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Judgment No. HB 58/2003 Case No. HC 712/2003
FATILLA KHAN
Versus
MOSES JIRI
IN THE HIGH COURT OF ZIMBABWE
CHIWESHE J
BULAWAYO 16 & 24 APRIL 2003
C P Moyo for the applicant
B Sibanda for the respondent
Urgent Chamber Application
CHIWESHE J: In this urgent application the applicant seeks a
provisional order evicting the respondent from Glen Rhoda Farm, Chivhu (“the
farm”).
The applicant avers that she is the owner of the farm. On 1 August 1999 she
and the respondent entered into a written agreement in terms of which the applicant
would lease the farm to the respondent for a period of three years. The lease expired
in August 2002. The applicant says that she was approached by the respondent with a
request that he be allowed to stay on to enable him to tend and reap his crops which
were still in the fields. She acceded to that request and gave the respondent up to
the end of March 2003 to wind up his affairs. The respondent has continued
occupation after the agreed date. In anticipation of the respondent’s departure the
applicant says she had entered into a verbal contract with the Grain Marketing Board
in terms of which she is to put a crop of wheat on the farm this winter. The planting
period for wheat is now - April 14 to May 10, 2003. It is on the basis of that
contractual obligation with the Grain Marketing Board that this urgent application is
made.
HB 58/03
The respondent has filed opposing papers, arguing firstly that the matter is not
urgent as the applicant has not submitted papers proving her contract with the Grain
Marketing Board. Secondly, the respondent avers that the original lease had been
verbally extended to 31 August 2004 and not 31 March 2003 as contended by the
applicant. To that extent therefore, argues the respondent, there is a material dispute
of fact which cannot be resolved on the papers. The applicant, so argues the
respondent, should have proceeded by way of action.
I agree with the respondent’s submissions. It is incumbent upon the applicant
to show the urgency of the application. No written contract with the Grain Marketing
Board has been filed. The applicant says the agreement was verbal. No attempt has
been made to include an averment to that effect by the Grain Marketing Board. The
court is being asked to take the applicant’s word for it. In my view the applicant has
not in the circumstances made a prima facie case proving the urgency of the
application. In that respect the application ought to be dismissed for want of urgency.
In any event it is doubtful in view of the factual dispute whether on the merits
this matter is one that can be resolved on the papers.
It was for these reasons that I dismissed the application with costs.
Messrs Majoko & Majoko applicant’s legal practitioners
Messrs Sansole & Senda respondent’s legal practitioner