M. Kamanda and B. Gumunyu v Sibkey Investments and The Deputy Sheriff Masvingo N.O.

### Preamble
1
HH 310-13
HH 7434/13
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M. KAMANDA

and

B. GUMUNYU

versus

SIBKEY INVESTMENTS

and

THE DEPUTY SHERIFF  MASVINGO N.O.

HIGH COURT OF ZIMBABWE

MANGOTA J

HARARE, 30 July &18 September 2013

O. Zimbodza, for the 1st  applicant

E. Samkange, for the 1st respondent

Urgent chamber application

MANGOTA J: The applicants and the first respondent maintained a landlord-tenant relationship.  The relationship was based on an agreement of lease which the parties concluded on 4 October, 2006.

Clause 2(b) of the lease contained a proviso which allowed the tenant to renew the lease by giving to the landlord written notice of its intention to remain in occupation of the premises which are known as number 287 Hughes Street, Fort Victoria Township (Masvingo) with all permanent improvements thereon comprising a residence converted into shops.

Clause 4 of the lease allowed the tenant to:

use the premises as office accommodation – and

sublet various portions of the premises to five (5) other sub – tenants.

The tenant, and sub- tenants, continued to use the premises, initially, in terms of the lease agreement and, when that expired, on a statutory tenancy  arrangement. It was during the period of this statutory tenancy that the parties were involved in the current dispute wherein the applicants applied, on an urgent basis, for a stay of execution of a default judgement which was entered against them on 25 July 2013.  Applicants are praying the court to stay execution of the judgement pending a determination of the application which they made for rescission of judgement.  They argued that execution of the judgement before their application for rescission has been heard and concluded would lead to their abrupt eviction from the premises with the result that they would suffer great loss of business.

The first respondent opposed the application.  It raised four points in limine after which it proceeded to deal with the substance of the application.  The four points which it raised in limine were that:

the applicants had no right of audience before the court.

the matter which the applicants brought to court is not urgent.

the applicants are mala fide and are guilty of material non-disclosure – and

the relief which the applicants are seeking is incompetent.

The first respondent made some elaboration on each of the abovementioned preliminary matters.  The second respondent filed no papers with the court and did not appear through legal representation or in person. During the hearing of the matter, it became clear to the court and the parties that the second applicant who was cited as a party to the proceedings did not have any papers filed of record on its behalf in the matter.  The application, therefore, had everything which related to the first applicant and nothing which related the second applicant whose case is, accordingly, not properly before the court.

The first applicant’s contention was, or is, that some time in March, 2013 its sub-tenants who occupy, together with it, the premises of the first respondent engaged, without its consent or approval, Messrs Mutendi & Shumba legal practitioners who, together with the first respondent’s legal practitioners, Venturas & Samukange, negotiated and concluded between them a Deed of Settlement on behalf  of the parties to this case.  The Deed which the first applicant submitted as Annexure B to its founding affidavit states, in part, that:

the tenants’ lease with the first respondent comes to an end on 30 June ,2013 and

the tenants agree to vacate the rented premises on, or before, 30 June 2013.

The first applicant stated that Messrs Mutendi & Shumba legal practitioners did not have any mandate from it to negotiate and conclude the Deed of Settlement.  It, in support of its claim in this mentioned regard, attached to its founding affidavit Annexure A.  The annexure is a letter which it wrote and addressed to Messrs Mutendi & Shunba legal practitioners on 26 March, 2013.  The letter was a response to the one which the legal practitioners had written to the Committee 17 Hughes Street on 22 March, 2013.  Annexure A was signed by the first applicant and by one N. Mudukuti.  The second applicant did not sign it.  The letter, in part, reads:

“----- want to let you know we are not part of those people who confronted you more so we do not want you to represent us neither be your client. Please, could you cancel our names from your correspondence”

The letter which Messrs Mutendi & Shumba legal practitioners addressed to the Committee 17 Hughes Street was not made part of the record to the present proceedings.  The court does not, therefore, know its contents. What it does know, however, is that the first applicant and one N. Mudukuti were dissociating themselves from the contents of that letter and from whatever action the legal practitioners were contemplating to pursue subsequent to their writing of the letter of 22 March, 2013.

