Passing of Ownership, Proof of Title and Jus in re Propria re: Instalment Sale of Land

HH06-09 : MARIA KATSIGA vs HILDA CHARLIE and NYASHA MACHAKAIRE and MASTER OF HIGH COURT and REGISTRAR OF DEEDS
Ruled By: KUDYA J

2. Whether or not the late Gladys Mutasa sold Stand 6673 Ruwa Township to the first defendant The basis of the alleged sale was exhibit 5. Gladys Mutasa purportedly sold the Stand in question which was a vacant piece of land. The provisions of section 7 of the Contractual Penalties Act [Chapter 8:04] would apply to such ...

2. Whether or not the late Gladys Mutasa sold Stand 6673 Ruwa Township to the first defendant

The basis of the alleged sale was exhibit 5. Gladys Mutasa purportedly sold the Stand in question which was a vacant piece of land. The provisions of section 7 of the Contractual Penalties Act [Chapter 8:04] would apply to such a sale. The section reads:

“7 Instalment sales of land to be in writing

Every instalment sale of land shall be reduced to writing:

Provided that, where any such contract or any term or condition thereof has not been reduced to writing, the onus of proving the existence of that contract, term or condition, as the case may be, shall rest on the person alleging its existence.”

It was on the basis of this section that counsel for the plaintiff submitted that the onus lay on the first defendant to show, on a balance of probabilities, that the sale took place.

Her submission is not supported by the wording of the section. After all, the first defendant relied on exhibit 5 as the memorial of the terms and conditions of the agreement. It was an instalment sale that was reduced to writing and which captured the agreed terms. The onus was therefore on the plaintiff to show, on a balance of probabilities, that Gladys Mutasa was not a party to this agreement. After all, she was the one who averred that the agreement was a forgery. The onus would be on the first defendant to prove those terms that she alleged were agreed but were not written into the agreement.

On the face of it, exhibit 5 would satisfy the basic tenets of an Agreement of Sale. The thing to be sold is identified and the price is indicated. The intention to sell and buy is pre-supposed. In addition, the signatures of the seller, buyer and witnesses are appended in the agreement.

The plaintiff did not provide a sample of Gladys Mutasa's signature nor call expert evidence of a questioned document examiner. Rather, she interrogated the documents which form exhibit 5. She took issue with the reference in all the three documents to Augustine Katsiga as a party to the agreement when he had long died. The first and third documents did not indicate the dates on which they were executed. A date was shown on the second document. The format of the first document was unusual. The signatures were appended above the content of the agreement; a situation which created room for mischief. The terms of payment in the first document are different from those in the second document. The third document does not indicate the dates on which the 12 sums of money were paid. The first defendant did not prove that those moneys were ever paid. The third document contradicted the terms of payment in the first document. It was unclear whether the first defendant paid a deposit of $5 million or $100 million. Tariro Mutasa did not exist and the national identification number attributed to her in the first and second documents was for Mary Bvungwe. There are 8 signatures in the three documents that were attributed to Gladys Mutasa which, even to the un-tutored eye of a non-expert in questioned documents, are all different.

She also used extrinsic factors to attack exhibit 5. When the first defendant first contacted her she did not indicate to her that she had purchased the Stand. She handed the title deed back to her on 9 January 2006 without claiming ownership of the Stand. She did not claim ownership to her fellow church members Gift Chilengwe and Fadzisai Mutatabikwa when they asked her to return the documents. Her witnesses did not agree with her that Heather Charlie lived in their neighborhood or that she witnessed the agreement. The only Heather Charlie who was known to them was her daughter who went to the United Kingdom in 1999 and had not been back to Zimbabwe since then. She waited until Gladys Mutasa had died to claim the Stand. The first defendant was a proven liar. Her affidavits demonstrated that she held no qualms about gilding the lily. She tailored her evidence to that of her witnesses that Fadzisai Mutatabikwa masqueraded as Heather. The point was not taken with Fadzisai during cross-examination. It was an after-thought designed to discredit Fadzisai's evidence. That allegation also demonstrated that it was not beyond the first defendant to recruit others to assist her to forge the agreements. After all, she had the file which had Gladys Mutasa's details.

The above factors that the plaintiff highlighted satisfied me that she had discharged the onus on her to show that the agreement was not authentic. It was a forgery.

I, accordingly, hold that Gladys Mutasa did not sell the Stand to the first defendant.

HB12-12 : KENNEDY GWAMURE vs DINGANI TSHUMA
Ruled By: NDOU J

The applicant submitted that the provisions of section 8(1) of the Contractual Penalties Act [Chapter 8:04] applies to this case. I do not agree. The agreement does not require payment to be made "in three or more instalments; or by way of a deposit and two or more instalments...,." All this agreement requires is a ...

HB02-09 : NDUMISO DUBE vs LEONARD DUBE
Ruled By: KAMOCHA J

The applicant sought to invoke the provisions of the Contractual Penalties Act [Chapter 8:04] without showing that the parties concluded an instalment sale in respect of the new Stand. Those provisions do not apply where a party seeking to rely upon them fails to prove the existence of a sale of land by instalments.

HB37-09 : MARGRET CAROL COLER vs MAXWEL SHUMBA
Ruled By: KAMOCHA J

The issue is whether or not the cancellation complies with the provisions of the Contractual Penalties Act [Chapter 8:04]. It is common cause that the sale in this matter was an instalment sale of land. The seller's rights in such sales are restricted by section 8 of the Contractual Penalties Act [Chapter 8:04], which provides ...

The issue is whether or not the cancellation complies with the provisions of the Contractual Penalties Act [Chapter 8:04].

It is common cause that the sale in this matter was an instalment sale of land. The seller's rights in such sales are restricted by section 8 of the Contractual Penalties Act [Chapter 8:04], which provides thus -

“8. Restriction of Seller's Rights

(1) No seller under an instalment sale of land may, on account of any breach of contract by the purchaser -

(a) enforce a penalty stipulation, or provision, for the accelerated payment of the purchase price; or

(b) terminate the contract; or

Unless he has given notice in terms of subsection (2) and the period of the notice has expired without the breach being remedied, rectified, or discontinued, as the case may be.

(2) Notice for the purposes of subsection (1) shall:-

(a) be given in writing to the purchaser; and

(b) advise the purchaser of the breach concerned; and

(c) call upon the purchaser to remedy, rectify, or desist from continuing, as the case may be, the breach concerned within a reasonable period specified in the notice, which period shall not be less than -

(i) the period fixed for the purpose in the instalment sale of land concerned; or

(ii) thirty days;

Whichever is the longer period.

(3) Without derogation from section 40 of the Interpretation Act [Chapter 1:01], a notice shall be regarded as having been duly given to the purchaser for the purposes of subsection (i) -

(a) if it has been delivered to the purchaser personally, or to an agent chosen by the purchaser for the purposes of receiving such notices; or

(b) if it has been posted by registered post to the address chosen by the purchaser for the delivery of correspondence or legal documents relating to the instalment sale of land concerned, or, in the absence thereof, to the purchaser's usual or last known place of residence or business.”

