Shadreck Munatsi and Faith Munatsi v John Tranos Matukutire and Ratidzai Matukutire

### Preamble
1
HH 133-21
HC 530/21
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SHADRECK MUNATSI

and

FAITH MUNATSI

versus

JOHN TRANOS MATUKUTIRE

and

RATIDZAI MATUKUTIRE

HIGH COURT OF ZIMBABWE

MUSITHU J

HARARE, 16 & 26 March 2021

Urgent Chamber Application

W. Nyakudanga, for the applicants

N. Mugiya, for the 1st respondent

MUSITHU J:

INTRODUCTION

This urgent chamber application involves a wrangle between two couples. Central to the dispute is a piece of land sold to the applicants by the respondents. I set the matter down for hearing on 16 March 2020. It seemed a settlement was well-nigh possible. I postponed the matter to 18 March 2021 to accord the parties more time to discuss. On 18 March 2021, the parties came back with gloves off. They were all set for legal combat. The relief sought is set out in the draft provisional order as follows:

“TERMS OF THE FINAL RELIEF

That you show cause to this Honourable Court why a Final Order should not be made as set out hereunder:-

Pending finalisation of Case No. HC6459/20 and Case No. 6036/20 the 1st and 2nd Respondent and any other persons acting through them be and are hereby interdicted from interfering with Applicants’ occupation or denying Applicants access to Stand 1239 GOOD HOPE TOWNSHIP OF LOT 16 GOOD HOPE, measuring 2035 square meters.

Respondent to pay costs of suit at an attorney and client scale.

INTERIM RELIEF GRANTED

Pending the return date and finalisation of this application, the 1st and 2nd Respondent and any other persons acting through them be and are hereby interdicted from interfering with Applicants’ occupation or denying Applicants access to Stand 1239 GOOD HOPE TOWNSHIP OF LOT 16 GOOD HOPE, measuring 2035 square meters.

Upon service of this Order Respondents all those who act through them be and are hereby ordered to open the gate failure of which the Sherriff of the High Court or the Officer in Charge of Marlborough Police Station be and is hereby ordered to unlock the gate.

SERVICE OF PROVISIONAL ORDER

Leave is hereby given to the Applicants’ Legal Practitioners or the Officer in Charge of Marlborough Police Station to serve this order on the Respondents…..”

1st respondent opposed the application. 2nd respondent did not.

FACTUAL BACKGROUND

1st applicant deposed to the main affidavit. 2nd applicant filed a supporting affidavit. She associated herself with 1st applicant’s averments as set out in his founding affidavit. On 10 May 2018, applicants and respondents consummated an agreement of sale in terms of which the respondents sold to the applicants stand number 1239 GOOD HOPE TOWNSHIP OF LOT 16 OF GOOD HOPE measuring 2035 square meters (the property). One Shuwiso Bandika signed the agreement of sale on behalf of the applicants in terms of a Special Power of Attorney dated 9 March 2018. The purchase price was US$ 50 875.00, inclusive of Value Added Tax (VAT). It was to be paid as follows: US$25 000.00 as cash upon signing of the agreement; the balance of US$25 875.00 to be paid in 36 monthly instalments of US$ 718 cash commencing 1 August 2018 until it was cleared. All cash payments were to be made directly to the 1st respondent.

Applicants claim that the full purchase price of US$50 875.00 was paid. They took possession sometime in July 2020 and erected a cabin. They commenced building a double storey structure. Sometime in August 2020, applicants received a letter from 1st respondent’s then legal practitioners, Messrs Mhishi Nkomo Legal Practice. The lawyers are also listed as the conveyancers in the agreement of sale. The letter dated 3 August 2020 required applicants to vacate the property within seven days of the letter. 1st respondent denied having sold the property to the applicants. No purchase price was ever paid to him. There was no transfer or handover of the property to the applicants. Applicants responded to the threat through their own lawyers. In the letter of 31 August 2020, the lawyers insisted that applicants had fully paid for the property. They were not illegal settlers. The lawyers requested 1st respondent’s lawyers to send their pro-forma invoice to commence the conveyancing process. In a follow up letter of 29 September 2020, applicants’ legal practitioners even proposed a roundtable conference to discuss the matter further. It seems the request fell on deaf ears. There was no response.

