City of Harare v Edward William

### Preamble
1
HH 66-22
CIV ‘A’ 50/21
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CITY OF HARARE

versus

EDWARD WILLIAM

HIGH COURT OF ZIMBABWE

TSANGA AND MAXWELL JJ

HARARE, 16 November, 2021 and 9 February 2022

Civil Appeal

A Moyo, for the appellant

E Moyo, for the respondent

MAXWELL J

This is an appeal against part of a judgment handed down at Harare Magistrates Court on the 9th of April 2021 in case number 3025/20.

FACTS

Appellant sued for the eviction of the Respondent from premises known as number 616 Muonde Road, Mufakose, Harare (the premises) in the lower court. The premises were once leased to one Alina Matenga also known as Elina Elina but the lease was cancelled. Respondent and his mother, Asina Black (now deceased) were in occupation of the premises illegally. Appellant based its suit on the fact that there was no lease agreement between it and the Respondent. The claim was dismissed with each party bearing its own costs. Appellant was aggrieved and noted an appeal on the grounds that; -

The court a quo grossly erred in fact amounting to a misdirection in law by concluding that the Appellant failed to prove its case on a balance of probabilities yet the respondent had no valid lease agreement with the Appellant which is the owner of the property. Such factual misdirection was so gross that no reasonable person applying his mind would have arrived at such a conclusion as the court a quo.

The court a quo grossly erred in fact and consequently in law such that no sensible person applying his mind would have arrived at such a conclusion by relying on the name Elina Elina appearing on the water slips to conclude that the Appellant failed to prove its case yet it was clear that the respondent had no right to occupy the property.

Appellant prayed for the setting aside of the order of the lower court and its substitution with an order for the eviction from the premises of the respondent and all those claiming occupation through him.

The Respondent opposed the appeal stating that there are no valid grounds of appeal. On the first ground he stated that it is vague, not concise and comes across as a rambling statement of a complaint. He further stated that the ground of appeal is argumentative and fails to indicate why the finding of fact is said to be wrong at law. He also stated that the ground of appeal attacks the court’s conclusions and exercise of discretion without showing why such deserves to be impugned. On the second ground, he stated that the ground of appeal is not clear and concise as it does not clearly define the issues to be determined by the appeal court. He further stated that the ground lacks specificity as it seeks to criticize a finding of fact or ruling of law based on documentary evidence but fails to show why it is said to be wrong. Respondent prayed for the striking out of the grounds of appeal with costs.  As the above paragraph attacks the name, a few sentences are needed here n why we accepted these grounds and proceeded with the hearing.

Respondent did not persist with the challenge to the grounds of appeal. In any event it is trite that a misdirection on the facts amounts to a misdirection of law if it is so unreasonable that no sensible person applying his mind to the facts would have arrived at such a conclusion. See Chinyange v Jaggers Wholesalers SC 24/04. In RBZ v Granger & Anor SC 34/01 it is stated that a misdirection of fact is either a failure to appreciate a fact at all or a finding of fact that is contrary to the evidence actually presented. The Court found the grounds of appeal proper on the basis that

Appellant is faulting the court a quo for making findings that are contrary to the evidence presented.

SUBMISSIONS BY THE PARTIES

Appellant submitted that the Respondent had no legal basis to claim occupancy of the premises and the lower court’s decision was based on an identity error where it confused Elina Elina and Esina Black. Elina Elina was Respondent’s aunt also known as Alina Machengo. Asina Black was Respondent’s mother. Appellant submitted that it proved that it was the owner of the property and there was no valid lease agreement in existence between the Appellant and the Respondent upon which Respondent could claim tenancy. It also submitted that the name Elina Elina on the water bill was an alias for Alina Machenga, not Asina Black, and that the certificate of occupancy for Alina Machenga was cancelled. It further submitted that Respondent’s name is not on the water bills therefore the court could not interpret the water bills to uphold Respondent’s tenancy. Appellant referred to the case of Krugersdorp Town Council v Fortain 1965 (2) SA 335 which was cited with approval in Shimuadi v Shirungu 1990 (3) SA 347 in which it is stated that;

“It is trite that in order to eject a defendant from immovable property, a plaintiff need only allege that he is the owner and that the defendant is in occupation thereof…..In respect of occupation, the defendant may well admit such occupation but contend that his occupation is lawful. The onus would then be on him to prove such lawfulness but he is relieved of this onus if there is some form of admission on the pleadings in terms whereof plaintiff concedes that he lawfully parted with such occupation.”

