Morgan Havire v Arosume Property Development (Private) Limited

### Preamble
Judgment No. SC 90/22
1
Civil Appeal No. SC 559/20
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REPORTABLE (78)

MORGAN     HAVIRE

v

AROSUME     PROPERTY     DEVELOPMENT     (PRIVATE)   LIMITED

SUPREME COURT OF ZIMBABWE

UCHENA JA, CHATUKUTA JA & MWAYERA JA

HARARE, 8 OCTOBER 2021 & 29 JULY, 2022

S. Munondoti with H. Muza, for the applicant

F. M. Bwanya, for the first respondent

MWAYERA JA:	This is an appeal against the entire judgment of the High Court handed down on 7 December 2020, in which the court a quo dismissed the appellant’s application for an interim interdict against the respondent.

FACTUAL BACKGROUND

The appellant is a private citizen who is resident in South Africa.  The respondent is a corporate entity duly registered in accordance with the laws of Zimbabwe operating as a land developer at Carrick Creagh farm.

On 27 March 2006, the appellant entered into a memorandum of agreement with  the Sally Mugabe Housing Cooperative (“the Cooperative”) for the acquisition of a residential stand at Carrick Creagh farm.  The agreement explicitly stated that the cooperative would allocate the appellant who is its member a residential stand measuring 4 000 square metres subject to the settlement of various fees and fulfilment of conditions contained in the agreement.  On or about 8 December 2007, the stand allocation was finalised when the Cooperative issued a letter in which the appellant was notified that he had been allocated stand number 254 of Section 4 of Borrowdale Estate of Carrick Creagh Township, Harare.  The letter contained a condition that on site construction would only commence after the appellant had satisfied several procedural requirements related to the development of infrastructure.

Pursuant to the final stand allocation, the appellant signed a stand allocation contract with the Cooperative on 27 February 2009, in which he made the undertaking to obtain title deeds after having fully settled any outstanding debts with the respondent, the Cooperative and the Government of Zimbabwe.  At this stage the respondent had become a developer of Carrick Creagh Estates after having entered into a tripartite agreement with the Cooperative and the Ministry of Local Government Public Works and Urban Development.  The agreement was a partnership agreement for the development by the respondent of residential stands at Carrick Creagh into an upscale neighbourhood.  The land would however, remain the State’s until it would have been transferred to beneficiaries.

In the intervening period, the appellant proceeded to develop the stand culminating in the construction of a double storey building.  He also made several payments to the respondent as well as to the Cooperative and associated agents.

The precursor to the events before the court a quo occurred sometime in October 2020 when the appellant began constructing a boundary wall around the stand he was developing.  The respondent sent its employees to stop the appellant’s employees from completing the boundary wall alleging that it encroached onto a stand allocated to another beneficiary.

On 29 November 2020 the respondent disrupted the activity on the land and moved the demarcating peg or beacon, further into the appellant’s stand resulting in the appellant’s water tank and cabin falling outside his domain.  The appellant was alarmed by the respondent’s conduct. He applied to the court a quo for an interim interdict against the respondent.

In support of his application the appellant submitted that the agreement with the Cooperative constituted proof of his prima facie right.  The appellant also pointed to various developments he had made on the stand such as the borehole, water tank and the construction of a double storey building as evidence of an unassailable right.  He contended that he would suffer irreparable harm if the application was not granted.  He further contended that the respondent had already inflicted harm by shifting the beacons which reduced the area and size of his stand.  He argued that the matter was urgent and ought to be heard expeditiously by the court a quo.

The appellant also submitted that the court a quo ought to grant an interim order barring the respondent from accessing his property and sought a declaratur in the final order declaring him as the lawful occupant of the aforementioned stand.  He maintained that the respondent had no right to occupy his property and insisted that he had made all requisite payments in accordance with the allocation agreement that he had signed.

