Rivercome Trading Private Limited v Rusape Town Council

### Preamble
Judgment No. SC 77/25
1
Chamber Application No. SC 283/24
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REPORTABLE	(77)

RIVERCOME     TRADING     PRIVATE     LIMITED

v

RUSAPE     TOWN     COUNCIL

SUPREME COURT OF ZIMBABWE

HARARE: 24 JUNE 2024 & 1 SEPTEMBER 2025

S. Banda, for the applicant

S.Dizwani, for the respondent

IN CHAMBERS

CHIWESHE JA:	This is an opposed chamber application for condonation for non-compliance with r 38 (1) of the Supreme Court Rules, 2018 and extension of time within which to appeal made in terms of r 43 of the Supreme Court Rules, 2018.  The applicant intends to appeal against the whole judgment of the High Court of Zimbabwe (the court a quo) given at Mutare on 3 April 2024.

THE FACTS

The applicant and the respondent entered into an agreement in terms of which the respondent sold to the applicant a certain piece of land described as Stand 8328, Makoni District measuring 3600 square metres “the property” for the sum of US $512 504.48.  The property had not been serviced at the time of the sale.  The applicant avers that it paid for the service costs which included costs for construction of an access road, sewer and water reticulation.  The applicant alleged a quo that the respondent had failed to service the property citing lack of resources to honour its part of the agreement.  For that reason, the applicant opted to construct the road using its own funds.  Thereafter, it issued summons in the court a quo claiming from the respondent the sum of US$ 254 247.74 being the refund of costs incurred by the applicant in constructing the access road.  It alternatively prayed for unjust enrichment in that sum.

At the trial, the applicant testified that it constructed the road in order to operationalize the projects it had started on the property.  These were a service station and a shopping mall.  It averred that it had obtained a loan from the bank to fund the projects.  The delay in constructing the access road meant that the applicant was unable to do business at the projects so as to generate funds to service the loan.

At the close of the applicant’s (plaintiff’s) case, the respondent applied for absolution from the instance.  It submitted that the applicant had omitted to include costs incurred by the respondent when it contributed to the construction of the access road a grader, a tipper and an engineer who supervised the construction of the access road.  It further argued that there was no prior written agreement or undertaking by the respondent authorizing the applicant to construct the road in question.  It also argued that the applicant’s claim in the alternative was vague and embarrassing in that it was based on both contract and delict.  Accordingly, it submitted that the applicant had failed to prove a prima facie case and as such, its claim ought to be dismissed.

The applicant opposed the application for absolution from the instance.  It argued that the US$ 42 300-00 which it paid to the respondent as service charge included construction of the access road.  It further argued that the respondent had both statutory and contractual obligations to construct the access road.  It concluded that the respondent had been unjustly enriched by the construction of the access road.

The court a quo found that there had been no prior agreement by the respondent authorizing the applicant to construct the road and be reimbursed of the costs after the event.  It reasoned that the respondent was not unjustly enriched as it had constructed the road for its own benefit as it needed the same to service its projects.  It accordingly granted the respondent’s application for absolution from the instance.

Aggrieved by the decision of the court a quo the applicant noted an appeal to this Court.  However, the applicant failed to lodge its notice of appeal within the time prescribed by           r 38 (1)(a) of the Supreme Court Rules, 2018, hence the present application for condonation.

PRELIMINARY ISSUE

During the course of preparing this judgment, it occurred to me that the order to be appealed against might well have been interlocutory and not final in nature and, for that reason, the applicant may be required to seek leave to appeal against such order.  In its draft notice and grounds of appeal, the applicant asserts that the judgment of the court a quo is final and definitive and that for that reason, no leave to appeal is required.  I note, however, that there is authority to the effect that an order of absolution from the instance is not a final order in the sense that a plaintiff may, if it so wishes, approach the court again on the same cause of action once it has put its house in order by way of gathering such evidence as may establish a prima facie case.  To that end, therefore, it appears that the order of the court a quo may be interim or interlocutory in nature, requiring leave to appeal.  That is so because an order for absolution from the instance does not resolve the issues between the parties.  In Blue Ranger Estates (Pvt) Ltd v Muduviri ZLR 2009 (1) 368 it was held that in order to determine whether an order is interlocutory or final, one has to look at the nature of the order and its effect on the issues or cause of action between the parties, not at its form.  An order is final or definitive when it has the effect of a final determination on the issues between the parties in respect of which relief is sought from the court.  In casu, it would appear that the order of the court a quo, not being final and definitive, is interlocutory and therefore not appealable without leave.

