Netsai Mukwena and Zaka Rural District Council v John Chimbamu

### Preamble
1
HMA 42-18
Case No CIV A 45/16
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NETSAI MUKWENA

and

ZAKA RURAL DISTRICT COUNCIL

versus

JOHN CHIMBAMU

HIGH COURT OF ZIMBABWE

MAWADZE J & MAFUSIRE J

HARARE, 28 March 2018 and 29 August 2018

Civil appeal

Mr J. Mpoperi, for the appellants

The respondent in person

MAFUSIRE J:

[1]	In the magistrates court the respondent sued the first appellant, a businesswoman, for eviction from certain business premises. The respondent was the executor dative to his late brother’s estate. The respondent claimed that during his life time the deceased had been allocated by the second appellant, a local authority, some business stands at Rudhanda Business Centre in Zaka, Masvingo. He averred that on one of such stands the deceased had intended to construct a supermarket. He alleged the deceased had developed it to footing level when the second appellant wrongfully allocated the property to the first appellant.

[2]	In the court a quo the appellants raised several defences to the respondent’s claim for eviction. In essence, the first appellant pleaded that she had been properly allocated the premises in question by the second appellant. The second appellant, in limine, challenged the locus standi of the respondent. On the merits, it alleged that the deceased had never been allocated the property in the first place.

[3]	The respondent prosecuted his claim right up to the trial stage. At the doorstep of the court, the second appellant and the respondent found each other. They entered into a deed of settlement. The deed had five clauses as follows:

“1.	The 2nd Defendant [i.e. the second appellant herein] in consultation with the Plaintiff [i.e. the respondent herein] shall identify an alternative stand to be awarded to the Plaintiff in his capacity as the Executor of the Estate of the late STANLEY MAKUVAZA.

2.	This shall be done within a period of 30 [thirty] working days from the date of signing of this Deed of Settlement failure of which Plaintiff shall be entitled to the supermarket stand currently being claimed in this matter, and any other person claiming occupation of the supermarket stand through the 2nd Defendant shall vacate the property failure of which the Messenger of Court or his Assistant shall evict the person.

3.	That the stand shall be located at Rudhanda Business Centre, Zaka.

4.	That this Deed shall be in full and final settlement of the Plaintiff’s claim against the Defendant.

5.	That each party shall bear its own costs.”

[4]	Apparently the first appellant [the first defendant in the court a quo] was in default at both the pre-trial conference and the trial. She was not party to the deed of settlement.

[5]	The deed was signed by the parties’ legal practitioners on 29 March 2017. The thirty working days mentioned in clause 2 would lapse on 16 May 2017. On 19 May 2018, i.e. three days after the lapse of the period, the second appellant’s legal practitioners sent a letter to the respondent’s legal practitioners in the following terms:

“RE:	JOHN CHIBHAMU [sic] v NETSAI MUKWENA & ZAKA R.D.C: CASE NO.

143/16

We refer to the above matter and to our telephone conversation of the 16th of May 2017.

We are pleased to notify you that we have secured an alternative Stand as agreed between the parties in terms of [the] Deed of Settlement signed on 29th March 2017 at Gutu Magistrate’s Court.

Kindly arrange to have your client visit our client’s offices in order to physically inspect the Stand and sign the relevant documentation and advise us of the date.”

[6]	But by the time of that the letter the respondent had already issued, on 17 May 2017, a warrant of ejectment to evict the first appellant from the property. By 19 May 2017, the respondent had already lodged the warrant with the messenger of court. By 23 May 2017 the messenger of court had already served the warrant on the first appellant. That is what stung her into action. On 29 May 2017 she filed with the court a quo what was termed an “Ex-parte Application for Stay of Execution Pending Cancellation of Warrant of Ejectment”.

[7]	The order of stay of execution was granted on the same day. But by the time it was dispatched, the messenger of court was said to be in the process of evicting the first appellant already. That prompted the first appellant to launch another ex-parte application, this time for what was termed “… for Restoration of Possession Pending Cancellation of Warrant of Ejectment”. The order was granted.

