Elevate Academy PBC & Anor v TMS Holdings (Pvt) Ltd & Ors (HC 9328 of 2015; Ref HC 7752 of 2015) [2015] ZWHHC 795 (5 October 2015)

1 HH 795-15 HC 9328/15 Ref HC 7752/15 ELEVATE ACADEMY PBC and INNOCENT SIBANDA versus TMS HOLDINGS PVT LTD and TENDAI MAVHIMA and THE SHERIFF OF HIGH COURT HIGH COURT OF ZIMBABWE MATANDA-MOYO J HARARE, 6 October 2015 Urgent Chamber Application Mr C Tafirei, for the applicant Mr O D Mawadze, for the 1st and 2nd respondents MATANDA-MOYO: The applicants approached this court by way of urgent application for the following relief: “TERMS OF FINAL ORDER SOUGHT That you show cause to this Honourable Court why a final order should not be made in the following terms: (1) That the applicant is declared the legitimate tenant of Plot number 196 Crowhill until the expiry of a lease agreement entered on the 12th of April 2010 or upon an order of court authorising this eviction. INTERIM RELIEF 2. That execution of the order in case No. HC 7752/15 be and is hereby stayed until an application for rescission of default is determined which application must be filed within five (5) days from the date of issuance of this order”. The respondents raised a point in limine among others that the applicants should first clean their dirty hands before approaching the court. The applicants were running an illegal school and until such time that their activities are legalised, they cannot obtain relief from the courts. The applicants objected to the point in limine on the basis that it was the respondents’ obligation to obtain the relevant licences. The applicants produced letters before the court HH 795-15 HC 9328/15 Ref HC 7752/15 from the previous owner where she indicated that she had changed the premises use from residential to commercial. Even assuming that was so, the applicants conceded that the school is not registered in terms of s 15 of the Education Act. The defence of dirty hands is available to a respondent where the applicant has acted in bad faith or in an unethical manner. This rule is premised on the doctrine that a participant in a wrongful act may not recover damages or relief resulting from it. The burden of proof is on the respondent to show that an applicant is so engaged in wrongful acts. I am satisfied that the respondents herein have discharged that onus on them. The respondents produced letters from the City of Harare and from the Ministry of Education showing that the first applicant is an illegal enterprise. A letter from the City of Harare also confirmed the first applicant was operating illegally in contravention of the Regional Town and Country Planning Act [Chapter 29:12]. The court cannot therefore come to the aid of the applicants who are engaging in illegal activities. The courts should disapprove of illegal acts and should not be found as if in support of persons violating the law. Chidyausiku CJ had this to say in Associated Newspapers of Zimbabwe (Pvt) Ltd v The Minister of State for Information & Publicity & Ors 2004 (1) ZLR 538: “In S v Nial 1982(1) ZLR 14 (H), and S v Nicosi 1963 (4) SA 87 (T) the court refused to hear appeals of the appellants who had absconded or failed to comply with bail conditions. Defiance of a court order does not involve dishonesty or moral obliquity, yet litigants in defiance of court orders, more often than not, are denied relief by the court until they have purged their contempt. In my view, there is no difference in principle between a litigant who is in defiance of a court order and a litigant who is in defiance of the law. The court will not grant relief to a litigant with dirty hands in the absence of good cause shown or until such defiance or contempt has been purged”. In Commercial Farmers Union & Ors v Minister of Lands and Rural Resettlement and others SC 31/10 the Supreme Court reiterated the above principle – that a litigant who is shown to be in clear and open defiance of the law cannot get assistance from the courts. The applicants being in defiance of the law cannot therefore seek assistance from the courts until such time that they have complied with the law. Accordingly the application is dismissed with costs on a higher scale. HH 795-15 HC 9328/15 Ref HC 7752/15 Tafirei & Chikwari, applicant’s legal practitioners Manase and Manase, 1st and 2nd respondents’ legal practitioners