The brief background facts to this matter are largely common cause. I set them out as follows:

In 1994, the applicant entered into a lease agreement with the first respondent in respect of certain premises situate at Number 9 Market Street, Eastlea, Harare (“the premises”).

The lease agreement was constantly renewed over the years with the last renewal being agreed upon on 20 June 2007 for a further three years. Thus, the lease agreement between the parties is due to expire by effluxion of time on 31 March 2010.

It was a specific term of the agreement between the applicant and the first respondent that the applicant would not sublet the premises without the written consent of the lessor.

In 2008, the applicant and the second respondent reached an understanding in terms of which the second respondent moved onto and took occupation of part of the premises….,.

In January 2009, the first respondent wrote to the applicant, summarily terminating the lease agreement and seeking the ejectment of the applicant from the premises. This was on the allegation that the applicant was subletting the premises to the second respondent without the prior written consent of the lessor and in breach of the specific term of the lease agreement against sub-letting.

When the applicant tendered rentals for the month of February 2009, these were rejected on the basis that the lease agreement had been cancelled.

This, in turn, prompted the applicant to approach this court seeking;

(i) Firstly, an order holding the first respondent to the lease agreement on the basis that it was not sub letting to the second respondent as alleged; and

(ii) Secondly, an order ejecting the second respondent from the premises.

The application was opposed by both respondents.

In opposing the application, the first respondent contended that it had proceeded in terms of the lease agreement to summarily cancel the lease agreement as the applicant was in breach. It justified its action by relying on clause 21 of the lease agreement which provides that:

“If the lessees shall fail to pay the rent on the due date or at the latest within ten days thereafter or if the lessees shall commit any other breach of the terms or conditions of this lease then the Municipality shall have the right, in its discretion, summarily to terminate this lease and retake possession of the Stand without payment of any compensation whatsoever and without prejudice to any claim which it may have against the lessees for rent already due or for any damages which it may suffer by reason of such breach or termination.”

The second respondent's opposition to the application is, in my view, somewhat curious.

The second respondent is the alleged sub-lessee and it objects to the continuation of the lease agreement between the applicant and the first respondent. While admitting, as contended by the applicant, that it took occupation of the premises in anticipation of a joint venture between itself and the applicant, the second respondent does not proffer any defence as to why it should not be evicted from the premises at the instance of the applicant.

Instead, and curiously so as I have observed above, it adopts and pleads the case of the first respondent that the applicant was in breach of the lease agreement, indeed, epitomizing the proverbial stranger who mourns louder than the bereaved.

It further avers, that, in February 2009, when the applicant's rentals were turned down, this was because it had paid these in respect of the property. It however falls short of alleging that it is now the tenant in respect of the property.

In its opposing affidavit, the first respondent does not admit any formal relationship with the second respondent. It simply maintains that the applicant's rentals for February 2009 were not accepted as its lease had been cancelled.

I believe it is pertinent, at this stage, that I dispose of the issue between the applicant and the second respondent.

As observed above, the applicant is seeking the eviction of the second defendant from the premises on the basis that the proposed joint venture between the parties has failed.

This is not disputed by the second respondent which then proceeds to aver, that, after the joint venture had failed to materialize, the applicant demanded rentals from it, thereby creating the sublease.

The totality of the averments made by the second respondent, even if proved, do not constitute a defence to an order for eviction at the instance of the applicant. Thus, in the event that I find for the applicant and hold the first respondent to the agreement, I must perforce order the eviction of the second respondent from the premises on the basis that the second respondent has failed to proffer a defence to the applicant's claim.

The issue that remains for my determination is between the applicant and the first respondent: it is whether the first respondent was justified in summarily cancelling the lease agreement without first affording the applicant a chance to respond to the allegations that it was sub-letting the premises to the second respondent.

It is trite that even where a lease agreement grants the lessor the right to cancel the lease on account of breach and to re-take possession of the leased premises, as was the position between the applicant and the first respondent, such cancellation is always subject to the control of and confirmation by the court.

The lessor has to approach court for the confirmation of its cancellation of the agreement and for the eviction of the tenant. The right to summary termination of the lease agreement, no matter how clearly worded, does not oust the jurisdiction of the court to grant the eviction order.

The existence of the grounds for and the validity of the cancellation of the lease agreement are always subject to validation and confirmation by the court which alone can order the eviction of the defaulting tenant.

The lessor cannot exercise self-help and retake possession of the property without a court order - even where the agreement specifically provides so: see Livingstone v Solomon 1924 SR 117; Joubert v Bester 1977 (2) SA 641 (T); Towers v Chipata 1996 (2) ZLR 261 (HC): and Bater and Another v Muchengeti 1995 (1) ZLR 80 (SC)…,.

