Judgment No. HB 43/2003

Case No. HC 520/2003

TANDA NGULUBE

Versus

ZISCO STELL LIMITED

And

ASSISTANT REGISTRAR OF DEEDS

IN THE HIGH COURT OF ZIMBABWE

CHIWESHE J

BULAWAYO 11 & 20 MARCH 2003

J Nyarota for the applicant

Ms P Dube for the 1^st respondent

Urgent Chamber Application

CHIWESHE J: The applicant is an employee of the first respondent.

Sometime in the year 2001 the respondent resolved to sell the block of flats occupied

by the applicant to its employees. The applicant avers that in pursuance of that

objective the first respondent advised its employees to form a co-operative in order

that they pull their resources together to raise the purchase price. Thus the Millenium

Co-operative Society was formed. The applicant made contributions to that society.

In April 2002 the applicant was dismissed from work in a case involving theft.

The applicant is challenging that decision in the Labour Relations Tribunal. At the

same time the 1^st respondent has sought to evict the applicant from the flat. That

matter too is pending before the Magistrates’ Court at Kwekwe.

The applicant has information to the effect that the 1^st respondent has sold the

flat to a third party, one Linda. He fears transfer of the relevant section of the flat

may go through any time. Further the Millenium Co-operative Society has barred

applicant from making further contributions and indicated its intention to terminate

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his membership of that society.

The applicant has reason to believe that transfer of the property may be

imminent and that he stands to be prejudiced if the property were transferred to a third

party before his employment status is determined by the Labour Relations Tribunal.

He avers that first respondent has in the past transferred properties to third parties

under similar circumstances to the prejudice of its employees.

It is on that basis that the applicant seeks a provisional order interdicting the

first respondent from selling and transferring to a third party flat number 24, Globe

Court, Kwekwe and further interdicting the second respondent from registering any

transfer in respect of the said flat.

The first respondent have opposed the application on the grounds inter alia

that the applicant has not established a prima facie right that he is entitled to the

interim relief sought. I agree with the submissions made by the first respondent.

Firstly the applicant has not furnished this court with a written offer to sell to him the

flat in question nor has he furnished the court with his written acceptance thereof. It

is unlikely that a transaction of this nature would have been made the subject of a

verbal offer and acceptance. Secondly there is no agreement of sale concluded by

the parties in respect of the property in question. It is only on the basis of such an

agreement that the applicant may seek relief in the manner he does. In its absence the

applicant has no leg to stand on.

The applicant implies the offer was made to the Millenium Co-operative

Society. Again there is no written evidence of this. The question of whether the

applicant has lost his employment has no bearing on the present application.

Employee or not, the fact remains that the applicant has failed to establish the

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existence of any contractual obligation on the part of the first respondent.

Further it appears to me that the applicant has not been candid with his legal

practitioner. The first respondent produced a standard offer form used for purposes

such as the present. The legal practitioner was seeing it for the first time. Secondly

the Millenium Co-operative Society wrote a letter to the applicant advising him of its

intention to terminate his membership. That letter was produced by the first

respondent. Again it had not been brought to the attention of the applicant’s legal

practitioner.

An application such as the present must not be made in the absence of a

demonstrable prima facie case. It is the duty of the legal practitioner to diligently

inquire into the merits of the case and advise his client accordingly.

It was for these reasons that I dismissed the application with costs.

Messrs Ben Baron & Partners applicant’s legal practitioners

Messrs Coghlan & Welsh 1^st respondent’s legal practitioner