Tinashe Mutarisi V United Family International Church AND Chitungwiza Municipality

### Preamble
1
HH
445-2012
---------


TINASHE MUTARISI

versus

UNITED FAMILY INTERNATIONAL CHURCH

and

CHITUNGWIZA MUNICIPALITY

HIGH COURT OF ZIMBABWE

ZHOU J

HARARE, 13 & 22 November 2012

URGENT CHAMBER APPLICATION

Ms O. T. Sanyika for the applicant

T. Goverefor the first respondent

Conrad Muchesa ( Director of Urban Planning Services), for the 1st defendant

ZHOU J:  This is an urgent chamber application for an interdict restraining the first respondent from encroaching onto the applicant’s immovable properties described as Stands 19774 and 19775 Town Centre, Seke South, Chitungwiza. The application is opposed by both the first and second respondents.  The second respondent only filed its opposing papers after I had asked that it places the correct facts on record given that the evidence tendered by both the applicant and first respondent suggested that the dispute had arisen as a result of the conduct of the second defendant in relation to those two parties. The background to the dispute is as follows:-

The applicant acquired by way of cession rights in immovable properties described as Stand 19774 Town Centre, Seke South, Chitungwiza and Stand 19775 Town Centre, Seke South, Chitungwiza. Rights in the said properties were ceded to the applicant by one Chenjerayi Tarcisius Madamombe who had acquired rights in the properties from the second respondent in terms of a deed of settlement entered into in Case Number HC 6575/10.  The cession of the rights was duly accepted by the respondent and recorded in writing.  Following the cession of rights the applicant and the second respondent entered into two lease agreements in respect of the two properties. The terms of the agreements are contained in two memoranda of agreement which contain identical terms except for the description of the stand numbers.  The lease agreements are for a period of two years commencing on the first day of September 2011. In terms of the agreements the applicant is obliged to construct buildings in accordance with plans and specifications approved in writing by the second respondent’s town engineer.  Clause 19 of the agreements provides that in the event that the lessee completes the buildings on any of the properties leased during the period of the lease or any extension of that period granted by the second respondent, then he shall have the option of purchasing the property let at a price to be determined by the lessor. Clause 17 of the agreements provides that notwithstanding the provisions of Clause 19 the applicant may be permitted to purchase the properties let and to receive title thereto before completion of the buildings required in Clause 3, if he satisfies the requirements set out under paragraphs (a) to (d) of Clause 17. In other words, the applicant is entitled to purchase the leased properties subject to the conditions set out in the agreements.

On 27 October 2012 the applicant noticed that construction workers employed by the first respondent were clearing his land without his authority. He had until then assumed that the first respondent was the holder of rights over an adjoining property. When he discovered the interference with the properties belonging to him, the applicant made enquiries with representatives of the first respondent. Upon getting no assistance he approached the second respondent’s employees who advised him that the first respondent had purchased a piece of land which included the two properties which are the subject of the lease agreements referred to above. On 01 November 2012 the applicant instituted the instant urgent chamber application seeking an interdict to restrain the first respondent from encroaching onto the property subject to his lease agreement with the second respondent. The first respondent opposed the application. The first ground of opposition is an objection in limine to the application on the ground that the matter is not urgent. In support of its objection the first respondent contends that it has been building on the piece of land for over two years. On the merits, the first respondent states that it has purchased the property, including the two properties belonging to the applicant. The first respondent questions the agreements between the applicant and the second respondent which it describes as “dubious”.