In casu, the first respondent did not independently approach the court for the eviction of the applicant after it became aware of the alleged breach in the form of subletting.

After being served by this application, it did not seek to counter apply for the confirmation of its cancellation of the lease agreement and the eviction of the applicant.

The validity of its actions, in cancelling the lease agreement and its threat to re-take possession of the premises, have been brought before the court by the applicant, not for its confirmation but for it to be set aside on the basis that the first respondent did not give the applicant an opportunity to respond to the allegations before it acted summarily.

Thus, it appears to me that even if I were to find that the purported cancellation of the lease agreement by the first respondent was justified in the circumstances, that finding would not automatically translate into an order evicting the applicant from the premises as there is no prayer before me for the eviction of the applicant from the property.

In my view, such a finding, if I were to make it, would simply lay the foundation for the issuance of an eviction order against the applicant at the instance of the first respondent whenever it is moved to seek such an order.

It is on the basis of the above, that, in my view, it is not necessary that I make a finding as to whether or not the applicant was subletting to the second respondent and was therefore in breach of the lease agreement.

In my view, to do so would be to tie down the court that may be approached by the first respondent for an order evicting the applicant from the property.

The plaintiff issued summons claiming a decree of divorce, rights of access to the minor child, a division of matrimonial assets and costs of suit. The defendant also filed a counter-claim seeking similar relief.

I shall deal firstly with the issues raised by way of Stated Case; the first being whether the plaintiff should be interdicted from living in the matrimonial home with a boyfriend, now or in the future.

In his written submissions on this issue, the plaintiff's counsel correctly states that, strictly-speaking, this demand, coming as it does in a plea and not a counter-claim, is not before this court as claims cannot be made in a plea. He states that the matter was, however, included as an issue in the pre-trial conference and was agreed by the parties in a Stated Case and that, accordingly, this court is requested by the parties to deal with the matter.

At this juncture, I propose to deal with the issues raised by the defendant against the granting of damages in seriatim.

FAILURE BY THE PLAINTIFF TO PLEAD THE AMOUNT OF CLAIM IN ITS DECLARATION

It was the defendant's position, through its counsel, that the plaintiff not having pleaded, in its declaration, the specific amount of damages, could not be awarded the amount claimed. In other words, the defendant felt the plaintiff's claim was bound to fail on this basis alone.

The respondent has incorporated, by reference, papers it filed under case number HC5560/10, a separate application, and has argued that the present application and that filed under case HC5560/10 be heard together.

I agree with the applicant that the correct procedure would have been for the respondent to file a counter chamber application in terms of Rule 229A which reads -

The merits of plaintiff's defence to fourth defendant's claim in reconvention

The plaintiff then led evidence to the effect that he offered rentals for February 2007 which Miss Varaidzo Mateko's agents refused to accept. He, thereafter, did not tender rentals for the following months to date.  He admitted that in his plea he disputed Miss Varaidzo Mateko's title to the property and said he could not pay rentals to her. In his evidence he, again, said he did not recognise Miss Varaidzo Mateko's title to the property and could, therefore, not pay rentals to her. It is common cause that in terms of the expired lease rentals should be paid in advance on the “first day of each and every month.” He should, therefore, in spite of the refusal of rentals for February 2007, have tendered rentals for March 2007. The words “each and every month” means rent should be tendered or paid each month. The words “so long as the lessee continues to pay the rent due within seven days of the due date”, therefore, means rent should be paid or tendered for each month. Miss Varaidzo Mateko's claim in reconvention was filed on 22 March 2007. The due date for March 2007 had come and gone without a tender of rentals by the plaintiff. The seven days after the due date had also come and gone without a tender of rentals from the plaintiff.  He thus deliberately refused to pay rent for March 2007 and the subsequent months. He thus did not continue to pay rent in terms of section 30(2) of the Rent Regulations S.I.27 of 1982 which required him to continue to pay rent within seven days of the due date. The plaintiff's failure to continue to pay rent as required by section 30(2) of the Rent Regulations S.I.27 of 1982 disentitles him from seeking the protection of the Rent Regulations.

In the result, I find that the plaintiff does not have a valid defence to Miss Varaidzo Mateko's claim in reconvention for his ejectment from Lot 5 of Lots 18 and 19 Parktown Extension of Upper Waterfalls.

It is therefore ordered as follows:

1. That the plaintiff (Zenus Banda) and all those claiming occupation of Lot 5 of Lots 18 and 19 Parktown Extension of Upper Waterfalls through him must vacate the property by 31 December 2010.

