HH 193-18 NYARADZO FLORENCE MAHLABA versus MATINGINDE HOLDINGS (PRIVATE) LIMITED

NYARADZO FLORENCE MAHLABA

versus

MATINGINDE HOLDINGS (PRIVATE) LIMITED

 

 

 

HIGH COURT OF ZIMBABWE

CHITAKUNYE & MUREMBA JJ

HARARE, 22 February 2018 & 28 March 2018

 

 

 

Civil Appeal

 

Ms D Sanhanga for the appellant

K Manika for the respondent

 

            MUREMBA J: The respondent sued the appellant in the Magistrates Court sitting at Gweru for payment of arrear rentals in the sum of US$5 081.89, interest and costs of suit. It is common cause that the appellant was in occupation of Unit 10 Somerset Mews, Newlands, Harare in terms of a written lease agreement which was entered into by and between the appellant and a company called Allu-Mix Investments (Pvt) Ltd. The lease agreement was signed on 10 April 2014 at Gweru. However, by the time the summons for arrear rentals was issued, the appellant had vacated the property in question.

            In response to the claim, the appellant raised 2 points in limine. The two points in limine are that:

(1)   the magistrates court sitting at Gweru has no jurisdiction to hear the matter and

(2)   the respondent not being the party which entered into the lease agreement with the appellant has no locus standi to sue the appellant.

The points in limine were argued at trial and were dismissed. Aggrieved by the determination, the appellant filed the present appeal against that determination. The proceedings in the main action were postponed sine die pending the outcome of this appeal.

            At the hearing of this appeal, the respondent raised a point in limine to the effect that the ruling on the points in limine which was made by the Magistrates Court must not be subjected to an appeal before the main matter is decided upon. It was submitted that the appellant should have waited for the trial to be concluded first before filing an appeal because there is a distinction between review procedure and appeal procedure. In making this submission the respondent’s counsel relied on the case of Gillespies Monumental Works (Pvt) 

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2018