KAMOCHA J: This
matter was initiated by way of an urgent chamber application wherein the
plaintiff was granted a provisional order in the following terms:-
“(i) that
1st and 2nd respondents be and are hereby interdicted
from reselling and transferring right, title and interest in flat number
42064/13 Makokoba to any person save for the applicant.
(ii) That
the respondents be and are hereby interdicted from processing any transfer of
the right, title and interest in flat number 42064/13 Makokoba to any person
save for the applicant.”
The terms of the final order the
plaintiff sought were these:-
“(1) that
the respondents be and are hereby ordered to take all necessary steps to
transfer right, title and interest of flat number 42064/13 Makokoba, Bulawayo
to applicant within five (5) days of confirmation of order.
(2) Failing
compliance with (1) above the Deputy Sheriff be and is hereby authorized to
sign the relevant papers for the effecting of transfer to applicant.
(3) That
the 1st and 2nd respondents jointly and severally pay
costs of this suit one paying the other to be absolved at an attorney-client
scale.”
The parties, however later agreed
that the whole application be referred to trial and obtained a court order by
consent to that effect.
A further agreement was reached,
before the trial commenced, that there were only two issues for the
determination of the court namely,
“(a) whether
there was a valid contract of sale between the parties in respect of flat
number 42064/13 Makokoba, Bulawayo; and
(b) Whether
the 4th defendant has a right to stop the sale or transfer of the
property in dispute.”
The 4th defendant sought
and was granted an order by consent for joinder as the 4th
defendant.
In his evidence the plaintiff told
the court that he lived at flat number 42064/13 Madlela Flats, Makokoba,
Bulawayo – “the flat” and was employed as a driver by Homage Funeral
Services. He had retired from the
Zimbabwe Republic Police after 26 years service on 9 February 2001.
On 27 July 2001 he saw an advert in
the Chronicle Newspaper, inserted therein by the 1st and 2nd
defendants inviting offers for the purchase of flat number 42064/13 Madlela
Flats Makokoba, Bulawayo. He phoned one
of the numbers supplied to the Newspaper and spoke to a lady who directed him
to the second defendant Mangisi and Associates.
He proceeded there and on arrival he saw the lady he had spoken to over
the phone at the reception. He
identified himself to her and she took him to the first defendant Christopher
Mangisi whose office was on the same floor as Mangisi and Associates. The witness did not know Mangisi before that
day.
The plaintiff introduced himself and
informed Mangisi that he was interested in buying the flat which had been
advertised in the Chronicle Newspaper and requested to go with Mangisi to view
it.
Mangisi acceded to the request and
drove the plaintiff to Makokoba to show him the flat. On arrival they found a young man of about 20
years who opened the door to the flat.
They entered the flat for viewing purposes. The plaintiff noticed that the flat had two
broken windows.
Mangisi told the plaintiff that that
was the flat that he was selling for $215 000,00. The plaintiff negotiated for the reduction of
the purchase price to $210 000,00. The
reasons being that he would be paying cash for the flat and that he would also
replace the broken windows. Mangisi
accepted the reduced purchase price of $210 000 cash.
Mangisi then drove the plaintiff
back to Mangisi and Associates where they discussed about how payment was going
to be effected. The plaintiff told
Mangisi that he was a pensioner who had just received a lump sum. Mangisi was pleased with that and gave the
plaintiff his business card. He then
called in his wife the 4th defendant and informed her that he had
accepted the reduced purchase price of $210 000 for the flat since plaintiff
would be paying cash for it. The wife
said there was no problem in the light of that.
The plaintiff told the couple that
he needed to use $40 000. He suggested
that he would write a cheque in the sum of $250 000 in the name of Christopher
Mangisi to be withdrawn from POSB.
Christopher Mangisi and his wife would keep the $210 000 and give the
plaintiff the $40 000 which he needed to use.
The suggestion was acceptable to Mangisi.
He was then asked to fill in a form
of offer to purchase which he duly filled in and signed on that same day 27
July 2001. The form was filed of record
as annexure “A” at page 8 of the bundle of documents. The form shows that the plaintiff offered to
purchase the flat for $210 000 cash.
After the form had been filled in
the plaintiff left it at Mangisi and Associates and proceeded to POSB and made
a cheque withdrawal in the name of Mangisi and Associates. He was told by the bank officials to return
and collect the cheque on 31 July 2001.
He went and advised Mangisi accordingly.
On 31 July 2001 he went to Mangisi
and Associates before proceeding to collect the cheque and informed Mangisi
that he was going to collect the cheque.
Mangisi told him that that was in order.
He proceeded to the bank and collected the cheque. See page 9 of the bundle of documents.
He returned with the cheque to
Mangisi who called his wife and secretary.
He instructed the secretary to issue plaintiff with two receipts which
were issued to the plaintiff in the presence of Mangisi and his wife the 4th
defendant. The two receipts were filed
of record at page 11 of the bundle of documents. They are both on Mangisi and Associates
letter heads. Both receipts reflect that
the plaintiff had purchased flat number 42064/13 Madlela Flats on 31 July 2001
and he had paid the purchase price of $210 000 in full.
After the payment in full was made
the plaintiff asked for the form of offer to purchase but Mangisi told him that
the form was no longer relevant since he had paid the purchase price in full
but the plaintiff suspected that Mangisi was hiding it as he (Mangisi) had not
signed it.
He then asked Mangisi when he was
going to take occupation and was told the end of September 2001. He then advised Mangisi that he had been
given a grace period by his former employer and was in no hurry to occupy the
flat.
Surprisingly on 10 August 2001
Mangisi called him to his office and asked him if he could accompany him to the
Mzilikazi Housing Office. It turned out
that that was the day the flat was transferred into Mangisi's name. From there he drove the plaintiff to house
number 33297 Entumbane where he introduced him to the occupants as his friend.
