Collin Dube and 129 Others v Tungpal Investments (Pvt) Ltd and The Messenger of Court, Harare

### Preamble
HH 106-2010
HC 3340/10
COLLIN DUBE AND 129 OTHERS
versus
TUNGPAL INVESTMENTS (PVT) LTD.
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COLLIN DUBE AND 129 OTHERS
versus
TUNG PAL INVESTMENTS (PVT) LTD.
and
THE MESSENGER OF COURT, HARARE.

HIGH COURT OF ZIMBABWE.
BHUNU J
HARARE, 26th May and 16th June 2010

Mr Kawonde, for the applicant
Adv. T. Mpofu, for the respondent

Urgent Chamber Application.

BHUNU J: The 130 applicants are tenants of the first respondent at its various flats in Harare. Following a legal battle the parties concluded a written deed of settlement on 4 May 2010 in the following terms:

“1. That applicants shall pay to Messrs Manase and Manase all monies due as rentals at the thresholds prevailing at the time such rentals became due as the case may be, from the month of October 2009 to April 2010.

2. That Applicants shall pay to Messrs Manase and Manase all monies due as rentals for the month of May 2010 which amounts are agreed as follows

(a) For a bed sitter - US 150.00

(b) For one bed - roomed flat - US 200.00.

(c) For a two bed – roomed flat - US 250.00

3. That Mnondo Properties (Private) Limited shall write to applicants directing them to pay all rentals due subsequent to the above months, to Tungpal Investments (Private) Limited.

4. That Tungpal Investments (Private) Limited shall invite applicants to enter into written lease agreements with it in respect of the properties applicants inhabit.

5. That applicants shall pay rentals in respect of the month of May 2010 to 7 May 2010.

6. The applicants shall pay all monies due as rentals in terms of paragraph 1 hereto by 10 May 2010 at 16:00 hours latest.


7. That in the event of any applicant failing to make payment of monies in terms of paragraphs 5, and 6 above, such applicant shall be evicted from leased premises in terms of the order of the magistrates court dated 19 February 2010.

8. That applicants shall withdraw all their applications pending in the High Court, and that this deed of settlement shall govern the legal relation s between the parties from the date of signature hereof.”

It is clear that in terms of clauses 5 and 6 of the deed of settlement the applicants were obliged to pay rentals due and awing no later than 10 May 2010 failure of which the first respondent was entitled to evict in terms of the court order obtained on 19 February 2010 without any further ado.

It is common cause that by 10 May 2010 no payments had been made in terms of the deed of settlement. This appears to have been in consequence of a dispute concerning the amounts due and awing. On 11 May 2010 respondent’s then lawyers Manase & Manase wrote to the applicant’s lawyer accepting payment in the amounts proposed by the applicants and considerately extending the due date of payment by a day from 10 May to 11 May 2010. The letter reads:

“Dear Sir

COLLIN DUBE AND 129 OTHERS v TUNGPAL INVESTMENTS

Your letters of 6th 10th and 11th May refers. We write to confirm that our files reflect a different position but nonetheless for the sake of progress and finality in the matter we shall stick to the figures reflected in your letter with reference to one and two bedroomed flats. However we feel as per your earlier discussions with our Mr. Pasipanodya in the morning that the bed-sitter rental should at least be raised to a nominal fee of USD60.00

In the premises kindly advise what time we should expect payment today.”

A dispute has now arisen concerning whether or not the applicants have paid in terms of the deed of settlement. The dispute can only be resolved by applicants furnishing the respondents with proof of payment in the agreed amounts to Manase & Manase on or before the agreed due date of 11 May 2010.

The applicants have now produced 3 receipts showing block payments to Manase & Manase as follows:


| Receipt No. | Date       | Amount Paid |
|------------|------------|------------|
| 1. 3619    | 8/05/10    | $10 250.00  |
| 2. 3999    | 5/05/10    | $5000.00   |
| 3. 3622    | 12/05/10   | $29 480.00  |

What is clear from the figures is that a total of $15250.00 was paid in terms of the deed of settlement whereas $29 480, 00 was paid when the applicants were already in breach of the deed of settlement in that payment was made on 12 May instead of 11 May 2010.

That being the case, the respondent was within its rights in seeking a remedy in terms of the deed of settlement. The undisputed facts of this case make it clear that close to half the number of applicants made timeous payments in terms of the deed of settlement whereas a similar number defaulted. I have said it before and I will say it again that it is unfair and manifestly unjust that the innocent should be punished together with the guilty.

It is also self evident that by making block payments the defaulters seek to hide behind those who made timeous payments in terms of the deed of settlement. The onus is however, on each applicant to produce proof of payment to the satisfaction of the second respondent, that is to say, the messenger of Court that he or she made timeous payment in terms of the deed of settlement.

No onus lies on the respondent to show or deduce from the bulk payments as to who has paid or not paid in terms of the deed of settlement. This is because this information is solely within the knowledge of the applicants. By making block payments and adopting a common stance in this application the applicants risked being held jointly and severally liable for any shortfalls or breaches which are obvious in this application.

For the foregoing reasons the application cannot succeed because no one is in danger of being unlawfully evicted should he manage to produce the required proof of payment. It is accordingly ordered that the application be and is hereby dismissed with costs.

*Kawonde and Company*, applicants’ legal practitioners
*Manase and Manase*, 1st respondent’s legal practitioners
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