Kwanye v Matanda and Another

### Preamble
1
HB 193/20
HC 1437/20
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KWANELE KHANYE

Versus

IGNATIOUS MATANDA (under power of attorney)

And

THE OFFICER-IN-CHARGE,

ZIMBABWE REPUBLIC POLICE, NO

IN THE HIGH COURT OF ZIMBABWE

KABASA J

BULAWAYO 4 & 17 SEPTEMBER 2020

Urgent Chamber Application

L. Ngwenya, for the applicant

G. Sengweni, for the 1st respondent

KABASA J:	This is an urgent chamber application in which the applicant seeks the following interim relief:

“1.	The respondents be and are hereby temporarily interdicted from interfering with applicant’s rights of ownership, possession and title in respect of stand number 32 Whitestone Road, Matsheumhlope, Bulawayo, held under Deed of Transfer number 771/11.

2.	The 1st respondent, his nominees, his agents and assignees, be and are hereby temporarily interdicted from accessing or interfering with applicant’s occupation and possession of stand number 32 Whitestone Road, Matsheumhlope, Bulawayo, held under Deed of transfer number 771/11.

The application is opposed.  The averments made by the 1st respondent in his opposing affidavit brought to the fore the contentious circumstances surrounding the ownership and possession of stand number 32 Whitestone Road, Matsheumhlope.

I propose to give a factual background to the matter.  The background is that the applicant bought stand number 32 Circular Drive, Matsheumhlope, Bulawayo from Anzac Investments (Pvt) Ltd and obtained title through a Deed of Transfer signed and sealed on 14th June 2011. It is not clear when the property was purchased but for purposes of this application this is neither here nor there.  The applicant, through one Freedom Zhou has commenced construction on this stand.

Michael Fiyado Matanda under whose power of attorney the 1st respondent acts bought a certain piece of land described on the agreement of sale as number 73 situated along Circular Drive, Matsheumhlope, Bulawayo from Sterling Properties (Pvt) Ltd which appears to have been acting as an agent for Anzac (Pvt) Ltd.  The agreement of sale had the following clause:-

“It is however understood that the description of the said piece of land as to number, area, boundaries, servitudes etc, is dependent on the final survey and that the description and area appearing on the diagrams eventually framed by the Surveyor will be those of the property concerned in this agreement.”

Immediately following this clause is an endorsement by S. Thonye, the land surveyor, which endorsement was made on 25th June 2013, with the agreement of sale having been concluded on 10th April 2000.  The endorsement reads: “Stand 32 Whitestone Township of Matsheumhlope, Bulawayo District VIDE General Plan No. BCG 841 Dispensation Certificate No. B5/2001.” The surveyor mentioned in the above-mentioned clause is the one who made this endorsement.

Whilst it is not apparent from the papers filed in this application, a wrangle must have ensued between the applicant and Matanda culminating in an order granted under HC 3337/17 where Ignatious Matanda (under power of attorney) was the applicant and Anzac Investments (Pvt) ltd the 1st respondent, with Grant Thonye Land Surveyors as the 2nd respondent, which court order ordered that:

“1.	Applicant be and is hereby confirmed as the owner of stand 73 Matsheumhlope, Bulawayo.

2.	Applicant pays all the necessary transfer fees to Messrs Coghlan and Welsh who are the Conveyancers herein.

3.	1st respondent be and is hereby ordered to forthwith facilitate the transfer of stand 73 Matsheumhlope into applicant’s name and to sign all the necessary papers attendant to that transfer, failing which the Assistant Sheriff be and is hereby authorized to facilitate that transfer.

4.	1st respondent to pay the costs of the application on an attorney and client scale if they file any opposition hereto.”

This order was granted by BERE J (as he then was) on 1st March 2018 and is extant.  The 1st respondent has since filed an application under HC 641/20 seeking the cancellation of the deed held by the applicant in respect of 32 Whitestone Township, Matsheumhlope, Bulawayo.

It is important to note that in the Deed of Transfer which the applicant filed in support of this application, the General Plan Number is given as BCG 841 and to Dispensation Certificate number B5 of 2001, the same description which appears on the 1st respondent’s agreement of sale.

Bulawayo City Council has M. F. Matanda as the ‘occupier’ of 32 Circular Drive as reflected on a water bill payment receipt number 0140412447 issued on 26th September 2005, appearing as Annexure E to the 1st respondent’s opposing papers.

It was important to give this background as the applicant’s application and the 1st respondent’s opposing affidavit make reference to these issues which are at the core of the dispute between the parties, which dispute gave rise to the urgent chamber application I am now seized with.

The applicant avers that he is the registered owner of stand number 32 Circular Drive Matsheumhlope and on 25th August 2020 the 1st respondent disrupted construction activities at the said stand.  The 2nd respondent, who is the Officer-In-Charge at Hillside Police Station, also ordered Freedom Zhou to stop construction and construction has consequently been suspended because of the threats levelled by the 1st respondent on 25th August 2020, plus the unlawful instruction by the 2nd respondent, which instruction was issued to Freedom Zhou.

