THE City of Harare has recovered Machipisa Bar and Tavern, which its controversial strategic business unit, Rufaro Marketing, had leased to Kandrick Investments for 10 years until 2032.
Council appealed against a magistrate court ruling citing Kandrick Investments and Rufaro Marketing as the respondents in the application.
In the application for appeal before High Court judges Justices Amy Tsanga and Siyabona Musithu, Harare sought the reversal of magistrate Lazini Ncube’s ruling made in favour of the respondents.
According to the application, Rufaro Marketing and Kandrick Investments on April 7, 2022 entered into a lease agreement for the Machipisa Bar and Silver Room Tavern in Highfield, Harare.
The respondents had agreed on US$3 500 monthly rentals to be paid before the first day of the month for a duration of 10 years.
The agreement was expected to expire on March 31, 2032.
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According to Kandrick Investments, the lease authorised the lessee to renovate the premises and the entity renovated the existing double-storey building by plastering it and putting up a new roof, with all the designs having been approved and supervised by an engineer in the City of Harare employ.
On October 17, 2022, City of Harare issued a notice of intention to evict Kandrick Investments from the premises as well as demolishing the structures that had been put up.
The threat to demolish the structures was made on the basis that they were erected illegally without approved plans.
The City of Harare’s notice prompted Kandrick Investments to approach the courts with an ex parte application for a prohibitory interdict.
Harare opposed the application arguing that a similar application was pending before the High Court while the matter was heard on an urgent basis on November 4, 2022.
Former High Court judge Justice Webster Chinamhora granted a provisional order on that date.
Harare also argued that a provisional order was pending before the same court for confirmation and the matter involved the same parties and the same cause of action.
The city further argued that it did not authorise the lease agreement between Kandrick Investments and Rufaro Marketing.
It also submitted that the approval of the structural changes to the property were revoked when it became aware of the illegal lease.
However, the magistrate court granted the relief sought by Kandrick Investments, saying the appellant had conducted itself improperly.
The court ruled that the appellant could not cancel the lease agreement between Kandrick Investments and Rufaro Marketing when it was not party to that lease agreement.
It further determined that even if Rufaro Marketing did not have authority to sublet the premises, the City of Harare could not evict Kandrick Investments from the premises without a court order.
Aggrieved by the decision of the court a quo, Harare City Council approached the High Court on appeal against the judgment.
The judges of appeal found that the magistrate did not apply his mind to the issue before the court saying his sentiments contradicted the position of the law.
“It must have been clear to the learned magistrate that the same relief that was being sought before him had already been granted by a superior court, albeit, on a temporary basis,” the appeal judges said.
“That magistrates court does not have jurisdiction to grant a declaratur, where a litigant does not or cannot claim consequential relief pursuant to such declaration.
“The court determines that there is merit in the first ground of appeal. Having reached that conclusion, it was unnecessary to traverse the merits of the dispute, whose determination must be stayed pending the resolution of the matter under HC 7416/22.”