Under cross-examination..., the defendant admitted that when he received the letter of 21 October 2005, he had already made payment, and that letter had only indulged him the period of payment to 9am on Tuesday 25 October 2005. He admitted failing to pay the $500 million by 9am. He further admitted that instead, he sent a letter with a cheque for $400 million. He confirmed that as at 26 October 2005, when he received the letter of cancellation, he had not yet tendered the balance of $100 million.

He finally admitted that the agreement was, as a matter of fact, cancelled after a period of more than thirty days. This period is reckoned from 21 September 2005 to 26 October 2005, and works out to be thirty five days.

In light of the fact that the defendant was a perpetual defaulter, the plaintiff was entitled to cancel the agreement. He did so in terms of the provisions of section 8 of the Contractual Penalties Act [Chapter 8:04].

In the result, I would issue the following order:-

(a) The cancellation of the agreement of sale entered between the plaintiff and the defendant, in respect of House Number 12 Hillside Road, Hillside, Bulawayo, for reasons of failure by the defendant to pay the purchase price timeously, as specified in the agreement and the parties' subsequent indulgences, be and is hereby confirmed.

(b) The defendant, and all those claiming through him, be and are hereby evicted forthwith from House Number 12 Hillside Road, Hillside, Bulawayo.

(d) ...,.

HB94-09 : NOMALANGA SIBANDA vs GIVEN NYATHI and SEHLISO NYATHI and THE REGISTRAR OF DEEDS, BULAWAYO and BEN BARON AND PARTNERS
Ruled By: KAMOCHA J

The background of this matter may be summarised like this. On 24 September 2004, the first and second respondents entered into an Agreement of Sale whereby they sold to the applicant a certain piece of land in extent 4070 square metres, being number 157 Burnside Township 8 of subdivision 10 of Matsheumhlope situate in the ...

HB94-09 : NOMALANGA SIBANDA vs GIVEN NYATHI and SEHLISO NYATHI and THE REGISTRAR OF DEEDS, BULAWAYO and BEN BARON AND PARTNERS
Ruled By: KAMOCHA J

The applicant paid in full the $28 million transfer fees to Messrs. Ben Baron and Partners, and was ready to take transfer of the property, but to her shock and dismay, she received the following letter dated 19 May 2005 - “Dear Madam Re: Cancellation of Sale of Agreement of Stand No. 157 Burnside Township 8 of Subdivision ...

HH11-10 : NABANE ROY TSHUMA vs TONGAI MUSEMBURI and TENDAI MUSEMBURI and MACKSON TOTSHANE NCUBE and THE REGISTRAR OF DEEDS
Ruled By: KARWI J

Tendai Musemburi..., gave evidence in support of the first and second defendants' case. He told the court that he and his brother, the first defendant, decided, in 1984, to purchase a retirement home for their retiring parents. On 11 March 1984, they entered into an Agreement of Sale with Gabriel Real Estate, who was acting on behalf ...

HH146-11 : LEO ELECTRICAL (PRIVATE) LIMITED vs ROSEMARY NYAHUYE N.O. [in her capacity as Executrix dative of the Estate of the late Farai Benjamin Njiwah]
Ruled By: CHITAKUNYE J

The applicant is a duly registered company of 9 East Court Road, Belvedere, Harare….,. The applicant is the registered owner of Stand 3131 Dzivarasekwa Township which it sold to the late Farai Benjamin Njiwah in terms of a Deed of Sale Agreement dated 26 February 1999. The buyer paid a deposit and the balance of ...

The applicant is a duly registered company of 9 East Court Road, Belvedere, Harare….,.

The applicant is the registered owner of Stand 3131 Dzivarasekwa Township which it sold to the late Farai Benjamin Njiwah in terms of a Deed of Sale Agreement dated 26 February 1999. The buyer paid a deposit and the balance of $2,260,000= was to be paid by way of monthly instalments within 36 months and was to be paid on or before 1^st March 2002. Furthermore, the buyer had to pay the installments due to Beverly Building Society as required by the applicant.

On 2 March 1999, the parties signed another Agreement of Sale over the same property.

As fate would have it, Farai Benjamin Njiwah died on 28 August 1999 before he had paid up the purchase price. The respondent was subsequently appointed executrix and continued making the payment in terms of the Agreement of Sale.

In HC10165/04, the respondent, as applicant, sought an order compelling the applicant, as respondent in that application, to transfer the immovable property in favour of the Estate Late Farai Benjamin Njiwah.

The respondent in that case opposed the application. In addition, the respondent filed a counterclaim seeking, among other things, the confirmation of the cancellation of the Agreement of Sale, the eviction of the now applicant and a claim for damages for holding over.

On the 20 January 2006, the application and counter application were heard before CHATUKUTA J in HC10165/04. Rosemary Nyahuye was represented by Mr. Mawere whilst Leo Electrical Pvt Ltd was represented by Mr. I.E.G. Musimbe. After hearing counsel the judge gave the following order:-

“It is ordered that

1. That the main application be and is hereby dismissed with costs.

2. That the counter application be and is hereby dismissed for lack of compliance with the Penalties Act.”

On the May 2006, Leo Electrical Pvt Ltd filed this court application seeking the eviction of Rosemary Nyahuye from the property in question. The applicant argued that it had now complied with the Contractual Penalties Act [Chapter 8:04].

The respondent opposed the application contending that she had made full payment for the property and that the applicant had still not complied with the Contractual Penalties Act [Chapter 8:04] if at all it felt the respondent had not paid in full. The respondent made a counter-claim which was basically for the same relief as in HC10165/04 where she was the applicant.

The applicant opposed the counterclaim contending that the respondent's claim had been dismissed on the merits and so was res judicata.

The respondent indicated that her application was not dismissed on the merits. Her legal practitioners had not filed the heads of argument and so were barred. The dismissal was thus because of the failure to file heads of argument as a result of which the applicant was barred.

On 13 November 2006, the parties appeared before me to argue their case.

It was apparent from their papers that they were not agreed regarding what transpired when they appeared before CHATUKUTA J and on the interpretation of the order issued on 26 January 2006. Neither party had the reasons for judgment nor were the legal practitioners certain as to whether, in fact, the matter was dealt with on the merits. Whilst the applicant argued that its counter claim was dismissed because no personal service of the notice to terminate the Agreement of Sale had been effected, the respondent contended that it was because the applicant had not complied with all of the provisions of the Contractual Penalties Act [Chapter 8:04]. As a consequence of the obvious uncertainty, Mr. Musimbe, who appeared for the applicant, sought a postponement so that he could furnish the court with the correct position after obtaining a copy of the judgment in HC10165/04.

When the matter was reset, no such information was furnished. Instead, Mr. Musimbe had renounced agency and Miss V. C. Maramba of Thondhlanga & Associates was now appearing for the applicant. The same question regarding the reasons for the dismissal of the application and counter application in HC10165/04 was raised. As was the case before - no satisfactory answer was given.

