Gamuchirayi Mukandatsama v Matthew Wheeler & 3 Ors

### Preamble
1
HH 741-18
HC 3099/18
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GAMUCHIRAYI MUKANDATSAMA

versus

MATTHEW WHEELER

and

MESSENGER OF COURT HARARE N.O.

and

MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS

AND NATIONAL HOUSING

and

PROLIFIC LIFE HOMES

HIGH COURT OF ZIMBABWE

MANZUNZU J

HARARE,17 October & 15 November 2018

Opposed application

S. Kachere, for the applicant

S.T. Mutema, for the 1st respondent

MANZUNZU J: This is an application for a declaratory order in terms of s 14 of the High Court Act, [Chapter 7:06]. The prayer was couched in the following terms;

“IT IS HEREBY ORDERED THAT

The attachment of stand No. 10138, Whitecliff South, Harare and the current sale in execution by the respondents be declared as null and void.

1st respondent shall pay costs of suit.”

The brief background to this matter is that the applicant is in occupation of stand No. 10138 Whitecliff South, Harare by virtue of a lease agreement between her and the third respondent. The lease has been running since 1st December 2012 and it gives the applicant the option to purchase only when the third respondent has valued the property and make an offer to the applicant to purchase. No offer has been made so the applicant cannot exercise any right of option either to accept or refuse. Her status remains than of a lessee.

On 29 November 2017 the second respondent in the course of his duties served a notice of attachment on the same property. The authority of such attachment was a warrant of execution against immovable property being stand No. 10138 White Cliff South, Harare. This is a warrant from the Magistrate’s Court under case Number 19320/16 in which Matthew Wheeler, the first respondent, is the applicant against one Cartworth Machingauta, being applicant’s husband, as the respondent. The applicant confirms in her founding affidavit that, “the execution was pursuant to a judgment obtained against my husband Cartworth Machingauta by the first respondent under HC 19320/16.”

It is on the basis of this attachment that this application was lodged but only after exchange of communication between the applicant’s legal practitioners and those of the first respondent and the third respondent.

Section 14 of the High Court Act under which this application has been brought reads;

“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.”

The question which the court must address is whether applicant’s circumstances constitute a proper case for the application under s 14 under the High Court Act.

The first respondent’s contention is that the applicant has no cause of action and the relief she is seeking is incompetent and cannot be obtained through section 14 of the Act.

In the case of Munn Publishing (Pvt) Ltd v ZBC 1994 (1) ZLR 337 (5) Gubbay CJ, as he then was, had this to say;

“The condition precedent to the grant of a declaratory order is that the applicant must be an interested person, …in the sense of having a direct and substantial interest in the subject matter of suit which could be prejudicially affected by the judgment of the court”.

An interested person must assist the court in its inquiry by laying before the court facts which show either existing, future or contingent rights.

As per Newton Elliot Dongo v Joytindra Natverial & Ors, HH 73-18:

“….. a person seeking a declaration of rights must set forth his contention as to what the alleged right is.”

A legal right ought to be shown, see Dongo case supra and authorities cited therein.

The applicant is no more than a lease holder with the third respondent. There is a judgment of the Magistrate Court sanctioning the sale of the property. For some strange reasons the applicant has been referring to this property as her property. In what sense is the property hers when she is only a lessee is everyone’s guess.

I agree with counsel for the first respondent that this case is not a proper one for a declaratory order. Counsel for applicant’s argument was based more on attacking the judgment of the Magistrate’s court. But what he forgot is that this court was not sitting as an appeal or review court. It was sitting as a court of first instance to determine whether applicant should be granted a declaratory order.

The order prayed for by the applicant clearly shows that she wants to overturn the judgment of the magistrate’s court through the backdoor. What the applicant seeks is by no means a declaratory order. Section 14 envisages a declaration of rights which is a point of law and not facts.

In casu applicant seeks that the attachment of stand No. 10138, Whitecliff South and its current sale in execution by respondents be declared null and void. There is certainly no legal basis for that. The applicant hangs on personal rights derived from the lease agreement which she can enforce against third respondent if she alleges breach of contract but not to vitiate the judgment of the Magistrate’s court and its consequences.

There is totally no merit in this application. Despite the advise from the first respondent’s legal practitioners in a letter dated 10 April 2018 that such an application did not have merit the applicant proceeded with this application. This is also despite her earlier attempt to proceed with interpleader proceedings and similar application in the Magistrate’s court which she later withdrew. She cannot be allowed to go on a fishing expedition at the expense of others.  She must meet their costs at a higher scale.

Accordingly:

The application is dismissed with costs on an attorney and client scale.

Kachere Legal Practitioners, applicant’s legal practitioner

Stanlious and Associates, 1st respondent’s legal practitioner