[8]	The respondent filed a detailed affidavit opposing the confirmation of the cancellation of the warrant of ejectment. On the return date the rule nisi was discharged. The court a quo held that by the time the second appellant had purported to give the respondent the alternative property, the time prescribed by the deed of settlement had since lapsed. The court noted that the thirty days had lapsed on 16 May 2017 and that the second appellant’s letter to the respondent had been dispatched only on 19 May 2017, even though the letter had referred to a telephone conversation on 16 May 2017. The court said the respondent was within his rights to evict the first appellant given that the second appellant had not complied with the time limits set out in the deed. If the second appellant had wanted more time it should have made a request and sought agreement with the respondent.

[9]	It was against that ruling by the court a quo that the appellants appealed to this court. There were two grounds of appeal. The one was that the warrant of ejectment had wrongly been issued in that the appellants had not been placed in mora prior to its being issued. The other was that the second appellant had duly informed the respondent timeously of the availability of an alternative stand.

[10]	On the first ground of appeal, and relying on a previous judgment by ourselves in Chamavhara Properties [Pvt] Ltd v Muzenda & Anor HMA 25-17, Mr Mpoperi, for the appellants, argued that the deed of settlement could not, on its own, have formed the basis of a warrant of ejectment without evidence of its breach. Before he could have had it issued, the respondent should have filed evidence, on notice to the appellants, of the breach. He did not do that. The first appellant was not even part of the deed. It was only if the respondent had filed a notice of the breach that the first appellant would probably have been warned of the intended eviction.

[11]	On the second ground, Mr Mpoperi argued that the second appellant’s letter of 19 May 2017 made reference to a telephone conversation between the parties’ legal practitioners on 16 May 2017. That date had been the last day of the thirty-day period prescribed by the deed. As such, the argument concluded, the second respondent had not breached the terms of the breach as it had acted timeously.

[12]	The respondent, who appeared in person, first pointed out that the first appellant was not even a party to the deed of settlement, and that she had been in default at both the pre-trial conference and the trial. On the merits, he argued that the evidence of the breach had eventually been brought to the court’s attention in certain proceedings before the court. He said in those proceedings, the appellants had duly placed before the court their side of the story, but that the court had rejected it.

[13]	In support of his argument that the appellants’ side of the story had been brought to the court’s attention but had been rejected, the respondent produced a ruling in the court a quo purportedly issued on 12 December 2017. The court’s previous ruling discharging the rule nisi had been issued on 9 August 2017. This second ruling on 12 December 2017 was not part of the record before us. Mr Mpoperi denied any knowledge of it.

[14]	The respondent denied that the second appellant had acted within the 30 day period prescribed by the deed of settlement. Apart from producing the aforesaid ruling of 12 December 2017, he also mentioned new other things. He denied that the telephone conversation referred to in the second appellant’s lawyer’s letter aforesaid had been held on the 16 May 2017, and said it had been on the 17 May 2017, i.e. outside the thirty-day period. He claimed that in previous proceedings or engagements, the appellant’s then legal practitioner of record, a Ms Zvanaka, had conceded that the telephone conversation in question had indeed been on the 17th March 2017, not 16 March 2017. Mr Mpoperi professed complete ignorance of any concession by Ms Zvanaka.

[15]	To substantiate his argument that the appellants had duly been informed of their breach of the deed of settlement and that their argument had been rejected by the court a quo, the respondent averred that the warrant of ejectment had only been enforced on the 20 December 2017, after the matter had once again been heard in court.

[16]	What we make of the respondent’s submission [who, presumably because he was a “self-actor”, had not filed any heads of argument to give advance notice of the outline of his submissions] is that after the rule nisi had been discharged and the appellants had appealed, he had applied for leave to execute pending appeal. The leave seems to have been granted.

[17]	If the aforesaid ruling of 12 December 2017 is authentic, then it certainly supports the view that it was the judgment in an application for execution pending appeal. Admittedly, the ruling itself does not say what it was all about. But in one portion it says: “There are no major developments to be argued that 2nd Respondent will suffer other than her mere say [so] …” We consider that the reference to “… major developments …” was in the context of some other proceedings subsequent to the hearing in relation to the discharge of the rule nisi.

[18]	In another portion the ruling says it was wrong for the first appellant to have opposed the application [about which the ruling was all about] on the basis of developments that she had never proved during the hearing of the main matter. Thus, certainly the proceedings were subsequent to the discharge of the rule nisi.