In opposing the application, 1st respondent contends that he never disrupted construction but only sought to find out why construction was going on his property. The applicant only moved to that property in August upon realization that the 1st respondent had obtained judgment confirming him as the owner of the stand.  Threats were then issued against him by Freedom Zhou and other people who were on site resulting in him making a police report. On his part he did not cause violence or threaten Freedom. The applicant’s application must therefore be dismissed, so the 1st respondent contended.

The issue is whether the applicant has made a case for the relief he seeks.

The requirements for an interim interdict have been traversed in a plethora of cases.  (Setlego v Setlego 1914 AD 221; Enhanced Communication Network (Pvt) Ltd v Minister of Information Post and Telecommunications 1997 (1) ZLR 342 (HC); Gold Reef Mining (Pvt) Ltd v Mnjiva Consulting Engineers (Pty) Ltd and Another HH-631-15; Magaritha v Munyuki and 2 Others HH-44-18)

The requirements are:-

A prima facie right, even if it be open to some doubt.

A well grounded apprehension of irreparable harm if the relief is not granted.

The balance of convenience favouring the granting of the interdict.

The absence of any other satisfactory remedy.

I propose to look at each requirement in turn, but being cognizant of the remarks made by MAFUSIRE J in Magaritha v Munyuki (supra) that:-

“These requirements are canvassed conjunctively not disjunctively.  Some of them may assume greater importance in some cases than do others in other cases.”

Prima facie right

The applicant avers that he is the registered owner of the stand in question and therefore has real rights over the property which 1st respondent has no right to interfere with.

In an application for an interim interdict the relief is sought on proof of a prima facie right, even if open to doubt.  Proof of a real right comes in when the applicant seeks confirmation of the provisional order so as to get a final order.

I must say the applicant’s averments appear to meander between a spoliation order which is in itself a final order and an interdict to “temporarily stop the interference with applicant’s rights of ownership, possession and title in respect of stand number 32 Whitestone Road, Matsheumhlope.”

To add to the confusion the applicant goes on to say:

“The applicant has been in peaceful and undisturbed possession of the property for the past 9 years and has enjoyed undisturbed occupation of the same.  1st respondent’s actions are unlawful and illegal and 1st respondent has no right to interfere with applicant’s real rights over the property, which rights also include those of occupation and possession of the property, plus authority and power to vindicate the said property from anyone, including the 1st respondent.”

Mr. Sengweni, correctly, in my view, argued that the applicant appears to be seeking a spoliation order which is in itself an interdict compelling the restoration of that which was taken by means of “self help”.  Such restoration amounts to a final order and can therefore not be sought through an urgent chamber application seeking a provisional order. The issue of ownership is also irrelevant as spoliation addresses unlawful dispossession of another without following due process. It therefore seeks to maintain the status quo by ordering the dispossessor to restore possession to the dispossessed.

The applicant does not suggest that the 1st respondent has moved onto the property and unlawfully dispossessed him.  On the contrary the averment is that the applicant through Freedom Zhou is in occupation of the property.  The 1st respondent has not moved onto the property to dispossess the applicant. He contends that he was actually in occupation through a caretaker who has been on the premises since 2015. Mambudzi Moses Mbotshani deposed to a supporting affidavit confirming that he has been on the property since 2015 under the employ of the 1st respondent. This begs the question as to who dispossessed the other in this battle for 32 Whitestone Road Matsheumhlope. I do not propose to find an answer to this as it will be an exercise in futility given that this is an application and such answer is in any event not necessarily important at this juncture.

The question to ask is what therefore is the applicant seeking?  Is it a spoliation order?  If it is such cannot be obtained as a provisional order.  And if the interdict sought is to stop the 1st respondent from interfering with the applicant’s rights of ownership, possession and title, the effect is a definitive order and not interlocutory.  (See Chikafu v Dodhill (Pty) Ltd and Others SC-28-09).

A definitive order cannot be obtained as an interim relief based on the proof of a prima facie right.  A reading of the interim relief sought herein has all the hallmarks of a final order.  The interim relief and the final relief sought essentially have the same effect. It is a distinction without a difference. To borrow CHIDYAUSIKU CJ’s remarks in Chikafu v Dodhill (supra):

‘I have some difficulty envisaging that which would happen on the return day of the provisional order’

It is my considered view that an interim interdict does not become one by the mere use of the word “temporarily interdict respondent” but from the very nature of the order sought by the applicant.  The order itself must speak interim.

When a litigant obtains an order which says “the respondent is temporarily interdicted” when is that “temporary interdict” supposed to end.  Such a litigant can have the protection of such an order for as long as it suits them as it essentially gives them the ultimate relief.

