KUDYA
J: The plaintiff concluded an agreement of sale with the second defendant on 20
January 2003 and took registered title of the immovable property, stand number
2946 Gwelo Township of Gwelo Township Lands, also known as 40 Mcllwaine
Southdowns, Gweru, on 19 February 2003.
The first defendant, Mrs Gwanzura, is
the former wife of the second defendant, Mr Gwanzura. Their marriage of 19
years was dissolved by the High Court sitting at Bulawayo on 23 July 2002 in case number HC
2877/98. The divorce order, inter alia,
apportioned the house between the defendants. The relevant part of the order
reads:
“a) That the
immovable property known as 40 Mcllwaine road Southdowns
Gweru shall be valued by CC Sales (Pvt) Ltd
within a month from the date of
this order.
b)
That after the valuation either party shall pay the
other 50% of the valuation fine (sic)
of the property and whichever party shall pay the other first will secure the
property.
c)
In the event that either party is not able to raise the
half share will (sic) three months
from the date of valuations (sic) the
property shall be sold by Trevor Dollar Estate agents at the best advantage of
the parties and the purchase price shall be shared equally between the parties.
d) In
the event that the plaintiff has been paid his half share in terms of the
divorce order he shall sign the transfer of guardianship (sic) documents within (sic)
from the date of transfer failure (sic)
which the Deputy Sheriff Gweru is hereby authorised to sign the transfer papers
to effect transfer of ownership of 40 Mcllwaine road, Southdowns, Gweru, to the
defendant.”
The
property was duly valued by CC Sales Ltd Gweru on 28 November 2002 at ZW$8.4 million.
The report gives a full description of the property. It, inter alia, describes the swimming pool as non functional, badly
cracked and in a bad state of repair. The main bedroom, one other bedroom and
the garage had structural cracks. Some sections of the walls were damp and the
roof leaked. In terms of the court order either party had until 28 February
2003 to buy the other out failing which the house would be sold to best
advantage and the proceeds shared equally between the parties.
Mrs Gwanzura remained in occupation of the house with the children of
the marriage after Mr Gwanzura deserted them in 1997 and settled in Kwekwe with
another woman. She has been residing in the house ever since the divorce order
was granted.
The plaintiff issued summons out of
this court on 31 March 2003 seeking the eviction of Mrs Gwanzura, holding over
damages and costs of suit. He based his claim on ownership. Mrs Gwanzura
contested the claim and filed her plea and counterclaim on 16 April 2003. She averred
that the plaintiff, with prior knowledge of her rights in the immovable property,
fraudulently and criminally connived with Mr Gwanzura to defeat her of those
rights. She prayed for the dismissal of the claim and for the cancellation of
the Deed of Transfer 373/03. On 19 May 2003, the plaintiff disputed the
averments made in the counterclaim.
Mr Gwanzura was joined in the matter
with the consent of the parties on 28 January 2004 as the second defendant in
reconvention. He filed his plea to the counterclaim on 27 February 2004. He
averred that he had fully abided by the terms of the divorce order by buying out
the defendant of her share in the immovable property before disposing it to the
plaintiff; and denied acting fraudulently, contemptuously or in connivance with
the plaintiff.
At the pre-trial conference of 23
June 2004, the following three issues were referred to trial:
1.
Whether or not the plaintiff was aware that the
property was the subject of a matrimonial dispute.
2.
Whether or not the agreement between the plaintiff and
second defendant was done fraudulently to defeat the court order under case
2877/98.
3.
Whether the defendant is entitled to cancellation of
title deeds.
The plaintiff testified on his own
behalf and called the further evidence of his elder brother Tawona Zingwe. In
addition he produced exh 1, a 16 paged bundle of documents. Mrs Gwanzura gave
evidence on her own behalf and called the evidence of Mr Dzimba, the senior
partner of the Dzimba, Jaravaza and Associates, legal practitioners, who was
her legal practitioner of record during and after the divorce proceedings. In
addition she produced three bundles of exhibits that were marked as exh 2, 4
and 5. Mr Gwanzura also testified on his own behalf and produced exh 3, a three
paged copy of an agreement of sale dated 11 July 2003 concluded between Mrs
Gwanzura and Elizabeth Sithole purportedly for the sale of the immovable
property.
