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In a judgment handed by Justice Maphios Cheda during Motion Court yesterday, Justice Kamocha granted the army leave to execute the judgment he handed on 30 June last year pending appeal by Mrs Rangarirai Gunda.
Mrs Gunda was ordered to bear the costs of the application on a party and party scale.
In his ruling last year, Justice Kamocha said in the event that Mrs Gunda refuses to vacate Number 14 Lawley Road, Suburbs, within the given period, the Deputy Sheriff be empowered to evict her.
Mrs Gunda shall bear the cost on a party and party scale.
After the judgment, Mrs Gunda noted an appeal against the ruling and the matter is still pending in the Supreme Court.
The noting of the appeal automatically suspended the execution of Justice Kamocha’s judgment, which prompted Minister of Defence, Emmerson Mnangagwa, to file an application seeking leave of the court to execute the judgment pending appeal.
In his judgment, Justice Kamocha noted that the house at the centre of the dispute is listed at the Army Headquarters as one of the army’s “reserve houses”.
The house is only reserved for any senior army officer who is appointed Commander of One Brigade.
National hero Brig-Gen Paul Gunda and his family occupied the house from 2004 until 2007 when he died in a road traffic accident.
In terms of the army regulations, Justice Kamocha noted that his wife and children had the right to remain in the house for a period of one month, meaning the Gunda family’s right to lawfully occupy the house should have ended on 31 July 2007.
“There was, however, an inordinate delay to give her notice to vacate the premises, that in my view did not confer her the right to occupy the premises after the prescribed period of one month,” he ruled.
Justice Kamocha said Mrs Gunda is not employed by the army and was not a senior army officer who is entitled to occupy such a house by virtue of being commander of One Brigade.
Justice Kamocha said Mrs Gunda has no prospects of success on appeal, adding that the appeal seems to have been noted just for the sake of buying time.
He contended that the army was being prejudiced by the continued occupation of the house by Mrs Gunda as the commander of One Brigade cannot use the house, which he is meant to use because of Mrs Gunda who is still in occupation when she has no right to do so.
Justice Kamocha further noted that Mrs Gunda said that her late husband was given an offer to purchase the property by the army but that claim was refuted 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 a date, at such and such a place, her late husband was offered the sale of the house,” said the judge.
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.
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