Warren Hills Golf Club v Sunshine Developments (Pvt) Ltd and Another (797 of 2022) [2022] ZWHHC 797 (7 November 2022)

1 HH797/22 HC3857/22 WARREN HILLS GOLF CLUB versus SUNSHINE DEVELOPMENTS (PVT) LTD And CITY OF HARARE HIGH COURT OF ZIMBABWE NDLOVU J HARARE, 22 SEPT & 07 NOV. 2022 APPLICATION TO AMEND A PLEA. Mr R. E Nyamayemombe, for the Applicant Adv. T. Zhuwarara, for 1st Respondents Mr C Kwaramba, for 2nd Respondent NDLOVU J: This is a Chamber application for leave to amend the Defendant’s plea in terms of Rule 41 of the High Court Rules. It somehow got to be set down in the Opposed Roll. I had to then hear Counsel in order to mitigate the inconvenience that they had experienced. BRIEF HISTORY The Applicant in this matter is the 1st Defendant in HC 6212/20. I will refer to the parties in this matter as they are appearing in HC 6212/20 for convenience. On the day of the commencement of the trial, the 1st Defendant indicated that it was desirous to amend its plea. This was after a reluctantly granted previous postponement at the instance of the 1st Defendant. The process to seek an amendment in terms of the Rules then kicked in, leading to the filing of this application. The application is strongly opposed by the other two parties. THE ORIGINAL PLEA; “1. Defendant vigorously disputes the alleged title of plaintiff to the land used by the defendants as appears below, puts plaintiff to the proof of its claims and prays that the claims by plaintiff be dismissed with costs. HH797/22 HC3857/22 2. Defendant has no knowledge of plaintiff, does not admit that it is a duly incorporated company in terms of the laws of Zimbabwe and avers that plaintiff has not sated its business address. 3. Defendant admits it is a voluntary association formed for recreational purposes but denies that its operations are from stand 8113 Warren Park Township of Warren Park, Harare averring that it has no knowledge of the above stand 8113 as more fully set out below. 4. Defendant denies that plaintiff is a genuine and legitimate owner of any piece of land under use by the defendant and as more fully set out below vigorously denies that the deed of transfer exhibited by plaintiff is a regular and valid official document issued according to procedure representing final title to ownership of a piece of land. 5. With reference to paragraphs 4 to 7 of the plaintiff’s Declaration, the defendant pleads that there has never been a change of ownership of the land used by defendant and no lease of defendant expired on 30 April 2019 as alleged. 6. Defendant has no knowledge of plaintiff, denies its alleged title to the piece of land used by defendant and denies the alleged right of plaintiff to negotiate a lease agreement with defendant. 7. Defendant denies that it is in unlawful occupation of the land it utilizes and vigorously denies the alleged right of plaintiff to receive rentals from defendant at the stated amount of $460 per month or nay payment. 8. Defendant was constituted as a voluntary association to cater for the recreational needs of residents of Harare during the early years of the last century and was allocated a portion of municipal land reserved for recreational purposes to lease on a nominal rent in terms of a lease renewed regularly. 9. In terms of the lease aforesaid tenancy is valid until 30 April 2039 when another formal renewal will be made in terms of an addendum adopted by full council on 12th May 2016 attached as Annexure “B”. HH797/22 HC3857/22 10. In or about June 2020 on receipt of an Application for plaintiff in HC2133/2020 for a spoliation order against partners of defendant, the defendant got to know of plaintiff’s alleged interest in the land used by defendant. 11. Investigations by the Ministry of Local Government still in progress, have to date established unprocedural and grossly irregular disposal of reserved land to plaintiff without informing the sitting lessee, change of use, full council approval and ministerial consent. 12. By reason of the investigations aforesaid, the national agency investigating corruption, (ZACC) was and is seized with the matter and is currently unravelling the corrupt and unprocedural activities that created the title deed relied on the plaintiff with a view of regularity in the matter. 13. In the premises plaintiff is not a lawful and legitimate owner of the land occupied and used by defendant and has no legal right to demand rent from defendant or its removal from the premises. 14. Wherefore defendant prays that plaintiff’s claim be dismissed with costs” THE SOUGHT AMENDMENT READS AS FOLLOWS; “1. By deletion of paragraphs 1-14 of the Plea and the insertion of the following paragraphs: AD PARA 1-2 1. No issues arise save to state that 1st defendant’s address for purposes of this suit is care of its legal practitioners Messrs MC Mukome Legal Practitioners 1st Floor ICL Building Cnr Sam Nujoma/S. Machel Avenue, Harare. AD PARA 3 2. Plaintiff is not the lawful owner of the property in question as it acquired registered title through corruption and fraud in that: a. The land in question is municipal land owned by the City of Harare and could only be disposed of in terms of the Urban Councils Act, which was not done in that; HH797/22 HC3857/22 i. There is no resolution from the Finance Committee of the City of Harare allowing the sale; ii. No resolution from the full council approving or ratifying the sale; iii. No advertisement of the sale in any newspaper iv. No procedures followed for the change of use of the land from recreational to residential. b. There was no purchase price received by the City of Harare for the sale of the land c. The purchase price mentioned in the title deed of ZW$30,000,000,000 (Thirty billion) was in September 2008 equivalent to USD50,000 and no reasonable person could have approved the sale of prime public land at such an extremely low price; d. The people who signed the memorandum of agreement and shareholders agreement on behalf of the City of Harare with the main shareholder of the Plaintiff, Augur Investments, had no authority to do so from the City of Harare making the entire agreement invalid. e. Even