[19]	Then finally, and most tellingly, the ruling concludes:

“Having said that the prospects of the appeal succeeding in my view are nil. In [sic] the foregoing the application is granted as prayed for as the Respondents in my view will suffer little if any prejudice as compared to the Applicant where the Respondents admitted through Annexure ‘C’ if [sic] their Application for Stay of Execution Pending Cancellation of Warrant of Ejectment of 29/3/17 confirming late Stanley Makuvaza to be owing [sic] an operational Bottle Store, a Butchery at window level and a supermarket stand” [emphasis added].

[20]	That is consistent with an application for execution pending appeal having been made by the respondent, following the appellants’ appeal; the appellants having opposed it, but the court a quo having granted it. In his reply, Mr Mpoperi insisted that at the time the warrant of ejectment was issued, no notice of the breach of the deed of settlement had been given. He charged that the ruling of 12 December 2017 aforesaid was fraudulent; that it had not been part of the record and that therefore it had to be disregarded.

[21]	Something did not quite add up. If after the appellants’ lodging of the appeal to this court the respondent had reacted by applying for leave to appeal, which the appellants seemed to have unsuccessfully opposed, why was Mr Mpoperi professing complete ignorance of the ruling of 12 December 2017 aforesaid?  This should have been a matter of record. He was from the same law firm as Ms Zvanaka. They were the appellants’ legal practitioners of record. Except only that it had not been made part of the record, that ruling seemed authentic. It was duly signed. Below the signature was the name of the presiding magistrate, one E Marecha. The judgment was duly dated. Furthermore, it bore the date-stamp of the Judicial Service Commission, Gutu Resident Magistrate’s Court. As noted above, its contents were consistent with the trajectory of the dispute from the time of the deed of settlement to the date of the appeal. None of Mr Mpoperi’s submissions shed any light on this. He gave no details of how and by whom the fraud that he alleged might have been perpetrated. He did not categorically disown the alleged concession by Ms Zvanaka as claimed by the respondent in relation to whether the telephone conversation referred to in their letter of 19 May 2017 had been on 16 May 2017 or 17 May 2017.

[22]	However, and be that as it may, the question whether the respondent successfully applied for leave to execute pending appeal is irrelevant. It does not decide this appeal.

[23]	The first ground of appeal was whether the deed of settlement was complete by itself to be the basis of a warrant of ejectment without the need for the court a quo being furnished with the evidence of the alleged breach, necessarily on notice to the appellants. It was not. Although in clause 2 the deed gave the messenger of court the power to evict in the event that the second appellant failed to identify an alternative property within the thirty-day period, information had necessarily to be placed before the clerk of court, who issues warrants of execution in the magistrate’s court, of the alleged failure by the second appellant to comply with the terms of the deed. Ejectment was conditional upon breach.

[24]	In terms of Order 26 r 1 of the Magistrates Court [Civil] Rules, 1980, a warrant of ejectment, among others, is “sued out” by the person in whose favour a judgment for ejectment was given and remains unsatisfied. Synonyms of “sue” are, among others, “prosecute”; “litigate”; “take legal action”; “go to court”, etc.

[25]	In the ordinary course of events, one in whose favour a judgment is given prepares the relevant warrant and, together with the judgment, submits it to the clerk of court for issuing. The clerk of court must necessarily check and be satisfied that the warrant that has been submitted is in pursuance of a valid judgment duly issued by the court. The warrant must fit squarely within the four corners of the judgment. Once satisfied, the clerk of court signs and date-stamps the warrant, probably after consulting the record of proceedings. He then issues it. By submitting the warrant for issuing, the judgment creditor is “suing out”. While ordinarily he simply lodges it and leaves the clerk of court to do the rest, there are situations, such as was the case in this matter, he would be required to do more in “suing out” the writ.

