KAMOCHA J: The
order that was being sought by the applicant was in these terms:-
“It be and is hereby ordered that:-
(a)
The agreement of sale between applicant and 1st
respondent in respect of stand 148 Neqi Township of Jos Peters 100 acre grant
dated 5th December 2007 be and is hereby declared to be binding
between the parties.
(b)
The
1st respondent be and is hereby ordered to sign all papers necessary
to give effect to the transfer of the said property from her name to that of
the applicant.
(c)
In
the event that 1st respondent fails to sign such documents the
Deputy Sheriff of Bulawayo be and is hereby authorized to sign such documents
in the place and stead of the 1st respondent.
(d)
In
the event that the title deed in respect of the said property has not been
registered in favour of the 1st respondent at the time that this
order is granted, that the 2nd respondent shall, according to law,
and provided all requirements to effect such transfer have been met, register
the said property from the 1st respondent to the applicant.
(e)
The
1st respondent pays the costs of this application.”
The background facts giving rise to these proceedings may be summarized
thus. Eunice Dube the mother of the
applicant wanted to buy him immovable property.
As she went looking for a property to buy, she was referred to
Calderwood, Bryce-Hendrie and Partners legal practitioners – hereinafter
referred to as “Calderwood”. She was
referred to the conveyancing department at Calderwood where she dealt with an
employee known as Thando Mabaisa who worked in the conveyancing department as a
conveyancing clerk.
It turned out that Calderwood, at that time, was handling the
transfer of ownership of an undeveloped housing stand number 148 Neqi Township
of Jos Peters 100 acres grant – “the property” from the Bulawayo City Council
to Siphiwe Mthupha – the 1st respondent, who was based in the United
Kingdom. As a conveyancing clerk Thando
Mabaisa – “Thando” had therefore access and possession of the documents relating
to the transfer of ownership of the said property to the 1st
respondent.
Thando had knowledge that 1st respondent intended
to sell the property once ownership was transferred into her name. She then informed the applicant's mother
about the undeveloped property and that the 1st respondent who was
based in the United Kingdom intended to sell it. She went on to explain to the applicant's
mother that the 1st respondent was being represented by her sister
one Sibonginkosi Chidakwa.
After that explanation Thando arranged that the applicant's
mother and Sibonginkosi Chidakwa – “Sibonginkosi” meet so that the two could go
to the property in order for the applicant's mother to view it. The two met and went to view the property and
parted ways and so did their stories as they become different from that
point. The applicant's mother seems to
suggest that she went with Sibonginkosi to Thando's office where she made known
her desire to buy the property.
Sibonginkosi, however, averred that she had last seen her when they left
the property.
It is not difficult to tell where the truth lies on that
point. It lies in Sibonginkosi's
version. This is so, because, after
viewing the property she proceeded to Calderwood where she entered into a
written agreement of sale with Thando who purported to represent the first
respondent. That was very strange
because Thando herself had earlier on told the applicant's mother that the
first respondent who was based overseas was being represented by her sister
Sibonginkosi. Yet, the agreement of sale
reflects that the first respondent who was the seller was represented by Thando
Mabaisa. Sibonginkosi does not feature
in the agreement of sale.
After concluding the written agreement with Thando, the
applicant's mother paid the full purchase price to her since according to the
written agreement the purchase price of four billion Zimbabwe Dollars had to be
paid when both parties signed it.
Although the agreement reflected the price as four billion Zimbabwe
dollars applicant's mother paid the sum of US$3 000,00 to Thando who gave her
an acknowledgment of receipt written on the compliment slip of Calderwood.
The agreement stipulated that the seller would arrange to
tender transfer of the property to the buyer as soon as possible through
Calderwood. The applicant's mother was
advised accordingly. She then proceeded
to take possession of the undeveloped stand and effected improvements thereon. She is in the process of constructing a
dwelling structure which is at roof level.
Thando Mabais did all this without involving Sibonginkosi the
sister of the owner of the property.
Sibonginkosi was the representative of her sister. She denied ever authorizing Thando to enter
into an agreement of sale of the property with the applicant's mother. There is no evidence that her sister did.
The suggestion that Sibonginkosi had no mandate to act on
behalf of her sister does not need any serious consideration as the applicant's
mother herself averred that Thando advised her that the seller who was based in
the United Kingdom was represented by Sibonginkosi Chidakwa. Further, the applicant even obtained a court
order to effect service of process on Sibonginkosi Chidakwa. Quite clearly Sibonginkosi was a known agent
of her sister. The suggestion, therefore,
that she had no mandate to represent her sister because the powers of attorney
were defective was an exercise aimed at indulging in technicalities. In any event, I am satisfied that both powers
of attorney are actually signed by Sibonginkosi's sister Siphiwe Mthupha as
required by section 5 of the High Court (Authentication of Documents) Rules,
1971 which provides thus:-
“Nothing contained in these rules shall prevent the
acceptance as sufficiently authenticated by any court, tribunal or public office,
of any document which is shown, to the satisfaction of such court, tribunal or
public office, to have been actually signed by the person purporting to have
signed the same.”
In the light of the above I hold that Sibonginkosi Chidakwa
had the mandate to act on behalf of her sister.
The next issue to be considered is whether Thando or
Calderwood had the mandate to enter into the purported written agreement for
sale in the manner they did. The duty of
an agent is to introduce the buyer to the seller. That is all.
An agent may not, without a special mandate, sign an agreement on behalf
of a principal nor can he receive part or whole of the purchase price.
In casu Thando or Calderwood were
specifically mandated to find a buyer with who Sibonginkosi and her under
Single Moyo would negotiate the purchase price.
Calderwood or Thando were not mandated to sign any agreement of sale of
the property on behalf of Sibonginkosi and her sister let alone receiving the
purchase price on their behalf. See Skido Property Trust vs Peter Mkwananzi and John Pockock
HB-108-07.
Consequently it follows that the agreement of sale entered
into by the applicant and Thando Mabaisa purportedly representing the 1st
respondent was invalid and of no force or effect.
Having made the above findings the need to consider other
issues that were raised in the papers does not arise.
I would in the result, dismiss the application with costs.
Job Sibanda & Associates, applicant's legal practitioners
Messrs Cheda & Partners, 1st
respondent's legal practitioners