On 5 November 2020, applicants issued summons against respondents under HC 6459/20. In the action, they seek an order compelling 1st respondent to sign all documents necessary to ensure the registration of the property into their names. In the event of the 1st respondent failing to do so, then the Sheriff of the High Court should do so on his behalf. Also sought is an order compelling the Registrar of Deeds to attend to the registration of the property. The declaration ends with a prayer for costs on the attorney and client scale. The respondents were barred for default of appearance having filed their appearance to defend out of time. An application for default judgment is pending before this court. On his part, 1st respondent instituted eviction proceedings against the applicants under HC 6036/20. 2nd respondent is 3rd defendant in that matter. The applicants filed their plea on 16 December 2020. The matter has stagnated.

On 1 December 2020, 1st respondent filed an urgent chamber application for spoliatory relief under HC 7132/20. The applicants herein are cited amongst five other respondents who include 2nd respondent. As against the current applicants, 1st respondent seeks an order declaring the respondents’ conduct of settling on the property, an act of spoliation. Consequently, he wants the respondents and all those claiming through them ordered to vacate the property within 48 hours of the order, failing which the Sheriff is directed to eject them. 1st and 2nd applicants herein opposed that application. That application is yet to be set down.

Applicant’s Case

Applicants aver that the construction works are now at an advanced stage, with the first floor having been completed. On 17 February 2021, 1st respondent allegedly denied their mother and the builders access to the property, by locking the gate. Also denied access were five trucks loaded with sand and stones. They had to spend the night camped outside the property. Applicants contend that 1st respondent’s actions were illegal. He ought to be interdicted from interfering with their property. They further contend that 1st respondent’s conduct is malicious especially coming as it did after he issued eviction summons against them. He was also aware of their claim to compel transfer of the property. His own application for spoliation was pending. He took the law into his own hands, acting as he did, without a court order.

As regards urgency, the applicants contend that following the applicant’s conduct of 17 February 2021, they engaged their lawyer on 18 February 2021. The lawyer immediately drafted their urgent chamber application and signed the founding affidavit on their behalf since they are based in the United Kingdom. They thought she could do so since she already represents them in case numbers HC 6459/20, HC 6003/20 and HC 7132/20. Their counsel was also motivated by Rule 227 (4) (a) of the High Court Rules, which she thought clothed her with the requisite locus standi to sign the founding affidavit on their behalf. The application, which was filed under HC 130/21, was placed before MUSAKWA J who commented as follows:

“(i)	The application is improperly before the court.

(ii)	The deponent to the founding affidavit has no proof of authority to institute proceedings on behalf of the applicants.

(iii)	The deponent to the founding affidavit is also conflicted as she admits to defending one of the respondents in a separate matter.

(iv)	It is directed that the matter be removed from the roll.”

Following the removal of the matter from the roll, applicants’ counsel immediately engaged the applicants. She prepared their papers and forwarded them to the United Kingdom for their signatures. The current application was relaunched on 10 March 2021. Applicants aver that the requirements for the granting of the relief sought were satisfied. They paid the full purchase price. A prima facie right was thus established. Construction work was underway. It was interrupted by 1st respondent. Building materials which were deposited outside the property were at risk of being stolen. There was also a likelihood of having the property sold by the 1st respondent surreptitiously. He threatened to do so under HC 7132/20.

The balance of convenience favoured the granting of the relief sought. The 1st respondent was not exposed to any prejudice since he sold the property to them. The pending cases were instituted when applicants were already in occupation. Disturbing the status quo would render the outcome academic. Applicants further averred that they had no alternative remedy. 1st respondent locked the gate without a court order thus denying them access to the property. The court was urged to grant the relief sought as per the draft order.

Shuwiso Bandika filed a supporting affidavit. She is the applicants’ mother and the construction manager. She paid the purchase price to the respondents in instalments. She confirmed that on 17 February 2021, she was on site when 1st respondent denied them access to the property. The building material was offloaded outside the gate. She tried to engage with 1st respondent, but he was uncooperative. She also tried to engage the Police but they advised to get a court order.

First Respondent’s Case

1st respondent raised preliminary points at the outset. These are: lack of urgency; absence of irreparable harm; that the balance of convenience favoured the dismissal of the application; and that the relief sought is defective. These will be canvased later in the judgment.