In Kuvarega vs. Registrar-General and Another 1998 (1) ZLR 188 (HC) CHATIKOBO J had this to say:

“The practice of seeking interim relief which is exactly the same as the substantive relief sued for and which has the same effect, defeats the whole object of interim protection.  In effect, a litigant who seeks relief in this manner obtains final relief without proving his case.  That is so because interim relief is normally granted on the mere showing of a prima facie case.  If the interim relief sought is identical to the main relief and has the same substantive effect, it means that the applicant is granted the main relief on proof merely of a prima facie case.”

In casu, if the interim relief sought was to ensure the property is preserved until a determination of the matter filed under HC 641/20 then the applicant would not gain an advantage over the 1st respondent but if granted in the manner it is couched it means the applicant has effectively obtained protection against the 1st respondent without proving his case.

The applicant effectively wants the 1st respondent interdicted so that he (applicant) proceeds with construction.  This is the ultimate relief and there is therefore nothing provisional about it.  The use of the words “temporarily interdicted” does not change the fact that such an order‘s effect is definitive.

This becomes even clearer when regard is had to the terms of the final order.  All the final order says is “permanently interdicted”.  In terms of the protection the applicant seeks by way of a provisional order, what difference is there in the two orders?  I would say none.

I move on to the second requirement.

A well grounded apprehension of irreparable harm

The applicant contends that if he does not proceed with construction, he will suffer prejudice as he has hired excavators and graders that charge him per hour.  He also has builders and contractors working on the project who also charge daily.

It is important to put this issue into its proper perspective.  The applicant would have the court believe that stand 73 Matsheumhlope and stand 32 Circular Drive Matsheumhlope are two distinct and different properties.  I have already shown that the papers relating to the property which either party has speak to the two being one and the same.  Stand 73 upon surveying and as depicted on the 1st respondent’s agreement of sale eventually became stand 32 Circular Drive, Matsheumhlope.

It is the height of ingenuity to seek to differentiate stand 73 which is the description given in HC 3337/17 and stand 32 Circular Drive which is the description given in the Deed of Transfer filed by the applicant and which the 1st respondent seeks to have cancelled in HC 641/20.

Why would the applicant seek to proceed with construction when the fate of stand 73 also known as stand 32 is yet to be definitively decided in HC 641/20?  Should the 1st respondent succeed in HC 641/20 and the applicant has completed construction, what will be the fate of that completed structure?

The applicant talks about excavators and graders thereby painting a picture of construction at its infancy, the averments denote preparation of the ground in pursuance of the construction of a building.  The irreparable harm would therefore ensue if the building is completed and a decision is subsequently made which goes against the applicant.

I say so being fully aware that title can be cancelled in circumstances which justify such cancellation.  (See Maparanyanga v Sheriff of the High Court and Others SC-132-02).

I therefore fail to appreciate how the applicant can argue that he has a well grounded apprehension of irreparable harm given the circumstances of this case.

Consequently, I find against the applicant on the first and second requirements

I move now to the third requirement

The balance of convenience

The balance of convenience does not favour the granting of the interim relief.  I have already said the interim nature of the relief is in name only not in substance or its effect.  There are two competing interests here, the applicant who claims ownership of the stand by virtue of a Deed of Transfer and the 1st respondent who claims ownership of the same stand by virtue of an agreement of sale showing that he purchased the stand in 2000 and an extant court order confirming him as the owner of that stand.  Litigation is ongoing, with the 1st respondent now seeking cancellation of the Deed of transfer through which the applicant claims ownership.

Given the foregoing, what convenience is there in allowing the applicant to proceed with construction, which in essence is what the interim order is about, when the outcome of HC 640/20 cannot be predicted?

The balance of convenience actually favours the “securing” of this property until such time as a decision is made concerning the fate of the property.  Whoever gets the final order in their favour will then be able to construct on that stand without fear that such building could be demolished in the event that ensuing litigation goes against them.

The situation would have been different had this matter involved a dwelling house, where the eviction of a party already residing therein would result in untold hardship, thereby favouring maintaining the status quo until a decision is made as to who the rightful owner of such a dwelling house is.

I turn now to the final requirement.

4.	The absence of any other satisfactory remedy

There is an alternative remedy.  There is already litigation which seeks to determine whether the applicant should keep the Deed of Transfer and therefore title to the contentious property.  Whatever decision is arrived at will put the matter to rest.

This is actually the most satisfactory course, allowing the applicant an opportunity to defend his title to stand 73 also known as stand 32.  Should he succeed, he can happily proceed with construction without hindrance or fear of a possible demolition of whatever he would have constructed to completion.

I earlier on said the issue in casu was whether the applicant made a case for the relief he seeks?  I would answer this in the negative.  I hold that the applicant has not made a case for the relief he seeks.

The 1st respondent sought punitive costs.  I find no justification for an award of punitive costs against the applicant.

In the result I make the following order:

The application be and is hereby dismissed.

The applicant shall pay costs at the ordinary scale.

Mathonsi Ncube Law Chambers, applicant’s legal practitioners

Messrs Mudenda Attorneys, 1st respondent’s legal practitioners