Zimbabwe Platinum Mines (Pvt) Ltd v Simbarashe Muza

### Preamble
1
HH 419-21
HC 2974/20
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ZIMBABWE PLATINUM MINES (PVT) LTD

versus

SIMBARASHE MUZA

HIGH COURT OF ZIMBABWE

MUZOFA J

HARARE,22 June &18 August 2021

D. Peneti, for the applicant

M. Tawodzera, for the respondent

MUZOFA J. The applicant seeks an order for the eviction of the respondent and all those claiming occupation through him from a property known as number 24200 Umvovo, Chegutu ‘the property’.

According to the founding affidavit, the property was previously owned by BHP Minerals Zimbabwe (Pty) Ltd hereinafter referred to as “BHP Minerals”. BHP Minerals was subsequently acquired by the applicant including all its assets and obligations. In due course BHP Minerals changed its name to Hartley Minerals Zimbabwe (Pty) Limited still owned by the applicant. The applicant attached the title to the property registered in favour of BHP Minerals. The fact of the sale is not disputed. Applicant avers that after due diligence it established that the respondent took over occupation of the property from a former employee of BHP Minerals. The respondent was not employed by BHP, he was not authorised to take occupation.

The respondent is opposed to the application and raised a number of preliminarily points at the outset that the deponent to the applicant’s founding affidavit lacks authority, non-joinder of interested parties, failure to exhaust domestic remedies, that applicant ought to have proceeded in terms of the rent regulations, that  the order sought is defective, prescription and  non-disclosure of material facts.

On the merits the respondent avers that the property does not belong to the applicant. His narration of events is that the property was formerly owned by BHP Minerals. After the sale of BHP Minerals, the immovable property was handed to the Zimbabwe Government under the administration of Chegutu Municipality. A letter was attached to demonstrate that the applicant acknowledged the position. The respondent’s father took occupation of the house as an employee of BHP Minerals. Eventually the respondent’s father purchased the property. The applicant has sued the respondent’s father for eviction and the application was dismissed albeit in a default order. The applicant has not challenged the order. The application must be dismissed with costs.

I must deal with the preliminary points first before addressing the merits of the case.

Authority

It is trite that a company must be represented in litigation by a person properly authorised by the company to represent it. A board resolution authorising the deponent to represent the company is proof of such authority. Where the authority of a deponent is challenged, the authorisation must be produced .It is not a hard and fast rule that the authority must be attached on filing the application. It can be produced if the authority is challenged. See Dube v Premier Service Medical Aid Society SC 73/19 . In this case when the authority of the deponent was challenged, the requisite authority was attached to the answering affidavit. That disposes of the issue. It is clear that it is the applicant company litigating and it has authorised the deponent to represent it.

Non-joinder

It was submitted that the applicant must have joined the Municipality of Chegutu and his late father Shadreck Muza. (Obviously this is impossible unless it is the estate that is sued). In terms of Order 13 r 8(1) a non-joinder is not fatal to the proceedings. The court can proceed to determine the rights of the parties before it. The point taken has no merit.

Exhaustion of domestic remedies

According to the respondent, since the applicant acquired BHP Holdings it assumed both its rights and obligations. I must comment that the applicant averred that it acquired BHP Minerals and not BHP Holdings. The companies would be different. On the respondent’s point he further states that the lease agreement between BHP Minerals and the late Shadreck Muza his father provided that any dispute arising from the agreement ought to be resolved by the Magistrates’ Court. The applicant ought to have proceeded in terms of the rent regulations.

The point taken is clearly based on a misunderstanding of the cause of action as pleaded. The applicant’s claim is not based on the lease agreement between BHP Minerals and the late Shadreck Muza. It is based on the respondent’s purported illegal occupancy. In any event the respondent cannot shield himself with the lease agreement which he is not party to. The late Shadreck Muza acquired personal rights as a result of the lease agreement. The rights could only be enforced by the late Shadreck Muza against BHP Minerals only. The respondent cannot acquire such rights neither can he enforce them against the applicant. This is a matter between the owner of a property and an illegal occupier. The respondent is not the applicant’s tenant therefore the rent regulations cannot apply. The point taken is dismissed.

Defective Order

The alleged defect is that the applicant seeks compliance with the order within 48 hours. It was not demonstrated how the timeline renders the order defective. Any hardship or inconvenience to the respondent as a result of the short timeline cannot be said to be a defect. The respondent did not refer to any legal basis for that proposition. The point is dismissed.

Non-disclosure

The point taken is that the applicant failed to disclose that in 2005 it attempted to evict the respondent’s late father Shadreck Muza and failed.

Non-disclosure is usually used to censure a litigant where the undisclosed facts are material in the determination of the case. It must be calculated to mislead the court in instances where had the court known the facts it may be inclined to think otherwise.

In this case it was not demonstrated that the non-disclosure is material to the resolution of this matter. I do not consider it material. Even if the applicant failed to evict the late Shadreck Muza that does not preclude it from evicting the respondent. The respondent neither has a valid lease agreement with the applicant nor had such with BHP Minerals. The lease agreement could only give rights to the late Shadreck Muza and not the respondent. In the result, the matter between the applicant and the late Shadreck Muza is immaterial in the resolution of this matter. If the court were to agree with the respondent that the late Shadreck Muza is still occupying the property the unintended result would be to grant the respondent perpetual occupancy in the property against the applicant’s clear right over the property. That would be absurd.