In as far as it is agreed that the applicant's counter-claim was dismissed for non-compliance with the provisions of the Contractual Penalties Act [Chapter 8:04], if the applicant is to succeed, it must show that it has now complied with the provisions of the Contractual Penalties Act [Chapter 8:04]. Section 8 of the Contractual Penalties Act [Chapter 8:04] provides that -

“8(1) No seller under an instalment sale of land may, on account of any breach by the purchaser -

(a) Enforce a penalty stipulation or a provision for the accelerated payment of the purchase price; or

(b) Terminate the contract; or

unless he has given notice in terms of subs (2) and the period of notice has expired without the breach being remedied, rectified or discontinued, as the case may be.”

Section 8(2) of the Contractual Penalties Act [Chapter 8:04] states that:-

“(2) Notice for the purpose of subs (1) shall -

(a) Be given in writing to the purchaser; and

(b) Advise the purchaser of the breach concerned; and

(c) Call upon the purchaser to remedy, rectify or desist from continuing, as the case may be, the breach concerned within a reasonable period specified in the notice, which period shall not be less than -

(i) The period fixed for the purpose in the instalment sale of the land concerned; or

(ii) Thirty days;

whichever is the longer period.”

Section 8(3) of the Contractual Penalties Act [Chapter 8:04] provides that -

“(3) Without derogation from s40 of the Interpretation Act [Cap 1:01], a notice shall be regarded as having being duly given to the purchaser for the purposes of subs (1) -

(a) If it has been delivered to the purchaser personally or to an agent chosen by the purchaser for the purpose of receiving such notices; or

(b) If it has been posted by registered post to the address chosen by the purchaser for the delivery of correspondence or legal documents relating to the instalment sale of land concerned or, in the absence thereof, to the purchaser's usual or last known place of residence or business.”

Compliance with section 8 of the Contractual Penalties Act [Chapter 8:04] entails that one would have given notice in terms of the above subsections. Subsection 1 obliges a seller to give notice in terms of subsection 2. Subsection 2 outlines the nature and content of that notice, including what the notice must demand of the buyer. Subsection 3 provides for the manner of service of such notice for it to be deemed valid. These are the steps the applicant should have clearly outlined if it hoped to convince the court that it had complied with all the provisions of the Contractual Penalties Act [Chapter 8:04].

The notice that the applicant said it gave the respondent after the High Court order does not seem to be the one envisaged under section 8 of the Contractual Penalties Act [Chapter 8:04]. That notice reads:-

“RE: NOTICE OF TERMINATION - STAND 3131 DZIVARASEKWA TOWNSHIP-DZI SUPERMARKET

The High Court of Zimbabwe sitting at Harare ordered that the letter of termination of the agreement of sale had to be served on you personally. Accordingly, this letter serves as your further notice of termination of the agreement of sale entered into between our client and the Estate late B. Njiwah on 24 February 1999, as further read with the agreement of sale by Global Property, of 2^nd March 1999. The first breach is in respect of your failure to pay off the outstanding balance due to our client within 36 months. The second breach is in respect of your failure to timeously pay off the mortgage loan repayment to Beverley Building Society, which were in arrears and almost resulted in foreclosure proceedings by Beverley. Despite our client giving you more than the required 30 days' notice to rectify such breaches, you failed to do so. Our client thus hereby terminates the agreement of sale.

This notice shall be served personally on you as required by the High Court.”

It is my view that this notice is not in compliance with section 8 of the Contractual Penalties Act [Chapter 8:04]. The notice envisaged under section 8 of the Contractual Penalties Act [Chapter 8:04] is one notifying the buyer of the breach and demanding that the breach be rectified within a given period failure of which certain consequences will befall him. Subsection 8(2) clearly states those requirements. The purported notice by the applicant is a mere statement of what the applicant claims to have done by way of advising the respondent of the breach and alleging that the respondent had not rectified the breaches. Those letters said to have been sent to the respondent advising of the breach and giving the respondent a period within which to rectify the breaches are the letters or notices required to be furnished.

Accordingly, I am of the view that even with a benevolent interpretation of the court order in HC10165/04 the applicant has not shown that it has complied with the Contractual Penalties Act [Chapter 8:04].

HH283-10 : TAWANDA CHIPATO vs MARKO MUSA MASEKO and RICHARD MASEKO and BERN-WIN DEVELOPMENT COMPANY (PRIVATE) LIMITED
Ruled By: MAKONI J

It is not in dispute that the Agreement of Sale between Marko and Bernwin was an instalment agreement. An instalment agreement is defined in the Contractual Penalties Act [Chapter 5:04] as- “a contract for the sale of land whereby payment is required to be made – (a) In three or more instalments; or (b) By way of ...

It is not in dispute that the Agreement of Sale between Marko and Bernwin was an instalment agreement. An instalment agreement is defined in the Contractual Penalties Act [Chapter 5:04] as-

“a contract for the sale of land whereby payment is required to be made –

(a) In three or more instalments; or

(b) By way of a deposit and two or more instalments.”

It is common cause that payment in this matter was to be made in more than thirty-eight (38) instalments.

Before terminating a sale by instalment, a Seller is obliged to comply with the provisions of section 8(1) of the Contractual Penalties Act [Chapter 5:04] and section 8(2) of the Contractual Penalties Act [Chapter 5:04]. Section 8(1) of the Contractual Penalties Act [Chapter 5:04] provides-

“No seller under an instalment sale of land may, on account of any breach of contract by the purchaser-

(a) Enforce a penalty stipulation or a provision for the accelerated payment of the purchase price; or

(b) Terminate the contract; or

(c) Institute any proceedings for damages; unless he has given notice in terms of subsection (2) and the period of the notice has expired without the breach being remedied, rectified or discontinued, as the case may be.”

Section 8(2) of the Contractual Penalties Act [Chapter 5:04] provides-

“Notice for the purposes of subs (1) shall-

(a) Be given in writing to the purchaser; and

(b) Advise the purchaser of the breach concerned; and

(i) The period fixed for the purpose in the instalment sale of the land concerned;

(ii) Thirty days;

whichever is the longer period.”

In casu, the Agreement provided for fourteen (14) days' notice to the Buyer to remedy a breach.

In view of the provision, section 8(2)(c) of the Contractual Penalties Act [Chapter 5:04], Bernwin was therefore obliged to give thirty days of its intention to terminate the agreement, unless the breach was remedied, as the period agreed to in the Agreement is shorter than thirty (30) days.

I want to believe Marko when he says he was not given any notice to cancel the agreement. Bernwin, in its papers, curiously did not attach the notice they gave to Marko to remedy the breach, neither did it attach the notice to cancel the agreement. It only attached the letter from Marko's legal practitioner and their response. If those documents existed, they would have attached them as they are the basis of their opposition. Marko's position is buttressed by the fact that there were no attachments to the cheque reimbursing the purchase price. One would have thought that the cheque would be attached to the notice to cancel the agreement.

In view of the above, the purported cancellation of the Agreement of Sale by Bernwin is not valid. That finding presents a double sale scenario before me.

HB179-13 : PHILEMON N. MABUZA vs CHARLES NYATHI
Ruled By: MUTEMA J

(1) WHETHER THERE IS A LEASE AGREEMENT OR AN AGREEMENT OF SALE BETWEEN THE PARTIES IN RESPECT OF USHER PADDOCK The onus on this issue is on both parties with each proving what he avers. Section 7 of the Contractual Penalties Act [Chapter 8:04] provides that every instalment sale of land shall be ...

