Emson Chabwinja v Craig Orokane

### Preamble
1
HH 387-25
HCH 718/24
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EMSON CHABWINJA

versus

CRAIG OROKANE

HIGH COURT OFZIMBABWE

MAXWELL J

HARARE 17 FEBRUARY 2025, JUNE 2025

Opposed Matter

T K Bvekwa, for the Applicant

E Ngerewe, for the Respondent

MAXWELL J: At the hearing of the matter, the Respondent raised points in limine which are the subject of this judgment. The Applicant approached this court seeking a declaratory order in terms of s14 of the High Court Act [Chapter 7.06] and the eviction of the Respondent.

BACKGROUND

In his Founding Affidavit, the Applicant submitted that, on or about the 1 October 2018, he entered a lease agreement with the Mutoko Rural District Council to buy an immovable property, a medium density stand, known as stand number 315 Crowhill Park (“the stand”) which he then took occupation of. He further averred that the Respondent (his son-in-law) and his daughter then approached him and stated that they needed accommodation, and he offered that they reside on the stand while they put their affairs in order. He further averred that the Respondent and his wife separated, and the Respondent remained on the stand. He stated that he then approached the Respondent to inform him that since he was no longer married to his daughter, he should vacate the premises and allow him to occupy the premises for his own use. The Respondent then adopted the position that since he had been staying on the stand, it now belonged to him. The Applicant informed the Respondent that if he wanted to stay on the stand, he should buy the property from him. The Respondent promised that he would pay the purchase price in the sum of USD6 000.00 which was never paid.

The Respondent opposed the application and raised two points in limine which will be considered hereunder. In his Opposing Affidavit, the Respondent averred that the matter is res judicata considering that it was previously dealt with by another competent court and dismissed. It was the Respondent’s averment that on 3 December 2018, the Applicant sued out summons against him before the Mutoko Magistrates Court under case number 109/18. The Respondent maintained that the allegations in the summons are on all fours with the allegations in Applicant's Founding Affidavit. Also, the relief sought in the summons is principally the same relief sought in the application, except for the prayer for a declaratory order which is merely a smokescreen, and in any event the Magistrates Court has already made a finding that the Applicant failed to prove that he is entitled to evict the Respondent from the stand. He also stated that it is common cause that the action proceedings under the case number 109/18 were dismissed, and thus the Applicant cannot, at law, institute fresh proceedings in this court against him seeking the same relief.

Furthermore, the Respondent averred that this matter cannot be resolved through application proceedings as there are material disputes of fact, as was highlighted in 2018 when the Applicant instituted eviction proceedings against the Respondent under case number 109/18 before the Magistrates Court.  He further averred that it has always been his position that he was never given a place to stay by the Applicant as he has his own residence in the same neighborhood situated at Stand No. 200 Crowhill Park, Medium Density, Mutoko which he acquired from Mutoko Rural District Council in 2014. He further averred that the Applicant has always been desperately seeking to assert that his said stand is also Stand No. 315 Medium Density Mutoko which is absurd. Also, that an immovable property cannot have two distinct stand numbers.  He prayed that the application be dismissed with costs on a legal practitioner and client scale on that basis alone as it amounts to abuse of court process.

ANALYSIS

The principles underlying declaratory orders were laid out in Ilasha Mining (Pvt) Ltd v Yatakala Trading (Pvt) Ltd t/a Viking Hardware Distributors HB 03/18, as follows:

“It is trite that an application for declaratory order ought to be made in terms of the High Court Act (Chapter 7:06). Section 14 of the Act provides that:

‘The High Court may in its discretion, at the instance of any interested person, inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.’

It is axiomatic that an application for a declaratory order ought to be considered and ventilated in light of the provisions of s14 of the High Court Act.  The requirements of a declaratory order were succinctly and aptly considered in the case of Johnsen v Agricultural Finance Corporation 1995 (1) ZLR 65. The court stated the position as follows:

‘The condition precedent to the grant of a declaratory order under section 14 of the High Court Act of Zimbabwe, 1981 is that the Applicant must be an “interested person”, in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court. The interest must concern an existing, future, or contingent right. The court will not decide abstract, academic, or hypothetical questions unrelated thereto. But the presence of an actual dispute or controversy between the parties is not a pre-requisite to the exercise of jurisdiction. See also, Ex P Chief Immigration Officer 1993 (1) ZLR 122 (S) at 129F-G; 1994 (1) SA 370 (25) at 376G-H; Munn Publishing (Pvt) Ltd v ZBC 1994 (1) ZLR 337 (S).’”

