SMM Holdings (Private) Limited (Under the Administrator) v Luke Masomere

### Preamble
1
HB 256/22
HC 1009/21
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SMM HOLDINGS (PVT) LTD

(Under the Administrator)

Versus

LUKE MASOMERE

IN THE HIGH COURT OF ZIMBABWE

KABASA J

BULAWAYO 3 OCTOBER 2022

Opposed Application

Ms P. Chigariro, for the applicant

Ms N. Maguranyanga, for the respondent

KABASA J:	After hearing argument in this application for summary judgment I granted the application.  I gave my reasons in an ex tempore judgment.  I have not been asked for written reasons but decided to give them, nonetheless.

My reasons are these.  The respondent was employed as a football coach for Shabanie Mine Football Club.  The applicant was the sponsor of this club.  Such sponsorship meant that the salaries of the football club players, including the coach were paid by the applicant.  The coach was also given accommodation, which accommodation was by virtue of the employment contract.  The respondent was so employed from 1st January 2012 until his resignation, which was with immediate effect, on 10 January 2014. Despite the resignation, he continued to stay in the house which had been allocated to him, house number 26 School Avenue, Noelvale, Zvishavane.

On 27 November 2017 the applicant issued summons out of this court claiming the following:

“(a)	An order for the eviction of the defendant and all those claiming a right through him from the company house being house number 26 School Avenue, Noelvale, Zvishavane.

(b)	Cost of suit.”

The respondent entered an appearance to defend and thereafter filed his plea.  In that plea he raised points in limine, that the applicant has no locus standi to sue for eviction as the accommodation was given to him by Shabanie Mine Football Club a separate legal entity, this court has no jurisdiction to entertain the matter as a court of first instance on account of an arbitration clause in the employment contract and lis pendens in that the same matter was before the Zvishavane Magistrates’ Court.

On 12 July 2021 the applicant filed this application for summary judgment, which the respondent opposed.

The applicant’s contention is that it is the owner of the house which it seeks to evict the respondent from.  The house does not belong to the football club and as such the applicant has the requisite locus standi to bring an action for rei vindicatio as respondent’s occupation of the house is without its consent.  The respondent was receiving his salary from the applicant and the applicant had him registered with the National Employment Council for the Mining Industry as an employee of the applicant.

In opposing the application the respondent took points in limine, the issue of locus standi, lis pendens and lack of jurisdiction were repeated as per the earlier plea in answer to the summons.  On the merits the argument was that the house belongs to the football club and the football club owes him outstanding wages which have to be paid before he moves out of the house in question.

In an application for summary judgment the applicant must show that it has an unanswerable claim against the respondent and that the entry of appearance to defend is only meant to buy time as such respondent has no bona fide defence.

Does the applicant have an unanswerable claim? The answer is in the affirmative.

The applicant is the owner of the property in question.  The Chief Executive Officer of the applicant deposed to an affidavit stating that the property in question belongs to the applicant.  The members of the executive board of the football club also filed supporting affidavits confirming that the house belongs to the applicant and it was given to the respondent by virtue of his employment as head coach of Shabanie Mine Football Club.  That relationship ended upon his resignation and with that went his entitlement to occupy the house.

Preliminary points ought to be raised because they are meritable and dispositive of a matter and not for the sake of it.  In Telecel Zimbabwe (Pvt) Ltd v PORTRAZ & Ors HH-446-15 MATHONSI J (as he then was) had this to say:

“Legal practitioners should be reminded that it is an exercise in futility to raise points in limine simply as a matter of fashion.  A preliminary point should only be taken where firstly it is meritable and secondly it is likely to dispose of the matter.  The time has come to discourage such waste of court time by the making of endless points in limine by litigants afraid of the merits of the matter or legal practitioners who have no confidence in their client’s defence viz-a-viz the substance of the dispute, in the hope that by chance the court may find in their favour.  If an opposition has no merit, it should not be made at all …”

These remarks apply with equal force in casu. I would say the point in limine on lack of locus standi has been raised for the sake of it.  The applicant is the owner of the property. The respondent cannot seek to challenge ownership of a property he has no knowledge of, that is, as regards its acquisition. It was allocated to him upon assuming the post of head coach for this football club. To have locus standi a litigant must have direct and substantial interest in the matter.  If the owner of the house who seeks to evict a person who is holding on to it without their consent is said to lack locus standi who then has such locus standi?

The point in limine is devoid of merit and must fail.  Turning to the les pendens, the matter filed at the Magistrates’ Court is no longer pending as it was withdrawn.  There is therefore no pending litigation.  In any event the plea of lis pendens is not dispositive of a matter.