(1) WHETHER THERE IS A LEASE AGREEMENT OR AN AGREEMENT OF SALE BETWEEN THE PARTIES IN RESPECT OF USHER PADDOCK

The onus on this issue is on both parties with each proving what he avers.

Section 7 of the Contractual Penalties Act [Chapter 8:04] provides that every instalment sale of land shall be reduced to writing otherwise the onus is on the party alleging the verbal agreement to prove its existence.

In the instant case, the defendant has the onus of proving the existence of the alleged verbal contract of the instalment sale of the land. He has dismally failed to do so. He says he bought the land for Z$1 billion which he has since fully paid by way of instalments. The cheque stubs, which were not discovered, which he produced, only amount to a total sum of Z$358,892,311=. He has not alleged that some payments were in cash or from a different account. The bank statements he produced show that the cheques were drawn on the same account. It is therefore improbable that he would get some and not the other proof of payment from the same account. It is not difficult to infer that the other cheques do not exist. No receipts for the alleged payments were ever issued. According to him, despite having been warned by the plaintiff that the sale had the potential of being fraught with problems, the defendant took no steps to protect his interests, for instance by insisting on written proof of the sale or having witnesses to the agreement. No one, except the defendant, knows about the alleged sale. He said the instalments were neither quantified nor stated as to when they were payable. The date of transfer of the land to him was never stated and even as we speak he has not demanded the transfer. In the pleadings he even did not file a counter-claim for such transfer. His explanation for the foregoing loopholes is simply that he trusted his maternal uncle. Not only is the explanation lame but falls far short of discharging the onus that rests on him to prove the existence of the alleged instalment sale of the land.

HH277-14 : THE PINNACLE PROPERTY HOLDINGS (PVT) LTD vs MUNICIPALITY OF REDCLIFF
Ruled By: DUBE J

The respondent claims transfer of the land to it upon payment of the full purchase price in the main claim. Termination of instalment sales is governed by section 8 of the Contractual Penalties Act [Chapter 8:04] which reads as follows: “8(1) No seller under an instalment sale of land may, on account of any breach of contract ...

The respondent claims transfer of the land to it upon payment of the full purchase price in the main claim.

Termination of instalment sales is governed by section 8 of the Contractual Penalties Act [Chapter 8:04] which reads as follows:

“8(1) No seller under an instalment sale of land may, on account of any breach of contract by the purchaser -

(a) Enforce a penalty stipulation or a provision for the accelerated payment of the purchase price; or

(b) Terminate the contract; or

unless he has given notice in terms of subsection (2) and the period of the notice has expired without the breach being remedied, rectified or discontinued, as the case may be.

(2) Notice for the purposes of subsection (1) shall -

(a) Be given in writing to the purchaser; and

(b) Advise the purchaser of the breach concerned; and

(i) The period fixed for the purpose in the instalment sale of the land concerned; or

(ii) Thirty days;

whichever is the longer period.”

Subsection 8(2)(c) of the Contractual Penalties Act [Chapter 8:04] requires a seller to call upon the purchaser to remedy the breach within a reasonable period specified in the notice which shall not be less than thirty days.

The applicant maintained that the respondent failed to comply with mandatory provisions of section 8(2)(c) of the Contractual Penalties Act [Chapter 8:04] in that it cancelled the sale with immediate effect. That the applicant was not given an opportunity to remedy the breach.The respondent argued that the requirement is not mandatory and further that it had substantially complied with the requirements of section 8 of the Contractual Penalties Act [Chapter 8:04].

No notice to remedy the breach was given in terms of the Contractual Penalties Act [Chapter 8:04].

It appears to me that the cancellation of the sale may not have been done in accordance with the law. My view is that the requirement to give notice which should not be less than 30 days is mandatory because of the use of the word “shall”. I have misgivings about suggestions by the respondent that the applicant was given in excess of 4 months to remedy the breach. I am not convinced that the letters written to applicant a few months before the cancellation constitute notice to remedy the breach and that the respondent substantially complied with section 8 of the Contractual Penalties Act [Chapter 8:04]. The notice to remedy the breach is required to be part of the notice of cancellation. Communication to the applicant that he was in breach and demands made for payment before the notice of cancellation do not suffice for purposes of section 8 of the Contractual Penalties Act [Chapter 8:04]. Section 8 of the Contractual Penalties Act [Chapter 8:04] prescribes what should be contained in the notice. The notice falls far short of that. The claim for cancellation is linked to the right to take transfer of the property. Once the cancellation is declared irregular, the applicant would be entitled to transfer of the land upon payment of the full purchase price. The claim for specific performance is therefore likely to succeed….,.

I am satisfied that the applicant has shown “good and sufficient cause” for rescission of judgment.

In the result, it is ordered as follows:-

1. The application for rescission of judgment is allowed.

2. The judgment granted by MTSHIYA J, under HC3439/10, be and is hereby set aside.

3. Costs shall be in the cause.

HB22-14 : TATENDA PATIENCE MUKUDU vs ANDREW MALETE
Ruled By: MUTEMA J

A peek at the merits of the application for rescission, in terms of prospects of success, does not favour the applicant at all. In Bosman Transport Works Committee Ors v Piet Bosman Transport (Pvt) Ltd 1980 (4) SA…, MULLER JA stated that; “…, where there has been a flagrant breach of the Rules of ...

A peek at the merits of the application for rescission, in terms of prospects of success, does not favour the applicant at all.

In Bosman Transport Works Committee & Ors v Piet Bosman Transport (Pvt) Ltd 1980 (4) SA…, MULLER JA stated that;

“…, where there has been a flagrant breach of the Rules of this court in more than one respect and where, in addition, there is no reasonable explanation for some periods of delay, and, indeed, in respect of other periods of delay no explanation at all, the application should…., not be granted whatever the prospects of success may be.”

In my opening remarks I bemoaned the conduct of lay persons who take the risk of drafting legal instruments when they do not appreciate the pitfalls involved thereby creating a legal minefield for themselves.

In casu, the Agreement of Sale, in clause 3 provides as follows:

“3. PAYMENT TERMS

(a) Purchase Price

The purchase price of the property is the sum of Z$120,000,000= (One Hundred and Twenty million dollars only) (revalued) payable according to the herein attached schedule.

SCHEDULE OF PAYMENTS

DATE

AMOUNT PAID

PURCHASER'S SIGNATURE

SELLER'S SIGNATURE

08/02/2007

09/02/2007

12/02/2007

$19 800 000,00

$200 000,00

$50 000 000,00

Cut-off date for payment is Wednesday 14^th February 2007.”

Both parties did append their signatures in their respective columns in the above schedule. It is clear that the respondent made only three instalment payments, as shown above, totaling Z$70,000,000= leaving a balance of Z$50,000,000=. Such an arrangement i.e the modus of payment shown above cannot be terms a cash sale. It is certainly an instalment sale which is defined in section 2 of the Contractual Penalties Act [Chapter 8:04] as a contract for the sale of land whereby payment is required to be made in three or more instalments and ownership of the land is not transferred until payment is completed.