[26]	In casu, the respondent’s warrant did not sit squarely within the four corners of the deed of settlement that the court had endorsed as its judgment. A part of it read:

“Whereas in his action the said PLAINTIFF on the 29th day of March 2017 by the judgment of court recovered against the said 1st Defendant of Rudhanda Business Centre and 2nd Defendant of Zaka Rural District Council, Zaka

for ejectment of the said Defendant from Supermarket stand Rudhanda B/C, Zaka And all those claiming through her …”

[27]	As noted above, the deed of settlement was not a straight order for ejectment. Ejectment was conditional upon breach. There was no information, either on record or placed before us, on how the respondent got to have that writ issued. But before issuing it, the clerk of court would necessarily have had to be satisfied that the deed had been breached. He could have been informed of the breach by affidavit or otherwise. Having received such information, he could not just have acted upon it without affording the other parties the chance to respond. If they had been given that chance, the appellants would obviously have denied the breach, which was exactly ground no 2 of their appeal in this matter. Faced with that conflict, the clerk of court, with no adjudicating power, would necessarily have had to refer the matter back to court. All that is part of “suing out” a writ.

[28]	The Chamavhara Properties case that Mr Mpoperi relied upon was almost on all fours. Therein we set aside a warrant of execution that had been issued following the unilateral oral submissions of the judgment creditors’ lawyers to the trial magistrate, in the absence of the judgment debtor, in respect of a similar deed of settlement that the court had endorsed as an order of court but which made execution conditional upon breach of the terms of payment. We said the judgment debtor ought to have been given due notice of the intention to sue out the writ because the alleged breach was not something appearing ex facie the deed or the writ. It is exactly the same situation herein.

[29]	But in the present case, the respondent’s argument went further. He said the appellants had eventually got the necessary notice of the breach and of his intention to issue the writ and that this was in the application for leave to execute. He said the appellants had been duly given the opportunity to explain their side of the story, which was that they had complied with the deed of settlement within the prescribed thirty-day period, but that the court had rejected that argument.

[30]	In our view, the warrant of ejectment was merely voidable, not void ab initio. There is a presumption of validity. Because the warrant seemed valid on the face of it, it should be presumed to be valid until set aside. Therefore, were it the only issue on appeal, the respondent would probably succeed before us because, as he argued, the court a quo had duly considered the evidence of breach of the deed as alleged by him; had duly considered the counter argument by the appellants; and had gone on to rule against them. He said the court was satisfied that the second appellant had acted outside the thirty-day period; that the deed had been breached and that he had been entitled to evict the first appellant.

[31]	However, this was classically a case of double allocation. The same property was allocated to two people. None of them was at fault. The mistake was that of the second appellant. Despite its initial stance that the respondent had no locus standi to sue, or that the property in question had never been allocated to his deceased brother in the first place, the second appellant had eventually recanted and admitted the double allocation. It admitted it had made a mistake. Despite the first appellant’s seemingly lackadaisical attitude in failing to appear at the pre-trial conference or the trial, the second appellant and the respondent had eventually duly settled the matter out of court. The settlement had been in a manner that benefitted everyone. It obviated any potential loss. The substance of the deed of settlement was that the first appellant would keep the disputed property. The second appellant would find an alternative property for the respondent at the same locality. Obviously the alternative property had to be of similar size. That had been done. The only complaint by the respondent was that it had been done late.

[32]	The law on double sales governs the situation. It is well settled. In Guga v Moyo & Ors, the Supreme Court unpacked it as follows [per McNALLY JA]:

“The basic rule in double sales where transfer has not been passed to either party is that the first purchaser should succeed. The first in time is the stronger in law. The second purchaser is left with a claim for damages against the seller, which is usually small comfort. But that rule applies only ‘in the absence of special circumstances affecting the balance of equities’. See McKerron [1935] 4 SA Law Times 178, Burchell [1974] 91 SALJ 40. ……………… And in BP Southern Africa [Pty] Ltd v Desden Properties [Pvt] Ltd 1964 RLR 7 [G], Macdonald J [as he then was] said:

‘In my view, the policy of the law will best be served in the ordinary run of cases by giving effect to the first contract and leaving the second purchaser to pursue his claim for damages for breach of contract. I do not suggest that this should be the invariable rule, but I agree with the view expressed by Professor McKerron that save in “exceptional circumstances” the first purchaser is to be preferred’ [our emphasis].

[33]	Where transfer has passed, for example to the second buyer, then the second buyer acquires an indefeasible right if he had no knowledge, either at the time of the sale, or at the time of transfer, of the prior sale to the first buyer. The first buyer’s remedy is an action for damages against the seller. If however, the second buyer had knowledge of the prior sale, either at the time of the second sale, or at transfer, then, in the absence of special circumstances affecting the balance of equities [emphasis added], the first buyer can recover the property from the second buyer. In that event the second buyer’s remedy is an action for damages against the seller: see Barros & Anor v Chimponda and Crundall Bros [Pvt] Ltd v Lazarus NO & Anor.

[34]	The present appeal falls to be determined on a balance of equities. “Balance of equities” refers to a balance of fairness. “Equitable” means fair and reasonable; treating everyone in an equal way.

[35]	We consider that the balance of equities favours the second appellant. They are these:

She was an innocent beneficiary of the allocation.

When she got the property, it had been developed only up to ground level. She had then drawn up plans to develop the property. The plans had been approved.

She had constructed two storerooms and some toilets. The main building, which was the general dealer’s shop, had partially been constructed. Water had been connected.

The respondent was allocated an alternative property.

Even accepting, for the sake of argument, that the second appellant’s first action was only on 19 May 2017, the delay was not at all inordinate. The respondent had been rather precipitous in rushing to issue a warrant of execution exactly a day after the expiry of the deadline, even if it might have been his right to have done so.

[36]	Comparatively, if she does not keep the property the first appellant stands to suffer more prejudice than would the respondent.

[37]	The most contentious issue on appeal was whether or not the second appellant had acted within the thirty-day period of the deed of settlement. The appellants said it had. They relied on the alleged telephone conversation of 16 May 2017. The respondent, relying on the letter of 19 May 2017, said the second appellant had acted out of time. The court a quo did not give a ruling on the point.

[38]	A number of salient points persuade us to conclude this issue in favour of the appellants. They are these:

The respondent did not deny that such a conversation had taken place. His contention was that it had taken place only on 17th May 2017 and that Ms Zvanaka, on behalf of the appellants, had conceded the point. He was saying this for the first time on appeal. There was nothing on record except a bare denial in paragraph 10 of his opposition to the confirmation of the rule nisi. Mr Mpoperi denied any knowledge of any concession by Ms Zvanaka.

That the conversation did happen on 16 May 2017 seems consistent with probability. There was no suggestion that the respondent’s then legal practitioners ever denied it at any stage. Furthermore, a day before, i.e. on 15 May 2017, the second appellant had dispatched a letter to a Mr Mutembwa, the person who the alternative property had previously been allocated to and who had been willing to surrender it in place for yet another replacement property at another business centre in Zaka, namely Jerera Growth Point. The letter to Mr Mutembwa was merely confirming the swap agreement. There was no suggestion that all that had been fabricated.

The deed of settlement itself did not say the respondent had to be allocated an alternative property within thirty days. It merely said, within that period, the second appellant had to identify an alternative property, albeit in consultation with the respondent. Thus, if the second appellant did identify the alternative stand, and did consult the respondent, within the prescribed period, then it was in compliance with the deed. The letter of 15 May 2017 shows that it had identified the alternative stand well before the deadline. The letter of 19 May 2017 shows that through his then legal practitioners, the respondent had been consulted within the prescribed time frame by means of a telephone conversation.

[39]	In the circumstances, the appeal should be allowed. However, the appellants should be disentitled to their costs. This whole dispute was all their creation. Furthermore, instead of owning up and admitting its mistake right from the outset, the second appellant sought to raise incompetent defences when the respondent sued, which it eventually abandoned. On her part the first respondent seemed ambivalent. She defaulted at both the pre-trial conference and the trial. In the result the following order is hereby made:

i/	The appeal succeeds.

ii/	The judgment of the court a quo is hereby set aside and substituted with the following:

“The provisional order obtained by the first appellant on 29 May 2017 in case no 143/16 is hereby confirmed and the warrant of ejectment and execution against property issued on 17 May 2017 is hereby cancelled.”

iii/	There shall be no order as to costs.

29 August 2018

Mawadze J concurred	_________Signed on original _________________

Saratoga Makausi Law Chambers, appellants’ legal practitioners