New twist in businessman’s house wrangle
Mashudu Netsianda, Senior Court Reporter
THE High Court has blocked a Bulawayo woman Ms Duduzile Gumede from moving into a house she bought from a local businessman Mr Dumisani Mutorera and his ex-wife, Ms Taisekwa Rosie Mtungwazi pending the finalisation of outstanding court cases.
Mr Mutorera and Ms Mtungwazi sold their three-bedroomed house in Romney Park for US$36 500 to Ms Gumede, but have allegedly refused to vacate the premises, claiming she still owes them an undisclosed balance.
Last week, Ms Mtungwazi filed an application at the Western Commonage Magistrates’ Court for a restraining order against Ms Gumede whom she accused of failing to comply with the terms and conditions of their agreement of sale.
Mr Mutorera and Ms Mtungwazi also allegedly hired bouncers to prevent Ms Gumede from occupying the property, which the couple sold to her in December last year.
When Ms Gumede brought some of her property to the house, Mr Mutorera and his ex-wife refused to let her in.
Western Commonage magistrate Mr Jacob Ncube dismissed Ms Mtungwazi’s application for a protection order against Ms Gumede, saying it lacked merit as the matter purely revolved around an agreement of sale. Ms Mtungwazi, through her lawyers Pundu and Company then filed an urgent chamber application at the Bulawayo High Court citing Ms Gumede as a respondent.
She sought an order interdicting Ms Gumede from evicting her from the disputed house without a court order pending the finalisation of matter under HC 1285/20.
Justice Nokuthula Moyo ruled in favour of Ms Mtungwazi.
“It is declared that pending the finalisation of the matter under HC1285, respondent is ordered to refrain from threatening, attempting or evicting or interfering with the applicant and her family dwelling at the Romney Park house without obtaining a court order,” ruled the judge.
Justice Moyo also ordered Ms Gumede from illegally occupying the house until she had secured a court order.
In her founding affidavit, Ms Mtungwazi said Ms Gumede’ s conduct was a violation of her constitutional right.
She argued that Ms Gumede failed to honour her obligations and breached the agreement of sale.
“The respondent paid the purchase price of US$35 600-00 and had the obligation to pay for all transfer fees inclusive of mortgage bonds and capital gains clearance tax. The balance of US$900-00 was supposed to be paid within 14 days,” said Ms Mtungwazi.
She said she approached the respondent and discussed the matter with her so that she could rectify the issue.
“On the June 18, 2020, the respondent approached the magistrates’ court under case number 278/20 seeking for an order that I and my ex – husband be directed to transfer ownership of property from my and my husband’s name. I defended the matter and the matter is still pending,” she said.
“On August 6, 2020, the respondent again, issued summons in this honorable court under case number HC 1285/20, seeking an order confirming the agreement of sale as binding on all parties and an order directing myself and my ex – husband to transfer the property into her name. I entered an appearance to defend in anticipation of filing my plea as the applicant had breached the agreement of sale.”
She said Ms Gumede never pursued with case and it is still pending before the courts.
Ms Mtungwazi said Ms Gumede came to her house recently and verbally abused her, ordering her to move out of the property.
“They broke the gate and put their household property inside the yard and left. I reported the matter at Sauerstown Police station seeking assistance and I was told that it was a civil matter by the officer- in charge,” she said.
Ms Mtungwazi said three men sent by Ms Gumede came to her house and broke the kitchen door before accessing the house.
“They found my young sister together with my nine-year-old son. They claimed that they were sent by the respondent and they chucked out my younger sister and son,” she said.
“I am approaching the court to seek an injunction against the respondent to refrain from evicting me and my child and sibling from our home without a court order as this would be unlawful. The respondent is evicting me from my home and threatening the demolition of our home by resorting to self-help and the use of force without obtaining a court order in violation of Section 74 and Section 64 of the Constitution of Zimbabwe.”
According to a memorandum of agreement of sale, the price of the house was US$36 500, which was to be paid in cash. Ms Gumede initially paid a deposit of US$35 600 before settling the outstanding balance of US$900 last year on Christmas Eve, which the couple acknowledged.
As part of the agreement, Ms Mtungwazi was set to vacate the house on or before March 1 this year. Both Ms Mtungwazi and Ms Gumede signed the documents with their lawyers acknowledging receipt of the money. Ms Mtungwazi is however, refusing to vacate the house, arguing that Ms Gumede has not paid the money in full.