After going round and round in
circles Mangisi finally told the plaintiff that the people occupying the flat
were refusing to vacate despite the fact that they had been given notice to
vacate. He went on to tell the plaintiff
that he had no money to pay a lawyer to have them evicted. It was then that it downed to the plaintiff
that Mangisi was calling him to his office to tell him that.
The plaintiff was naturally not
amused by that. He got angry and in a
feat of anger he told Mangisi that he was no longer interested in the flat and
demanded his $210 000 back. As expected
Mangisi, said he no longer had the money as he had already used it to purchase
a car and to clear his other debts.
The next day after his anger had
cooled down he went back to Mangisi who took him to some legal practitioners
known as Hara & Moyo Legal Practitioners and introduced him to Mrs
Moyo. He told the lawyer that plaintiff
was the new owner of flat 42964/13 Madlela Flats, Makokoba. Mangisi informed the lawyer that he had no
money to pay for the evictions of the tenants there from.
The plaintiff then agreed to pay on
behalf of Mangisi for the evictions of the tenants. He paid $100 000,00 to Moyo – Hara &
Partners on 21 August 2001 and was given a receipt annexure “E” at page 13 of
the bundle of documents. The plaintiff
further paid a sum of $31 797,50 on behalf of Mangisi on 28 March 2002 for the
eviction of a tenant known as Isaac Moyo who was eventually evicted at the end
of September 2002.
The receipt was filed of record at
page 15 of the bundle of documents.
Mangisi was given the receipt and was happy that Isaac Moyo was evicted.
Mangisi and his wife were aware that
the plaintiff would take occupation of the flat after Isaac Moyo's eviction at
the end of September 2002. He actually
informed them when he took occupation.
Trouble started when plaintiff
requested that the flat be transferred into his name. Mangisi began to demand a further payment of
$900 000 and stated that his wife was asking for that amount because of
inflation as the Zimbabwe dollar was losing value. He refused to effect cession before that
amount was paid.
The plaintiff went to inform Ms Moyo
the lawyer about the new developments and she referred him to his current legal
practitioners because Mangisi was her client.
His legal practitioners addressed a letter to Mangisi and Associates on
11 October 2007 pointing out to them that their refusal to transfer the property
into the name of the plaintiff was wrongful and unlawful. They were advised that the position they had
taken was illegal and malicious and were warned that failure to make
appropriate arrangements to effect transfer within 7 days would lead to litigation
being instituted for which attorney and clients cost would be claimed.
The plaintiff told the court that he
had stayed at house number 33297 Entumbane for 11 months whilst Mangisi was
battling to evict the tenants from the flat.
Mangisi had asked one Alex Mazula to accommodate the plaintiff pending
eviction of the tenants from the flat.
The plaintiff paid rentals directed to Alex Mazula.
After the evictions of all the
tenants from the flat plaintiff took occupation as its owner. Mangisi and his wife never demanded for
rentals from him. He has been paying
rates and taxes ever since he took occupation of the flat as the owner.
As regards the claim of the wife who
was joined as 4th defendant the plaintiff contended that she had no
legal basis for her claim. She was not a
party to the agreement between her husband and City of Bulawayo. She was not a co-owner of the flat. Documents at the Council offices only reflect
the name of Christopher Mangisi. Her name does not feature at all. For instance plaintiff produced a City of
Bulawayo Tax Invoice in relation to the flat which bears the name of
Christopher Mangisi only.
The 4th respondent's
cross-examination of the plaintiff established that she was well aware of the
sale of the flat. She was the one who
actually approved the reduced price of $210 000 as the plaintiff was paying it
in full. When she suggested that Ms Moyo
was not her lawyer the plaintiff reminded her that when he showed her and her
husband receipts reflecting the payments she had made to the lawyers for the
evictions of the tenants from the flat she was happy like her husband.
Her suggestion that she had not
consented to the sale of the flat is clearly false and must be rejected. The court finds that she actively took part
in the sale of the flat. Each time a
decision was to be taken she was there.
She made the final decision that the flat should be sold at the reduced
price of $210 000 as payment was in full.
She was present when plaintiff brought the cheque for $250 000 to Mangisi
& Associates and was present when the plaintiff brought the receipt for the
payments made to the lawyers as eviction fees.
Consequently she has no right to stop the sale of the flat to the
plaintiff.
The plaintiff's testimony was given
clearly and in a straight forward manner.
He was worth to be believed. The
same cannot be said about both Mangisi and his wife who were patently
untruthful right through their evidence.
For instance Mrs Mangisi wanted the
court to believe that she was not aware of the sale of the flat and had not
even met the plaintiff before meeting him at the police station. She further suggested that she did not know
that the lawyer's fees to evict the tenants came from the plaintiff when the
evidence clearly shows that she was fully aware of that fact.
Mangisi himself was worse than his
wife as he was not only untruthful but was also extremely evasive. He was an unbridle liar – who said the flat
was advertised in the newspaper by mistake.
He also wanted the court to believe that receipts showing that plaintiff
paid the purchase price in full on 31 July 2001 were also written in error by
his private secretary Ms Martha Zengeni.
He did not spare his erstwhile legal practitioner whom he accused of
leaving out material facts in the pleadings.
Mangisi and his wife are not worth to be believed. Where their evidence conflicts with that of
the plaintiff which was well given I prefer the plaintiff's evidence to theirs
which is accordingly rejected. Their
defence witness Martha Zengeni did not take their case any further.
The court has not difficulty in
finding that there was clearly a valid contract between the parties.
In the result, I would grant an
order in terms of the final order sought which is at page 2 of this judgment.
Cheda & Partners,
plaintiff's legal practitioners