In the result, in terms of section 8(1)(b) of the Contractual Penalties Act [Chapter 8:04], in the event of a breach by the purchaser, no seller, under an instalment sale of land, can terminate the contract unless he/she has given the purchaser a written notice calling upon the purchaser to remedy the breach within a period which shall not be less than thirty days.

In casu, the applicant gave the respondent only fourteen (1)4 days to remedy the breach.

The notice was accordingly incompetent. She was so advised but did not heed that advice and proceeded to purport to cancel the contract, even before the 14 day notice she had given, and returned the balance of the purchase price the respondent had tendered within thirty days. It cannot therefore be argued that the respondent breached the Agreement of Sale thereby warranting its cancellation….,.

In the result, no good cause has been shown by the applicant why her delay in applying for rescission of the default judgment should be condoned. The application for condonation is accordingly dismissed with costs.

Appealed
HH151-16 : SHORAI NZARA and ARROLA IDEHEN and AMOSOGE IDEHEN and OSARETIN IDEHEN and vs CECILIAH KASHUMBA N.O. and REGISTRAR OF DEEDS and MASTER OF THE HIGH COURT and TAFIRENYIKA KAMBARAMI
Ruled By: MAFUSIRE J

In terms of the Contractual Penalties Act [Chapter 8:04], no cancellation of an instalment sale of land on account of breach where the purchase price is paid over three or more instalments, or by way of a deposit and two or more instalments, is valid unless the purchaser is given not less than 30 days' notice, ...

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SC18-18 : SHORAI NZARA and AAROLA IDEHEN and AMOSOGE IDEHEN and OSARETIN IDEHEN vs CECILIA KASHUMBA N.O. and REGISTRAR OF DEEDS and MASTER OF THE HIGH COURT and TAFIRENYIKA KAMBARAMI
Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

In terms of section 8(2)(c)(ii) of the Contractual Penalties Act [Chapter 8:04] a purchaser is entitled to a notice period of 30 days within which to pay the purchase price before the contract can be cancelled.

Appealed
SC58-20 : YUSUF GAIBIE and MILLY GAIBIE N.O. vs ALEXANDER CASTANHEIRA and RACHEL CASTANHEIRA
Ruled By: GARWE JA, BHUNU JA and MAKONI JA

This is an appeal against the whole judgment of the High Court sitting at Bulawayo in which it granted absolution from the instance against the appellants' claim.FACTUAL BACKGROUNDThis is a contractual dispute. The appellants and the respondents entered into an Agreement of Sale in respect of a certain piece of ...

This is an appeal against the whole judgment of the High Court sitting at Bulawayo in which it granted absolution from the instance against the appellants' claim.

FACTUAL BACKGROUND

This is a contractual dispute. The appellants and the respondents entered into an Agreement of Sale in respect of a certain piece of land being Stand 710 Bulawayo Township in the District of Bulawayo known as Sunkist Flats situate at No.68 Samuel Parirenyatwa Street/Corner 6th Avenue, Bulawayo (“the property”).

In terms of the agreement, the purchase price of the property was in the sum of Z$11,500,000,000 (eleven billion five hundred million dollars) payable in instalments. The first instalment of Z$5,000,000,000 (five billion dollars) was to be paid upon signing of the agreement and was duly paid. The second instalment of Z$5,000,000,000 (five billion dollars) was payable by 27 January 2006 and the third instalment of Z$1,500,000,000 (one billion five hundred million dollars) upon the respondents taking occupation of the property.

On 27 January 2006, the respondents paid Z$1,800,000,000 (one billion eight hundred million dollars) instead of the agreed Z$5,000,000,000 (five billion dollars). After the respondents failed to pay the remaining amount within the stipulated time, the parties signed an addendum to the Agreement of Sale allowing the respondents an extension of time within which to pay the remaining amount.

It was signed by the parties on 16 February 2006 and it gave the respondents up to 28 February 2006 to pay the remaining balance. Pursuant thereto, the respondents made further payments.

It is common cause that by 28 February 2006 they had not cleared the amount outstanding. A further payment was made on 3 March 2006. By that date, a total of Z$9,200,000,000 (nine billion two hundred million dollars) had been paid by the respondents leaving a balance of $2,300,000,000 (two billion three hundred million dollars).

The respondents allegedly held on to this amount in the belief that the amount was to be paid to the sellers' conveyancers in terms of Clause 4.5 of the Agreement of Sale.

On 15 March 2006, the appellants wrote a letter to the respondents giving them 30 days' written notice to remedy their breach failing which the appellants would cancel the agreement. The letter further required the respondents to pay the sum of Z$2,300,000,000 (two billion three hundred million dollars) to their conveyancers, Messrs Baron & Partners, as provided for in the agreement as well as the outstanding interest charges as provided for in the addendum.

The respondents paid an additional amount of $1,200,000,000 (one billion two hundred million dollars). After getting no further response from the respondents pursuant to the letter of 15 March 2006, in respect of the outstanding amount, the appellants instituted proceedings in the court a quo against the respondents. They claimed cancellation of the Agreement of Sale. They tendered a refund of all the amounts paid as the purchase price as at the date of the summons. They further claimed costs of suit on the attorney and client scale in the event that the respondents opposed the matter.

The respondents denied breaching the Agreement of Sale and stated that they had complied with the agreement by paying the purchase price in full.

The matter was referred to trial on mainly two issues;

(i) The first issue was whether the defendants (the respondents) had breached the contract.

(ii) The other issue was whether the plaintiffs (the appellants) were entitled to cancel the agreement based on the defendants' breach.

The appellants gave evidence on their own behalf and closed their case.

Thereafter, the respondents applied for absolution from the instance arguing that the appellants had not proved a prima facie case as they had failed to prove any breach of the Agreement of Sale and a right to cancel the agreement.

On 5 July 2018, the court a quo granted the respondents' application for absolution from the instance reasoning that the plaintiff's case was full of glaring inconsistencies and unacceptable variances with the pleadings filed of record. It found that the appellants had failed, at the close of their case, to establish a prima facie case.

The appellants, aggrieved by that decision, filed the present appeal on the following grounds;

“GROUNDS OF APPEAL

1. The court a quo erred in law by granting absolution from the instance when the appellants had established a prima facie case of breach of contract by the respondents which breach entitled the appellants to cancel the contract.

2. The court a quo grossly misdirected itself on the facts by concluding that the appellants received the full purchase price set out in the contract when there was sufficient evidence to the contrary and no reasonable court, applying its mind to the evidence on record and the test for absolution from the instance, could have arrived at the same conclusion.

3. The court a quo grossly misdirected itself on the facts by concluding that the appellants had admitted that they had received the full market value of the property agreed upon at the time of contracting when there is no basis for such a conclusion and no reasonable court could have arrived at the same conclusion.

4. The court a quo erred in law by concluding that the appellants are not entitled to cancel the contract on account of breach by the respondents because the appellants allegedly breached the contract first, which alleged breach by the appellants was never pleaded by the respondents as a defence to the appellants` claim.

