Esther Bvumbi v Peter Tirivangani Bvumbi

### Preamble
1
HH 843-18
HC 11336/18
---------


ESTHER BVUMBI

versus

PETER TIRIVANGANI BVUMBI

HIGH COURT OF ZIMBABWE

TAGU J

HARARE, 13 December 2018 and 2 January 2019

Urgent Chamber Application

C Warara, for the applicant

S Zvavanoda, for the respondent

TAGU J: Some rules of this Honourable Court were not strictly complied with by the applicant in this application. The applicant is currently residing in the United States of America. Through a General Power of Attorney dated the 12th of June 2017 the applicant appointed and authorized the deponent to the founding affidavit to file this application on her behalf. The deponent to the founding affidavit Savie Munoriarwa filed this application on behalf of the applicant as a self- actor. That explained why some rules of this court were not strictly followed but be that as it may the application was substantially correct save for the fact that the draft order was couched as a final order without the provisional order. Because the parties appeared ex facie the record as self- actors the court condoned the non -adherence to the rules in terms of rule 4C in the interest of doing justice between the parties. However, at the hearing of this matter the parties appeared with legal practitioners.

The application filed by the applicant is an application for an interdict to stop the respondent from occupying Stand 1 Cussonia Close Msasa Park Harare.

Counsel for the applicant applied for the amendment of the draft order so that it complies with the Rules of this court. The application was opposed by the counsel for the respondent. After hearing arguments I allowed the amendment to be made given the fact that the papers had been prepared and filed by a self –actor.

The circumstances are that the applicant and the respondent are former husband and wife married in terms of the marriage Act [Chapter 5.11]. The marriage was blessed with three children. The respondent at some time deserted the applicant and their three children. This prompted the applicant to file for divorce and other ancillary reliefs under case HC 7421/13. The respondent consented to the reliefs sought and parties duly signed a consent order on the 29th day of May 2017. One of the terms of the consent order was that the applicant was to stay in the matrimonial home until the last minor child TARISAI BVUMBI (born 17th September 2001) attained eighteen (18) years of age and the house was to be sold and proceeds shared at the rate of 40% to the applicant and 60% to the respondent. The parties had the option to buy each other out on the ratios explained above. However, the applicant later put tenants in the said house and relocated to the United States of America for further studies together with the minor child as stated by the counsel for the applicant.

The respondent who is alleged to have been lodging somewhere in Seke Chitungwiza, took advantage of the applicant’s temporary absence from the country and tried to return to the matrimonial home in question. The applicant on the 24th August 2018 filled an application against the respondent in case Number HC 7778/18 for an order interdicting the respondent from occupying number 1 Cussonia Close, Msasa Park Harare and or receiving rent from the lessee. On the 11th September 2011 the respondent then issued eviction Summons against the tenant at number 1 Cussonia Close Msasa Park under case number 21764/18. The applicant caused an appearance to defend the eviction to be entered. The respondent further filed an application for summary judgment. The applicant applied to be joined as a party and the case was referred to trial. The eviction case is still pending.

Having failed to quickly evict the tenant from the house the respondent on the 21st October 2018 took his belongings from where he was staying and moved back at Number 1 Cussonia Close Msasa Park Harare and occupied the cottage at the matrimonial home. The tenant was not happy with the respondent’s stay in the cottage hence gave the applicant notice to vacate the house by the 31st of December 2018. This prompted the applicant to file the present case for an interdict. The reason being that once the tenant leaves and the respondent entered the main house, the applicant and the minor child would be greatly prejudiced by losing accommodation on their return as well as the source of support for the minor child. Further the applicant alleged that the respondent is moving into the house in defiance of the consent order because the minor child is 8 or 9 months shy of attaining 18 years.

The counsel for the respondent argued that the respondent has been staying in this cottage at the time of the consent order. However, my reading of the papers in HC 7421/13 do not show that the respondent has been staying in the cottage, but that he had deserted the applicant and the children.  If at all he was staying in the cottage then the consent order did not capture that fact.

The application before the court is an application for an interdict to bar the respondent from occupying the house in question. Further, the respondent is clearly trying by all means to occupy the house in question against the Court order in case HC 7421/13 because the minor child has not turned 18 years yet. This is shown by the Summons for eviction that he issued in case HC 21764/18 as well as the summary judgment. Besides he is doing so while case HC 7778/18 is still pending.

The requirements for a final interdict were spelt out in the case of Pauline Mutsa Makoni v Julius Tawona Makoni and the Registrar of Deeds HH- 820-15 by MWAYERA J. See also Setlogelo v Setlogelo 1914 AD 221, which case was also quoted with approval in Econet Wireless Holdings v Minister of Information 2001 (1) ZLR 373 at 374B where requirements were stated as-

A clear right which must be established on a balance of probabilities.

Irreparable harm/injury actually committed or reasonably apprehended.

The absence of a similar protection by any other remedy.

On the other hand the requirements of an interim interdict were recently enunciated by MALABA JA (as he then was) in Airfield Investments (Pvt) Ltd v Minister of Lands & Ors 2004 ZLR 511 at 517 as follows-

“It must be born in mind that an interim interdict is an extra ordinary remedy, the granting 	of 	which is at the discretion of the Court hearing the application for the relief. There are 	however, requirements which an application for interim relief must satisfy before it can be 	granted. In LF Bashof Investments (Pty) Ltd v Cape Town Municipality 1969 (2) SA 256 (C) 	at 267 A-F, LORBERTT J (as he then was) said an application for such 	temporary relief must 	show –

that the right which is the subject matter of the main action which he seeks to protect by means of an interim relief is clear or if it is not clear, is prima facie established though open to some doubt,

that, if the right is only prima facie established there is a well -grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and he ultimately succeeds in establishing his right.

that the balance of convenience favours the granting of the interim relief, and

that the applicant has no other satisfactory remedy.”

In casu, the applicant is seeking to stop the respondent from occupying the main house in question. The applicant has in my view established a clear right derived from HC 7421/13. She has clearly established that if her right is not protected there would be irreparable harm in that she and her child will lose money and accommodation if the tenant moves out and the respondent occupies the house. In my view the balance of convenience favours the granting of the interim relief sought. I will grant the provisional order sought as amended.

IT IS ORDERED THAT

TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

The Respondent be and is hereby ordered to vacate Number 1 Cussonia Close Msasa Park, Harare within 48 hours of granting of this order failing which the Sheriff be and is hereby authorized to evict the Respondent together with anyone claiming right of occupation through him.

The Respondent shall pay costs.

INTERIM RELIEF GRANTED

Pending confirmation or discharge of the provisional order, the Applicant is granted the following relief:

The Respondent and anyone claiming title through him, be and is hereby interdicted from staying in the main house at Number 1 Cussonia Close Msasa Park Harare, or claim rent from its lessee, until the property is dealt with in terms of the consent paper signed between the parties on the 29th of May 2017.

Manyurureni & Company, applicant’s legal practitioners

Chiturumani and Zvavanoda, respondent’s legal practitioners