On the merits, 1st respondent admitted there was an agreement of sale. Applicants failed to comply with the terms of the agreement. Payment of the purchase price was supposed to be made to him in terms of causes 1 and 2 of the agreement. That arrangement was not complied with. He did not assign anyone to receive the purchase price on his behalf. Yet payments were made to 2nd respondent, his wife. He received nothing. He proceeded to cancel the agreement of sale.  Attached to the opposing affidavit is a letter dated 13 May 2018. It served as the notice to remedy the breach in terms of clause 15 of the agreement. It informed the applicants that they had failed to pay the full purchase price per clause 1.1.1, and were accordingly in breach. It called upon them to remedy the default within 7 days from the date of the letter, failing which he would proceed to cancel the agreement. Applicants did not comply. That prompted 1st respondent to terminate the agreement through a letter dated 23 May 2018. The letter reads in part:

“I refer you to the above matter and in particular to my letter to you dated 6 August 2018.

I hereby invoke Clause 15(b) of the agreement of sale, in which I cancel the agreement of sale dated 4th August 2018 entered into between yourselves and myself in respect of Stand 1239 Good Hope Township of Lot 16 Good Hope, Harare from the date of this letter.

I reserve my right to sue for damages which you may have caused me as a result of the breach….”

Further, clause 1.1.3 required that “Occupation of the property shall commence after the balance is fully paid and by mutual agreement between the parties and after certificate of compliance is issued by the relevant authorities……”. The dispute clearly evinced the absence of common ground between the parties.

1st respondent claims he informed applicants to suspend construction in view of the pending cases, but they remained defiant. They wanted to abuse the court so that they continue with construction. 1st respondent also denied that applicants were seeking a default judgment against him. Instead he accuses applicants of conniving with 2nd respondent, whom he had since separated from. Payments were made to her through her ficticious entity called Global Village Stands. Summons under HC 6459/20 were served on 2nd respondent at their residence, but she concealed them from him. He only discovered them after the dies induciae had elapsed and took corrective action. 1st respondent was adamant that he did not require a court order to lock his gate. The court could not tell him how to secure his property. It was the applicants who were in contempt of court by proceeding with construction when fully aware of the pending cases.

1st respondent contends that the applicants failed to demonstrate the existence of a prima facie right. The agreement of sale they sought to rely on was cancelled. That all but terminated the alleged right. Further, there was no irreparable harm at all. Applicants dumped their building material in one of his properties. They could always assign someone to secure it. Applicants could also proceed with a claim for damages as an alternative remedy.

The supporting affidavit of Shuwiso Bandika was dismissed outright. The agreement of sale was cancelled following applicants’ breach. The alleged building material was only brought onsite to create some semblance of urgency. He never locked the gates to deny them access. Instead the gates to his properties are always locked. The court was urged to dismiss the application with costs on the higher scale.

THE SUBMISSIONS

Both counsel were requested to address the court on the preliminaries and the merits so as to obviate the need for another hearing should the preliminary points fail.

Urgency

Mr Mugiya for the 1st respondent submitted that the applicants had failed to justify the treatment of the matter as urgent. It was not true that applicants were denied entry on 17 February 2021. It was on 14 December 2020 that applicants and their agents attempted to take over the property in dispute and he denied them entry. He claimed that the parties had agreed to let the High Court first determine the proprietary rights of the parties on the property in dispute. It came as a shock when applicants decided to take the law into their hands again on 17 February 2021, just as they had done on 14 December 2020. This was meant to mislead the court so that the matter could be treated as urgent when it was not.

The first urgent application was struck off on 24 February 2021. Applicants decided to file a similar application two weeks later. The delay of two weeks was not sufficiently explained. The alleged delay occasioned by the need to have the affidavits commissioned in the United Kingdom was inexcusable. The date on which the affidavits were sent to the United Kingdom by courier was not stated. There was no proof that the affidavits were even sent by courier. The affidavits served on the 1st respondent were photocopies, which shows that they could have been sent via email after being scanned. Further, the certificate of urgency was worded in the same way as the founding affidavit. A legal practitioner certifying the matter as urgent was not supposed to take verbatim what the applicant averred in the founding affidavit. The certificate did not pass the test of validity. The matter was not urgent.

In response, Ms Nyakudanga for the applicants insisted the matter was urgent. She dismissed the contention that the need to act arose in December 2020. There was never an agreement to suspend construction pending the resolution of the pending matters. If ever there was one, then it would have been submitted before the court. The delay in the re-filing of the application was attributable to the courier services as well as the covid 19 induced lockdown. Affidavits were signed on 3 March 2020, and the application was filed on 10 March 2020. The delay of seven days could not be construed as inordinate.