5. The court a quo erred in law by applying the contra preferentum rule against the appellants when there was no ambiguity at all as to the breach committed by the respondents and the appellants right to cancel the contract.”

Notwithstanding the number of grounds of appeal raised by the appellants, the court takes the view that the present appeal turns on the sole issue of whether or not the court a quo was correct in granting the application for absolution from the instance made by the respondents.

THE APPLICABLE LAW

The law to be applied in the present circumstances was eloquently articulated by MAKARAU JA in Competition and Tariff Commission v Iwayafrica Zimbabwe (Pvt) Ltd SC58-19…, where she said the following:

“[13] The law on when a court may grant absolution from the instance at the close of the plaintiff's case is settled. See Supreme Service Station (1969) (Private) Limited v Fox & Goodridge Limited 1971 (1) ZLR 1 (A) and United Air Charters (Private) Limited v Jarman 1994 (2) ZLR 341 (S). The court granting absolution must be satisfied that there is no evidence before it upon which a reasonable court might find for the plaintiff.

[14] Expressed differently, the court considering an application for absolution from the instance must ask itself if there is no evidence at all on each and every essential averment that the plaintiff must make to sustain the cause of action. If there is some evidence on all the essential averments, absolution should not be granted. If there is evidence on some, but not on all, the essential averments, absolution may be granted, for, in that instance, the plaintiff will not be able to sustain and perfect its cause of action. This is so because an application for absolution from the instance stands on pretty much the same footing as an application for the discharge of an accused person at the close of the State case albeit on a lower threshold of the burden of proof.

[15] It follows then that a court granting absolution must be clear on the essential averments that a plaintiff has to make to sustain the cause of action.”

See also United Air Charters (Pvt) Ltd v Jarman 1994 (2) ZLR 341 (S)…,.

APPLICATION OF THE LAW TO THE FACTS

In casu, it is common cause that the appellants' cause of action was breach of contract.

Clause 1.1 of the agreement, which regulated the purchase price and its payment, provided as follows:

“The purchase price of the property shall be the sum of $11,500,000,000 (eleven billion five hundred million dollars) which shall be payable in accordance with the provisions specified under Special Conditions elsewhere in this agreement.”

The relevant part of the Special Conditions clause provided as follows:

“4.2 THE FIRST PAYMENT in the sum of $5,000,000,000 (Five Billion Dollars) shall be payable upon signing of this agreement by RTGS transfer to an account to be advised.

4.3 THE SECOND PAYMENT in the sum of $5,000,000,000 (Five Billion Dollars) shall be payable on or before the 27th January 2006 by RTGS transfer to an account to be advised, else the Midrate applies thereafter.

4.4 THE THIRD PAYMENT in the sum of $1,500,000,000 (One Billion Five Hundred Million) shall be payable on the Purchaser obtaining occupation of the property.

4.5 The two parties agree that any amounts paid shall be immediately released to the sellers save for any amounts required by law to be of the Conveyancers on account of Capital Gains Tax.

…,.

4.8 In the event that the sum of $10,000,000,000 (Ten Billion Dollars) deposit shall not have been paid in full by the 10th February 2006 the Sellers shall have the right to cancel the Agreement forthwith notwithstanding to the contrary containing this Agreement.”

The addendum to the agreement granted the respondent extension of time to pay the outstanding amount by 28 February 2006.

The appellants argue that the second instalment of Z$5,000,000,000 (five billion dollars) was not paid in full as was required by the agreement and that the respondents only paid Z$1,800,000,000 (one billion eight hundred million dollars) thus leaving a balance of Z$3,200,000,000 (three billion two hundred million dollars). The second instalment ought to have been paid by 27 January 2006.

The respondents do not deny this but seek to aver that the addendum to the agreement granted them an extension to pay the outstanding amounts by 28 February 2006.

While that may be true, it is also correct that by the time the extension provided by the addendum had expired, the respondents had not yet paid the full Z$11,500,000,000 (eleven billion five hundred million dollars) as required by the agreement of sale as read with the addendum. Instead, they had only managed to pay Z$9,200,000,000 (nine billion two hundred million dollars) leaving a balance of Z$2,300,000,000 (two billion three hundred million dollars).

The last payment towards the purchase price was paid on 14 July 2006.

In addition, it is common cause that on 15 March 2006 the appellants wrote to the respondents giving them 30 days' notice in which to pay the outstanding amounts - which they failed to do.

The respondents argued that they paid the purchase price in full to the second respondent's account. The balance of Z$2,300,000,000 (two billion three hundred million dollars) was to be paid to the appellants' conveyancers. By the time the appellants issued summons they (the appellants) had not opened a file with their conveyancers.

It is this Court's view that the respondents have to explain why they failed to pay the amount they claimed was due to the conveyancers upon being advised of the identity of the conveyancers.

It is common cause that the respondents attempted to pay by cheque and it was returned by the Bank in April 2006. It was not clear why the cheque was returned.

Regarding the issue of whether the appellants were entitled to cancel the agreement, it is this Court's view that it is a question of interpretation of the agreement as read with the addendum. This can only be done after the court would have heard evidence from both sides.

As it is, the Court has heard the appellants' side only.

In this vein, therefore, the appellants established a prima facie case of breach of the agreement by the respondents. The full amount, as stated in the agreement, had not been paid at the time of issuance of the summons.

Once evidence has been adduced which constitutes prima facie proof of breach, then, such evidence may become proof, on a preponderance of probabilities, and a plaintiff will succeed in proving his or her case. The courts must be slow to grant absolution from the instance and this point was made in Katerere v Standard Chartered Bank Zimbabwe Ltd HB51-08 which was quoted with approval in Bakari v Total Zimbabwe (Pvt) Ltd SC21-19. It was stated that:

“The court should be extremely chary of granting absolution at the close of the plaintiff's case. The court must assume that, in the absence of very special considerations, such as the inherent unacceptability of the evidence adduced, the evidence is true. The court should not, at this stage, evaluate and reject the plaintiff's evidence. The test to be applied is not whether the evidence led by the plaintiff establishes what will finally have to be established. Absolution from the instance at the close of the plaintiff's case may be granted if the plaintiff has failed to establish an essential element of his claim - Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A); Marine & Trade Insurance Co Ltd v Van Der Schyff 1972 (1) SA 26 (A); Sithole v PG Industries (Pvt) Ltd HB47-05.”

The same point had been made earlier on in Manyange v Mpofu & Ors 2011 (2) ZLR 87 (H)…, where it was stated that;

“The test to be applied as to whether to grant absolution is not whether the evidence for the plaintiff establishes what would finally be required to be established to obtain judgment. It is whether the plaintiff has made out a prima facie case against the defendant on the basis of which the court could or might find for the plaintiff. A reticent defendant should not be allowed to shelter behind the procedure of absolution from the instance. In practice, the courts are loathe to decide upon questions of fact without hearing all the evidence from both sides, and have usually inclined towards allowing the case to proceed. At this stage of the trial, it is not pertinent to evaluate the weight of the evidence adduced or the preponderance of probabilities, save where such findings are manifest from the evidence already heard.”