The plaintiff has lived in the Untied Kingdom
for the past 11 years where he works as a research development officer. He flew
into the country on 6 December 2002. He
instructed Trevor Dollar Estate agents of Gweru to buy a property in the low
density suburbs of Gweru for him. He paid into their trust account ZW$15
million for that purpose. He left the country for the United Kingdom
on 3 January 2003 before a suitable property had been found.
He mandated his late father Saul
Zingwe to act on his behalf during his absence. He was not personally present during
the preliminary stages before the purchase of the immovable property. He did
not physically participate in the purchase and transfer of the property to his
name. He, however, received periodic progress reports over the telephone from
his father. He was, however, unable to describe the house he purchased. When
his father failed to receive vacant possession, he issued summons out of the
Gweru Magistrate's court, on his behalf, on 5 November 2004 for the eviction of
Mrs Gwanzura. When default judgment for the cancellation of his title was
entered against him on 24 October 2005, his father filed the founding affidavit
for rescission on 23 February 2007. He denied possessing prior knowledge of Mrs
Gwanzura's rights personally or through his agents.
The
plaintiff's father died after the closure of pleadings but before trial. He
called the evidence of his elder brother Tawona Zingwe to testify on the events
that took place on the day he accompanied his father to inspect the immovable
property. Tawona stated that they met Mr Gwanzura for the first time at Trevor
Dollar Estate Agents on that day. He could not recall when they went for the
visit but estimated it to have been between 14 and 15 January 2003. Mr Gwanzura
accompanied them to the property. At the gate he observed that the house had a
swimming pool and a cottage. They were met at the entrance to the house by Mrs
Gwanzura who took them into the lounge. He inspected the house whilst seated in
the lounge and noted that it had a big kitchen and three bedrooms. He was
impressed by the state of the lounge and excited at the prospect of finding a
house after a long search that he dispensed with the inspection of the three
bedrooms. He stated that his father did
not inspect the house. They went away in the euphoria of finding a suitable
house after a long search. He was not present when the agreement of sale was
concluded. After taking transfer, Mrs Gwanzura refused to vacate. It was at
that stage that Chakanetsa and Partners, legal practitioners for Mr Gwanzura
during the divorce proceedings and sale and transfer of the property showed him
and his father the divorce order.
During cross examination, he disputed
that Mrs Gwanzura informed them that the house could not be sold because it was
encumbered by a divorce order issued by the High Court and refused them
entrance into and inspection of the house. Although he disputed it, the
impression that I gathered from his responses under cross examination was that
a tense atmosphere prevailed at the immovable property on the day of
inspection. He stated that no introductions were done by Mr Gwanzura; that
whilst they sat down on the sofas Mrs Gwanzura remained standing and that no
inspections were done. He confessed that he neither saw nor inspected the kitchen
but relied on the description he received from Trevor Dollar Estate Agents. He revealed
that he was unaware that the first room of entry into the house from the
verandah where he averred they were received by Mrs Gwanzura was the dining
room. He was also oblivious that they sat in a sunken lounge.
Tawona was not a credible witness. He
gave contradictory evidence. He supplied a false date of the inspection. The
reasons he gave for failing to conduct an inspection were proved false by Mrs
Gwanzura and unwittingly by Mr Gwanzura. His lack of knowledge of the structure
of the house from the verandah to the lounge demonstrated that he did not enter
the house. He was oblivious of the structural defects on the property that were
noted in the valuation report.