Whether or not a matter is urgent involves the exercise of discretion on the part of the judge. In Econet Wireless (Pvt) Limited v Trustco Mobile (Proprietary) Limited & Another, GARWE JA made the following point on urgency:

“It is clear that in terms of Rules 244 and 246 of the High Court Rules the decision whether to hear an application on the basis of urgency is that of a judge.  The decision is one therefore that involves the exercise of a discretion….”

This court is satisfied that the need to act arose on 17 February 2021, even though 1st respondent strongly argued that it arose on 14 December 2020. 1st respondent does not deny barring applicants’ agents from accessing the property. The 1st respondent’s attitude is best summed up in paragraph 1(a) (1) of his opposing affidavit. He says:

“…..I denied the Applicants entry on the 14th of December 2020 because we had agreed with the Applicants that since the stand was in dispute, the High Court should first determine the proprietary rights of parties on the said stand and then guided by the court. I was shocked when the Applicants decided to be law unto themselves on the 17th of February 2021 like they did on the 17th February 2021 14th day of December 2020. It is clear that the Applicants decided to repeat their actions on the 17th of February 2021 in order to create urgency and with a view to dupe this court into dealing with a non-urgent matter on urgent basis.”

What is clear from the facts is that some disturbances occurred on 17 February 2021. 1st respondent’s contention is that these were stage managed so as to establish a basis for approaching this court on an urgent basis.  Following these disturbances, the applicants immediately approached this court. The first application was filed on 19 February 2021. It was struck off on 24 February 2021. Their counsel took corrective action and approached this court again on 10 March 2021, after securing affidavits from the United Kindom based applicants. The applicants did not sit on their laurels. They kept pursuing their cause notwithstanding the striking off of the first application.

The delay from the time the first application was struck off to the time of the filing of the fresh application can hardly be deemed inordinate. This court finds the explanation satisfactory. The authority of Chinguno v Minister of Lands, Agriculture and Rural Resettlement & 3 Others, does not advance the 1st respondent’s argument any further.  In that case, the court referred to four circumstances in which a matter can be certified as urgent. These were in this court’s view satisfied. The applicants acted when the need to do arose. There is no merit in this objection and it is dismissed.

Relief sought is defective

Mr Mugiya submitted that the relief sought is an impossibility. It cannot be granted by this court. If it is granted, the applicant will not be motivated to come back to court for its confirmation. Further, applicants wanted 1st respondent interdicted from interfering with their access to the property, yet what they actually wanted was an opportunity to proceed with construction regardless of the pending litigation. The relief sought was not consistent with the pleadings. The property was vacant and the applicants did not reside on the property.

In response, Ms Nyakudanga denied that the relief sought was defective. What applicants sought in the interim was different from what they sought on the return date. She further submitted that applicants made it clear in their affidavit that construction was already underway. There was no need to seek the leave of the court to proceed with construction. Applicants’ agents were in occupation till they were barred from entry by 1st respondent.

I find the submission by Ms Nyakudanga persuasive. What applicants seek in the interim is that 1st respondent and those acting through him be interdicted from interfering with applicants’ occupation of the property. On the return date they seek that pending the determination of all the pending cases, 1st respondent and those persons acting through him be interdicted from interfering with their occupation of the property. I fail to appreciate in what way the relief sought is said to be defective. In any case, errors in the construction of the draft order, and in turn the interim relief sought are remediable. In terms of Order 32 Rule 246 (2), a judge is reposed with discretion to grant an order with appropriate modifications, where necessary. Rule 246 (2) reads:

“Where in an application for a provisional order the judge is satisfied that the papers establish a prima facie case he shall grant a provisional order either in terms of the draft filed or as varied”

From a reading of rule 246 (2), a judge needs to be satisfied that the papers before him/her establish a prima facie case. That is the primary consideration. The structure of the draft order is not the paramount consideration. After all what is before the court is a draft of the order being sought. I find the objection meritless and it is accordingly dismissed.

Mr Mugiya conceded that the other two preliminary points, viz, absence of irreparable harm and that the balance of convenience favoured the dismissal of the application, were tied to the merits of the matter. They constituted part of the requirements for the granting of an interdict. These were accordingly abandoned.

MERITS

Ms Nyakudanga submitted that applicants had satisfied the requirements for the granting of an interdict.  Applicant paid for the property in question. The agreement remained valid. It was not cancelled. The purported letters of notification to remedy the breach and cancellation were never served on the applicants. They were a fabrication. Counsel further submitted that applicants had no alternative remedy. Damages were not an alternative in view of the progress made in the development of the property. Further, if the relief sought were denied, the building material onsite was likely to be lost.