If that be the case, the applicant must comply with the provisions of s 43 (2) (d) of the High Court Act [Chapter 7:13] which read:

“43. Right of appeal from the High Court in civil cases.

(2)  No appeal shall lie –

(d) from an interlocutory order or interlocutory judgment made by or given by  a judge of the High Court, without the leave of that judge or, if that has been refused, without the leave of a judge of the Supreme Court, except in the following cases:-

Where the liberty of a subject or the custody of minors is concerned;

Where an interdict is granted or refused;

In the case of an order on a special case stated under any law relating   to arbitration.”

As the question whether the decision of the court a quo was appealable without leave had not been canvassed at the hearing, I invited the parties to file and serve supplementary heads of argument on that point.  Relying on the decision in Levco Investments (Pty) Ltd v Standard Bank of South Africal Ltd 1983 AD (4) 917(A) counsel for the applicant submitted that an order for absolution from the instance was final in nature and for that reason, appealable without leave.  Conversely, it was submitted that an order dismissing an application for absolution was interlocutory as it did not dispose of the issues between the parties and, as such, was not appealable without leave.  On the other hand, counsel for the respondent argued to the contrary, insisting that the order of the court a quo was interlocutory and thus not appealable without leave.

In Levco Investments (Pty) Ltd v Standard Bank of South Africa Ltd (supra) the court quoted with approval the following passage in the case of Steyler No v Fitzgerald 1911 AD 295:

“Take the case of a judgment of absolution from the instance.  It is classified by Voet 42.1.5 amongst interlocutory sentences, but it has the force of a definitive sentence in as much as by our practice the particular suit in which it has been pronounced is ended, and a fresh suit is necessary to enable the plaintiff again to proceed against the same defendant.  It has accordingly been frequently held in our court that a judgment of absolution from the instance may be appealed against, and such appeals have been brought from the Cape Supreme Court to the Privy Council.  It would be different where a court refuses to grant absolution from the instance on the application of the defendant.  Such a refusal is purely interlocutory and has not the effect of a definitive sentence, in as much as the final word in that suit has still to be spoken.  The court, having decided that the suit should take its ordinary course and not be put an end to by absolution, the questions at issue remain open until final judgment.”

In the same vein, the court also associated itself with the decision in Heyman v Yorkshire Insurance Co Ltd 1964 (1) SA 487 (A) wherein it was held that as a matter of policy it was undesirable “to open the door to the fractional disposal of actions and other proceedings and the piecemeal hearing of appeals on each part of the action or other proceeding disposed of by the court of first instance.”

See also Liberty Group Limited t/a Liberty Life v K & D Telemarketing & 2 Ors ZASCA 41 (20 April 2020).

I am persuaded by the approach taken in these South African authorities, namely that a decision to grant absolution from the instance is final and definitive in nature in that it puts an end to the proceedings before the court that grants it.  For that reason, I agree with counsel for the applicant that the order of the court a quo, being final and definitive, is appealable without leave.  Conversely, a refusal to grant absolution from the instance neither ends the proceedings nor does it constitute a final decision on the issues before the court.  It is no more than an interlocutory ruling or direction that the matter proceeds to finality whereupon a final decision may be pronounced.  Accordingly, I hold that the decision of the court a quo is appealable without leave.

THE LAW

It is trite that in considering applications of the nature before the court the following factors, inter alia, must be taken into account.  The court must consider the length of the delay in complying with the infringed rule, the explanation proffered for such delay and the prospects of success in the intended appeal.  These factors must be considered cumulatively and not in isolation of one another. See Kombayi v Berkhout 1988 (1) ZLR 53 (S).

THE LENGTH OF THE DELAY AND THE EXPLANATION THEREFORE

The length of the delay in this matter is a total of 19 days.  The delay is not inordinate.  An affidavit filed by the applicant`s legal practitioners indicates that the delay was partly due to a miscalculation of the dies induciae on their part and misfiling in the office of the Registrar.  A letter from the Registrar filed of record confirms this fact.  The delay not being inordinate and the explanation therefore being candid and plausible, condonation may potentially be granted to the applicant.

PROSPECTS OF SUCCESS

The draft notice of appeal raises four grounds of appeal as follows:

“The court a quo erred in finding that the appellant had no cause of action in circumstances where the respondent had admitted that it had a statutory and contractual obligation to construct the access road.