See also Chombo v Minister of Safety and Security (I3883/2013) [2018] NAHCMD 37.

It bears mention that the appellants only had to prove a prima facie case and their evidence a quo cannot be characterized as having been manifestly unsatisfactory, unreliable, or that it failed to establish an essential element of the claim. An arguable case was made out and the respondents ought to have been put to their defence.

At the hearing of the matter, counsel for the appellants sought to argue that the court a quo did not apply its mind to the matter that was before it for the reason that the judgment of the court a quo is a regurgitation of the respondents (then defendants a quo) submissions. He submitted that the court a quo simply adopted the evidence and submissions of the respondents without independently assessing it and without having regard to the appellants' submissions.

Per contra, counsel for the respondents argued that this was not an issue that had been raised in the grounds of appeal and thus could not be properly raised for the first time at this hearing.

On the merits, she argued that the court a quo did not produce a biased decision and for authority she relied on the case of Stuttafords Stores (Pty) Ltd and Others v Salt of the Earth Creations (Pty) Ltd 2011 (1) SA 267 (CC).

In that case, the Constitutional Court of South Africa, in no uncertain terms, refrained from determining the question whether the extensive use of counsel's heads of argument could lead to a perception of bias because it was not a question before it. It merely expressed its views on such conduct. The views are obiter and not binding.

However, in casu, it is apparent that the court a quo did not regurgitate the submissions made by the respondents in the court a quo. There are differences between the submissions and the final judgment. As a result, the court takes the view that while it may be undesirable for a court to plagiarize counsel's heads of argument in a judgment, this does not necessarily, without more, amount to a misdirection.

DISPOSITION

The appellants have managed to establish that the court a quo misdirected itself in granting absolution from the instance when the appellants had established a prima facie case. The appeal has merit and must succeed.

Accordingly, it is ordered as follows:

1. The appeal be and is hereby allowed with costs.

2. The judgment of the court a quo is set aside and substituted with the following:

“The application for absolution from the instance be and is hereby dismissed.”

SC81-21 : FRANK HUMBE vs DESMOND MUCHINA and SPARKLES SERVICES (PVT) LTD and GODFREY MUNYAMANA and SHERIFF OF ZIMBABWE and FADZAYI MUNYAMANA
Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

The appellant brought an urgent chamber application in the High Court for a stay of the execution of a judgment obtained by the first respondent against the second and third respondents on 12 February 2018 in the sum of US$352,851=30 together with interest and costs of suit.

By judgment delivered on 21 August 2020, the High Court dismissed the application with costs.

This appeal is against that judgment dismissing the appellant's urgent application.

THE FACTS

The third and fifth respondents, who are husband and wife, hold title to Stand 67 Guildford Estate Township of Subdivision H of Guildford of Borrowdale Estate, also known as No.67 Guildford Crescent, Borrowdale, Harare (the house) by Deed of Transfer Number 1447/2009.

On 15 November 2013, they entered into a Deed of Sale in terms of which they sold the house to the appellant for US$380,000 payable in certain instalments from 30 November 2013 to 30 June 2014.

There is no convergence between them as to whether the full purchase price was paid.

The appellant alleges having paid part of the purchase price through the sale of his own neighbouring house, through the agency of the second respondent, and part of it through the sale to the third respondent of his Mercedes Benz S Class motor vehicle.

The appellant alleges, further, that, although he failed to pay the cash balance of the purchase price in accordance with the agreement, he has however paid it in full.

On the other hand, the third and fifth respondents position is that the appellant defaulted in his payments, and, after giving him the requisite 30 days notice, in terms of the Deed of Sale, they duly cancelled the agreement.

Notwithstanding such cancellation, the appellant still sued the second, third, and fifth respondents in case number HC11367/15, which was filed on 20 November 2015, for an order compelling transfer of the house to himself and for their eviction from it.

The summons action in question was defended and does not appear to have been prosecuted with any zeal thereafter.

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Passing of Ownership, Proof of Title and Jus in re Propria re: Instalment Sale of Land

HH06-09 : MARIA KATSIGA vs HILDA CHARLIE and NYASHA MACHAKAIRE and MASTER OF HIGH COURT and REGISTRAR OF DEEDS
Ruled By: KUDYA J

HB12-12 : KENNEDY GWAMURE vs DINGANI TSHUMA
Ruled By: NDOU J

HB02-09 : NDUMISO DUBE vs LEONARD DUBE
Ruled By: KAMOCHA J

HB37-09 : MARGRET CAROL COLER vs MAXWEL SHUMBA
Ruled By: KAMOCHA J

HB94-09 : NOMALANGA SIBANDA vs GIVEN NYATHI and SEHLISO NYATHI and THE REGISTRAR OF DEEDS, BULAWAYO and BEN BARON AND PARTNERS
Ruled By: KAMOCHA J

HB94-09 : NOMALANGA SIBANDA vs GIVEN NYATHI and SEHLISO NYATHI and THE REGISTRAR OF DEEDS, BULAWAYO and BEN BARON AND PARTNERS
Ruled By: KAMOCHA J

HH11-10 : NABANE ROY TSHUMA vs TONGAI MUSEMBURI and TENDAI MUSEMBURI and MACKSON TOTSHANE NCUBE and THE REGISTRAR OF DEEDS
Ruled By: KARWI J

HH146-11 : LEO ELECTRICAL (PRIVATE) LIMITED vs ROSEMARY NYAHUYE N.O. [in her capacity as Executrix dative of the Estate of the late Farai Benjamin Njiwah]
Ruled By: CHITAKUNYE J

HH283-10 : TAWANDA CHIPATO vs MARKO MUSA MASEKO and RICHARD MASEKO and BERN-WIN DEVELOPMENT COMPANY (PRIVATE) LIMITED
Ruled By: MAKONI J

HB179-13 : PHILEMON N. MABUZA vs CHARLES NYATHI
Ruled By: MUTEMA J

HH277-14 : THE PINNACLE PROPERTY HOLDINGS (PVT) LTD vs MUNICIPALITY OF REDCLIFF
Ruled By: DUBE J

HB22-14 : TATENDA PATIENCE MUKUDU vs ANDREW MALETE
Ruled By: MUTEMA J

Appealed
HH151-16 : SHORAI NZARA and ARROLA IDEHEN and AMOSOGE IDEHEN and OSARETIN IDEHEN and vs CECILIAH KASHUMBA N.O. and REGISTRAR OF DEEDS and MASTER OF THE HIGH COURT and TAFIRENYIKA KAMBARAMI
Ruled By: MAFUSIRE J

View Appeal
SC18-18 : SHORAI NZARA and AAROLA IDEHEN and AMOSOGE IDEHEN and OSARETIN IDEHEN vs CECILIA KASHUMBA N.O. and REGISTRAR OF DEEDS and MASTER OF THE HIGH COURT and TAFIRENYIKA KAMBARAMI
Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

Appealed
SC58-20 : YUSUF GAIBIE and MILLY GAIBIE N.O. vs ALEXANDER CASTANHEIRA and RACHEL CASTANHEIRA
Ruled By: GARWE JA, BHUNU JA and MAKONI JA