The learned authors Herbstein and Van Winsen in the Civil Practice of the High Court and the Supreme Court of Appeal of South Africa, fifth edition at 605 state:

“Lis pendens is a special plea open to a defendant who contends that a suit between the same parties concerning a like thing and founded upon the same cause of action is pending in some other court.  ….

A plea of lis pendens does not have the effect of an absolute bar to the proceedings in which the defence is raised … The court reserves a discretion in the matter even if all the essentials of the plea are present, and may in spite of that fact consider whether it is more just and equitable or convenient that it (the action against which the special plea is advanced) should be allowed to proceed.  It often happens that the court will decide that the lis which was first commenced should be the one to proceed but this is not an immutable rule.”

That said the lis pendens point has no merit and equally fails. I turn now   to the lack of jurisdiction.  This matter is an action rei vindicatio brought by the owner of a property against the one who has possession of that property without its consent.  The matter has nothing to do with the employment contract whose terms in the event of a breach could be referred for arbitration.  The respondent resigned, thereby severing the employment relationship upon which his occupation of the house rested. The respondent thereafter lost the right to continue residing in the house he was allocated by virtue of such employment.

This court has jurisdiction to hear and determine matters where the owner of a property seeks to vindicate their property from the one holding on to it against their will. This is not a matter for arbitration but for determination by this court.

The point in limine equally lacks merit.  I must say points in limine do not gain traction based on how many of them are raised. It is folly for a litigant to think that the more the number of points in limine that are raised the greater the chances of them gaining traction.  A litigant can raise as many points in limine as their ingenuity allows but if they are not meritorious their number does not lend them merit which they otherwise do not have.

I turn now to the merits.  Does the respondent have a bona fide defence?

In Stanbic Finance Zimbabwe v Chivhungwa 1999 (1) ZLR 202 MALABA J (as he then was) stated that in an application for rei vindicatio, an applicant must show that it is the owner of the property and that possession of it is with the respondent but such possession is without the applicant’s consent.

In Unimark Distributors (Pvt) Ltd v ERF 94, Silvertondale (Pvt) Ltd 1999 (2) SA 986 at 996 the court had this to say:

“But there can be little doubt that one of its incidents (dominium) is the right of exclusive possession of the res, with the necessary corollary that the owner may claim his property whenever found from whomsoever is holding it.  It is inherent in the nature of ownership that possession of the res should normally be with the owner and it follows that no other person may withhold it from the owner unless he is vested with some rights enforceable against the owner e.g. right of retention or a contractual right (Nyahora v CFI Holdings (Pvt) Ltd SC-81-2004)

In casu the respondent resigned.  He is no longer an employee or a coach of Shabanie Mine Football Club.  The sponsors of that club who were paying his salaries and offered him accommodation for the duration of his employment want their property back. It is as simple as that.

The respondent claims that he is owed outstanding salaries.  The applicant acknowledged that and undertook to pay in full as soon as the company’s financial position improves.  That acknowledgment which was filed of record makes no mention of the fact that until such payment the respondent is to continue in occupation of the house.  The respondent can sue for the payment of such monies in whichever court he deems appropriate.  The fact that he is owed salaries does not translate to a right of retention or a contractual right. (Victoria Falls Municipality v Syatimbula HB75-22)

The respondent’s occupancy of this property sat on the foundation of his employment relationship. With that foundation gone so too the right of occupancy.  He has nothing to stand on and has no enforceable right against eviction.

The applicant therefore has an unanswerable claim and the respondent has no bona fide defence.  His entry of appearance to defend is a mere ploy to buy time so he keeps possession of a house to which he has been unlawfully holding on to for 8 years.

There are no triable issues and to refer such a matter to trial is sheer waste of time. The courts are over-burdened with cases, the workload is punishing. There are deserving cases that need resolution and this matter is not one of them. Referring it to trial just for the sake of it unnecessarily adds to a punishing workload.

This application ought not to have been opposed.  I would have gladly awarded costs de bonis propriis against the legal practitioner had such costs been prayed for.  Legal practitioners should aid the court in the resolution of cases, and not seek to flog dead cases just because a client asks them to.

That said, the application has merit and is accordingly granted as follows:

Summary judgment be and is hereby granted.

The respondent and all those claiming occupation through him are ordered to vacate house number 26 School Avenue, Noelvale, Zvishavane within 48 hours of the service of this order upon the respondent.

The respondent shall pay costs of suit.

Chigariro Phiri & Partners, applicant’s legal practitioners

Mutendi,Mudisi & Shumba, respondent’s legal practitioners