Judgment No. HB 58/06
Case No. HC 254/05
Xref HC 3384/04
Xref HC 32/05
THE MESSENGER OF COURT
IN THE HIGH COURT OF ZIMBABWE
8 MARCH 2005 AND 22 JUNE 2006
Urgent Chamber Application
CHEDA J: Applicant filed an urgent chamber application on the 15th day of February 2005 and I ordered him to serve it on the respondents for a hearing on the 8th March 2005.
The matter was duly argued on the date in question and I dismissed the application with my reasons to follow.
The following are my reasons:-
The background of this matter is that Applicant is the leasee of stands 584 and 585 Mopani Road, Victoria Falls.
First respondent is cited in his personal capacity and also acts for and on behalf of Broadbread Private Limited and Ultimate Africa Safaris Private Limited.
Second respondent resides with and acts on behalf of first respondent while third respondent is the Messenger of Court for Hwange cited in his official capacity.
The background of the current dispute is found in case numbers HC 32/05, HC 3488/04 and HC 3384/04.
Applicant and first respondent entered into an agreement of sale of stands 584 and 585 Mopani Road, Victoria Falls on the 5th December 2003.
The parties have since fallen out of favour which has resulted in numerous applications referred to above.
On the 7th day of January 2005, first respondent filed a Court application being case number HC 32/05, which was duly served on applicant personally on the 14th January 2005. As no notice of opposition was filed applicant applied for and was granted a default judgment. The said judgment reads:
“It is ordered that: -
The agreement of sale entered into between applicant and respondent in respect of Stands 584 and 585 Victoria Falls be and is hereby declared to be null and void and unenforceable at law.
(i) The lease between Applicant and Respondent be and is hereby
declared cancelled and Applicant be and is hereby granted the power to enter and retake possession of the immovable property after 15 days of this order having been served on Respondent.
Respondent be and is hereby ordered to pay the Zimbabwe dollar equivalent of R94 800 00 as and by way of arrear rentals.
In the event that Respondent does not give Applicant vacant possession of the immovable property known as stands 584 and 585 Victoria Falls as stipulated in para (b) above the Deputy Sheriff of the High Court be and is hereby ordered to evict Respondent and his invitees from the above property.
Respondent be and is hereby ordered to pay the costs of this application.”
This application therefore, seeks to set aside the said judgment. Besides this application, applicant has applied for the rescission of judgment of that judgment under case number HC 252/05.
The application in casu therefore is designed to effectively stay that judgment pending the outcome of his application for a rescission of judgment.
The basis of this application is that applicant has a pending application before this court.
The requirements for an interdict are clearly laid down in Setlego v Setlego 1914 AD 221 at 227 as follows:-
that a clear right has been infringed; a prima facie right is insufficient for a final interdict.
there must be reasonable apprehension that the applicant’s rights will be violated, or such rights have been violated.
the applicant has no other remedy available to it.
With regards to the issue of a prima facie right, applicant must establish the existence of such right which though open to doubt, if one takes into account the facts as set out by the respondent applicant could on those facts obtain final relief at the trial, see Webster v Mitchell 1948 SA (1) 1186; Zimbabwe Music Rights Association v Zambezi Broadcasting Corporation HH 468/88; Gool v Ministry of Justice and another 1995 (2) SA 682 and Georgias v Zambezi Safari Ranch Private Limited HH 71/90.
It should also establish that the balance of convenience favours it. Applicant in casu intimates that if the agreement of sale is to be cancelled it should be on his terms. Under case number HC 32/05, first respondent also wanted the agreement cancelled. This Court entered a default judgment in his favour whose effect
is the cancellation of the said agreement of sale. This application seems to be in agreement with what applicant also wants, save that he wants the cancellation to be on his terms.
I find that on the facts presented by applicant, he is unlikely to obtain his final relief in view of the absence of an infringement of his clear right. The fact that he has already paid rentals up to 2007 is not reason enough for him to remain on the property, more so, when he also wants to cancel the contract.
I find no reason for his apprehension for an irreparable harm as there is an ordinary remedy by virtue of damages should he wish to claim them.
The balance of convenience favours the first respondent in view of the fact that he is in possession of an order obtained by default.
In any event, it is prudent for applicant to pursue his application for rescission of judgment granted by this Court in case number HC 252/05.
It is for the above reasons that his application was dismissed with costs.
Dube and Partners, applicant’s legal practitioners
Majoko and Majoko,1st respondent’s legal practitioners