National Social Security Authority v N. Svova and 17 Others (and related cases)

The applicant National Social Security Authority owned four blocks of flats (Monaco, Cannes, St Maxime, and Juan Les Pins) on stand 13301 Salisbury Township, Harare. The respondents originally occupied the flats under lease agreements that expired before 2000. The applicant then granted the tenants an option to purchase the units, which they exercised but failed to pay the purchase price by the deadline of 31 July 2000. The respondents' right to purchase consequently lapsed. Despite demand to vacate, the respondents refused to leave. The respondents previously brought an application for specific performance (HC 4633/05) which was dismissed by this court (per Omerjee J, 3 July 2007) and upheld on appeal by the Supreme Court (SC 19/10, 22 October 2010), which ruled that the applicant had not waived its right to cancel the agreement and the respondents were not entitled to specific performance. The applicant then instituted four sets of summons seeking eviction, which were consolidated by order of Zhou J on 3 October 2012. It is common cause that the respondents did not pay a single penny towards the purchase price, though they belatedly offered $650,000 which the applicant rejected.

• Whether summary judgment should be granted for eviction of the respondents
• Whether the doctrine of ad lis alibi pendenis prevented the grant of summary judgment given a pending application to strike out the respondents' pleas
• Whether the respondents had disclosed a bona fide defence to the claim for eviction
• Whether a counter claim alleging payment of purchase price could defeat summary judgment
• Whether security provided by legal practitioners satisfied Rule 66(1) requirements
• Whether the issue of holding over damages should be referred to trial

Summary judgment granted in all four consolidated matters for eviction of the respondents. The respondents and all those claiming occupation through them were ordered to vacate the flats within 48 hours, failing which the Sheriff, assisted by police if necessary, was authorized to evict them and give vacant possession to the applicant. The applicant's claim for holding over damages was referred to trial in terms of Order 10 Rule 73. The respondents were ordered to pay costs on the scale of legal practitioner and client, jointly and severally.

To defeat a summary judgment application, a defendant must disclose a defence and material facts upon which that defence is based with sufficient clarity and completeness to persuade the court that if proved at trial such facts will constitute a defence to the claim. Not every defence raised will succeed—it must be a bona fide defence, a plausible case. Where parties' rights have been definitively determined by a superior court, those determinations settle the dispute and parties cannot take 'another crack at goal.' Where occupants have neither a valid lease agreement nor a valid sale agreement, they occupy only by the grace of the owner, and when that grace is withheld, a claim for eviction is unassailable. Security under Rule 66(1) must be to the satisfaction of the registrar; bonds signed by legal practitioners that do not secure the registrar's satisfaction are insufficient.

Mathonsi J made strong observations about the unacceptable practice of litigants trifling with courts, describing the respondents' contradictory claims (denying payment while simultaneously claiming to have paid $24 million) as 'kindergarten behaviour which should find no place in our courts and must be suppressed with an order for punitive costs as a seal of the court's disapproval of such abuse of court process.' The judge also commented on the unexplained delay in delivery of judgment by Gowora J (as she then was) on a related application, noting she had moved to the Supreme Court almost 2 years prior. The court declined to award costs de boniis propriis against the legal practice of Venturas & Samukange, noting they appeared to have undergone 'a damascene experience' and renounced agency, essentially abandoning the respondents.

This case illustrates the proper application of summary judgment principles in Zimbabwe, particularly in eviction matters. It demonstrates that: (1) summary judgment is appropriate where a claim is unassailable and the defendant has no bona fide defence; (2) pending interlocutory applications do not prevent summary judgment where they would not resolve the matter to finality; (3) courts will not tolerate trifling behavior and contradictory pleadings; (4) once superior courts have determined parties' rights, those determinations settle disputes definitively; (5) security under Rule 66(1) must satisfy the registrar, not merely be filed; and (6) punitive costs are appropriate where defendants file bogus defences. The case also reinforces that occupants without valid lease agreements or sale agreements have no legal basis to remain in possession.