Lilian Mapati v Priscilla Mandara and Saltana Enterprises (Pvt) Ltd and Dipcluff Investments (Pvt) Ltd

### Preamble
1
HH 138-21
HC 7400/17
---------


LILIAN MAPATI

versus

PRISCILLA MANDARA

and

SALTANA ENTERPRISES (PVT) LTD

and

DIPCLUFF INVESTMENTS (PVT) LTD

HIGH COURT OF ZIMBABWE

FOROMA J

HARARE, 19 July 2019 & 31 March 2021

Opposed application

V. Mhungu, for the applicant

Z.M. Kamusasa, for the 2nd & 3rd respondents

FOROMA J: In this matter applicant has applied for an order dismissing the first respondent’s claim in case No. HC 1378/15 against applicant in terms of r 75 of the High Court Rules 1971 on the basis that the first respondent’s claim is frivolous and vexatious. The applicant cited the first respondent and Saltana Enterprises Pvt Ltd as joint respondents. The third respondent was joined as a third respondent as a result of third respondent having been joined as a third defendant by first respondent (the plaintiff in HC 13781/15).

For purposes of reference to pleadings in HC 1378/15the first respondent will be referred to as the plaintiff and applicant herein as the first defendant with the second respondent and third defendant being referred to as second defendant and third defendant respectively. The plaintiff sued first defendant in HC 1378/15 for a declaratur. The prayer to the declaration is worded as follows: “Wherefore the plaintiff’s claim against the defendants is for (A) An order declaring the plaintiff as the legitimate holder of rights interests and title over Stand No. 7772 Belvedere West Harare and that any alleged repossession and or disposal of the said stand by the second and third defendants to the first defendant be declared unlawful and therefore null and void.

Paragraphs B and C of the prayer are for consequential relief. The plaintiff claimed in the alternative as follows – Alternatively In the event that the court finds that the first defendant was an innocent purchaser, the plaintiff claims payment of US$40 000-00 (forty thousand United States dollars) or the equivalent value of the said Stand at the time of judgment whichever is the greater against the first, second and third defendants jointly and severally the one paying the others to be absolved.

The prayer aforesaid arose from the following averments from the plaintiff’s declaration (only pertinent clauses of the declaration are quoted for the sake of precision).

(4)	Plaintiff purchased Stand 7772 Belvedere West Harare on the 14th July 2002 for the sum of ZW1 426 875 (One million four hundred and twenty-six thousand eight hundred and seventy-five Zimbabwean dollars) from Saltana Enterprises (Private) Limited the second defendant hereinafter called (Saltana) through Borm Real Estate its nominated agents and she paid the purchase price in full.

(5)	Since no Certificate of Compliance had been issued to enable the beneficiaries to take occupation, the plaintiff likewise did not commence construction works at the stand awaiting full servicing of the land as is required by law. She however put a caretaker to reside at the said stand.

(6)	The second defendant was once placed under judicial management between 2006 and 2009. The then judicial manager noted that some time in 2005 plaintiff’s stand had been illegally sold to the first defendant under unclear circumstances. He (judicial manager) accordingly declared the subsequent sale illegal and therefore null and void and retained plaintiff as the legitimate purchaser.

(7)	Even after the period of judicial management the first defendant was again formally advised by the second defendant that she had no legal rights on the stand in question (stand 7772 Belvedere West Harare)

(8)	At one point the first defendant forcibly took occupation of the stand notwithstanding that plaintiff’s caretaker was already in occupation. Plaintiff reported the case to the police where the first defendant was again advised to recover whatever they had paid from the person who had sold the stand to her. She (1st defendant) however did not heed the call.

(9)	As if that was not enough the first defendant subsequently illegally commenced construction of a durawall and a cottage on the said stand. She (1st defendant) was warned in writing to stop such illegal activities but was adamant and proceeded with construction works even without an approved plan by the local authority.

(10)	Despite demand and fore warnings the first defendant failed neglected or refused to vacate plaintiff’s stand. The plaintiff now desires to take occupation  of her stand.

After being duly served with the plaintiff’s summons and declaration and filing an

Appearance to defend the first defendant filed her plea in which she pleaded in limine that the plaintiff’s claim was prescribed in terms of s 15 (d) of the Prescription Act [Chapter 8:11] in view of the fact that the claim arose from a transaction which occurred on or about 14th July 2002. On the merits the first defendant averred that she bought the property in December 2005 and that she had been confirmed the lawful purchaser of the stand by the judicial manager who undertook to effect transfer in favour of the first defendant. In her replication filed in August 2017 the plaintiff denied the defence of prescription as her claim was not for a debt and disputed the alleged confirmation by the judicial manager that she was declared the owner of the stand as she claimed.

For reasons not altogether clear the first defendant (hereinafter referred to as applicant) instituted the current application seeking the dismissal of the plaintiff’s claim in HC 1378/15 on the basis that the said claim was frivolous and vexatious. Plaintiff in HC 1378/15 (1st respondent) in casu vigorously opposed the said court application. Applicant in support of her application relied on the defence that the first respondent’s claim was prescribed and argued further that the first defendant had extremely been dilatory in the conduct of her claim which dilatoriness was indicative that first defendant had no faith in the veracity of her claim. First defendant also relied on the alleged declaration by the Judicial Manager that she was the recognized owner of the stand in question.

First respondent opposed the applicant’s application contenting that her case in HC 1378/15 was unassailable and that there were material disputes of fact that required resolution through a trial. First Respondent also argued that applicant’s alleged acquisition of rights, interests and title in Stand 7772 Belvedere West, Harare was null and void as she was purportedly sold the said stand by third respondent who in terms of an arbitral award by L G Smith on the 17 May 2012 had been ruled not to have had any disposable rights which it could dispose of to any third parties. She also attached the arbitral award which was not challenged by applicant and thus remained extant. First Respondent contrary to the applicant’s contention that the judicial Manager confirmed her as the owner of stand 7772 aforesaid produced correspondence from Tudor House Consultants P/L (whose DR C. Madondo was the judicial manager) dated 9 January 2015, which shows that stand 7772 was illegally sold to applicant by G Mlotshwa through his company Dipcluff Investments P/L which had no authority to sell the said stand. Dipcluff Investments P/L is the third respondent in casu.

Order 11 r 75 (1) of the High Court rules 1971 provides as follows:

“where a defendant has filed his plea he may make a court application for the dismissal of the action on the ground that it is frivolous and vexatious.”

Beadle CJ in the matter of Wood N O v Edwards 1968 2 (RLR 212 at 213 A – F

had the following to say concerning the then equivalent of Order 11 Rule 75

“Order 43 is designed to assist a plaintiff and provides that in certain cases a plaintiff may apply for summary judgment the effect of which is to prevent the defendant from proceeding with his defence. Order 44 is designed to assist a defendant and provides that in a proper case the plaintiff may in turn be prevented from proceeding with his action.

It seems to me therefore that much the same consideration which apply in determining whether or not a court should grant summary judgment to a plaintiff should apply in deciding whether the court on the application by a defendant should stay or dismiss a plaintiff’s action under order 44.

The grounds on which a court will grant summary judgment are well known ..... and it would seem to me that the same standard might appropriately be applied to applications made under order 44. If the court is satisfied that the plaintiff has not an arguable case then his action may well be characterized as frivolous and vexatious “and an unnecessary waste of costs and the court would be justified in the exercise of the discretion which it undoubtedly has to order that the plaintiff’s action be dismissed.

A proper understanding of first respondent’s declaration in HC 1378/15 clearly reveals that first respondent’s case is not frivolous and vexatious as contented by applicant. The plea of prescription is not a foregone success contrary to applicant’s argument. There is no causal link between first Respondent’s purchase of the stand and applicant’s claim to rights in the stand in question to justify any debt arising between the parties. The complaint of dilatoriness is not the basis for classifying first respondent’s claim as frivolous and vexatious . Comparatively first respondent’s claim has greater prospects of success than the applicant’s defence as pleaded in HC 1378/15.

It should be noted that its draft order applicant seeks an order that case no. HC 1378/15 be dismissed for want of prosecution. Such an order is not competent relief flowing from an application in terms of rule 75 of order 11 of the High Court rules 1971. Applicant argues that the first respondent’s claim has prescribed. It is the first respondent’s contention that a claim for a declaratur is not a claim for a debt and is not affected by the Prescription Act. Besides first respondent also argues that it only became aware of the invasion of her stand by applicant in October 2014 which is the time when applicant forcibly took occupation of the stand in question and commenced construction. If first respondent is able to prove those facts then in light of the first respondent’s claim having been instituted in February 2015 the defence of prescription would not succeed. In any event there are disputes of fact as to when any prescription started to run. It therefore goes without saying that there is no basis for concluding that first defendant’s claim is frivolous and vexatious without firstly resolving the dispute of fact – see s 16 (3) of the Prescription Act (Chapter 18:1)

In the circumstances it is clear that applicant’s application is without merit. It is accordingly dismissed with costs.

GN Mlotshwa & Company, applicant’s legal practitioners

Kamusasa & Musendo, 1st respondent’s legal practitioners