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Widow of national hero ordered to vacate the army house
05 Jul 2011 at 23:27hrs | Views
The widow of national hero Brigadier-General Paul Armstrong Gunda has been ordered by the the High Court to vacate the army house she has been occupying since the death of her husband in 2007.
In the judgment handed on Thursday during the motion court, Justice Kamocha said in the event that Mrs Rangarirai Gunda refuses to vacate Number 14 Lawley Road, Suburbs, within the given period, the Deputy Sheriff was empowered to evict her.
Mrs Gunda shall bear the costs of the suit.
Minister of Defence Emmerson Mnangagwa, the applicant in the matter, approached the High Court after the Zimbabwe National Army had its initial application to evict Mrs Gunda dismissed at the Bulawayo Magistrates' Courts for wa-nt of jurisdiction.
Col Gunda died on 21 June 2007 and at the time of his death he was the Commander of One Brigade in Bulawayo and by virtue of being the commander he and his family were entitled to occupy Number 14 Lawley Road, Suburbs.
The house is listed at the Army Headquarters as one of the army's "reserved houses" and this particular house is reserved for any senior army officer who is appoi-nted Commander One Brigade.
Brig-Gen Gunda took occupation of it from 2004 to 2007 when he passed on.
After his death, Mrs Gunda and her children had the right to remain in the house for a period of one month in terms of army regulations.
"The respondent's right to lawfully occupy the house should have ended on 31 July, 2007 according to the army regulations.
"For some unexplained reasons the applicant did not seek to evict the respondent at the expiry of one month.
"Instead the notice to vacate was only issued after a period of 15 months.
"The deponent to the applicant's affidavit took the stance that the Ministry of Defence was under no obligation to explain the inordinate delay to the respondent.
"That attitude is wrong and un-fortunate," said Justice Kamocha in his judgment.
He notes that the inordinate delay to evict Mrs Gunda led her to believe that what she may have heard about Government houses being offered to sitting tenants may have applied to her late husband when he was still alive.
Justice Kamocha further notes that Mrs Gunda contended that her late husband was given an offer to purchase the property by the army but that contention was veheme-ntly disputed by the army.
It was the court's finding that Mrs Gunda does not state who exactly in the army made that promise and when and where it was made.
"She has stated that witnesses testified in the magistrates' courts but chose not to take the court in her confidence by stating whether or not those witnesses confirmed her story that her husband had been promised the sale of the house.
"Her story remains a bald and unsubstantiated assertion.
"There are no facts to support her story.
"It is not enough to merely allege dispute of facts without demonstrating to the court the disputed facts by, for instance, producing a letter offering the property for sale to the late husband of the respondent or by averments in her affidavit to the effect that at a meeting between her late husband and a named officer or officers of the army held on such and such date, at such and such place, her late husband was offered the sale of the house," said the judge.
While accepting that there was once a Government policy to offer sitting tenants the option to buy, Justice Kamocha notes that this policy was in place for 10 years starting from about 1993 until the disposal of Government houses was suspended in 2003.
He adds: "The house in question is a reserve house which required the consent of the Ministry of Defence and its disposal will then be communicated to the Ministry of National Housing and Social Amenities.
"The respondent's late husband received no offer letter to buy that particular house. She did not claim that he did.
"In the absence of proof that her late husband was actually offered to buy the house, her claim remains a mere speculation.
"The mere fact that other officers were indeed offered to buy Government houses as sitting tenants does not necessarily mean that the offer was extended to her late husband."
The court found that Mrs Gunda had failed to demonstrate that her late husband had been given the option to purchase the premises adding that the house remains Government property.
"I held the view that in the absence of proof to buy the premises her claim remains a speculation and wishful thinking.
"The respondent properly conceded that she was not the owner of the house and had no lease agreement entitling her to stay at the house. She is not an employee of the army.
"It is common ground that her entitlement to stay at the house should have terminated at the end of July 2007 at the latest.
"This court holds that she had no entitlement to continue staying there thereafter. She must vacate the premises," ruled Justice Kamocha.
In the judgment handed on Thursday during the motion court, Justice Kamocha said in the event that Mrs Rangarirai Gunda refuses to vacate Number 14 Lawley Road, Suburbs, within the given period, the Deputy Sheriff was empowered to evict her.
Mrs Gunda shall bear the costs of the suit.
Minister of Defence Emmerson Mnangagwa, the applicant in the matter, approached the High Court after the Zimbabwe National Army had its initial application to evict Mrs Gunda dismissed at the Bulawayo Magistrates' Courts for wa-nt of jurisdiction.
Col Gunda died on 21 June 2007 and at the time of his death he was the Commander of One Brigade in Bulawayo and by virtue of being the commander he and his family were entitled to occupy Number 14 Lawley Road, Suburbs.
The house is listed at the Army Headquarters as one of the army's "reserved houses" and this particular house is reserved for any senior army officer who is appoi-nted Commander One Brigade.
Brig-Gen Gunda took occupation of it from 2004 to 2007 when he passed on.
After his death, Mrs Gunda and her children had the right to remain in the house for a period of one month in terms of army regulations.
"The respondent's right to lawfully occupy the house should have ended on 31 July, 2007 according to the army regulations.
"For some unexplained reasons the applicant did not seek to evict the respondent at the expiry of one month.
"Instead the notice to vacate was only issued after a period of 15 months.
"The deponent to the applicant's affidavit took the stance that the Ministry of Defence was under no obligation to explain the inordinate delay to the respondent.
"That attitude is wrong and un-fortunate," said Justice Kamocha in his judgment.
He notes that the inordinate delay to evict Mrs Gunda led her to believe that what she may have heard about Government houses being offered to sitting tenants may have applied to her late husband when he was still alive.
Justice Kamocha further notes that Mrs Gunda contended that her late husband was given an offer to purchase the property by the army but that contention was veheme-ntly disputed by the army.
It was the court's finding that Mrs Gunda does not state who exactly in the army made that promise and when and where it was made.
"Her story remains a bald and unsubstantiated assertion.
"There are no facts to support her story.
"It is not enough to merely allege dispute of facts without demonstrating to the court the disputed facts by, for instance, producing a letter offering the property for sale to the late husband of the respondent or by averments in her affidavit to the effect that at a meeting between her late husband and a named officer or officers of the army held on such and such date, at such and such place, her late husband was offered the sale of the house," said the judge.
While accepting that there was once a Government policy to offer sitting tenants the option to buy, Justice Kamocha notes that this policy was in place for 10 years starting from about 1993 until the disposal of Government houses was suspended in 2003.
He adds: "The house in question is a reserve house which required the consent of the Ministry of Defence and its disposal will then be communicated to the Ministry of National Housing and Social Amenities.
"The respondent's late husband received no offer letter to buy that particular house. She did not claim that he did.
"In the absence of proof that her late husband was actually offered to buy the house, her claim remains a mere speculation.
"The mere fact that other officers were indeed offered to buy Government houses as sitting tenants does not necessarily mean that the offer was extended to her late husband."
The court found that Mrs Gunda had failed to demonstrate that her late husband had been given the option to purchase the premises adding that the house remains Government property.
"I held the view that in the absence of proof to buy the premises her claim remains a speculation and wishful thinking.
"The respondent properly conceded that she was not the owner of the house and had no lease agreement entitling her to stay at the house. She is not an employee of the army.
"It is common ground that her entitlement to stay at the house should have terminated at the end of July 2007 at the latest.
"This court holds that she had no entitlement to continue staying there thereafter. She must vacate the premises," ruled Justice Kamocha.
Source - TH