Counsel also submitted that applicants would suffer irreparable harm if they continued being denied access to the property. They could no longer proceed with construction, and neither could they offload their building material onsite. The pending cases would be rendered academic. The balance of convenience favoured the granting of the relief sought. The deposit was paid on the signing of the agreement. Further payments were made to the 2nd respondent who presented herself as the 1st respondent’s agent. She acknowledged receiving the payments on behalf of 1st respondent. Counsel submitted that the agreement remained valid and binding and the status quo ought to be preserved.

In response, Mr Mugiya submitted that where there was an allegation of breach, it was not the duty of the court to cancel the contract for the parties. The court was not a party to the contract. It was for the innocent party to cancel the contract and seek confirmation of such cancellation from the courts. The agreement was cancelled, and the applicants did not challenge the cancellation. At any rate, applicants had adopted a wrong procedure. If their complaint was that 1st respondent took matters into his own hands, then they ought to have approached the court for spoliatory relief and not an interdict. Counsel further submitted that the applicants’ argument that there was no alternative remedy was one for a final interdict. It could not be raised at this stage.

Mr Mugiya submitted that 1st respondent could not be faulted for cancelling the agreement of sale. Clause 2 of the agreement was clear that payment was to be made to the 1st respondent. Yet applicants had paid the purchase price to a third party. 1st respondent had since instituted proceedings under HC 622/21 to confirm the cancellation of the agreement of sale. In seeking to proceed with construction in the face of such pending litigation, applicants were guilty of constructive contempt of court. The court was referred to the case of Consolidated Fish Distributors v Zive.

The court was urged not to review its own decisions. It was submitted that in the earlier application, MUSAKWA J had found that the deponent to the founding affidavit was conflicted having admitted to representing one of the respondents in a separate matter. Further, it was submitted that there was no need for the applicants to file another application in light of the removal of the earlier application from the roll. What was before the court was essentially an appeal disguised as an urgent chamber application. Applicants were doing forum shopping. The purported notice of withdrawal of the urgent chamber application was flawed. It was not accompanied by a tender of wasted costs. It therefore remained pending. The court was urged to dismiss the application.

In her brief response, Ms Nyakudanga denied having represented any of the respondents in any matter. In any case, respondents had not attached any proof of the alleged conflict of interest. The notice of withdrawal was valid because it stated that costs were to be in the cause. This was done cognizant of the fact that there were several other matters pending involving the same parties and the same property.

ANALYSIS

The requirements for the granting of interim interdict were set out in Airfield Investments (Pvt) Ltd v Minister of Lands, Agriculture and Rural Resettlement & Ors. MALABA JA (as he then was said):

“It must be borne in mind that an interim interdict is an extraordinary remedy, the granting of which is at the discretion of the court hearing the application for the relief. There are, however, requirements which an applicant for interim relief must satisfy before it can be granted. In L F Boshoff Investments (Pty) Ltd v Cape Town Municipality 1969 (2) SA 256 (C) at 267 A-F, CORBETT J (as he then was) said an applicant for such temporary relief must show:

“(a) that the right which is the subject matter of the main action and which he seeks to protect by means of interim relief is clear or, if not clear, is prima facie established though open to some doubt;

(b) 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;

(c) that the balance of convenience favours the granting of interim relief; and

(d) that the applicant has no other satisfactory remedy.”

The purpose of an interim interdict was explained by NDOU J in McLeod v Rolindo. He said:

“It seems clear to me from the facts that the applicant is seeking an interdict pendente lite.  The purpose of an interdict pendente lite is the preservation of the status quo, or the restoring thereof, pending the final determination of the parties’ rights it does not affect or involve the final determination of such rights. (see Apleni v Minister of Law and Order and Lamani v Minister of Law and Order and Others 1989 (1) SA 195 a AT 200j – 201c; Rekdurum (Pty) Ltd v Weider Gym Athlone (Pty) Ltd 1997 (1) SA 646 at 651D – E; Highstead Entertainment (Pty) Ltd t/a ‘The Club’ v Minister of Law and Order and Others 1994 (1) SA 387 (C) at 390A – B and Harms - Civil Procedure in the Supreme Court at 503 and 512)” (Underlining for emphasis)

In casu, the dispute surrounding the ownership of the property does not concern this court at this stage. Similarly, the issue of whether or not the agreement of sale was validly cancelled does not fall for determination at this stage. As already noted in this judgment, 1st respondent does not deny that applicants were in occupation of the property through their agents. Crucially he does not deny that applicants are at an advanced stage of constructing a structure at the property. He barred their representatives from entering the property. The building material that was supposed to be deposited at the property had to be offloaded by the gate. 1st respondent’s justification for doing so was some verbal arrangement in which the parties allegedly agreed to a suspension of construction work pending the resolution of all pending matters. Applicants denied the existence of such an arrangement.