The matter was initially set down for argument on 6 November, 2012. It was postponed to 8 November 2012 at the request of the first respondent’s legal practitioners who asked for time to file opposing papers. On 8 of November 2012 the matter was again postponed to give the applicant’s legal practitioners the opportunity to read the first respondent’s opposing papers which had been filed on that day, and to file an answering affidavit. On that date I asked Mr Govere who represented the first respondent to notify the second respondent that the Court was giving it an opportunity to place its position on the matter before the Court. I made that suggestion after preliminary discussion on the matter suggested that the second respondent had alienated the disputed land in favour of the applicant and the first respondent. At the resumption of the matter on 13 November 2012 the second respondent filed an opposing affidavit deposed to by one Conrad Muchesa, its Director of Urban Planning Services. Muchesa also represented the second respondent at the hearing.  No legal practitioner was in attendance for the second respondent.  In the opposing affidavit the second respondent argued that the land allocated to the applicant was “fictitious” and “non-existent”. It contended that a verification exercise undertaken had shown that the properties in question did not exist. The second respondent also incorporated the averments which were made on its behalf in Case No. HC 4868/12, in which it seeks to set aside the deed of settlement entered into in HC 6575/10, which has already been referred to above.  I will address these issues in due course. I need mention, though, that in his submissions Condrad Muchesa admitted the agreements with the applicant and that the agreements have not been cancelled.

The first issue to be determined is whether the matter should be dealt with on an urgent basis.  A chamber application is urgent where it “cannot wait to be resolved through a court application”. See Dilwin Investments (Pvt) Ltd t/a Formscaff v Joppa Engineering Company (Pvt) Ltd HH 116-98 at p. 1;  Kuvarega v Registrar General & another 1998 (1) ZLR 188(H);  Document Support Centre v Mapuvire 2006 (2) ZLR 232(H).  The urgency may arise where, if the matter is not determined urgently, there is a risk of irreparable harm to an applicant or there is a risk of perverse conduct on the part of the respondent or its agents which would defeat or render hollow any order which may subsequently be obtained by the applicant in connection with the dispute. The Court must be satisfied that if the matter is not heard urgently substantial injustice would result to the applicant. Pickering v Zimbabwe Newspapers (1980) Ltd 1991 (1) ZLR 71(H) at 93E.

The first respondent’s contention is that the matter is not urgent because it has been building on the land for over two years. But the urgency arises from encroachment onto the property which is the subject of the applicant’s rights, a fact which only arose when the applicant noticed the interference on 27 October 2012. The applicant has stated that he knew that the first respondent was building on an adjacent piece of land, and did not realise that it was also claiming the land belonging to him. The first respondent has not denied the encroachment. Neither has it undertaken not to proceed with any developments on the disputed land pending resolution of the dispute relating to the properties. If anything, Mr Govere who represented the first respondent brazenly insisted that the land belongs to the first respondent and that it will not stop any developments on it. Thus, if the matter was to proceed as an ordinary court application and the first respondent continues with whatever developments it contemplates on the property the ultimate relief would be rendered hollow if the applicant succeeds.  As will be shown below, the transaction between the two respondents bears all the hallmarks of a questionable deal which may have been concluded to frustrate any claim by the applicant to the property.  For the above reasons, I hold that the matter is urgent.

As regards the merits of the matter, what is being sought is an interim or temporary interdict pending the return date on which there will be a full enquiry into the issue of title to the property in dispute.  The requirements for such an interdict are settled.  These are:

That the right which is the subject matter of the main action and which applicant seeks to protect by means of interim relief is clear or, if not clear, is prima facie established, though open to some doubt;

That, if the right is only prima facie established, there is a well-grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and he ultimately succeeds in establishing his right;

The balance of convenience favours the granting of interim relief;  and

That the applicant has no other satisfactory remedy.

See Econet (Pvt) Ltd v Minister of Information, Posts & Telecommunications Corporation 1997 (1) ZLR 342(H) at 345B; Watson v Gilson Enterprises & others 1997 (2) ZLR 318(H) at 331D-E; Nyika Investments (Pvt) Ltd v ZIMASCO Holdings (Pvt) Ltd & others 2001 (1) ZLR 212(H) at 213G-214B.

Where a clear right is established an applicant for an interim interdict need not show that he or she will suffer irreparable harm if the interdict is not granted.  The applicant merely has to show that an injury has been committed or that there is a reasonable apprehension that an injury will be committed.  See Nyika Investments (Pvt) Ltd v ZIMASCO Holdings (Pvt) Ltd (supra) at 214B-D.