2. …,.

3. …,.

4. The plaintiff shall pay all outstanding utility bills for the property in question on or before 31 December 2010.

On the other hand, the counter-claim by the second defendant is flawed in two respects.

Whilst the defendant's plea was filed on the 19^th June 2007, the counter-claim was only filed on 11th September 2009. The plaintiff's plea to the counter-claim was that it was not filed in accordance with the Rules as it was filed out of time. Reference was made to Order 18 Rule 121(1) of the High Court Rules which provides that –

“(1) A claim in reconvention shall be so described and shall be bound and filed with the defendant's plea.

(2) A claim in reconvention shall be governed, mutatis mutandis, by the rules relating to a declaration,

including rules 110 and 111.”

Therefore, on the above Rule, alone, the counter-claim fails.

(a) …,.

In their heads of argument, the first and seventh respondents also seek eviction of the applicants. They, however, did not see it necessary to file a counter-application.

The question is whether I can grant a counter-claim where there is no such counter application.

It is trite law that counter-applications are subject to the general principles applicable to applicants – Willowvale Estates CC v Bryanmore Estates Ltd 1990 (3) SA 954 (W)…., and Superior Court Practice (Nathan, Barnett & Brik) – H.J. ERASMUS (Juta 1994)….,.. Thus, the court will dismiss a counter-application if the respondent, when launching it, did not follow the general principles set out in the High Court Rules, 1971 i.e. Order 32 Rule 226 to Rule 240.

In the year 1995, the plaintiff married the defendant in terms of customary law. They had apparently commenced living together prior to the formalization of the union in terms of customary law. On 31 March 2000 their marriage was solemnized in terms of the Marriages Act Chapter 5:11]. The marriage still subsists. The marriage was not blessed with any child....,.

On 8 April 2008, the plaintiff filed a suit seeking a decree of divorce and other ancillary relief....,.

During the subsistence of the marriage, the parties acquired movable and immovable property. The movable property comprised -

(a) Two refrigerators;
(b) One three-plate stove;
(c) Two kitchen units;
(d) Dining room table and chairs;
(e) Display unit;
(f) Cupboard;
(g) One VCR and television set;
(h) Decoder and dish;
(i) Two beds;
(j) Two radios;
(k) A set of four sofa seats; and
(l) An F13 motor vehicle.

The immovable property comprised -

(a) House No. 6071 Unit 'J' Seke, Chitungwiza.
(b) Vacant stand in Norton - Adore Gold Housing Scheme.
(c) Vacant stand in Kwekwe Marshlands area.

Out of all the above property, he proposed that the defendant be awarded -

(a) The vacant stand in Norton;
(b) One fridge;
(c) Three plate stove;
(d) One kitchen unit;
(e) Decoder and dish;
(f) One bed;
(g) One radio; and
(h) Kitchen table and four chairs;

With the rest of the property being awarded to the plaintiff....,.

The defendant disagreed with the distribution of the matrimonial property as suggested by the plaintiff. She, instead, though without making a counter claim, suggested that the property be shared as follows -

For Defendant:-

(a) Stand 6071 Unit J Seke, Chitungwiza;
(b) The stand in Norton;
(c) The F13 motor vehicle; and
(d) All the movable property.

For Plaintiff:-

The plaintiff to be awarded the Kwekwe undeveloped Marshlands Stand.

In 1999, the applicant herein entered into an agreement of sale in terms of which he purchased an immovable property from the estate of the late Johanna Maria Fransisca Logan as represented by the executrix testamentary of the estate.

The immovable property, described as Stand 382 Good Hope Township of Subdivision B of Good Hope, was transferred to the applicant in April 2007 by Deed of Transfer number 1597/2007.

On or about 1 October 2006, one Tsungirai Musenha and the first respondent herein filed an application, as co-applicants, in the Magistrates Court in Case No.12060/06. They cited Robert Adrian Campbell-Logan (the second respondent herein), estate late Maria Johanna Campbell-Logan, and the Registrar of Deeds (the fourth respondent herein) as the first, second, and third respondents respectively.

They contended therein that the second respondent herein had sold to them and they had purchased Stands Numbers 412 and 382.

They further contended, that, the second respondent herein was avoiding them then for the purpose of passing transfer to them of the said properties.