The respondent opposed the application. It raised preliminary points.  In respect of the first preliminary point, the respondent averred that there was material non joinder as the Minister of Local Government and Public Works was not cited in the proceedings.  It argued that the State as the owner of the land in contention had a substantial interest in the outcome of the matter and the appellant could not be declared the lawful owner without affording the relevant Ministry audience. The respondent also pointed out that the Cooperative through which the appellant claimed rights over the land was also not cited in the papers.  It further contended that the appellant’s conduct was illegal and as such could not be related to by the Court.  The respondent submitted that the appellant’s development on the stand had not been approved by the City of Harare.  It further contended that the land survey diagram submitted by the appellant was not an approved survey of Carrick Creagh Farm.

The respondent further addressed the court a quo on the merits.  It submitted that the cadastral survey referred to by the appellant was not approved.  It averred that the appellant had not met the requirements for the award of a lease agreement by the State as he had not paid for development costs associated with the acquisition of the stand in question.  The respondent submitted that the clashes with the appellant’s workers were caused by the appellant’s on going unlawful development.  It contended that the development by the appellant was contrary to the lawfully approved site plan for Carrick Creagh Farm.  The appellant was encroaching onto land that he was not allocated hence the moving of beacons.  It was further contended by the respondent that the court a quo could not compel the State to issue title to the appellant as sought since there were no existing obligations owed to the appellant.

FINDINGS OF THE COURT A QUO

After hearing submissions from the parties, on both preliminary points and merits the court a quo dismissed the application with costs.  It held that the appellant had failed to establish a prima facie right to stand Number 3 that being the stand that appeared on the survey diagram.  The court a quo reasoned that the appellant’s conduct of unlawfully developing the property violated the allocation agreement and that the appellant was not confining himself to the property allocated to him.  It held that the appellant had no prima facie right to the land he was developing.  Further that the appellant acted unlawfully and contrary to the allocation agreement.

Aggrieved by the decision of the court a quo, the appellant noted the present appeal on the following grounds.

GROUNDS OF APPEAL

The court a quo grossly misdirected itself both in fact and in law when it dismissed the application on the unilateral finding of material disputes of facts when this was neither pleaded in limine by the respondent nor addressed in response by the appellant and without inviting the appellant to make submissions on the factual issues relating to the alleged material disputes of fact.

The court a quo grossly erred and misdirected itself on factual issues by finding that there was an anomaly between the size of appellant’s stand per the allocation agreement and the actual size of the appellant’s stand.

The court a quo erred both in fact and law on making a unilateral finding of illegality on appellant’s part without affording appellant an opportunity to make submissions on the alleged illegality.

Having concluded that the appellant’s construction of a house without City Council’s approval was unlawful, the court a quo erred in failing to find that such unlawfulness had no connection with the relief sought before it and was not of such a nature as to disentitle appellant of the right to be heard before it.

The court a quo grossly erred at law in failing to find that the respondent had no locus standi to allege illegality against the appellant in respect of alleged failure to obtain approval from City of Harare.

Having allowed the respondent to allege illegality on behalf of the City of Harare, the court a quo grossly erred at law in allowing the respondent to escape the consequences of its illegal conduct on that basis, thereby allowing an allegation of illegality to mask an admitted act of illegality.

The court a quo erred in failing to consider that the gravamen of the application a quo was admitted in that the respondent admitted to unlawfully moving beacons with the effect of encroachment into stand number 254, and in so doing also failed to consider the legal consequences of such admission.

Despite raising several grounds of appeal which I must mention, are long winding and argumentative, there is only one issue which falls for determination.

ISSUE FOR DETERMINATION

The issue is whether or not the court a quo erred in dismissing the urgent chamber application for an interim interdict.