The words “clear” and “prima facie” in the context of interdicts relate to the degree of proof required to establish the right alleged. Whether or not an applicant has a right is a matter of substantive law; whether that right is clearly or only prima facie established is a question of evidence. See C. B. Prest, Interlocutory Interdicts, p. 47; Erasmus, Superior Court Practice p. E8-6A.  In the instant case the applicant’s right to the two properties was admitted by the second respondent’s representative, Conrad Muchesa, albeit in his affidavit he states something different. In any event, the two copies of the memorandum of agreements entered into between the applicant and the second respondent show that the applicant has rights arising out of those agreements. Thus, the applicants have clearly established their rights over the properties in dispute.  In any case, even if the right is not clearly established, it is at least prima facie established by the documents referred to above.

The first respondent has repeatedly referred to the applicant’s agreements as dubious.  There is nothing on the papers to suggest any wrongdoing on the part of the applicant.  On the other hand, the facts suggest collusion between the first and second respondent to defeat the applicant’s claims.  In its opposing affidavit the first respondent states that it has been building on the land in question for more than two years.  The first respondent does not explain the basis upon which it has been building on the land in question for over two years.  The documents annexed to the first respondent’s opposing affidavit tell a different story. The minutes which it relies upon as proof of the authority to build on the land relate to a meeting of 8 October, 2012. The agreement of sale in terms of which the first respondent alleges it acquired rights in the property was signed on 30 October 2012, some two days before the instant application was filed. The copy of the electronic money transfer form attached to the opposing papers shows that payment of what is stated as the purchase price in the sum of US$730 000.00 was made on 2 November 2012, a day after the urgent application was filed.  The further evidence of collusion between the two respondents is revealed by the submissions which were made by Conrad Muchesa for the second respondent. He stated that it was not possible for the applicant to be given leases in respect of the two properties as they were on land meant for recreation, a stadium and an “open space”. He stated that before any such lease could be concluded there should be an application for change of use which should be approved by the responsible authorities in accordance with the law. However, when he was asked to explain if there had been an application for or approval of the change of use before the property was sold to the first respondent he readily admitted that no such approval had been applied for or granted. Also, Muchesa stated that the first respondent had been granted permission to construct its structures on Stand Number 19722, but had gone on to construct on Stand Number 19770. The second respondent condoned that conduct on the part of the first respondent. No explanation is given other than, is it appears, that the first respondent was prepared to pay a sum of US$730 000.  It is not clear what reliance is being placed upon Case No. HC 4868/12 in which the second respondent is seeking to set aside the deed of settlement it concluded with Chenjerai Tarcisius Madamombe. The applicant is not cited in those proceedings. Further, the second respondent knows that it now has an agreement of leasein respect of the disputed properties with the applicant and not with Madamombe.

The first respondent advanced the mistaken argument that its agreement of sale created real rights which, so goes the argument, “supercedes an agreement of lease”.  It is trite that an ordinary agreement of sale merely creates personal rights as between the seller and the purchaser.  The first respondent has no real rights over the property by the mere fact of having paid the purchase price.

The respondent has a well-grounded apprehension of irreparable prejudice if the interim relief is not granted.  The first respondent has already indicated that it will not stop its developments on the property.  Also, the second respondent through its representative indicated that it would like to give the applicant alternative land, but that it presently has no land available for such an alternative arrangement.

