Blessed John Huni v Willie Mukadziwash

### Preamble
1
HMA 43-19
HC 21/19
BLESSED JOHN HUNI
vs
WILLIE MUKADZIWASHA
HIGH COURT OF ZIMBABWE
WAMAMBO J.
MASVINGO, 2ND July & 2nd October, 2019
Opposed Application
---------


Respondent states that the fact applicant’s contention that he erected a fence on the position that Chief Gutu had adjudicated on has no support is not supported. This so respondent contends is a material dispute of fact. I beg to differ. There is support for the adjudication of the boundaries in Exhibit ‘G’ and “K’ and ‘L’. Exhibit ‘L’ is clearly not in the nature of an appeal. The complaint as reflected is that applicant requested for the boundaries between his stand and that of respondent to be demarcated. It is in my view an attempt at clarity and not an appeal of an earlier ruling.

Be that as it may this dispute is resolvable on the papers in favour of applicant.

Respondent avers that the averment by applicant that his parents have been living at the place in dispute since 1969 is not supported. Further that the issue of whether applicant is respondent’s neighbour is also a material dispute of fact.

In paragraph 7 of applicant’s founding affidavit he avers that his parents were settled at the stand in dispute and were later buried there. The respondent only deals with this issue in the points in limine. In his opposing affidavit respondent does not directly contradict the above averment. It is also quite strange that a stranger from say Chivi or Tsholotsho would spring up and start claiming land, under Chief Gutu. But that is only the starting point. Why would headman Chisvino entertain an application involving applicant whose address is reflected in Annexure ‘A’ as Mupandawana Village. Why was the issue that applicant was not even from Mupandawana Village not raised by respondent? Annexure ‘C’ Chief Gutu’s proceedings again reflect applicant’s address as Mupandawana Village. Would both the headman and Chief have been hoodwinked by applicant?

Annexure ‘G’ by a Magistrate reflects that boundaries were still in place. Did the Magistrate also blindly follow applicant’s averments?

Annexure ‘L’ also reflects Chief Gutu’s proceedings to demarcate applicant’s stand. Why would headman Chisvino according to Annexure ‘L’ support applicant’s position that he hails from Mupandawana and particularly at the stand at the centre of this matter.

The answer to the questions raised above and the probabilities on the papers are resolvable. Resolvable in the circumstances in applicant’s favour.

I have not been advised of any authority that a writ of execution can be used twice years apart on the same case.

I am not agreeable that the writ of execution of 2015 relating to the case heard by Chief Gutu in 2015 on 29 October 2015 can now be resurrected. Resurrected after being actioned already. Applicant also paid the costs of the execution.

It is clear to me that respondent is intent on punishing applicant. He has no ground to stand on in executing a writ of execution already actioned. He has no case to attach to the writ.

I see no reason or cogent ground at law why I should ignore the affidavit by Chief Gutu which clarifies a number of issues raised by respondent.

Even without the Chief’s Affidavit the papers clearly speak to an applicant who has satisfied the requirement of declarator in the circumstances. The boundaries were demarcated and confirmed. There is no encroachment by applicant on respondent’s land. The writ of execution cannot be used again in the circumstances as it has clearly been overtaken by events.

Respondent makes a number of claims against applicant which will not detain me much. The appearance of applicant’s son in some of the applications is understood against the backdrop of the applicant being out of the country most of the time.

The long and short of it is that the applicant has made out his case. The respondent in his opposing papers leaves out a lot of applicant’s averments unanswered. For instance, where applicant avers not only that Chief Gutu demarcated the boundaries of the applicant’s and respondent’s stands but that it was confirmed by a Magistrate, respondent “vehemently” denies it. He does not attack the specific averment made by applicant.

Section 14 of the High Court Act [Chapter 7:06] provides as follows:-

“14.	The High Court may determine future or contingent rights

The High Court may in its discretion at the instance of any interested person, inquire into and determine any existing, future or contingent right or obligation notwithstanding that such person cannot claim any relief consequential upon such determination.”

In Kudakwashe Nyashanu vs Netone Cellular (Pvt) Ltd. HH 11/19 at page 5 MATHONSI J (as he then was) said:-

“Returning to the issue of the circumstances under which this court will issue such orders these have also been long settled. The approach of the court involves of two stage enquiry. In the first stage the court enquires whether the applicant is an interest party in the sense that of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court. In the second stage of the inquiry the court has to decide notwithstanding the finding in the first stage that the applicant has a direct interest, whether or not the case in question is a proper case for the exercise of the court’s discretion under s 14.”

See Munn Publishing(Pvt) Ltd. v Zimbabwe Broadcasting Corporation 1994 (S) ZLR 337 (S) at pages 343 F – 344 A “Johnson v Agricultural Finance Corp 1995 (1) ZLR 65 (H)”.

I am satisfied that applicant has demonstrated that he is an interested party and that he has a direct and substantial interest in the stand at the centre of this case. His parents resided there and were buried at the stand. He took over and is effecting developments at the stand. The conflicts between applicant and respondent are acrimonious. There is a lot of litigation that has been taking place over the years about basically the boundaries of applicant and respondent’s stand. The use of a writ of execution which was already actioned needs to be stopped. The wrangle needs to come to an end.

I note that respondent has not been very candid to the court. However, in the circumstances I find that the order of costs originally prayed for by applicant is applicable. It is a matter that could easily cross to an order of costs on a higher scale. I will use my discretion and order costs on the ordinary scale.

To that end, I order as follows:-

Order is granted in terms of the draft order.

Ruvengo, Maboke and Company, applicant’s legal practitioners

Tadiwa and Associates, respondent’s legal practitioners