Mrs Gwanzura stated that her former
husband came to the house for the first time after his 1997 desertion on the
day of inspection. It was on the morning of 5 January 2003. He was in the
company of an old man and a young man who he did not identify and who refused
to identify themselves but who she later knew as Saul Zingwe and Tawona Zingwe,
respectively. She met them in the verandah. They wanted to inspect the property
on the instructions of Trevor Dollar Estate Agents. She alleged that she warned
the old man not to be deceived by Mr Gwanzura who under the terms of a High
Court divorce order could not dispose of the property before he had bought her
out. Mr Gwanzura shouted at her. He went away arguing with the two strangers. She
immediately contacted her legal practitioners who in turn dispatched letters to
both Trevor Dollar Estate agents and Mr Gwanzura's legal practitioners
Chakanetsa and Partners on 6 January 2003. The letters pointed out that the
sale of the immovable property and especially through Trevor Dollar Estate Agents
was unlawful and premature as three months had not yet elapsed from the date of
evaluation. The letters were not responded to.
Later, her legal practitioners
informed her of the payment of ZW$4.2 million from Chakanetsa and Partners of
20 January. The news prompted her to deposit an equivalent amount with her legal
practitioners on 22 January 2003 who on 28 January dispatched a bank certified
trust cheque in the same amount with a covering letter to Mr Gwanzura's legal
practitioners. The letter and cheque were received at Chakanetsa and Partners
on 30 January 2003. She did not know what became of the bank cheque after it
was received by Mr Gwanzura's legal practitioners. The money was paid over in
expectation that the cheque deposited by Mr Gwanzura's legal practitioners on
20 January would be dishonored. As it turned out, that cheque was honoured by
the drawee bank on 22 January.
She produced exh 4. It consists of
the declarations by the purchaser, the plaintiff and seller, Mr Gwanzura and
the power of attorney to make transfer by Mr Gwanzura. They were all deposed to
on 20 January 2003. The declarations were signed in Kwekwe while the power of
attorney to pass transfer was deposed to in Bulawayo. All the three documents stated the
purchase price of the immovable property as ZW$5 million. The declarations
provided the date of sale and purchase as 20 January 2003.
She convincingly demonstrated that
exh 3, the purported agreement of sale of the property by her to Elizabeth
Sithole was forged. The first page originally bore the description of an
undeveloped property and the date stamp of her legal practitioners Maputsenyika
and Associates that appear on the other two pages. For what it is worth, exh 3
was a red herring and was irrelevant to the present proceedings.
She filed an urgent chamber application on 25
February against the second defendant, his lawyers and the Registrar of Deeds,
which was served on 27 March 2003, to stop transfer of the property in
ignorance that transfer had already passed on 19 February 2003. She maintained
that the transfer be cancelled for breach of a court order averring that her
legal practitioners accepted payment from Mr Gwanzura in good faith without
knowledge of the breach.
Mrs Gwanzura was a truthful witness. That
the inspection took place on 5 January as opposed to 14 or 15 January was
confirmed by the letter written by her legal practitioners on 6 January. Her
version of the events of that day was confirmed by the shortcomings in the
testimony of Tawona and Mr Gwanzura. That she denied them entry into the house
was confirmed by Tawona's failure to describe the house. Had he entered the
house he would have remembered its structural features such as the dining room
and sunken lounge. Unlike Tawona, Mr Gwanzura confirmed that he indicated to
his former wife that they were under instruction from Trevor Dollar Estate Agents
to inspect the house. Gwanzura testified that the atmosphere was pregnant with
tension. He said his former wife was shouting at him but he did not listen to
what she was saying. Tawona stated that the atmosphere was calm and serene. It
would not accord with human experience for Mrs Gwanzura to have kept quiet when
she knew that the house was not yet ripe for sale. When she stated that she
advised Saul and Tawona Zingwe of the existence of a court order she must have
been telling the truth. That the probabilities favour her version is further
demonstrated by the inclusion in the agreement of sale of clause 1b to the
effect that the balance of the purchase price would be paid after the inspection
of the house or transfer. I believed her testimony on the events of 5 January
2003.