Whatever Messrs, Mtendi & Shumba legal practitioners wanted to perform  for, and on behalf of, some tenants or sub-tenants of the first applicant must have been something which the first applicant and N. Mudukuti and possibly others who shared the mentioned persons’ mind  did not like to associate themselves with.  That is so as the first applicant and N. Mudukuti dissociated themselves from the intended act in a clear and unequivocal manner.  The probabilities of the matter are that the first applicant and N. Mudukuti whose gender was not pronounced knew from as far back as Messrs Mutendi & Shumba’s  letter of 22 March, 2013, that what Messrs Mutendi & Shumba legal practitioners wanted to pursue with the  first respondent’s legal practitioners, on behalf of  some tenants or sub tenants of the first applicant, would operate against the business interests of the first applicant, N. Mudukuti and  anyone else who fell into their mode of thinking on the matter.    It is, accordingly, inconvincible that, with that knowledge on their part, the first applicant and  N Mudukuti would have allowed the matter which related to the intended action of Messrs Mutendi & Shumba legal practitioners to remain unattended to without any further probing  into it by them.  In other words, it is inconvincible that the first applicant and N.Mudukuti would have remained contended by the fact that they had written a letter to Messrs Mutendi & Shumba legal practitioners dissociating themselves from whatever the legal practitioners were going to do on behalf of the first applicant’s sub - tenants.

The Deed of Settlement, Annexure B, was concluded on 5 April, 2013.  The negotiations which led to the signing of the Deed did, in ernest, commence towards the end of March 2013.  The Deed was negotiated by legal practitioners who represented the first respondent and  Messrs Mutendi & Shumba legal practitioners who represented the first applicant’s sub tenants,  according to it. Surely the first applicant’s sub tenants would not have resolved to remain tight lipped as regards the tenor and contents of what was being negotiated by Messrs Mutendi & Shumba legal practitioners on their behalf.  They, it is the first applicant’s contention, are the ones who had conferred on Messrs Mutendi & Shumba legal practitioners with the authority to negotiate that exit package on their behalf.  The first applicant’s sub tenants would not have done so when, as is evident, the first applicant and its sub-tenants were occupying and operating from the same premises.  Their day to day interactions as tenants or sub – tenants of the premises would have, in some way or other, alerted the first applicant that negotiations of the nature which culminated in the signing of the Deed of Settlement between the parties were in progress.

Going by this analysed set of circumstances, therefore, the court remains of the distinct view that the first applicant was not being candid with the court when it stated, as it did, that the only time that it discovered that an order had been granted against it was on 4 September 2013- the date that it was served with the writ of ejectment from the premises. The first applicant is a business woman who, by its own statement, stood to suffer what it termed irreparable financial harm if it were abruptly removed from the premises where its operations were, or are, conducted from.  The first applicant would, in that case and in all probability, have taken its sub- tenants to task for having instructed Messrs Mutendi & Shumba legal practitioners to negotiate and conclude, on their behalf, the Deed of Settlement with the first respondent’s legal practitioners without the authority of the first applicant.  The probabilities of the matter are that the first applicant would not have waited for the case to take whatever course  it was to take without it probing that matter. The sub – tenants were occupying the premises not in their own right.  They were occupying the premises through the first applicant and one B Gumunyu.  The first applicant would, in that case, have demanded that the sub-tenants:

appraise it of whatever negotiations that were taking place between the parties – and

furnish it with the Deed of Settlement as soon as that was signed between the parties.