SUBMISSIONS ON APPEAL

Counsel for the appellant submitted that the court a quo erred by enquiring into the legality of his construction at stand 254.  He argued that the question of illegality regarding his development of the stand was irrelevant to the resolution of the dispute before the court.  It was contended that the unilateral movement by the respondent of beacons marking the extent of the appellant’s stand was the basis of the application and relief sought by the appellant in the court a quo.  The appellant’s counsel submitted that the respondent had taken the law into its own hands by moving the beacons. It is that conduct which the appellant sought to interdict.  Counsel further submitted that the size of the stand allocated was not relevant to the resolution of the matter.  He contended that, the fact, that the appellant’s stand was 4 000 square metres and not 9 175 square metres was irrelevant.  It was argued that the court a quo simply had to confine itself to the fact that the respondent had unlawfully moved beacons and interfered with the appellant’s developments and thus required sanction by way of an interim interdict.

Per contra, counsel for the respondent submitted that the parties a quo agreed to make submissions on both preliminary issues and merits hence the court a quo’s judgment dismissing the application was proper.  It was submitted on behalf of the respondent that the appellant was undertaking construction without approval from the City of Harare thus rendering his conduct illegal.  Further, it was contended that the agreement reflected stand number 254 measuring 4 000 square metres but the appellant was developing a stand measuring 9 175 square meters.  There was therefore a discrepancy between the survey stand map 3 and stand 254 which the appellant was allocated.  It was further submitted that the appellant’s preferred placement of beacons was unlawful as it clearly created a discrepancy between the size of the stand in the agreement and the actual area claimed.  It was argued that the appellant’s conduct of encroaching onto property which is not part of the stand allocated to him in terms of the agreement was not lawful.  It was further contended that the appellant did not satisfy the requirements of an interim interdict and as such the court a quo correctly dismissed his application.

THE LAW

It is trite that there are requirements that ought to be satisfied for the relief of an interim interdict to be granted.  The requirements of an interim interdict in our jurisdiction are well established and settled.

The following requirements must be met for an interim interdict to be granted:

A prima facie right even though it is open to doubt.

An infringement of such right or a well-grounded apprehension of such infringement.

A well-grounded apprehension of irreparable harm.

The absence of any other satisfactory remedy.

That the balance of convenience favours the granting of the interdict.

Airfield Investments (Pvt) Ltd v Minister of Lands & Ors 2004 (1) ZLR 511 (S) at 517 C – E wherein MALABA JA (as he then was) stated the following:

“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 LF Boshoff Investments (Pty) Ltd v Capetown 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.”

See also Judicial Service Commission v Zibani & Ors SC 68/17 and Zesa Staff Pension Fund v Mushambadzi SC 57/2002.

It is apparent that all the requirements of an interim interdict ought to be considered collectively.  The remedy itself is an unusual remedy such that where there are reasons that vitiate any of the requirements the court seized with the application is entitled to refuse to grant the relief.

As regards the existence of a prima facie right, the concept has been defined in case law as a right that a person has in given circumstances. In Broadcasting Authority of Zimbabwe and Anor v Dr Dish (Pvt) Ltd SC 62/18 the court made the following pertinent remarks at p 11 on the principle of a prima facie right.

“In this regard, it becomes necessary to define what a prima facie right is.  The Blackwell Dictionary of Western Philosophy defines a prima facie right as “a right that a person has in given circumstances, in contrast to an absolute right, which is universal and inherent and cannot be overridden in any situation” …….

The court further stated that, ”In order to establish whether or not the respondent had a prima facie right the enquiry must be whether the appellants interfered with a lawful process the respondent was engaged in since it is the conduct of the respondent to the application before the court a quo which proves whether one has a prima facie right or not.  If the applicant for an interdict is acting contrary to the law, no prima facie right can be established.  No one is entitled to act unlawfully and the court cannot grant orders protecting unlawful conduct.”

The court further referred to the following remarks by PATEL JA (as he then was) in JSC v Zibani supra.  He commented as follows relating to a prima facie right.