Mr Peter Dzimba, her legal
practitioner at the time, also confirmed her testimony. He wrote the letters of
6 January addressed to Trevor Dollar and Mr Gwanzura's legal practitioners. He
confirmed that on 20 January Mr Gwanzura paid the half share of the immovable
property that would entitle him to full ownership rights in the property. He
reluctantly conceded that the cheque was honored on 22 January. He wrongly believed that the payment date
would be the date on which the cheque was honoured as opposed to the date of
payment. That payment is deemed to have been made on the day of payment is
clear from the observations made in Sibbald
v Dakota Motors 1956 (3) SA 307
(T) at 207; Colley v UDC Rhodesia Limited 1976 (1) SA 821
(RAD) at 825F-826A; and B & H
Engineering v First National Bank of
SA Ltd 1995 (2) SA 279 (A) at 286B. He confirmed the accuracy of the
information in exh 5 that demonstrated that the money paid by Mr Gwanzura was
invested by him with Trust Bank and then Beverly Building Society on the
instructions of and for the account of Mrs Gwanzura to hedge against loss in
the event that her counterclaim failed. By 26 September 2005 it had grown to
$16 824 954-90.
He stated that the bank certified
cheque paid to Mr Gwanzura's legal practitioners was not returned. Despite the
fact that the present case commenced in March 2003 and his former client counterclaimed
in April 2003, he failed to produce the invoice from Mr Gwanzura's legal
practitioners, a copy of the cleared cheque or his own bank statements
indicating debit entries in his trust account.
Mr Gwanzura stated that he made
payment for his former wife's half share to his legal practitioners on 2
January 2003 who advised him that he could thereafter sell the immovable
property. He instructed them to sell the property and they in turn instructed
Trevor Dollar Estate Agents to do so. On 14 January his legal practitioners
contacted him. Acting on the information they relayed, he went to Trevor Dollar
Estate Agents on 15 January where he met his legal practitioner, the late Mr
Mutandi, Saul Zingwe and his wife and son Tawona. He went with the two
prospective buyers to the house. His former wife led them into the lounge where
they sat down. The prospective purchasers did not inspect the house but left
soon thereafter expressing satisfaction with what they had seen. His legal
practitioners wrote out the cheque to Dzimba, Jaravaza and Associates on 8
January but for reasons unknown to him they only delivered the cheque on 20
January. While he failed to produce proof that he indeed paid in the money on 2
January, the image of the cheque produced at the back of the bank statement
dated 25 January 2003 of his former legal practitioners is dated 8 January. It
was common cause that it was receipted at Dzimba, Jaravaza and Associates who
banked it and invested the proceeds. He further stated that he signed the
agreement of sale on 20 January at Trevor Dollar's offices in Gweru. On 25 January he then signed the declaration
of the seller and power of attorney to pass transfer. He asked his wife to
vacate the property but she refused.
He was cross examined by the plaintiff's
counsel. He stated that when he informed his former wife why they were at the
house she was visibly angered by his explanation. He stated that he did not
inform the Zingwe family about the court order but left the task to his legal
practitioners and the estate agents. On the sequence of signing the agreement
and payment of the money to Mrs Gwanzura's legal practitioners he repeated
twice that he signed first before he proceeded to deposit the cheque at their
offices.
Under questioning by Mrs Gwanzura's
legal practitioner he confirmed that he deposited the money with his own legal
practitioners using a cheque from one of his companies P and Elton Investments
on either 2 or 3 January 2003. He was issued with a trust account receipt. He
admitted that by 25 March 2003, when he was served with the urgent chamber
application, he knew the basis upon which his wife challenged the sale.
