Johane Masowe Chishanu v Herbert Senda and 10 Others

### Preamble
1
HH 326-22
HC 11839/18
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JOHANE MASOWE CHISHANU

versus

HERBERT SENDA

and

OWEN NEDZIWE

and

CHARLES NDAWANA

and

INNOCENT MUGUVHE

and

MARITA GWENZI

and

SANDRA MADIYE

and

NYIKADZINO CHINGOMA

and

ALETTA MUGUMBATE

and

MADZIMAI LUCIA

and

CITY OF HARARE

HIGH COURT OF ZIMBABWE

MANGOTA J

HARARE, 10 September 2019 and 18 May 2022

Opposed Matter

Mr N Mugiya, for the applicant

T Gombiro, for the 1st - 10th respondents

MANGOTA J:  I heard this matter on 10 September 2019.  I delivered an ex tempore judgment in which I dismissed the same with costs.  I put the matter to rest as none of the parties showed any intention to appeal my decision.

On 5 April 2022 the registrar of this court drew my attention to the letter which Messrs Chimwamurombe Legal Practice wrote to him.  The letter relates to this case, among others.  The relevant part of the same is contained in its second paragraph.  The paragraph which refers to the letter which the same firm of legal practitioners wrote to the registrar on 24 March 2022 reads, in the part, as follows:-

“in the above stated letter, we requested your offices to include the judgment of Justice Mangota 	under HC 11839/18 in the appeal record.  On the 25 March 2022 your offices invited us to inspect 	the record of appeal at the Harare High Court…..  Upon inspection of the appeal record, it came to 	our attention that the judgment of Justice Mangota is still not part of the record.

It is against this backdrop that we write to you to further implore you to furnish us with this 	judgment and to include this judgment in the record of appeal.

This judgment is pivotal to the resolution of this matter on appeal.”

The registrar did not draw my attention to the letter of 24 March 2022.  He advises that he could not do so when he had not yet located record HC 11839/18 which I conclusively dealt with on 10 September 2019.  He, accordingly, brought the letters to me together with the record of proceedings, HC 11839/18, only yesterday i.e. 11 May 2022.

Because the legal practitioners require reasons for my decision, these are they:-

I heard the application on 18 June 2019.  I reserved judgment.  A day after I heard the matter, the eleventh respondent whom the applicant cited as a party wrote to the registrar of this court specifically to my clerk.  It referred to the hearing which had occurred.  It advised that the applicant did not serve the application upon it.  It raised concerns which were to the effect that it would be affected by the order which the court would make.  It asserted that it held rights in the land which the applicant and the first – tenth respondents were fighting over.  It stated that it had a direct and substantial interest in the application.  It said none of the parties could obtain rights which it had not granted to them.  It moved me to accord to it the opportunity to be heard.  It stated that it would, if permitted to do so, file its notice of opposition as well as its Heads within seven (7) days of the permission having been granted to it.

On the strength of the eleventh respondent’s letter of 19 June 2019, I caused the parties’ legal practitioners to appear before me on 28 June 2019.  The legal practitioner for the eleventh respondent appeared together with other parties’ legal practitioners.  The court and the three set of legal practitioners agreed that the eleventh respondent should be heard.  I, accordingly, directed that:-

a)	the application be postponed to 10 am of May 2019;

b)	the applicant serve its application on the eleventh respondent on 1 July 2019;

c)	the eleventh respondent file and serve its notice of opposition upon the applicant 			and the first – tenth respondents on 12 July 2019;

d)	the applicant file its answering affidavit, if any, and serve the same upon the 			first – eleventh respondents on 26 July 2019;

e)	the applicant file and serve its Heads in respect of the eleventh respondent’s case 			on 9 August 2019; and

f)	the eleventh respondent file and serve its Heads upon the applicant and the first – 			tenth respondents on 26 August 2019.

All the above was duly complied with as a result of which the stage was set for the application to be heard with all the parties who/which had an interest in the application present.

At the centre of the parties’ dispute is Stand Number 2254 or the Remainder of Glen Eagles Farm, Budiriro 4, Harare (“the property”).  The applicant applied for the eviction of the first – tenth respondents from the same.  It alleged that it owns the same.  It asserted that it applied for, and was allocated, the property by the eleventh respondent.  It stated that the respondents were occupying the property against its will.  It moved me to grant the application to it in terms of its draft order.

All the respondents opposed the application.  The first – eleventh respondents alleged that the property belongs to the applicant and them.  They stated that they are members of the applicant.  The first respondent averred that he formed the applicant and tasked the deponent to its founding affidavit together with two others to oversee the functions of the housing co-operative.  He alleged that the deponent and his companions unlawfully removed his name and the names of other nine (9) respondents from the church register of members of the housing co-operative.  The deponent, he averred, acted out of greed.

All the ten (10) respondents stated that the deponent to the founding affidavit tempered with the register of the applicant’s membership.  He, it was alleged, expunged their names from the same.  The eleventh respondent’s statement was that neither the applicant nor the ten respondents owned the property which is the subject of the application.  It alleged that they illegally occupied the property.  All the respondents moved me to dismiss the application with costs.

An applicant for rei vindictio must show, on a balance of probabilities, that he owns or lawfully possesses the property which is the subject of his suit:  Stanbic Finance Zimbabwe Ltd v Chivhungwa 1999 (1) ZLR 262 (H).  Rei vindication is a common law remedy which is available to an owner of a property for its recovery from the possession of another person:  African Sun Zimbabwe Ltd v Sifelani Mlongone, HH 332/15.  The principle that an owner cannot be deprived of his property against his will means that he is entitled to recover it from any person who retains possession of it without his consent: Silberberg & Schoeman, Law of Property 3rd edition, page 273.

The applicant states that is applied for, and was allocated, the property by the eleventh respondent for its members.  Its statement remains without any substantiation.  It does not attach a copy of the application which it alleges it lodged with the eleventh respondent.  Nor does it produce any evidence which shows that the eleventh respondent allocated the property to it.  There is, therefore, nothing which shows that it possesses, let alone owns, the property which is at the centre of the its dispute with the first – fourth respondents

Annexure D upon which the applicant places reliance is a letter which the eleventh respondent wrote to the police who are at Southerton Police Station on 15 January 2018.  The annexure cannot, with respect, constitute the requisite evidence of the applicant’s possession and / or ownership of the property.  This is a fortioti the case when regard is had to the statement of the eleventh respondent which states, in a clear and unambiguous manner, that it did not allocate the property to the applicant or to any of the ten respondents.  The letter, it is evident, contains two contradictory paragraphs.  Paragraph 1 of the same refers to the first respondent as a member or leader of the applicant.  It reads, in part, as follows:-

“…the co-operative that you refer to is known as, and it was registered in the name of, Johane 	Masowe Chishanu Nyenyedzi Nomwe but is commonly referred to as Madzibaba Enock.”

Paragraph 3 of the annexure appears to exclude the first respondent from the executive committee of the applicant.  It does not, however, state that the first respondent or the other nine (9) respondents is not/are not members of the applicant.  The annexure lacks clarity in that it ends at paragraph 4.

The last sentence of paragraph 1 of the annexure which reads “but is commonly referred to as Madzibaba Enock” is very revealing.  It shows, in a clear manner, that the first respondent did, at some point in time or other, have something to do with the applicant.  He states as much in his notice of opposition.  He asserts that he formed the applicant and tasked the deponent to the founding affidavit and two others to nurture the applicant.

That the assertion of the ten (10) respondents as read with the contents of the founding affidavit constitutes material disputes of fact requires little, if any, debate.  One cannot tell, from the papers, if the respondents were/are members of the applicant.  One cannot also tell if the register of the applicant’s membership was tempered with as the respondents allege.  Only viva voce evidence can unravel the observed hurdle.

Supa Plant Investments (Pvt) Ltd v Chidavaenzi 2009 (2) ZLR 132 at 136 F-G defines the meaning and import of the concept of material disputes of fact.  The law, as enunciated in respect of this concept, is clear and straight forward.  It allows a court which is faced with material disputes of fact to either refer the case to evidence or to dismiss the application altogether. Corbett JA preferred the former position when he stated in Tamarillo (Pty) Ltd v BN Aitken (Pty) Ltd 1982 (1) SA 398 (A) that:

“A litigant is entitled to seek relief by way of notice of motion.  However, if he has reason to believe 	that facts essential to the success of his claim will probably be disputed, he chooses that procedure 	at his peril, for the court, in the exercise of its discretion, might decide neither to refer the matter to 	trial or to direct that oral evidence on the disputed facts be placed before it, but to dismiss the 	application.”

I associate myself fully with the wise words of the learned judge of appeal especially in the circumstances of the present application which is not proved but is also fraught with material disputes of facts which cannot be resolved on the papers.  The applicant did well when it sued the respondent under HC 4343/18.  The case which was mounted through action proceedings had the ability to resolve the dispute of the parties in a conclusive manner. It progressed to pre-trial conference stage.

The applicant alleges that HC 4343/18 was withdrawn. No reason was advanced for its withdrawal.  No evidence was produced to support the allegation that the case was withdrawn.  The probabilities are that it is very much alive and kicking.

If HC 4343/18 is still on the roll of the court, as I hope it is, the case remains the best option of the parties.  It remains so because the issue which relates to the applicant’s register, in particular, the allegation that it was tempered with, would be interrogated to a point where only the correct position of the matter would emerge.  Further, the issue of the ten (10) respondents’ membership in the applicant would be interrogated and findings made on the same.  Witnesses’ evidence would, therefore, be tested under cross-examination with a view to establishing the veracity, or otherwise, of the respondents’ claims.

It follows, from the above analysed set of matters that, if HC 4343/18 was withdrawn as the applicant alleges, it is pertinent for the applicant to reinstate it and proceed to prosecute it to its final conclusion.  That the dispute of the parties should be resolved by way of action, as opposed to motion, proceedings requires little, if any, debate.  Four applications have already been filed at court.  More may be filed if there is no conclusive resolution of the dispute of the parties.  The inclination of the parties to apply and counter-apply without any end in sight becomes irresistible where neither party is prepared to give in and allow the matter to be put to rest.  The fact that HC 11598/18, HC 4343/18, HC 9919/18 and HC 11839/18 were all filled within a space of less than one year goes to confirm my observations of the inadequacy of the procedure which the applicant employed in casu.

Finality must be reached in respect of the dispute of the parties.  This is a fortiori on the alleged tempering of, or with, the register of the applicant’s membership.  There is, however, no dispute between the parties as to which of them owns or possesses the property. The eleventh respondent which is the authority on the same spoke in a clear and unambiguous language.  Its statement cannot be ignored.  It constitutes the correct position of the matter.  It shows that neither the applicant nor the ten (10) respondents owns or possesses the property which remains in the ownership of the eleventh respondent.

The applicant’s application for rei vindicatio cannot stand.  It stands on no leg.  The applicant failed to prove its case on a balance of probabilities.

The application is, in the result, dismissed with costs.

Mugiya and Macharaga Law Chambers, applicant’s legal practitioners

Chinwamurombe Legal Practice, respondent’s legal practitioners