Further, 1st respondent did not deny that he acted without a court order. He took matters into his own hands. The alleged cancellation of the agreement is hotly contested by the applicants. According to Mr Mugiya, proceedings to confirm the cancellation of the agreement were only instituted in March 2021, yet the agreement had been cancelled as far back as 23 May 2018. One wonders why it took this long to institute proceedings to assert 1st respondent’s rights against the applicants. It should also be noted that 1st respondent already has two pending cases against applicants before this court. In HC 6036/20 he seeks their eviction from the same property. In HC 7132/20 he seeks spoliatory relief in respect of the same property. The pending litigation confirms that applicants were in occupation of the property.

Mr Mugiya’s argument that this court should not interfere in cases where a party claims to have cancelled an agreement and therefore at large to repossess the property without a court order is ill-conceived. That with respect, will provide a fertile ground for chaos. Contracting parties would cancel contracts with impunity, well aware that their victim has no immediate legal redress. It was incumbent upon 1st respondent to have approached the courts to confirm cancellation of the agreement of sale the moment he realized applicants were bent on proceeding with construction. Concurrently, he would have sought an injunction to suspend all construction pending the resolution of the pending cases. He did not.

The court is also not persuaded by the 1st respondent’s submission that the first application struck off the roll by MUSAKWA J remains pending. That application was withdrawn with costs being in the cause. Applicants did not shy away from the issue of costs. They were deferred to other pending litigation involving the same parties. I do not believe that such withdrawal with a provision of costs in that manner makes the present application fatal. The argument that applicants’ counsel admitted to representing one of the respondents in some matter, and therefore conflicted is equally ill thought out. 1st respondent may have pounced on a typo that applicants’ counsel made in her founding affidavit under HC 130/21. On page 7 of the application, she states:

“I, WIILSHY NYAKUDANGA, in my capacity as the Applicants’ Legal Practitioners having been duly authorized by Applicants, do hereby take oath and state that:-

The facts that are deposed to hereunder are true and correct to the best of my knowledge, information and belief. I have knowledge of the matter as I was handling it since inception to date. I drafted the summons which shall be referred to hereunder and I am also defending 1st respondent’s action for eviction other cases relating to the property in dispute……”

1st respondent in that matter is still the 1st respondent in casu. It is common cause that in the eviction proceedings pending, 1st respondent is being represented by Mhishi Nkomo Legal Practice. This court is convinced that the reference to the 1st respondent as being a client of applicants’ counsel was a typo. It was a case of poor drafting. It is crucial to note that Mr Mugiya failed to provide any proof in order to progress that argument further.

In the final analysis, this court is satisfied that applicants managed to satisfy the requirements for the granting of an interim interdict, and that the balance of convenience favours the granting of the relief sought. They have established a prima facie right based on the agreement of sale which in this court’s view remains extant. They have been in occupation of the property through their agents and construction is underway. Their building material was offloaded outside the property following the 1st respondent’s refusal to allow their representatives entry. There is a well-grounded apprehension of irreparable harm especially considering that 1st respondent admits to taking the law into his own hands. The alternative remedy of damages proposed by Mr Mugiya is imprudent. There is no court order barring applicants from proceeding with construction work.

Accordingly it is ordered that:

Pending the return date and finalisation of this application, the 1st and 2nd Respondent and any other persons acting through them be and are hereby interdicted from interfering with Applicants’ occupation or denying Applicants access to Stand 1239 GOOD HOPE TOWNSHIP OF LOT 16 GOOD HOPE, measuring 2035 square meters.

Upon service of this Order Respondents all those who act through them be and are hereby ordered to open the gate failure of which the Sherriff of the High Court or the Officer in Charge of Marlborough Police Station be and is hereby ordered to unlock the gate.

Service of Provisional Order

Leave is hereby granted to the Applicants’ Legal Practitioners or the Sheriff of the High Court to serve this order on the Respondents.

Nyakudanga Law Chambers, applicants’ legal practitioners

Mugiya & Muvhami Law Chambers, 1st respondent’s legal practitioners