Notwithstanding this admission he failed to produce proof that he indeed paid
the amount to his legal practitioners. He would have done so by producing the
trust account receipt he received or the honoured cheque that he paid or P and
Elton Investments bank statements for the relevant period. He also made out that he signed the agreement
before he deposited the ZW$4,2 million with Dzimba, Jaravaza and Partners. He
must have realized the implication of his answer for he quickly changed and
alleged that he actually paid first before he signed the agreement of
sale. He conceded under searching cross examination
that the Zingwe family members left the house prematurely before inspection
because his former wife refused them permission to do so.
I found Mr Gwanzura an unreliable and untruthful witness. He gave
conflicting versions on when he gave instructions for the sale of the house. In
one vein he said it was after 8 January 2003 and in another said it was
actually either on 28 or 29 December 2002. Contrary to his evidence in chief,
he denied in his opposing affidavit of 28 March 2003 filed in the urgent
chamber application that Trevor Dollar sold the house on his behalf. Contrary
to all other evidence he was to aver that Saul Zingwe's wife was present at the
inspection. His failure to advise his former wife that he was selling the house
because he had already bought her out was telling against him. I found myself
in agreement with the contention by Mr Mawere,
for Mrs Gwanzura, that Mr Gwanzura used some of the proceeds paid by the
plaintiff to buy her out. He conceded that he knowingly cheated the fiscus by
declaring a low value for the purchase of the property.
After assessing the evidence of the
plaintiff, Tawona and Mr Gwanzura against that of Mrs Gwanzura, I was satisfied
that she told the truth. I accept her testimony wherever it differs with their
testimonies.
It is on the basis of these facts that
I proceed to determine the three issues referred to trial.
Whether or not the plaintiff was aware that the property was the
subject of a matrimonial dispute
A
comparison of the testimony of Mrs Gwanzura and that of Tawona and Mr Gwanzura
demonstrated that the plaintiff's representatives were aware of the existence
of the divorce order when the agreement of sale was concluded. The plaintiff's
father and brother were advised by Mrs Gwanzura not to be duped by Mr Gwanzura
as the sale of the house was encumbered by a divorce order of the High Court.
In addition, Mr Mugomeza, for the
plaintiff, conceded that Trevor Dollar were the agents of the plaintiff in the
transaction. On 6 January 2003, Trevor Dollar was advised of the existence and
effect of the divorce order. They nonetheless proceeded headlong to purchase
the property for the plaintiff. I am satisfied that the plaintiff through his
representatives and agents was aware that the property was subject of a
matrimonial dispute between Mr and Mrs Gwanzura.
Whether or not the agreement between the plaintiff and second defendant
was done fraudulently to defeat the court order under case 2877/98
The date on which the agreement of
sale was executed was in dispute. The confusion was caused by the defendant's
late father who in an affidavit filed on 23 February 2007 in the action that
was brought in the Gweru Magistrates' court and later withdrawn averred twice
that the agreement of sale was concluded on “2nd January 2003”. The
affidavit was contrary to the agreement produced in court and the declaration
by seller signed by Mr Gwanzura and the declaration by purchaser signed by him
that provided the date of 20 January 2003. 2 January coincidentally coincides
with the date on which Mr Gwanzura alleged he deposited the purchase price with
his legal practitioners. The double repetition of the date as “2nd January 2003” in one affidavit is inconsistent
with a typographical mistake and points to a positive statement of fact. I
accept that the 2 January was not the date on which the contract of sale was
concluded. It is contrary to the agreement itself and the other documents that
I have already referred to. It is also contrary to the plaintiff's evidence
that he was still in the country on that date and would have executed the
agreement in person. It is contrary to the evidence of Mr Gwanzura, the other
party to the agreement. I find the conclusion inescapable that it was a
deliberate falsehood designed to support Mr Gwanzura's averment that he
deposited ZW$4, 2 million with his own legal practitioners on that day. Such a
conclusion paints the plaintiff's representative in poor light as a person who
was prepared to connive with Mr Gwanzura to mislead Mrs Gwanzura.
Mr Mugomeza submitted that the agreement of sale was not concluded in
fraud of the divorce order. Mr Mawere
made a contrary submission.