“The requirements for the grant of interim or temporary interdict are trite” ---

Insofar as concerns the first requirement, it is settled in principle that the grant of an interdict is based upon the existence of a right which in terms of the substantive law is sufficient to sustain a cause of action.  To sustain such a cause of action, the applicant must prove a legal and not merely a moral right and that his right is being infringed or threatened with infringement.  Where the alleged interference is in terms of an admittedly legal process, no legal right is established unless the applicant shows a right not to be disturbed in terms of such process.  This is so because a party cannot have a right, whether prima facie or clear, contrary to the law.” (My emphasis)

The other requirement for an interim interdict relates to the balance of convenience. In Jordan v Permill Investments 1991 (2) SA 430 and Charuma Blasting and Earthmoving Services (Pvt) Ltd v Njainjai & Ors 2000 (1) ZLR 85 at 89-90.  It was held that:

“… In exercising its discretion, the court weighs, inter alia, the prejudice to the applicant, if the interdict is withheld, against the prejudice to the respondent if it is granted. This is sometimes called balance of convenience. The foregoing considerations are not individually decisive, but are inter related; for example, the stronger the applicant’s prospects of success the less his need to rely on prejudice to himself. Conversely, the more the element of some doubt the greater the need for the other factors to favour him. Viewed in that light, the reference to a right which though prima facie established, is open to some doubts is apt, flexible and practical, and needs no further elaboration.”

It is settled that reasonable apprehension of harm or injury is another requirement which falls for consideration.  Further, the absence of any other satisfactory remedy falls into consideration. A party seeking an interim interdict must therefore satisfy the requirements which are cumulatively considered to show that it has a right on the face of it which warrants the granting of interim relief.

ANALYSIS AND APPLICATION OF THE LAW TO THE FACTS

In casu, the question that arises in determining whether or not the court a quo erred in dismissing the application for an interim relief, is hinged on the lawfulness or otherwise of the appellant’s conduct in undertaking construction on the land in question.

The appellant’s right of occupation was premised upon the stand allocation contract signed with the Cooperative.  The agreement has a set of conditions precedent to the commencement of development which the respondent correctly avers had not been complied with when construction commenced.  The appellant sought to rely on an unapproved survey diagram.  As clearly demonstrated in the cases cited above, the court a quo in exercising its discretion to grant or dismiss an application for an interim interdict was within its purview to refuse the remedy on the grounds that the appellant’s actions were tainted with illegality.

Although the court a quo in its reasons for judgment alluded to the incompetence of a declaratur which was an issue for determination on the return date, such digression did not detract from the court’s finding that in the absence of meeting requirements for an interim interdict, the appellant could not be granted the interim relief.

In the present case, the respondent, in terms of the tripartite agreement with the State and the cooperative, was entitled to supervise construction works, and that was the basis on which it insisted it was entitled to shift the beacons.  The respondent established that it had a right in the administration of Carrick Creagh Farm.  The appellant sought to protect his own unlawful conduct of unapproved construction relating to stand 254 while at the same time using an unapproved survey map 3 and also dealing with an area of 9 175m2 instead of 4 000m2 as per the agreement.  It is such unlawful conduct that the court a quo frowned at leading to its dismissal of the application.  The appellant had no prima facie right to develop beyond the stand allocated to him.  He also could not develop prior to fulfilment of the agreed terms.  Further the placement of beacons on correct positions was lawful and not injurious to the appellant.  The balance of convenience leaned against the grant of interim relief, moreso in view of the fact that there existed other satisfactory remedies which basically required compliance with the law by the appellant.

The appellant did not establish all the requirements for an interdict as outlined above.  The court a quo properly withheld the interim relief in the circumstances.  The appeal is bereft of merit moreso when one considers that the appellant sought to protect his own unlawful conduct.  The appeal must fail.

Regarding costs, there is no reason to depart from the normal position that costs follow the result.

Accordingly it is ordered that:

The appeal be and is hereby dismissed.

The appellant shall bear the costs.

UCHENA JA		:	I agree

CHATUKUTA JA	:	I agree

Rusinahama-Rabvukwa Attorneys, appellant’s legal practitioners

Mutuso, Taruvinga & Mhiribidi, respondent’s legal practitioners