“A fortiori”, the court a quo erred in finding that the appellant had not proved a “prima facie” case in circumstances where contractual liability had been admitted by the respondent.

It being common cause that the appellant’s pleaded alternative claim was for unjust enrichment, the court a quo misdirected itself in finding that the unjust enrichment claim only arose in evidence and was not canvassed in pleadings.

The court a quo erred in finding that Gamanje (Pvt) Ltd v City of Bulawayo SC 94/04 was distinguishable from the matter before it in circumstances where the respondent, as landlord, stood to benefit from the access road.”

The grounds of appeal raise two issues, namely:

Whether or not the court a quo erred in granting absolution from the instance on the basis that the applicant failed to prove a prima facie case that it was entitled to a refund of the costs for construction of the access road.

Whether or not the respondent stood to be unjustly enriched by the construction of the access road.

Applicant’s evidence in the court a quo

The applicant led evidence from only one witness, one Greenmore Basera, its director.  His evidence failed to establish that there had been an agreement between the parties in terms of which the applicant would construct the access road and be reimbursed the costs incurred.  He was unable to produce such agreement, written or otherwise.  He alleged verbal agreement between the applicant and respondent’s officials but stated no minutes were taken of the relevant meetings because the respondent’s officials refused to commit themselves in case of scrutiny from the Anti-Corruption Commission.  Nonetheless, the applicant proceed to construct the said road in the absence of any agreement with the respondent.  It incurred costs in the sum of US$ 254,247-74, the subject of its claim.  The witness conceded, under cross-examination, that the respondent, being an urban council, was a creature of statute which could only speak through council resolutions.  No such council resolution was in place authorizing applicant to construct the road.

It was under these circumstances that the respondent applied for and was granted an order for absolution from the instance.

Proceedings before this court

At the hearing of this application the respondent raised a preliminary point to the effect that the application was fatally defective because reference is made to the “appellant” instead of the “applicant”.  The applicant submitted that the error was typographical and can be amended as per Gula Ndebele v Chinembiri Energy Bhunu N.O SC 34/10

I agree with the applicant’s submission in that regard.  The papers are hereby amended accordingly.

On the merits, the applicant submits that in its plea, the respondent admitted that it had a statutory obligation to construct the access road.  Further, in the joint PTC minute, the respondent had admitted that it had both a statutory and contractual obligation to do so.  It submits that such admission resolves the question whether or not there was an agreement to construct the road and whether the respondent had an obligation to do so.  Accordingly, the applicant argues that it was wrong for the court a quo to find that the applicant had failed to prove a prima facie case in circumstances where contractual liability had been admitted by the respondent.

The applicant also criticizes the court a quo for finding that applicant had not pleaded unjust enrichment and that same had only arisen in evidence.  It avers that unjust enrichment was pleaded in the summons and declaration, be it in the alternative.  Indeed, it is settled that a party who has suffered loss as a result of breach of performance of a contract by the other has the option to embed its claim in either delict or contract.  He cannot plead both, save in the alternative.  The applicant relies, for this submission, on Rix Upholstery (Pvt) Ltd v Biddulphs (Pvt) Ltd HH 91/08. The court a quo’s finding to the contrary constitutes a misdirection which will likely lead to the judgment of the court a quo being set aside by the appeal court, further contends the applicant.

Finally, the applicant submits that the court a quo erred in finding that Gamanje Pvt Ltd v City of Bulawayo SC 94/04 was distinguishable from the instant case when the respondent, as landlord, stood to benefit from the access road.  The applicant submits that it is leasing the property from the respondent, who remains the owner of the property.  Consequently, argues the applicant, the road benefits the respondent at the expense of the applicant who may be evicted at any time.

In its heads of argument, the respondent submits that the intended appeal has no prospects of success.  It was argued that reliance on the fact that the respondent had an obligation to construct the road is misplaced because that was not the issue before the court a quo.  Instead the issue before the court a quo was whether or not the applicant had any contract with the respondent in terms of which it would be paid for constructing the road in question.  It was submitted that the applicant failed to establish a prima facie case because it did not attach a written agreement.  It sought to allege a verbal agreement but did not identify the persons with whom such agreement was made and the terms thereof.  In the absence of a valid contract, it can only be assumed that the applicant acted on its own volition to construct the road in question.