In Pretorius NO v Smith &Ors
1971 (1) SA 459 (T) at 461A-C COLMAN J stated that:
“It is clear that the word “fraud”, when used
in relation to the type of disposition which can be attacked in a case of this
kind, does not bear the same meaning as it bears in criminal law, or in the
context of a contract induced by fraud. There need be no false representation
or deceit by the husband in order to lay the disposition open to attack. It is
equally clear, however, that not every disposition that has prejudiced the
interests of the wife will be set aside at her instance, or that of her estate
or heirs. Every donation made out of the assets of a joint estate diminishes
the estate, and so prejudices the wife. And the same applies to a transaction,
other than a donation, which results in loss to the joint estate. But such
dealings, simpliciter, are not open
to attack.”
And at 462C:
“I am of the
opinion that the plaintiff in an action of this kind must prove dolus, in the sense of an intention to
prejudice the wife's interests. I base that conclusion on Voet's use of the term “fraud”, and upon Davis v
Brisley's Minors 18 SC 407, where the ACTING CHIEF JUSTICE, relying,
apparently, on van den Linden,
equated the concept “fraud of the wife” to “willful intention to prejudice the
wife”. A bona fide transaction, it
seems to me, is not open to attack, however unwise it may be.”
I understand
COLMAN J to be saying that fraud of the wife's rights cannot simply be implied
from the mere fact that prejudice has been occasioned to the wife but must be
proved by showing that her husband carried out the transaction clandestinely or
in deliberate disregard of the wife's rights.
Several cases have dealt with the
same issue in this jurisdiction. These are Muzanenhamo
& Anor v Katanga & Ors
1991 (1) ZLR 182 (S) at187A; Crundall
Brothers (Pvt) Ltd v Lazarus NO &
Anor 1991 (2) ZLR 125 (S) at 129D-F Muganga
v Sakupwanya 1996 (1) ZLR 217 (S)
at 219H-220A; Tewe v Hanoki & Ors SC 55/03 at p 4 of the
cyclostyled judgment. In the Muzanenhamo case, and Muganga case, supra, McNALLY JA equated the fraudulent intent with intent to
defeat the wife's just claim. In Crundall
Brothers, supra at 133C the
Supreme Court stated that:
“The doctrine of
notice, as it is called, requires nothing more than notice or knowledge of the
prior claim. It is not necessary to prove mala
fides or fraud.”
In
Tewe's case, supra, the purchasers were unaware of the dispute between the wife
Tewe and her husband Hanoki at the time of purchase or transfer. ZIYAMBI JA
stated at p 4 of the cyclostyled judgment that:
“Since the
rights of husband and wife are personal and do not as a matter of law affect
third parties, for the appellant (wife) to succeed against the second and third
respondents (purchasers) she had to show not only that they were aware of her rights
in the property but that they were attempting to defeat her rights.”
I have already found that the
plaintiff was aware of Mrs Gwanzura's rights in the property. Those rights were
that she was firstly entitled to a one half share in the value of the property
and secondly that she had three months within which to buy out her husband's half
share and take title. The first leg of the formulation by ZIYAMBI JA is
answered in Mrs Gwanzura's favour, that is, that the plaintiff was aware of her
rights in the property.
The issue that falls for
determination is whether the plaintiff intended to defeat her rights. Mr Mugomeza contended that Mr Gwanzura
first paid out his former wife before he concluded the agreement of sale with
the plaintiff. He relied on the evidence of Mr Gwanzura to that effect. Mr
Gwanzura's testimony does not support the contention. Firstly, by 5 January
2003 he was disposing of the property before he had bought out his former
wife's share. I found from his evasiveness on the point that even on 20 January
2003 when he concluded the agreement, he signed it before making payment of the
half share due to Mrs Gwanzura. He failed to prove that he deposited the money
on 2 January. The reason why the cheque dated 8 January was paid on 20 January
was demonstrated clearly by his legal practitioners trust account bank
statement issued on 25 January 2003. The opening balance on 22 January was
ZW$20 000-00. Two deposits, one cash and another by cheque boosted the balance
to ZW$48 399-00 before a large transfer of ZW$7 224 166-40 pushed the credit
balance to ZW$7 272 565-40. The plausible explanation of the source of those
funds appears to be the nett amount due to Mr Gwanzura from the deposit of
ZW$7,5 million made by the plaintiff at the conclusion of the sale agreement.
