondent’s costs on an ordinary scale.

Kantor & Immerman, applicant’s legal practitioners

Gunje and Chasakara, 1st respondent’s legal practitioners