In casu, the Applicant has fulfilled all the requirements for a litigant who has the locus standi to bring an application seeking declaratory relief. It is apparent that the Applicant is an “interested person”, in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court. His interest concerns an existing, future, or contingent right in the immovable property as he states that he bought the property.  He bought the subject property from the Mutoko Rural District Council and in addition to that an agreement was entered into to which he paid all that was due to the council. He obtained rights in the property by the act of purchasing it from Mutoko Rural District Council. This means that at law the Applicant can enforce these rights against third parties who intend on infringing his rights to usage and occupation just as the Respondent is attempting to do.

However, the Respondent has argued that this dispute was principally resolved by another competent court namely the Magistrates Court Mutoko under case number 109/18 where the Applicant sought, inter alia, eviction of the Respondent and all those claiming right of occupation through him. The matter was dismissed, and no appeal was lodged against the dismissal.  He argued that the Applicant cannot approach this court seeking his eviction or an application for a declaratur which is merely a smokescreen. In Anjin Investments (Pvt) Ltd v The Minister of Mines and Mining Development & Ors CCZ 6/18, the Constitutional Court held that the principle of res judicata precludes the court from re-opening a case that has been litigated to finality. The Applicant was not supposed to re-open the same matter that was heard before a competent court but he should have noted an appeal. Hence this application is an abuse of court process. Moreover, the principle of res judicata was aptly defined in Custom Credit Corporation (Pty) Ltd v Shembe 1972 (3) SA 462 (A) at 472 A-B where it was stated that:

“If a cause of action has been finally litigated between the parties, then a subsequent attempt by one to proceed against the other on the same cause for the same relief can be met by an exceptio rei judicatae vel litis finitae.”

A reading of the Founding Affidavit to this application and the summons filed in the Magistrates Court shows that the pleadings are almost identical. The claim for eviction was already dismissed by the Magistrates Court. The Applicant can therefore not seek to institute proceedings in this court seeking similar relief.

Moreover,  a declaration of rights cannot be done in circumstances where there is a material dispute of facts incapable of being resolved on the papers. As stated by Makarau J (as she then was) in Supa Plant Investments (Pvt) Ltd v Edgar Chidavaenzi HH 92/09:

“A material dispute of fact arises when material facts alleged by the Applicant are disputed and traversed by the Respondent in such a `manner as to leave the court with no ready answer to the dispute between the parties in the absence of further evidence.”

In casu, both parties have furnished proof of ownership of stands from the Mutoko Rural District Council, albeit, with different stand numbers. The Magistrates’ Court made a finding that the parties are referring to the same property using different stand numbers. The Applicant claims that the Respondent stays at No. 315 Crowhill Park, Medium Density, Mutoko whilst the Respondent vehemently disputes this. The Respondent asserted that where he stays is Stand No. 200 Crowhill Park, Medium Density. As it appears from the judgment of the Magistrates Court, the Applicant had been desperately seeking to describe where the Respondent stays as No. 315 Crowhill Park, Medium Density. This is an issue that cannot be resolved on papers; it requires further evidence for the Court to get clarity and to be able to fairly adjudicate on the matter. Approaching this court through application procedure, in my view,  was not proper as there are material disputes of fact which require the leading of viva voce evidence for clarity.

On the issue of costs, for a litigant to successfully claim costs on the attorney and client scale, which is punitive, he/she must show that the other party’s behaviour and attitude deserves to be punished. The awarding of costs at a higher scale is within the discretion of the Court. Our courts will not resort to this drastic award lightly, since a person has a right to obtain a favourable decision against a genuine complaint which is not the case in this matter. The learned authors Hebstein and Van Winsen in The Civil Practice of the High Court and the Supreme Court of Appeal of South Africa, 5 ed : Vol 2 p 954, stated the following:

“The award of costs in a matter is wholly within the discretion of the Court, but this is a judicial   discretion and must be exercised on grounds upon which a reasonable person could have come to the conclusion arrived at. The law contemplated that he should take into consideration the circumstances of each case, carefully weighing the various issues in the case, the conduct of the parties and any other circumstances which may have a bearing upon the question of costs and then make such order as to costs as would be fair and just between the parties...”

It is my view that costs on a higher scale are not warranted. Ordinary costs will meet the justice of the case.

Accordingly, the matter be and is hereby struck off the roll with costs.

Maxwell J:……………………………….

Bvekwa Legal Practice, Applicant`s legal practitioners

Chatsanga and Partners, Respondent`s legal practitioner