In considering whether the balance of convenience favours the granting of or refusal to grant interim relief the Court weighs the prejudice to the applicant if the interim interdict is refused against the prejudice to the respondent if it is granted.  Knox D’Arcy Ltd v Jamieson 1996 (4) SA 348(A) at 361D-F;  Cambridge Plan AG v Moor 1987 (4) SA 821(D) at 847H-848G. In casu the respondents suffer no irreparable prejudice if the temporary interdict is granted. On the other hand if the interdict is not granted and the first respondent erects structures on the disputed land which, going by previous events, the second respondent will approve, the applicant would have no remedy to reverse such a state of affairs. The applicant intended to develop the properties which are the subject of the lease agreement with the second respondent but was notified that all developments were to be held in abeyance pending some investigations. It will not be able to build such structures if the first respondent is permitted to undertake its own developments on the properties.

The Court has a general discretion to grant or reject a request for an interdict even in circumstances where the applicant has established the requirements for interim relief discussed above.  See Francis v Roberts 1972 (2) RLR 238(A) at 248F; Watson v Gilson (supra) at 331E;  Hix Networking Technologies v System Publishers (Pvt) Ltd 1997 (1) SA 391(C ) at 399A.  The discretion must, of course, be exercised judicially having regard to all the facts and circumstances of the case.  Olympic Passenger Service (Pvt) Ltd v Ramlagan 1957 (2) SA 382(D) at 383E;  Grundling v Beyers 1967 (2) SA 131(W) at 155C.  Taking into account that there is no alternative satisfactory remedy available to the applicant, the balance of convenience, and the fact that the first respondent has evinced an intention not to halt its developments on the property, it is appropriate that an interim interdict be granted. I have considered, too, the submissions by Conrad Muchesa, that presently the second respondent has no alternative land which it would give to the applicant if he completely loses the properties in dispute.

The applicant filed an amended draft provisional order to substitute the one filed with the urgent chamber application.  However, the amended draft order is not elegantly drafted as well, and does not show that the legal practitioner who drafted it applied her mind to its contents.  Litigants are reminded that while the draft order is only a draft and does not bind the Court, it must be based on the case pleaded. It is not a mere formality for applicants to file draft orders in application proceedings. The draft order must properly assist the court as to the relief being sought by an applicant. In this case the relief being sought in the first paragraph of the terms of the final order sought is the same as that being sought under the interim relief.  The second relief being sought under the terms of the final order sought is that “the applicant be and is hereby declared (to be) the owner of Stands 19774 and 19775 Chitungwiza Town Centre, Seke South”.  Apart from the inconsistent descriptions of the properties in dispute, the applicant knows that his claim is based upon lease agreements.  Nowhere in the papers has he alleged, let alone proved, an entitlement to ownership.  The lack of attention to accuracy is also reflected in the notice of the chamber application where it is alleged that “the applicant is the legal and registered owner of a certain piece of land….”  I have accordingly amended the provisional order as shown below.

In the premises, relief is granted in favour of the applicant against the respondents in terms of the draft provisional order as amended to read as follows:

TERMS OF FINAL ORDER SOUGHT

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

That the agreement of sale between the first respondent and the second respondent be and is hereby set aside to the extent that it relates toor includes Stand Number 19774 Town Centre, Seke South, Chitungwiza and Stand Number 19775 Town Centre, Seke South, Chitungwiza.

The lease agreement between the applicant and second respondent in respect of Stand Number 19774 Town Centre, Seke South, Chitungwiza and Stand Number 19775 Town Centre, Seke South, Chitungwiza, be and is hereby declared to be legally binding unless it is set aside by an order of court.

The costs of this application shall be paid by the first and second respondents jointly and severally the one paying the other to be absolved.

INTERIM RELIEF GRANTED

Pending determination of this matter the applicant is granted the following relief:

The first respondent be and is hereby interdicted from carrying on any developments  which encroach on or otherwise interfere with the applicant’s rights in relation to Stand Number 19774 Town Centre, Seke South, Chitungwiza and Stand Number 19775 Town Centre, Seke South, Chitungwiza.

SERVICE OF PROVISIONAL ORDER

The applicant’s legal practitioners are hereby granted leave to serve a copy of this provisional order upon the respondents.

Matipano and Matimba, applicant’s legal practitioners

Govere Law Chambers, first respondent’s legal practitioners