It was not within the contemplation of the order that he would sell the
property to raise the money to buy out his former wife's share. I am satisfied
that Mr Gwanzura intended to defeat Mrs Gwanzura's rights. He acted
clandestinely and with deliberate intention to defeat his former wife's rights.
Mr Gwanzura, thus, acted fraudulently.
I am also satisfied that the
plaintiff's actions also fall into the same category as those of Mr Gwanzura.
He purchased a property with the defects noted by CC Sales (Pvt) Ltd without
inspecting the property. His representatives falsely stated that they inspected
the house. They inserted an unusual clause that they would pay the balance
after inspection or transfer. They could not insist on their right to inspect
before concluding the agreement because they knew that they were trampling upon
Mrs Gwanzura's rights, which she had advised them of on 5 January 2003. That
the plaintiff's agents were acting mala
fide was further reinforced by the connivance they embarked upon with Mr
Gwanzura to cheat the fiscus by under declaring the purchase price. The
plaintiff benefited by paying lower stamp duty and Mr Gwanzura by paying less
capital gains tax.
I hold that the agreement of sale was
executed to defraud Mrs Gwanzura of her just rights that she was awarded in the
divorce order.
Is the first defendant entitled to cancellation of the title deed?
It seems to me that the answer to the
last question must be in the affirmative. In Mvududu v Mvududu NO &
Ors 1981 ZLR 397 at 405G-H McNALLY AJ, as he then was, held that:
“A registered
deed may be cancelled by order of court, on the authority of s 8 of the Deeds
Registries Act [Cap 139]. Such action
cannot be lightly taken, but it seems to me that where there has been justus
error, as here, and the rights of Rhoda have been entirely overlooked, and
those of Mwashinga and Enoch misconceived, so that a false certificate was
issued by the District Commissioner, the court must intervene.”
I
am thus empowered by s 8 (1) of the Deeds Registries Act [Cap 20:05] to cancel a
registered deed. In the Mvududu case,
supra, it was cancelled because there
had been a justus error. In the present case there has been fraudulent intent
on the part of the registered holder. Failure to cancel would be in the words
of KORSAH JA in Hattingh & Ors v van Kleek 1997 (2) ZLR 240 (SC) at 246B
“deprive the innocent person of his rights … benefit the guilty and put a
premium on deceit.”
Mrs Gwanzura prayed for costs on the
scale of legal practitioner and client. Costs are in the discretion of the
court. I would have granted them because of the deceit exhibited in the present
case by the plaintiff and Mr Gwanzura. The facts demonstrated that Mrs Gwanzura
appropriated the payment made by Mr Gwanzura from the proceeds of the purported
sale. They also show that an equivalent amount she paid to Mr Gwanzura reached
his legal practitioners even though there is no record of what became of it.
The ultimate loser in the present case was the plaintiff who lost all his money
and the house. It is in the light of this loss that I would award Mrs Gwanzura
costs on the ordinary scale.
Accordingly, it is ordered that:
1.
The plaintiff's claim be and is hereby dismissed with
costs.
2.
The Deed of Transfer No 373/03 registered on 19
February 2003 in favour of Stephen Zingwe of Stand 2946 Gwelo Township of Gwelo
Township Lands be and is hereby cancelled.
3.
The plaintiff shall pay the first defendant's costs of
suit in the counter claim.
Mutezo & Mugomeza, plaintiff's legal practitioners
Mawere & Sibanda, first defendant's legal practitioners