SC81-21 : FRANK HUMBE vs DESMOND MUCHINA and SPARKLES SERVICES (PVT) LTD and GODFREY MUNYAMANA and SHERIFF OF ZIMBABWE and FADZAYI MUNYAMANA
Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

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Law Portal Zimbabwe

Passing of Ownership, Proof of Title and Jus in re Propria re: Instalment Sale of Land

HH06-09 : MARIA KATSIGA vs HILDA CHARLIE and NYASHA MACHAKAIRE and MASTER OF HIGH COURT and REGISTRAR OF DEEDS Ruled By: KUDYA J

HB12-12 : KENNEDY GWAMURE vs DINGANI TSHUMA Ruled By: NDOU J

HB02-09 : NDUMISO DUBE vs LEONARD DUBE Ruled By: KAMOCHA J

HB37-09 : MARGRET CAROL COLER vs MAXWEL SHUMBA Ruled By: KAMOCHA J

HB94-09 : NOMALANGA SIBANDA vs GIVEN NYATHI and SEHLISO NYATHI and THE REGISTRAR OF DEEDS, BULAWAYO and BEN BARON AND PARTNERS Ruled By: KAMOCHA J

HB94-09 : NOMALANGA SIBANDA vs GIVEN NYATHI and SEHLISO NYATHI and THE REGISTRAR OF DEEDS, BULAWAYO and BEN BARON AND PARTNERS Ruled By: KAMOCHA J

HH11-10 : NABANE ROY TSHUMA vs TONGAI MUSEMBURI and TENDAI MUSEMBURI and MACKSON TOTSHANE NCUBE and THE REGISTRAR OF DEEDS Ruled By: KARWI J

HH146-11 : LEO ELECTRICAL (PRIVATE) LIMITED vs ROSEMARY NYAHUYE N.O. [in her capacity as Executrix dative of the Estate of the late Farai Benjamin Njiwah] Ruled By: CHITAKUNYE J

HH283-10 : TAWANDA CHIPATO vs MARKO MUSA MASEKO and RICHARD MASEKO and BERN-WIN DEVELOPMENT COMPANY (PRIVATE) LIMITED Ruled By: MAKONI J

HB179-13 : PHILEMON N. MABUZA vs CHARLES NYATHI Ruled By: MUTEMA J

HH277-14 : THE PINNACLE PROPERTY HOLDINGS (PVT) LTD vs MUNICIPALITY OF REDCLIFF Ruled By: DUBE J

HB22-14 : TATENDA PATIENCE MUKUDU vs ANDREW MALETE Ruled By: MUTEMA J

Appealed HH151-16 : SHORAI NZARA and ARROLA IDEHEN and AMOSOGE IDEHEN and OSARETIN IDEHEN and vs CECILIAH KASHUMBA N.O. and REGISTRAR OF DEEDS and MASTER OF THE HIGH COURT and TAFIRENYIKA KAMBARAMI Ruled By: MAFUSIRE J

View Appeal SC18-18 : SHORAI NZARA and AAROLA IDEHEN and AMOSOGE IDEHEN and OSARETIN IDEHEN vs CECILIA KASHUMBA N.O. and REGISTRAR OF DEEDS and MASTER OF THE HIGH COURT and TAFIRENYIKA KAMBARAMI Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

Appealed SC58-20 : YUSUF GAIBIE and MILLY GAIBIE N.O. vs ALEXANDER CASTANHEIRA and RACHEL CASTANHEIRA Ruled By: GARWE JA, BHUNU JA and MAKONI JA

SC81-21 : FRANK HUMBE vs DESMOND MUCHINA and SPARKLES SERVICES (PVT) LTD and GODFREY MUNYAMANA and SHERIFF OF ZIMBABWE and FADZAYI MUNYAMANA Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

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Law Portal
Zimbabwe

HH06-09 : MARIA KATSIGA vs HILDA CHARLIE and NYASHA MACHAKAIRE and MASTER OF HIGH COURT and REGISTRAR OF DEEDS
Ruled By: KUDYA J

HB12-12 : KENNEDY GWAMURE vs DINGANI TSHUMA
Ruled By: NDOU J

HB02-09 : NDUMISO DUBE vs LEONARD DUBE
Ruled By: KAMOCHA J

HB37-09 : MARGRET CAROL COLER vs MAXWEL SHUMBA
Ruled By: KAMOCHA J

HB94-09 : NOMALANGA SIBANDA vs GIVEN NYATHI and SEHLISO NYATHI and THE REGISTRAR OF DEEDS, BULAWAYO and BEN BARON AND PARTNERS
Ruled By: KAMOCHA J

HB94-09 : NOMALANGA SIBANDA vs GIVEN NYATHI and SEHLISO NYATHI and THE REGISTRAR OF DEEDS, BULAWAYO and BEN BARON AND PARTNERS
Ruled By: KAMOCHA J

HH11-10 : NABANE ROY TSHUMA vs TONGAI MUSEMBURI and TENDAI MUSEMBURI and MACKSON TOTSHANE NCUBE and THE REGISTRAR OF DEEDS
Ruled By: KARWI J

HH146-11 : LEO ELECTRICAL (PRIVATE) LIMITED vs ROSEMARY NYAHUYE N.O. [in her capacity as Executrix dative of the Estate of the late Farai Benjamin Njiwah]
Ruled By: CHITAKUNYE J

HH283-10 : TAWANDA CHIPATO vs MARKO MUSA MASEKO and RICHARD MASEKO and BERN-WIN DEVELOPMENT COMPANY (PRIVATE) LIMITED
Ruled By: MAKONI J

HB179-13 : PHILEMON N. MABUZA vs CHARLES NYATHI
Ruled By: MUTEMA J

HH277-14 : THE PINNACLE PROPERTY HOLDINGS (PVT) LTD vs MUNICIPALITY OF REDCLIFF
Ruled By: DUBE J

HB22-14 : TATENDA PATIENCE MUKUDU vs ANDREW MALETE
Ruled By: MUTEMA J

Appealed
HH151-16 : SHORAI NZARA and ARROLA IDEHEN and AMOSOGE IDEHEN and OSARETIN IDEHEN and vs CECILIAH KASHUMBA N.O. and REGISTRAR OF DEEDS and MASTER OF THE HIGH COURT and TAFIRENYIKA KAMBARAMI
Ruled By: MAFUSIRE J

View Appeal
SC18-18 : SHORAI NZARA and AAROLA IDEHEN and AMOSOGE IDEHEN and OSARETIN IDEHEN vs CECILIA KASHUMBA N.O. and REGISTRAR OF DEEDS and MASTER OF THE HIGH COURT and TAFIRENYIKA KAMBARAMI
Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

Appealed
SC58-20 : YUSUF GAIBIE and MILLY GAIBIE N.O. vs ALEXANDER CASTANHEIRA and RACHEL CASTANHEIRA
Ruled By: GARWE JA, BHUNU JA and MAKONI JA

SC81-21 : FRANK HUMBE vs DESMOND MUCHINA and SPARKLES SERVICES (PVT) LTD and GODFREY MUNYAMANA and SHERIFF OF ZIMBABWE and FADZAYI MUNYAMANA
Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA