This is an appeal from a judgment of the High Court in which it granted an application for an eviction order against the appellant on the basis that the respondent was the owner of the property known as Stand number 3182 of Subdivision A of 159 of Prospect, Harare. The appellant was found not to have a right of occupation.

The appellant had challenged the vindicatory action instituted by the respondent on the basis that she had a right of occupation derived from an agreement of sale of the property entered into between her and a company called Champion Constructors (Pvt) Ltd, duly represented by one of its directors and a shareholder, Ms Elizabeth Chidavaenzi.

After hearing argument from counsel for both parties, the appeal was dismissed. It was indicated then that reasons for the decision would follow in due course.

It was not in dispute that the respondent was the registered owner of Stand number 3182 of subdivision A of 159 of Prospect, Harare. The issue before the court a quo was whether there was a binding agreement of sale which gave the appellant the right of occupation.

The court a quo found against the appellant.

The question before this Court is whether the decision of the court a quo is correct on the evidence placed before it by the parties.

The facts of this case are as follows.

The respondent issued summons for the ejectment of the appellant from Stand number 3182 of Subdivision A of Stand 159 Prospect in Harare on 9 June 2008. In her plea, the appellant sought the dismissal of the claim on the basis that she was a legitimate possessor and occupier of the property. The contention was that the right, title and interest in the property was lawfully transferred to her by a declaratory order issued by the High Court in case No. HC7594A/06.

The appellant contended that she was in occupation of the property pursuant to an agreement of sale entered into between herself and a company called Champion Constructors (Pvt) Ltd. The appellant contended that, alternatively, the respondent was estopped from denying that Champion Constructors (Pvt) Ltd was the holder of rights, title and interest in the property and was entitled to dispose of the property as it did.

The respondent, through its managing director, Mrs Elizabeth Chidavaenzi, tendered various documentary exhibits in support of its position. She denied that Champion Constructors (Pvt) Ltd had ever been authorised to dispose of the property in the manner alleged or at all.

The appellant relied on her own testimony and on the evidence of two former workers of Fingold Real Estate, which had allegedly been mandated by Champion Constructors (Pvt) Ltd to dispose of the property to her.

The court a quo accepted that the respondent was the registered owner of the property in question on the basis of irrefutable evidence - the title deeds to the property. The court also accepted that Mrs Elizabeth Chidavaenzi was the managing director and controlling shareholder of the respondent. The evidence placed before the court a quo pertaining to the relationship between the respondent and Champion Constructors (Pvt) Ltd was that the respondent company had contracted Champion Constructors (Pvt) Ltd to service the land and develop residential houses on the subdivisions. The agreement between the parties was that Champion Constructors (Pvt) Ltd would be paid in kind for its services or in the form of completed houses which it would, in turn, sell to prospective home-owners in order to recoup its expenses.

Mrs Elizabeth Chidavaenzi told the court a quo that, in the past, the respondent had mandated Fingold Real Estate to sell two of its properties but it did not sanction the sale of the property in issue. She testified, further, that this is the reason why the agreement of sale was not signed by the seller. Her testimony was to the effect that the appellant was involved in a fraudulent sale which had been masterminded by John Chagaresango of Finhold Real Estate, a close relative of the appellant.

Ms Chidavaenzi said that the first time she became aware of the purported agreement of sale of 26 September 2006, between the appellant and Champion Constructors (Pvt) Ltd, was in November 2006 when lawyers for the appellant began pestering her with demands that she sign the document. She also told the court a quo that on the two occasions that she had mandated Fingold Real Estate to sell properties on the respondent's behalf, she had given them instructions in writing, which she denied doing in this case.

The appellant admitted before the court a quo that John Chagaresango of Fingold Real Estate was a close relation of hers, her elder sister's son. She testified that she signed the agreement of sale before John Chagaresango, Mr Phiri and Faith Muzungu on 26 September 2006. Thereafter, she paid Z$32,500,000= on 28 September 2006, 9 October 2006 and 3 November 2006. The appellant's evidence before the court a quo was that the terms of the agreement of sale were not fully explained to her. She admitted that Ms Chidavaenzi had never authorised her to make improvements to the property.

The court a quo found that, despite being a major shareholder in both the respondent and Champion Constructors (Pvt) Ltd, Ms Chidavaenzi was a “focused, confident and convincing” witness whose “evidence proclaimed loudly and boldly that there was no contract to talk about between Champion Constructors and the appellant.”

The court found, further, that, Fingold Real Estate could not possibly have been mandated to sell the property in question to the appellant by Champion Constructors (Pvt) Ltd or anyone else. The estate agent failed to produce proof of its mandate to sell that particular property.

On the effect of the High Court order relied upon by the appellant as bestowing or confirming that the appellant had acquired the rights, title and interest in the property, the court a quo found that the order was made in default and was against Champion Constructors (Pvt) Ltd and Elizabeth Chidavaenzi. The court's view was that the order was not binding on Drawing Services (Pvt) Ltd or enforceable against it, because, despite being the registered owner of the property, it had also not been cited as a party to the proceedings.

According to the appellant's testimony before the court a quo, John Chagaresango, who worked for Fingold Real Estate, advised her that the property in question was for sale. Accompanied by John Chagaresango, she went to view the property. The property was in the care of Champion Constructors (Pvt) Ltd, which, together with Drawing Services (Pvt) Ltd, the respondent, were under the directorship and shareholding of Elizabeth Chidavaenzi and Keroni Tevera (according to form CR14 produced before the court a quo).

Elizabeth Chidavaenzi testified that Keroni Tevera was a passive participant in the management of the affairs of Champion Constructors (Pvt) Ltd. According to the evidence before the court a quo, after the visit to the Stand, John Chagaresango contacted Elizabeth Chidavaenzi and advised her that the appellant wished to purchase the Stand. It would appear that, upon instruction, Fingold Real Estate drew up a draft agreement, in terms of which the seller, Champion Constructors (Pvt) Ltd, held itself out as being the holder of the rights, title and interest in the property, and as agreeing to sell to the purchaser, the appellant, its right, title and interest on some of the following conditions:

1. The purchase price of the property of Z$32,000,000= (thirty two million Zimbabwe dollars) plus 15% value added tax be paid.

2. A deposit of Z$21,000,000= (twenty one million Zimbabwe dollars) to be paid in full within 48 hours of signing the agreement of sale, failing which the seller shall be entitled to cancel the agreement without further notice.

3. A cash deposit was to be paid by Bank cash transfer to Champion Constructors (Pvt) Ltd.

Clause 8 of the document of sale provided that there would be no variation of the conditions of the agreement unless the variation was in writing and signed by the parties.

In Clause 14, the parties acknowledged that the written agreement between them would be the only agreement and that no other conditions, stipulations, warranties or guarantees would be valid unless included in the agreement.

The appellant signed the proposed agreement on 26 September 2006 before two witnesses. The respondent did not sign. Champion Constructors (Pvt) Ltd did not sign. Elizabeth Chidavaenzi alleges that the estate agents drafted the document without her knowledge and consent. The appellant paid the deposit before the respondent signed the agreement of sale.

Her first instalment was paid on 28 September 2006. It took her up to 3 November to pay the deposit in full, contrary to the provisions of clause 1 of the alleged agreement of sale which stipulated that the deposit must be paid in full within 48 hours of the date of the signature of the agreement. If the appellant signed the alleged agreement on 26 September, and assumed that the seller had done the same, the deposit ought to have been fully paid by 28 September 2006.

It is not in dispute that the appellant subsequently paid the purchase price in full to Champion Constructors (Pvt) Ltd. When she sought to take occupation she was prevented from doing so by the respondent. The appellant applied to the High Court seeking an order declaring that the document she signed on 26 September 2006 constituted a valid and binding agreement of sale between herself and Champion Constructors (Pvt) Ltd. On 19 September 2007, the High Court issued an order on the following terms:

1. The provisional order in case number HC7594A/06 be and is hereby confirmed on the following terms:

(a) That the agreement of sale between the applicant and the first respondent, signed on 26 September 2006, in respect of Stand 3182 of Subdivision A of 159 Prospect be and is hereby declared to be legally binding and enforceable against the first respondent.

Armed with the order, the appellant took occupation of the property against protestation by Elizabeth Chidavaenzi. On 9 June 2008 the respondent issued summons out of the High Court claiming, by vindicatory action, ejectment of the appellant from Stand 3182 of Subdivision A of Stand 159 of Prospect Harare. It alleged that it was the owner of the property in terms of Deed of Transfer DT5668/72.

The respondent alleged that the appellant had no right to occupy the property as she had not entered into an agreement of sale with the registered owner of the property. The respondent alleged that there was no privity of contract between the appellant and the respondent.

In resisting the action, the appellant raised three points:

1. She denied that the respondent was the owner of the property and argued that the right, title, and interest in the property had been lawfully transferred to her by virtue of the declaratory order issued in her favour by the High Court order of 19 September 2007.

2. The appellant alleged that she had a right of occupation to the property by virtue of the agreement of sale with Champion Constructors (Pvt) Ltd.

3. The appellant denied that there was no privity of contract between the respondent and Champion Constructors (Pvt) Ltd as they were both under the directorship of Ms Chidavaenzi, who, according to the appellant, knew about the agreement of sale.

After hearing the evidence of the parties relating to the issues, the court a quo found that the appellant was not a credible witness. The court was not assisted by the evidence of the witnesses called by the appellant to bolster her case. It found Evis Monica Mutodi to have given “a hopelessly confusing piece of evidence”, which, under cross examination, was not consistent with that of the appellant even on the purchase price.

The court found that the appellant said that the purchase price was pegged at $32,000,000= while Evis Monica Mutodi said the purchase price was $32,000,500=. While Evis Monica Mutodi told the court that she had discussed the clauses of the alleged agreement of sale with her, the alleged appellant denied this and testified that she only discussed the agreement of sale with John Chagaresango.

On the veracity of the evidence of John Chagaresango, the court found that he testified to being given a mandate by Elizabeth Chidavaenzi to sell certain of her properties, including what he constantly referred to as Stand 1382, which, in reality, was Stand 3182. The court found his evidence at variance with that of Evis Monica Mutodi when he said that Ms Chidavaenzi had visited the site prior to the appellant doing so. The court also found that when directed to clauses that the appellant had not complied with, all John Chagaresango could say was that the agreement was not based on what the appellant and the witnesses had signed, but other verbal assurances by Ms Chidavaenzi.

In contrast, the court found the evidence of Ms Chidavaenzi to be precise and to the point. It found that the evidence was consistent with her plea and summary of evidence; and, in her evidence-in-chief, and under cross-examination, she maintained the denial that she gave Fingold Real Estate, or anyone, a mandate to dispose of the property.

Having dismissed the defence by the appellant, the court granted the eviction order. It is against the order that the appeal was instituted on the following grounds:

1. The court misdirected itself in concluding that Elizabeth Chidavaenzi was a credible witness, yet her demeanour and the inconsistencies and improbabilities in her evidence justified a finding that she lacked credibility.

2. The Judge misdirected himself by relying on what he considered as not having been put to the plaintiff's witness in cross-examination, yet, those matters related to areas where the evidence of the witnesses was mutually destructive.

3. The court misdirected itself by failing to determine that Elizabeth Chidavaenzi represented both the plaintiff and Champion Constructors (Pvt) Ltd when she sold the property in dispute to the defendant.

4. The Judge misdirected himself in his conclusion that Evis Monica Mutodi's evidence was “hopelessly confusing.”

5. The court misdirected itself in accepting, without criticism, the evidence of Elizabeth Chidavaenzi to the effect that she did not mandate Fingold Real Estate to sell the property in dispute.

6. The court misdirected itself by coming to a contrary conclusion in respect of a fact which was issue estoppel.

7. The court misdirected itself by relying on principles applicable to a lessee to conclude that the defendant, a bona fide possessor, had no right of retention pending compensation for improvements.

8. The Judge misdirected himself by failing to consider that the right of retention arises by operation of law upon the defendant showing that she is a bona fide possessor, and not upon the defendant instituting proceedings to enforce the agreement of sale.

The question whether the respondent, Drawing Services (Private) Limited, was a party to the proposed agreement of sale with the appellant must be answered in the negative. This means that there was simply no privity of contract between the appellant and the respondent. The appellant purported to contract with Champion Constructors (Pvt) Limited - a separate legal entity from the respondent....,.

There was no agreement between the appellant and the respondent in this case as evidenced by the fact that the respondent did not sign the proposed agreement of sale. In fact, the respondent denies offering the property for sale to the appellant.

Clause 14 of the proposed agreement of sale signed by the appellant stipulated that the agreement between the parties would only be valid and binding if reduced to writing and signed by both parties. This is intrinsic evidence of the intention of the parties. There was no binding contract between the appellant and Champion Constructors (Pvt) Ltd. If there was to be an agreement of sale, as alleged by the appellant, it would have to be evidenced by production of a written document signed by both parties.

In this opposed matter before me, I find the African proverb that “the best way to eat an elephant in your path is to cut him into little pieces,” metaphorically apt in this instance (I assume, of course, that the proverb relates to a dead elephant). I say this because in order to decide on the matter, at whose nub is the transfer of certain property to the applicant, I must first unpack and deal, bit by bit, with the story within a story that stands in the path of transfer.

An equally rich African proverb that gives context to the dispute, also inspired by the elephant, is one that says “one sees all sorts of knives the day an elephant dies.”

The property at the heart of the dispute is described as Stand Number 1006, Remainder of Hilton Subdivision of Waterfalls of Salisbury measuring 1,987 square metres held under Deed of Transfer No. 7666/2001. The first applicant, Eunice Dzangare (hereinafter referred to as “Dzangare”), bought this property as an undeveloped piece of land through a company called Wish Properties (hereinafter be referred to as “Wish”), then represented by its Director Biriam Wabatagore who is since deceased. This sale is not disputed by Wish Properties. It is confirmed by the late Mr Wabatagore's widow, Audrey Wabatagore, who is now the director of Wish Properties.

At the time of the agreement of sale, and upon payment of the purchase price, Eunice Dzangare was given vacant possession by Wish Properties in 2003. She has remained in undisturbed possession of the immovable property from that time and has since developed the property by constructing a dwelling house.

The problem arises from the fact that the property was not transferred.

She has tried to obtain transfer but it became necessary to join Wish Properties to this application because the agreement with Champion Constructors was not with her but with Wish Properties.

Wish Properties says it had bought the immovable property from the first respondent, Champion Constructors (Private) Limited (hereinafter referred to as “Champion”) under a written agreement of sale. Champion Constructors held a Parent Deed to a property which it was in the process of subdividing into various Stands which included the one that Wish Properties had purchased and subsequently sold to Eunice Dzangare.

The late Mr Wabatagore was also a legal practitioner. Mrs Wabatagore says that the agreement of sale between Wish Properties and Champion Constructors unfortunately cannot be found as the document was misplaced in the takeover of her late husband's law firm. However, she draws on various annexures in support of her claim of the existence of an agreement. The annexures consist largely, though not exclusively, of various correspondence between Wish Properties and Champion Constructor's then legal practitioners, Messrs Mandizha and Partners who were handling the issue of the subdivision of the principal property into Stands.

What Wish Properties seeks is that the sale to it by Champion Constructors be recognised so that it, in turn, can transfer the Stand in question to Eunice Dzangare to whom it has since ceded the property. Wish Properties has ceded its rights to transfer to Eunice Dzangare.

At the core of Wish Properties legal argument is that it has proven its case on a balance of probabilities, this being the standard required in civil proceedings. It regards the denial of the sale by Champion Constructors as an afterthought, spurred by a quest to capitalise on the fact that the agreement cannot be found. Wish Properties points to the improbability that there was no agreement of sale, to Eunice Dzangare's occupation of the property for over nine years, at the very minimum, without any challenge.

Champion Constructor's director is Elizabeth Chidavaenzi and is the second respondent in the matter. She is opposed to the transfer on the basis of Wish Properties failure to produce the agreement of sale.

She says that Wish Properties should be put to the strictest proof of the alleged agreement of sale and that the documents that Mr Wabatagore's widow relies on do not prove the existence of an agreement of sale. The cases of H & Dwitkopipen Agencies & Fourways v De Sousa 1971 (3) SA 941 TPD^; and U-Freight Euromar (Private) Limited v Emmanuel Mutebuka HH05-03 were cited in support of the contention that the authenticity of documents must be proven.

She also argues that, at the very least, the first applicant would have had copies of the agreement of sale.

The undisturbed occupation by Eunice Dzangare is denied on the basis that it has been subject to litigation since 2012 when, instead, of considering an offer to purchase, she instituted legal proceedings. It is also said that Wish Properties failed to prove critical elements of an agreement of sale such as the purchase price and whether it was paid.

At the heart of her legal argument is that the order sought against Champion Constructors, as the respondent, is not competent.

Champion Constructors also premises its argument on the rei vindicatio doctrine, aimed at protecting ownership and based on the principle that an owner cannot be deprived of his property without his consent. Alspite Investments (Private) Limited v Tendai Westerhooff HH99-09; Hwange Colliery Co. v Savanhu 2013 (1) ZLR 555 (H); Hamtex Investments (Private) Limited v King 2012 (2) ZLR 334 (H) were cited in support of the operation of this principle.

She also argued that the cession by Wish Properties of personal rights to the property in question was irregular as it was effected after pleadings had closed and without the approval of the court.

Wish Properties, on the other hand, argue that Champion Constructors's consent was not necessary to effect a valid cession. On its behalf, counsel drew on section 11(1)(v) of the Deeds Registries Act which provides an exception in that the court may validly effect transfer direct to a third person although section 11(2) provides that liability for any duties still remains. He also emphasised that in terms of section 11(1)(a) and (b) departures of transfers of land and cessions from following the sequence of the successive transactions is permitted in exceptional circumstances.

In view of the above, the first issue to be dispensed with in order to decide whether such transfer should be effected against this backdrop of its legal permissibility is whether the explanation for the absence of the agreement is acceptable.

The widow's explanation is that the document was most probably lost in the process involving the take over of her husband's law firm. The circumstances that led to the misplacement of the document are believable and highly probable. Papers and documents may indeed have been moved or became inadvertently destroyed in the takeover of his practice following the death of Mr Wabatagore. Documents do sometimes get lost in lawyers' offices - even without the spectre of re-arrangements necessitated by death. The explanation is therefore not one that stretches the imagination.

As such, secondary evidence can, in my view, be examined to establish whether there was an agreement.

In the case of Absa Bank v Zalvest Twenty (Pty) Limited & Anor 2014 (2) SA 119 (WCC) it was accepted that secondary evidence can be produced of the existence of a contract where the contract had been destroyed or lost. This was explained as follows…,.:

“In regard to the substantive law of evidence, the original signed contract is the best evidence that a valid contract was concluded and the general rule is thus that the original must be adduced. But there are exceptions to this rule, one of which is where the original has been destroyed or cannot be found despite a diligent search. In such a case, the litigant who relies on the contract can adduce secondary evidence of its conclusion and terms (see Singh v Govender Brothers Construction 1986 (3) SA 613 (N) at 616J-617D). There are, in modern law, no degrees of secondary evidence (ie one does not have to adduce the 'best' secondary evidence). While a photocopy of the lost original might be better evidence than oral evidence regarding the conclusion and terms of the contract, both forms of evidence are admissible once the litigant is excused from producing the original.”

Placing the burden on Mrs Wabatagore, as the second applicant's director in this case, to prove that there was an agreement and to recount its terms, aims at reducing the dangers of fraud. I am, however, cognisant of the fact that her late husband was the actual party to the contract and that the only other party who would have the contract is the defendant who denies the existence of the contract.

I examine the evidence chronologically in terms of how it builds up the story or otherwise of the existence of an agreement.

On 7 August 2003 the deceased's law firm, Wabatagore and Company, wrote to Messrs Mandizha & Partners, Champion Constructor's conveyancers, enquiring about the transfer of three Stands from Champion Constructors to Wish Properties. One of these Stands was the Stand in dispute.

The letter indicated therein that the Stands had since been sold and sought to find out whether the Stands had been fully paid for. It must be remembered that this was at the height of the hyper-inflationary environment and it was not unusual for parties to seek clarifying on top ups of what had been paid particular where payment had been in instalments and where transfers were still outstanding. It was also clearly indicated in the letter of 7 August that one of the purchasers desperately needed to start construction.

This letter of 7 August was followed up with another one on 7 November 2003 expressing concern at the non-response to its enquiries and reiterating, again, that the Stands, identified as 1021, 1006 and 1046 had been sold. The letter, like the previous one, was copied to Eunice Dzangare, one Diana Mapingure and one Mercy Moyo. Another letter written on 3 March 2004 again lamented that no response had been received to any of the above-mentioned letters. Again, it demanded to know the transfer requirements for the three Stands.

Notably, Champion Constructors key reaction to this correspondence is not a denial that Messrs Mandizha & Partners were its lawyers. Instead, the denial is premised on whether the letters were ever received at Mandizha and Partners.

Champion Constructors also points out that the threat to report to the Law Society was not carried out.

Further, Champion Constructors says that confirmatory affidavits should have been sought from Mr Mandizha to prove service of these letters.

Champion Constructors also queries why Wish Properties was still asking if it owed anything if it had paid.

I have already stated there was nothing unusual about this enquiry in a hyperinflationary environment of the time. To bolster this view, on 11 May 2004, Champion Constructors itself wrote to Mr Wabatagore advising him that the long-awaited capital gains tax, presumably the cause of the long delay, had now been received from ZIMRA. The letter also outlined the amount that was outstanding, which Champion Constructors explained as owing to the accumulation of administrative costs as a result of inflationary costs for service maintenance. It asked every client on the Uplands Scheme to pay a stipulated additional amount to defray unforeseen costs.

In my view, this further proves that the enquiries to Messrs Mandizha and Partners had been on point.

Looked at in totality, the correspondence is convincing and the letters corroborate each other. They indicate that a sale had indeed taken place between Champion Constructors and Wish Properties and that there was every effort to follow up on transfer. Champion Constructors attack of the letter of May 11, 2004 on the grounds that it was a general circular and that it should, in any event, have been addressed to Wish Properties, and not to Mr Wabatagore, makes little sense since Mr Wabatagore was the Director of Wish Properties who had represented the latter in the agreement.

Furthermore, I agree with counsel for Wish Properties argument that once Mr Wabatagore had received assurances from Champion Constructors concerning the capital gains tax and outstanding sums to be paid, there was no reason to believe that the property would not now be transferred. The letter sufficiently affirms that impediments to transfer had been addressed. The allegation that the letter is possibly fabricated is not supported by any evidence.

Champion Constructors also disputes the Certificate of Development as having been issued on misrepresentation, but, again, nothing tangible is said in support of that contention.

Champion Constructors averments and challenges of these annexures are no more than vague objections.

The nature and content of the letters speak far more loudly and convincingly in support of a sale to Wish Properties than Champion Constructors bare denials of the existence of an agreement.

The inherent improbability of the sale not having taken place to Wish Properties is also supported by the fact that no evidence was placed before this court which shows that Champion Constructors has ever made any effort to vindicate its rights. Instead, at every turn, it has been Eunice Dzangare who has persistently taken action to enforce her rights.

The more recent letter, of August 2013, by Champion Constructors to the Sherriff, in which it indicated that it had long since subdivided the whole property and sold all Stands to individual owners, most who have already developed the Stands, is pertinent.

Champion Constructors cannot now simply wish this letter away because it suits it on the basis that was it written in respect of its Stands which do not form part of this litigation. It is a self-serving denial. Given its position that there was no agreement with Wish Properties regarding the Stand in question, it could just as easily have produced cogent evidence relating to whom it sold the Stand in question to and when.

Champion Constructors would however have had to explain how and why Eunice Dzangare has been on the property since 2003 with no disturbance.

To my mind, Champion Constructors is clearly taking advantage of the lost agreement.

Cases of developers failing to pass transfer have become an increasing headache before the courts. Where evidence supports, on a balance of probabilities, that the property in question was sold to a party, and the sale concluded, the court's primary concern is to ensure that justice is done between the parties.

Rather than lie about what she does not know, Mrs Wabatagore stuck to attesting to facts known to her and to producing what secondary evidence was in her possession.

On a balance of probabilities, the evidence averred points to an agreement between Wish Properties and Champion Constructors. In the circumstances, I conclude that the property should be transferred to Eunice Dzangare.

I grant the order as follows:

1. The application be and is hereby granted.

2. The first respondent shall sign transfer papers and take all necessary steps to pass transfer of the property called Stand 1006 of Certain Piece of Land Situate in the District of Salisbury, called remainder of Hilton of Subdivision A of Waterfall measuring 1,987 square metres, held under Deed of Transfer No. 7666/2001, into the first applicant's name, within 7 days of the service of this court order upon them, failing which the Sheriff for Zimbabwe or his lawful Deputy be and is hereby authorised to sign all transfer papers on the first respondent's behalf.

3. The second respondent shall pay costs of this application on a legal practitioner and client scale.

This is an action for the vindication of the plaintiff's vehicle. The salient features of this action may be summarised as follows:

The plaintiff is the registered owner of a Toyota Land Cruiser registration no. ACF 1290. The defendant was appointed a non-executive Chairman of the plaintiff's Board of Directors since 2006. He was allocated the above referenced vehicle for his use in July 2011, a month before he was removed from the plaintiff's Board. Upon his removal as chairperson, the defendant did not return the motor vehicle and has refused to return the vehicle to the plaintiff.

The plaintiff called its Company Secretary, Mr Tembelani Kohle Ncube, as its only witness. His evidence is summarized as follows:

The plaintiff is the owner of the Toyota Land Cruiser in issue. The defendant has possession of the vehicle which was allocated to him as non-executive chairperson of the plaintiff's Board of Directors. He was allocated the vehicle to use for both business and private purposes during his tenure of office. The defendant has been removed as the chairperson of the plaintiff and he is not entitled to possess the vehicle. He is not aware of any policy or resolution which entitles former Board chairpersons and members to retain vehicles issued to them. The chairperson is issued with a vehicle he uses in terms of a Board resolution. The motor vehicle policy available covers executive, middle managers, and employees, other than directors, who are entitled to motor vehicles in terms of their employment contracts. The defendant was previously issued two Mercedes Benz vehicles and a Toyota Prado and these were returned to the pool when he was allocated a new car. The defendant returned these vehicles because he had a replacement vehicle. The defendant was not entitled to retain the vehicle when he ceased to be a Board member or non-executive Chairperson. A Board meeting of 11 December 2012 resolved that the incumbent chairperson purchase his vehicle and it is specific to that incumbent chairperson. When the defendant was in office, there was no such policy and the company would retain the vehicle.

The witness was not aware of any non-executive Director, before the defendant, who retained his official vehicle.

The defendant testified as follows:

He was the non-executive chairperson of the plaintiff for the past six (6) years. He started using the vehicle in issue in 2011.The vehicle belongs to the plaintiff and he possesses it. He is entitled to the vehicle because his predecessors were allowed to purchase their vehicles after leaving the company. His predecessor, Mr Kadenga, was allowed to purchase his vehicle after leaving the company. Mr Kudenga was offered his vehicle but he turned down the offer because he was not happy with its state. The practice is to allow chairpersons to exercise the right to purchase their vehicles. He expected that he would be offered to purchase the vehicle. He was treated unfairly as he was not offered the vehicle. He served the company well. He is prepared to pay for the vehicle.

The current position, as from December 2012, is that a non executive chairperson can purchase his vehicle at 20% of book value. The company has decided to come up with a resolution to cover or protect a certain individual so that he can benefit by purchasing his vehicle when he leaves the company.

The witness contended that although there was no resolution allowing chairpersons to purchase their official vehicles, there was an understanding and a practice in place that allowed purchase of vehicles by non-executive chairpersons. The witness conceded that his letter of appointment does not mention the right of retention of the vehicle on termination of the appointment. He expected that the company would offer him the vehicle as shown by precedent. He is holding onto the vehicle for justice to prevail and wants the parties to negotiate and if he is given a fair price he will pay. Without prejudice negotiations have failed.

The evidence of Mr Fortune Chasi, to the effect that previous non-executive chairpersons were offered to purchase their issues and that same may have taken the offers, was admitted by consent of both parties.

The issue that will dispose of this dispute is whether the defendant is entitled to possess the plaintiff's car by reason of the fact that the same ought to have been offered to him for purchase because former non–executive directors were offered their issues.

The rei vindicatio is a common law remedy which is based on the principle that an owner of property cannot be deprived of his property without his consent and is entitled to recover it from any person who possesses it without his consent.

In Chetty v Naidoo 1974 (3) SA 13 the court recognised that an owner has exclusive possession of his property and that no other person may withhold that right from the owner unless he is vested with an enforceable right against the owner. Similar sentiments were expressed by MALABA J…, in the case of Stanbic Finance Zimbabwe v Chivhunga 1999 (1) ZLR 262 (HC) where he made the following remarks;

“The owner may claim his property wherever found, from whosoever is holding it. It is inherent in the nature of ownership that possession of the rei should normally be with the owner and it follows that no other person may withhold it from the owner unless he is vested with some right enforceable against the owner (e.g. a right of retention or a contractual right). The owner, in instituting a rei vindicatio, need, therefore, do no more than allege and prove that he is the owner and that the defendant is holding the res; the onus being on the defendant to allege and establish any right to continue to hold against the owner.”

See also Oakland Nominees v Gelria Mining & Investment Co. Limited 1976 (1) SA 441 (A).

A litigant seeking to rely on the plea of rei vindicatio must prove the following;

(i) That he is the owner of the property in question. See Jolly v Shannon and Anor 1998 (1) ZLR 78 (HC).

(ii) Once ownership is proved, its continuation is presumed. See Stanbic Finance Zimbabwe v Chivhunga 1999 (1) ZLR 262 (HC).

(iii) He must also prove that at the time of commencement of the action, the defendant was in possession of the property. See Masuli v Jera HH67-07.

(iv) He is enjoined to prove that the defendant's possession was without the plaintiff's consent or concurrence.

The law does not permit that a property owner be deprived of his property against his will and is entitled to recover it from any person who possesses it against his will. See Stanbic Finance Zimbabwe v Chivhunga 1999 (1) ZLR 262 (HC). Once ownership has been proved, the onus is on the defendant to prove a right of retention. See Chetty v Naidoo 1974 (3) SA 13, Claudius Chenga v Virginia Chikadaya and Ors SC07-13.

In Introduction to Law, C.G Van Der MERWE and J.E Du PLESSIS summarises the defences available in a vindicatory action as follows;

1. The defendant had acquired the property by prescription;

2. The third party is the owner;

3. The property was alienated or destroyed; or

4. The defendant has a superior contractual right to possess.

In Oakland Nominees v Gelria Mining & Investment Co. Limited 1976 (1) SA 441 (A) HOLMES JA said the following on the requirement placed on the defendant to have an enforceable right against the owner;

“Our law jealously protects the right of ownership and the correlative right of the owner in regard to his property, unless, of course, the possessor has some enforceable right against the owner.”

It is common cause that the plaintiff is the owner of the vehicle in issue and the defendant has possession of it. The plaintiff avers that the defendant possesses the vehicle without its consent.

The defendant conceded that he is in possession of the vehicle without the plaintiff's consent or concurrence. The defendant did not pursue his stance that he is entitled to the vehicle as a terminal benefit. The thrust of his defence was that he is entitled to possess and purchase the vehicle because former chairpersons were allowed to purchase their issues and he expected that he would be offered to purchase his vehicle in accordance with that practice. He alluded to a resolution passed in December 2012 which enables the incumbent chairperson to purchase his issue.

The plaintiff conceded that former chairpersons may have been offered their issues. The plaintiff's motor car policy covers employees - other than Directors. It does not cover non-executive Directors whose benefits are covered by resolutions of the Board. There is no vehicle policy or Board resolution entitling the defendant to purchase the vehicle at the end of his term. There is no contractual right to possess the vehicle. There is also no proof of an offer to purchase the vehicle either express or implied.

I am not in agreement with the defendant's contention, in his closing submissions, that he was offered directorship on the understanding that the plaintiff would offer him his last car provided that he had to pay for it.

There is simply no evidence to support that assertion.

In the absence of a car policy Board resolution entitling him to purchase the vehicle, or an offer to purchase the vehicle, the defendant does not have a claim of right over the vehicle.

The defendant is trying to arm twist the plaintiff into selling the vehicle to him on the premise that other directors have previously been offered to buy their own issues. This state of affairs does not entitle him to purchase the vehicle. The fact that the plaintiff offered previous directors their vehicles after the termination of their contracts does not bind the plaintiff to sell this vehicle to the defendant. The plaintiff has no obligation to sell the vehicle to him.

The defendant is holding the vehicle against the wishes of the plaintiff.

It is entirely in the discretion of the plaintiff whether to offer the vehicle to him. The court would err were it to compel the plaintiff to sell the vehicle to the defendant in the absence of an offer to sell the car or proof of some other entitlement. Similar sentiments were expressed by NDOU J in Dhege v Dell Medical Centre HB50-04 where he remarked as follows;

“In the circumstances, it cannot be argued that the respondent…, was obliged to sell the company car to applicant. The court cannot compel a party to exercise its discretion in a particular fashion. The court can compel a party to do what is mandatory in terms of an existing agreement. The right to purchase the company car could only be exercised after an offer had been made to the employee and not before. The option to offer for sale, cars used by employees, was a privilege and not a right.”

The defendant's right to use the vehicle ceased when he left the plaintiff's company. The fact that other directors were allowed to purchase their issues does not confer rights on him to purchase the vehicle.

I agree with counsel for the plaintiff's contention that the hope and expectation of an offer does not justify possession of the vehicle.

The defendant's expectation that the vehicle would be sold to him is not legitimate. His hold on to the vehicle is unlawful. The defendant has failed to show that he has contractual or enforceable rights against the plaintiff. He has no legal justification to continue holding onto the plaintiff's vehicle. The applicant is entitled to the order sought.

In the result it is ordered as follows:

1. The defendant is ordered to return Toyota Land Cruiser registration number ACF 1290 within 7 days of the service of this order on him.

2. Should the defendant fail to comply with this order, the Deputy Sheriff be authorised to seize from the defendant a Toyota Land Cruiser registration number ACF1290.

3. Costs of suit.

Clause 7 of the Build, Operate, Own and Transfer (BOOT) agreement provided as follows:

“7. Management during Operation Period During the agreed 10-year Operation period after commissioning of the Project, Taiyuan shall:

7.1 Operate and manage the Project in terms of a Management Contract to be entered into with the Company; Management Contract shall stipulate details with respect to the content, method, and costs of management.

7.2 Ensure that the Project is operated, maintained, and managed according to accepted standards and shall report regularly to the Board of Directors of the Company.

7.3….,.

7.4…,.

7.5…,.”

Mr Mpofu argued that other than the BOOT agreement there were no further agreements entered into by the parties and that clause 7 was irrelevant....,.

In terms of clause 7 of the BOOT agreement…, it was obviously contemplated to enter into a Management Contract for the management of the BOOT project. But, it appears that this never materialised. Therefore, the only guiding document on the rights and duties of the BOOT partners remained the BOOT agreement.