Further, the respondent submits that the claim for unjust enrichment is equally misplaced because, in its evidence, the applicant failed to show how the respondent was unjustly enriched.  In this regard, the respondent relies on Gamanje (Pvt) Ltd v City of Bulawayo wherein this Court held as follow:

“The requirement for an action for unjust enrichment are, firstly, that the defendant has been enriched by receipt of a benefit; secondly, that he has been so enriched at the expense of the plaintiff; thirdly, that  the enrichment is unjustified (in the sense that it would be unjust to allow the defendant to retain  the benefit); fourthly, that the enrichment must not come within the scope of one of the classical enrichment actions; and fifthly, there must be no positive rule of law which refused an action to the impoverished person.  See Industrial Equity v Walker 1996 (1) ZLR 269 at p 300.  See also Willes Principles of South African Law 8th Edition at pp 633-5.”

It was submitted on behalf of the respondent that the applicant`s evidence fails to meet the above requirements for unjust enrichment.  More importantly, the arrangement alleged by the respondent with regards the agreement or the resultant claim for unjust enrichment is actually prohibited by law.  That is so because the  respondent is an urban council, governed by the Urban Councils Act [Chapter 29:15] and the Public Procurement and Disposal of Public Assets Act [Chapter 22:23], which pieces of legislation prohibit any form of procurement and expenditure by an urban council outside their provisions.

The respondent avers that, in any event, the applicant lied in submitting that it was a lessee of the applicant when in fact it had bought the commercial property from the respondent in terms of a lease to buy agreement between the parties.  In that regard, the respondent submitted that the applicant does not deserve the indulgence sought.  In support of that submission the respondent relied on the case of Friendship v Cargo Carriers Limited & Anor SC 01/13 where this Court held that:-

“Condonation is an indulgence which may be granted at the discretion of the court.  It is not a right obtainable on demand.  The applicant must satisfy the court/judge that there are compelling circumstances which would justify a finding in his favour.  To that end, it is imperative that an applicant for condonation be candid and honest with the court.”

ANALYSIS

It is trite that in considering to grant or dismiss an application for absolution from the instance at the close of the plaintiff`s case the court must determine whether the plaintiff has up to that stage established a prima facie case upon which a reasonable court might find for the plaintiff.  In answering that question, the court a quo was of the view that the applicant (plaintiff a quo) had failed to establish a prima facie case against the respondent.  It did so on the basis that there was no prior agreement between the parties for the applicant to construct the road in question and thereafter be reimbursed by the respondent.  Further, it held that the applicant’s claim did not take into account the fact that the respondent had contributed to the construction of that road by providing a grader and an engineer who supervised the construction.  The court a quo concluded that in constructing the road, the applicant had been motivated by the fact that it required the road in order to enhance its business interests because the road offered it and its customer’s access to its business premises.  The court a quo was also of the view that the applicant had not properly proved its damages.

In my view, the facts of the matter did establish a prima facie case against the respondent.  The applicant averred that it bought the business stand from the respondent.  It paid for both the stand and the costs of services, including construction of the road in question.  The respondent delayed construction of the road citing lack of funds.  The applicant then decided to construct the road itself in order that there be access to its business.  It had borrowed from the bank and needed its business to operate and generate funds to repay the loan.  It was not in issue that construction of the road was in the normal course of business the responsibility of the respondent as the local authority.  For that reason, the respondent benefited from the works carried out by the applicant.  The fact that there had been no prior agreement between the parties should not be overplayed because once construction had started, the respondent joined the applicant by deploying its grader and an engineer to site.  That in my view indicates tacit approval of the applicant’s endeavors.  The question of the applicant’s motive in embarking on this project cannot, on its own, absolve the respondent from its responsibility to its rate payers.  The fact that the respondent contributed equipment and technical services to the project can only operate to reduce the quantum of the applicant’s claim.  In my view, based on these facts, the applicant did establish a “prima facie” case against the respondent.  The applicant’s prospects of success in the intended appeal are reasonable as evidenced by the issues raised in its ground of appeal.

DISPOSITION

I conclude therefore that the application has merit.  It must succeed.  Accordingly, it is ordered as follows:

1. The application for condonation for non-compliance with r 38 (1)(a) of the Supreme

Court Rules, 2018 be and is hereby granted.

2. The application for extension of time within which to file and serve a notice of appeal in terms of the rules be and is hereby granted.

3. Appellant shall file its notice of appeal within seven days of receipt of this order.

4.	There shall be no order as to costs.

Mubata, Chigadza & Associates, applicant’s legal practitioner

Absolom & Shepherd Attorneys, respondent’s legal practitioner