Common sense and logic show that the first applicant would have made the above- mentioned demands, the second one in particular, with a view to studying the contents of the signed Deed and to take appropriate remedial action in defence of its business interests.  It could not choose to remain unaware of, or disinterested  in, what was taking place in the full knowledge of the fact that the action in question, whatever it was, stood to threaten its business interests which it was desirous of protecting with all the means which were then available to it. The first applicant cannot have the court believe that it allowed the matter which, in its own words, was going to wreck havoc on its business interests, to remain unprobed for a stretch of four months running, from April- September 2013. Such conduct on its part would not have been consistent with that of a serious-minded businesswoman which the first applicant claims it is.

The Deed of Settlement was registered as an order of this court on 25 July, 2013. The first respondent did  have it registered for reinforcement purposes.  Before its registration, however, the first respondent’s legal practitioners served a copy of the document entitled Chamber Application for Registration of Deed of Settlement on one B. Gumunyu who was cited as the first respondent in case number HC 5800/13.  The document was served on B Gumunyu at 10:30 am on 22 July 2013.   B. Gumunyu, the Certificate of Service states, accepted service on behalf of the second respondent who is the first applicant in the present case.  The two were co-tenants at the premises. It is noted that B. Gumunyu and the first applicant have always shared a common view of this matter.  The following matters support the court’s views on this aspect of the case:

the two of them were co-signatories to the lease agreement which allowed them to hire sub-tenants into the premises.

the Deed of Settlement was signed for, and on their behalf, though this matter remains a hotly contested issue.

the two of them were cited as respondents by the first respondent when it applied to have the Deed of Settlement registered for purposes of enforcement and

the two of them filed this present application with the court.

It defies logic that given the above described set of circumstances B. Gumunyu on whom the Certificate of Service for registration of the Deed of Settlement was served on 22 July 2013 did not draw the first applicant’s attention to the existence of that Certificate of Service. The probabilities of the matter are in favour of the position that the first applicant was made  aware of the existence of the certificate of service.

The court will accept, for argument’s sake, that the first applicant’s attention was not drawn to the fact of the existence of the certificate of service.  B. Gumunyu who shared the first applicant’s views on the matter was properly served with the application and he/she  did nothing about it with the result that default judgement was entered against both of them and all those who were claiming occupation through them. It is this judgement that the first applicant filed an application with the court praying that it be rescinded.  The court will not concern itself with that aspect of the case.  That is so as another court will deal with that matter and decide it on its own merits. The first applicant attached to its application  Annexure C.  The annexure is a writ of ejectment which the Deputy Sheriff served upon the first applicant on 4 September, 2013.  The  writ reads, in part, as follows:

“.... Now therefore you are required and directed to eject the said B Gumunyu and M Kamanda and all persons claiming through them their goods and possessions from and out of all occupation and possession whatsoever of the said ground/or premises, and to leave the same, to the end and that the said Sibkey Investments (Pvt) Limited may peacefully enter into and possess the same and for so doing this shall be your warrant....”

The first applicant, it is noted, did not realise the urgency of the matter then. It did not file any application with the court, on an urgent basis, from 4-11 September 2013.  It proffered no explanation at all for its inaction for six clear days and it only did so on 11 September 2013. It is when such matters as these are read together with the foregoing matters wherein the first applicant was fully aware of all the perceived threats which were encircling its business interests from as far back as March 2013, running through to April, July and September, 2013 that it can not be said that the first applicant treated the present case with urgency.  The first applicant was fully aware of what was happening at each stage of this matter and it did virtually nothing to protect its business interests.  The court remains of the view that the application is not urgent and that the first applicant did not treat it with any urgency its knowledge of the adverse effects of the same notwithstanding.

The court has considered all the circumstances of this case.  It is satisfied that the first applicant has failed to establish, on a balance of probabilities, the urgency of its case.  The application is ,accordingly ,dismissed with costs.

Messrs Zimbodza &Associates, applicants’ legal practitioners

Messrs Venturas & Samkange,  first respondent’s legal practitioners