The point taken is therefore dismissed.

Prescription

In his opposing affidavit, the respondent averred that the applicant became aware of the respondent’s occupation as far back as 1999 and did not take action.

The point was not addressed in oral submissions or even in the heads of argument. It may be taken as abandoned. In any event as properly submitted for the applicant the claim is not for a debt. It is a claim to vindicate ownership and such a claim prescribes after 30 years.

I find no merit in the argument. This is not a claim for a debt. Thirty years has not yet lapsed. The point taken is dismissed.

I revert to the merits of the case.

In such an application for rei vindicatio, the applicant has to show that it is the owner of the property and the property is occupied by an unauthorised person. Ownership of property is demonstrated by registration of title.

In this case the title in the property is registered in favour of BHP Minerals Zimbabwe Pty Ltd. The applicant avers that it bought the company and the ownership of the properties was vested in it as a result of the sale. On this averment and in light of the respondent’s opposing averment, it is necessary for the court to establish exactly what the applicant purchased.This can only be ascertained from the agreement of sale. From the agreement of sale, it is clear that the applicant purchased the whole shareholding in BHP Minerals. The respondent conceded that the applicant purchased BHP Minerals including all the obligations and assets that is why at some point the respondent claimed that the applicant must pay the outstanding wages due to the late Shadreck Muza. The property forms part of the assets purchased by the applicant.

The respondent resists the eviction based on the lease agreement between the late Shadreck Muza and BHP Minerals .The court appreciates the respondent’s plight .It is not in dispute that the late Shadreck Muza entered into a lease agreement BHP Minerals . In terms of clause 12 of the lease agreement the lessee had no right to cede or assign his rights under the lease without the written consent of the lessor. No such written consent exists in this case. Upon the demise of Shadreck Muza his rights also terminated. No rights could therefore pass on to the respondent. These were personal rights and they ceased upon death.The defence raised is unstainable.

The respondent also averred that, the late Shadreck Muza had purchased the property. He attached receipts as proof of payment to Chegutu Municipality. There is no agreement of sale attached and no proof that the late Shadreck Muza paid in full for the property. The attached receipts do not prove payments towards the purchase price but for rates, water charges and other levies. I find the claim of purchase inapplicable.

The respondent also averred that the house does not belong to the applicant. It was donated to the Government of Zimbabwe. A perusal of the documents in the record shows that a donation of identified houses was made to the Ministry of Mines, the property forming the subject of this dispute was not donated to the Government. This put paid to the applicant’s assertion that a certain number of houses were donated to the Government but a few others where not donated, they remained for use by the applicant’s employees. The respondent’s averments questioning the omission of the property from the list of the donated houses cannot validate his defence. What is evident is that the property was neither donated to the Government of Zimbabwe nor was it purchased by the late Shadreck Muza.

The owner remains entitled to his property and can enforce his rights against the world. This was made clear in the case of Alspite Investments (Pvt) Ltd v Westerhoff 2009 (2) ZLR 236 where MAKARAU JP, as she then was, said:

“There are no equities in the application of the rei vindicatio. Thus in applying the principle, the court may not accept and grant pleas of mercy or for extension of possession of the property by the defendant against an owner for the convenience or comfort of the possessor once it is accepted that the plaintiff is the owner of the property and does not consent to the defendant holding it. It is a rule or principle of law that admits no discretion on the part of the court. It is a legal principle heavily weighted in favour of property owners against the world at large and is used to ruthlessly protect ownership. The application of the principle conjures up in my mind the most uncomfortable image of a stern mother standing over two children fighting over a lollipop. If the child holding and licking the lollipop is not the rightful owner of the prized possession and the rightful owner cries to the mother for intervention, the mother must pluck the lollipop from the holder and restore it forthwith to the other child notwithstanding the age and size of the owner-child or the number of lollipops that the owner child may be clutching at the time. It matters not that the possessor child may not have had a lollipop in a long time or is unlikely to have one in the foreseeable future. If the lollipop is not his or hers, he or she cannot have it.” [My emphasis]

I associate with the sentiments. Once the applicant has demonstrated that it owns the property it can bring vindicatory action to recover its property from anyone including a bona fide buyer or an unauthorised occupier. See also Nzara & Others v Kashumba NO & Others SC18/18.There is nothing standing in the way of the order as sought.

Accordingly the application is granted with costs as follows

The respondent and all those claiming occupation through him be and are hereby ordered to vacate House Number 24200 Umvovo, Chegutu within 14 days of this order.

In the event that the respondent fails to comply with the order in (1)  the Deputy Sheriff be and is hereby empowered to evict the respondent and all those claiming occupation through him from house number 24200 Umvovo , Chegutu .

Dube, Manikai &Hwacha, applicant’s legal practitioners

Marian F & Company Legal Practitioners, respondent’s legal practitioners

Dube Manikai & Hwacha, applicant’s legal practitioners

Marian F. & Company Legal Practitioners, respondent’s legal practitioners