Appellant submitted that it had discharged its onus, on a balance of probabilities that the property belonged to it and that Respondent and his mother were duly served with the notice to vacate the premises. Appellant opined that the lower court erred in saying that it had failed to discharge its onus on a balance of probabilities. Appellant also submitted that the lower court erroneously associated the name Elina Elina that appeared on the water bills as an alias for Asina Black. Appellant further submitted that the error by the lower court merits interference as the finding of the fact that Elina Elina was Asina Black was contrary to the evidence presented before it. Appellant also submitted that the water bills did not prove tenancy but are just an administrative document

Respondent submitted that Elina Elina entered into a lease-to-buy agreement with the Appellant and that he produced evidence showing that the Appellant recognized the tenancy of Elina Elina and all those claiming occupation through her. He pointed out that after the cancellation of the certificate of occupancy which had been given to Elina Elina in 1989, the production of the water bills reflecting her name in August 2019 was corroboration of an agreement of lease on a rent to buy basis. Respondent pointed out that after the cancellation of the certificate of occupancy in 1989, the occupants were not evicted before the proceedings of 2020 which resulted in the present matter. According to Respondent, it can properly be assumed that the Appellant had re-let the premises to Elina Elina by her continued payment of rentals and the acceptance thereof. Respondent referred to Doll House Refreshments (Pty) Ltd v O’Shea & Ors 1957 (1) 348 quoted with approval in Chibanda v Hewlett 1991 (2) ZLR 211 for the position that relocation after a lease has expired is a new contract which may be express or tacit. Where the relocation is tacit, there is a presumption that the property is re-let at the same rent and that those provisions that are incident to the relation of landlord and tenant are renewed. Respondent argued that since Elina Elina and Asina Black are no longer alive, the lower court relied on s 21 of the Administration of Estates Act [Chapter 6:01] in establishing his legal occupancy. He argued that Asina Black was the next of kin of Elina Elina and that as Asina Black and himself were in the premises at the time of death of Elina Elina, they retained custody and possession of the premises in terms of the Administration of Estates Act. Respondent’s heads of argument refer to the case of Paget-Pax Trust v Highlife Investments (Pvt) Ltd HH 518/15 which define a statutory tenant as one whose continued occupation of the landlord’s premises after the expiry of the lease agreement is by operation of the law. It is stated in that case that a statutory tenant can be evicted if the landlord proves to the court that he has good and sufficient grounds for wanting back the premises.  Respondent argued that he had been in occupation of the premises for over thirty years and Appellant failed to show good and sufficient grounds warranting his eviction.

ANALYSIS

A reading of the ruling of the court a quo shows that its decision was afflicted by an error in identity.  On p 8, the court a quo states that it is common cause that “Asina Black who seem (sic) to be known as Elina Elina (defendant’s mother) took occupation of the said premises and was staying there with her family including the Defendant.” It is not correct that Elina Elina is also Asina Black. On p 22 of the record, Respondent testified that his mother, Asina Black was left at the premises when her sister went to Malawi. Respondent is not disputing that Elina Elina is not Asina Black. The lower court, in the mistaken view that Elina Elina was the same person as Asina Black questioned the basis of the summons, that the late Mrs Elina Elina had illegally occupied the premises. The record shows that Elina Elina had a certificate of occupancy which was cancelled in 1989. No basis was established for her or for anyone claiming occupation through her to be occupying the premises at the time of the issue of the summons. The court a quo was correct to find that the attempt to claim statutory tenancy does not succeed in the absence of a lease agreement in either Respondent or Asina Black’s name.

The court a quo justified Respondent’s occupation of the premises on the basis of the Administration of the Estates Act [Chapter 6:01]. Section 21 thereof states; -

“On the death of any person not being one of two spouses married in community of property, ….in default or absence of the spouse, the child or children of the deceased…..immediately after the death has the chief charge of the house in or of the place on which the death occurs shall secure and take charge of all goods and effects of whatever description belonging to the deceased and being in the house or upon the premises at the time of death, and shall retain the same in his or her custody and possession until delivery thereof is demanded by the executor of the deceased or by any other person lawfully appointed by the High Court or any judge thereof or the Master, to receive delivery of the same.” (underlining for emphasis)

Clearly the quoted section applies to property belonging to the deceased. As stated above, there was no legal entitlement to the premises or its occupation by Respondent’s mother, and all those claiming occupation through her, that was established. It is trite that an appellate court will, only in limited circumstances, interfere with the exercise of a judicial discretion by a lower court. In Barros & Anor v Chimphonda 1999 (1) ZLR 58(S) the Court expressed itself thus:

“It is not enough that the appellate court considers that if it had been in the position of the primary court, it would have taken a different course.   It must appear that some error has been made in exercising the discretion.   If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account some relevant consideration, then its determination should be reviewed and the appellate court may exercise its own discretion in substitution, provided always it has the materials for so doing.  In short, this Court is not imbued with the same broad discretion as was enjoyed by the trial court.”

This Court is of the view that this case is in the category of the limited circumstances in which interference with the exercise of a judicial discretion by a lower court is warranted. The lower court mistook the facts of the matter before it and arrived at a wrong conclusion. Its decision cannot be supported. The appeal therefore succeeds. The following order is made.

The decision of the court a quo be and is hereby set aside and is substituted with the following order; -

The plaintiff’s claim for eviction be and is hereby upheld.

The defendant and all those claiming occupation through him are hereby ordered to vacate   stand 717-160 Muonde Road, Mufakose, Harare.within 14 days of this order.

In the event that the respondent fails to comply with the order in (2)  the Deputy Sheriff be and is hereby empowered to evict defendant and all those claiming occupation through him from stand 717-160 Muonde Road, Mufakose, Harare

Respondent is to pay costs of suit.

TSANGA J…………………………………………………………Agrees

Gambe Law Group, Appellant’s Legal Practitioners

Baera & Company, Respondent’s Legal Practitioners