if such agreement was valid, Augur Investments, failed to perform in terms of such agreement, in particular they failed to “provide funding for the project in an amount between US$20,000,000(twenty million united states dollars) and US$30,000,000 (Thirty million United States Dollars)” meaning that the property was transferred without value. f. Augur Investments, failed to comply with the provisions of the then Zimbabwe Investment Authority Act which makes it mandatory for investors to obtain an investment licence. Where an investor has no licence, it cannot invest in Zimbabwe. g. The development of municipal land is a service that ought to have proceeded through public procurements processes in terms of the then Procurement Act [Chapter 22:14] this was not done making the entire process illegal, null and void. HH797/22 HC3857/22 h. The main shareholder Augur Investments misrepresented that it was a company registered in Ukraine yet it is in fact a company registered in Estonia. The Company itself did not exist at the time the Shareholders agreement was signed. i. The conveyancer, Theophilus Pharaoh Gambe, could not have lawfully transferred the property to the Plaintiff in terms of a general power of attorney executed in 1998 as this is prohibited by section 28 of the Deeds Registries Regulations, 1977 which required general powers of attorney to be specific. AD PARA 4 3. It is correct that the 1st Defendant is in occupation of the property by virtue of a lease agreement granted to it by the City of Harare. The lease agreement expired on 30 April 2019 but was further renewed up to April 2039. The renewal is valid as the title and authority over the land remained with City of Harare in light of the fact that transfer to the Plaintiff was done fraudulently and corruptly. 4. Under case number HC549/2021 the Plaintiff’s title is being lawfully challenged in the matter of Zimbabwe Homeless People Federation & Others v City of Harare & Others. Should that matter be decided in favour of the Applicant’s, the title in which Plaintiff base their rights will be restored to the City of Harare thereby extinguishing their cause of action. AD PARA 5 – 6 5. As stated above, 1st Defendant holds a valid lease which expired in 2039. Such lease is valid as the property in question belongs to the City of Harare and not the Plaintiff. The 1st Defendant is therefore not in unlawful occupation. AD PARA 7 6. Holding over damages if any, can only be ascertained from current rentals which currently stand at Z$460. Wherefore, Defendant prays that the claim be dismissed with costs.” HH797/22 HC3857/22 (my emphasis) THE LAW Rule 41 of the High Court Rules, 2021 allows a party to amend its pleading or document at any stage before judgment on notice to the other party. The granting of an application for the amendment of a pleading is a matter for the discretion of the Court, to be exercised judiciously in light of the circumstances of the particular case. An amendment will be allowed in order to afford proper ventilation of the controversy between the parties and by extension enable the Court to determine the real issues between them, so that the key obligation of the Court, which is to do justice between parties, is fully discharged. No amendment will be allowed in circumstances where; (a) It will cause prejudice to the other party as cannot be cured by an appropriate order for costs. (b) Is not accompanied by a satisfactory explanation. (c) Has no triable issue. (d) It is mala fide. (e) It is not sought timeously. This list is not exhaustive. The tendency in this jurisdiction is in favor of granting the application for an amendment, if it is found that it stands to assist in the ventilation of the issues between the parties and by extension assist in their ultimate determination See UDC Ltd -v- Shamva Flora (Pvt) Ltd 2000 (2) ZLR 210(HC), Mashonaland Turf Club -v- Susan Peters and Anor HH 07/21. RESOLUTION In this case, the amendment was not timeously sought. The reasons given for that, are that the amendment sought was a result of the opinion of the 1st Defendant’s current counsel and that when the plea was filed the 1st Defendant was relying on the presumed expertise of some of its members in legal matters. A look at the amendment sought to be made reveals that it amends nothing but wipes the slate clean and substitutes the plea in its entirety. If the HH797/22 HC3857/22 purported amendment is allowed the matter will be as good as starting afresh on the eve of the trial. In my view, what is sought to be introduced as an amendment of, or worse still, the substitution of the plea, was always known to the 1st Defendant. Whoever was assisting the 1st Defendant up to the Pre Trial stage could not have missed it, regardless of the degree of his or her knowledge of the law judging from how the pleadings were done and managed up to the Pre-Trial stage. In fact, the purported new plea is a detail or evidence of what the extant plea states and nothing else. Before Advocate Musarurwa came on board in this matter, Mr. Nyamayemombe was already representing the 1st Defendant and honestly, he could and should have picked the deficiencies in the Plea, if any, timeously. I am not convinced that the application is made with the requisite bona fides. I am not convinced by the explanation given either. In my view, all considered, from the Summons to the issues referred for trial, the extant plea allows the parties to ventilate their dispute, it will not hinder this Court from judiciously determining the real issue(s) between them. On the other hand, allowing the purported amendment to be made, will turn the matter on its head. There is no value to be gained by any of the parties or the Court from allowing the amendment to take place. I, therefore, order as follows: - IT IS HEREBY ORDERED THAT: - The application to amend the 1st Defendant’s plea in case number HC 6212/20 be and is hereby dismissed. 2. There is no order as to costs. M. C Mukome, Applicant’s Legal Practitioners. Chinawa Law Chambers, 1st Respondent’s Legal Practitioners. Mbidzo, Muchadehama & Makoni, 2nd Respondent’s Legal Practitioners.