Newton Elliot Dongo v Babnik Investments (Pvt) Ltd and Messenger of Court

Stand 107 of Salisbury Township (also known as 102 Harare Street, Harare) belonged to the late Sushila Natverlal Naik. The estate was registered on 9 May 2016 and administered to its conclusion. Letters of Administration were issued to the deceased's son on 22 June 2016, and the property was sold to the first respondent on 21 July 2016. The deceased had leased the property to Goldpack Investments (Pvt) Ltd from 1 November 1999 to 31 October 2004, with terms prohibiting subletting or cession without consent. After the deceased's death, Goldpack (contrary to the lease terms) purported to cede its rights to Clintvest Investments (Pvt) Ltd. Clintvest subsequently sublet to flea market stallholders. Three months' notice to vacate was given to Goldpack and all those claiming occupation through it. Upon failure to vacate, the Magistrates Court granted an eviction order on 3 February 2017. The applicant, who claimed to be a subtenant of Clintvest, filed an urgent chamber application for a stay of eviction and continued occupation. Subtenants were notified on 25 August 2016 that the property had been sold and they had to vacate within three months. The applicant had also filed case HC 137/16 challenging the administration of the estate.

• Whether the application met the requirements for urgent treatment
• Whether the applicant had locus standi to bring the application
• Whether the applicant had any valid rights of occupation as a subtenant of an illegal tenant
• Whether the applicant had any right of first refusal to purchase the property
• Whether the applicant had standing to challenge the administration of the deceased estate

The application was dismissed with costs for lack of urgency and locus standi.

1. For a matter to be treated as urgent, the applicant must demonstrate that the need to act arose recently and that they have not delayed in instituting proceedings. Where an applicant knows of the facts giving rise to the need for relief months in advance but only approaches the court after eviction has occurred, the matter is not urgent. 2. Once the status quo ante has been lost through execution of a court order, it can generally not be restored unless there is a palpable miscarriage of justice. 3. A subtenant who derives their rights from a tenant who obtained those rights through an unlawful cession (contrary to lease terms prohibiting cession without consent) has no locus standi to challenge eviction by the lawful owner. Such a subtenant cannot claim rights greater than those held by their immediate landlord. 4. Only persons with a direct and legal interest in an estate are entitled under the Administration of Estates Act [Chapter 6:01] to seek participation in or review of the administration of that estate. An illegal occupant has no such interest. 5. A right of first refusal can only be created by agreement between the parties concerned and does not arise automatically in favor of an occupant.

The court expressed doubt about whether the applicant was actually a subtenant of Clintvest at all, noting that he produced no copy of notice to vacate, no proof of stock, no lease agreement, and no receipts showing payment of rent. The court also noted that the applicant's name did not appear in the related Magistrates Court case involving other stallholders, though he swore an affidavit on their behalf on an unclear basis. The court characterized the applicant as "a mere opportunist who cannot claim any right of occupation let alone any locus to assert any rights over the property at all." The court further observed that the applicant's challenge to the estate administration in HC 137/16 was unlikely to have any reasonable prospects of success given the lack of direct interest.

This case illustrates the strict application of procedural requirements for urgent applications in Zimbabwe, particularly the principles that: (1) delay in instituting proceedings negates urgency; (2) a party claiming through an illegal tenant has no locus standi to challenge eviction; (3) once execution has occurred and the status quo ante is lost, courts will generally not restore it absent a palpable miscarriage of justice; (4) only parties with a direct and legal interest in an estate may challenge its administration; and (5) subtenants deriving rights from unlawful cessions cannot claim greater rights than their immediate landlord possessed. The case reinforces the principle that illegal occupation cannot form the basis for claiming rights against a lawful owner.