On or about 5 October 2006, a rule nisi was granted by the Magistrates Court in the following terms:

“A Rule Nisi be and is hereby issued returnable to this honourable court on the…, day of…,. 2006 calling upon the first and second respondents to show cause, if any, why? (sic)

1. First, second, and third respondents, and all those acting through them, should not be barred from transferring to anyone other than first and second applicants Stand Numbers 412 and 382 respectively, being subdivisions of the remainder of subdivision B of Good Hope held under Deed Number 6180/95. (sic)

2. First, second, and third respondents should not be ordered to effect transfer of Stand 412 and 382 to first and second applicants Stand Numbers 412 and 382, respectively, being sub-divisions of the remainder of subdivision B of Good Hope held under Deed Number 6180/95. (sic)

3. First, second, and third respondents, and all those acting through them, should not be barred from disposing first and second applicants in any way of their occupation of Stand numbers 412 and 382 respectively. (sic)

4. First respondent should not be ordered to pay costs of this application. (sic)

INTERIM RELIEF:

1. Pending the return date, all respondents and all those acting through them be and are hereby interdicted from disposing or transferring to anyone Stand Numbers 412 and 382 respectively, being subdivisions of the remainder of sub-division B of Good Hope held under Deed Number 6180/95.”

On 8 November 2006, the magistrate granted default judgment in the same matter for an “interdict and compelling order” in favour of the applicants therein.

On 29 November 2006, the sixth respondent issued Letters of Administration appointing the third respondent as executor dative to administer the estate of the late Maria Johanna Fransisca Campbell-Logan, for the sole purpose of effecting transfer of “a certain piece of land situated in the District of Salisbury being a remainder of subdivision B of Good Hope, being Stand Number 382 measuring 2200 square metres into the name of Cosma Chiangwa.”

On 4 July 2007, the immovable property was transferred into the name of Cosma Chiangwa, the first respondent herein by Deed of Transfer 4079/2007.

The applicant now applies for an order in the following terms:

“1. That the sale to the first respondent, by the second respondent, of Stand 382 Good Hope is null and void. (sic)

2. That the registration of Stand 382 of Good Hope Township of Subdivision B of Good Hope into the name of first respondent is null and void. (sic)

3. That the appointment of the third respondent, as Executor Dative of the estate of the late Maria Johanna Fransisca Campbell-Logan, is null and void.

4. That the applicant is the sole lawful registered owner of Stand 382 Good Hope Township of Subdivision B of Good Hope.

5. That the fourth respondent shall, within 3 days of service of this Order upon him, delete the name of the first respondent from the name of the applicant as the registered owner of Stand 382 Good Hope Township of subdivision B of Good Hope. (sic)

6. That the first, second, third, and fifth respondents shall pay costs of these proceedings jointly and severally, the one paying the others to be absolved.”

In the main, the applicant contends, that, the appointment by the sixth respondent of the third respondent as the executor dative of the estate, during the lifetime of the executrix testamentary and during a period of time when the executrix testamentary was still holding office and was not incapacitated, is not valid in law.

He further contends, that, when the second respondent sold Stand 382 to the first respondent, he (the second respondent had no title to pass and that the sale by the second respondent was done in the second respondent's personal capacity and was also done without authority.

He also contends that when the second respondent sold the property (to the first respondent) he knew that it had already been sold to the applicant as he had co-signed the agreement of sale between the applicant and the executrix testamentary.

It is also contended by the applicant that the fourth respondent registered the property into the name of the first respondent without checking his register.

Furthermore, the fifth respondent, who was the conveyancer of the property into the first respondent's name, did not conduct any checks as to title to the property before drafting and lodging conveyancing papers with the Deeds Registry. If he had exercised care he would have discovered that the immovable property belonged to the applicant as it had already been registered into the applicant's name more than two months earlier.

The applicant further contends, that, the position stated by the executrix testamentary, in the letter of 1 September 2007, is the correct position at law.

The letter raised with the sixth respondent the invalidity of the appointment of the executor dative as it was done when the executrix testamentary had not been removed from the office by a competent court or judge.

The contention then was that the sixth respondent acted without authority when he appointed the third respondent as executor dative and consequently all acts done by the executor dative in relation to the transfer of the property is of no force or effect.

The property was thus illegally transferred into the name of the first respondent.

He also contends, that, the third respondent ought to have known that the sale by the second respondent to Tsungirai Musenha and the first respondent was defective.

It is the applicant's contention that there is sufficient justification for this court to grant him the relief that he seeks.

The respondents, on the other hand, contend that the application ought not to succeed for various reasons.

Firstly, that the applicant is alleging fraud on the part of the persons who prepared and authored the documents which are being challenged and that such persons would need to be cross-examined in trial proceedings.

They contend, secondly, that there are disputes of fact which cannot be resolved on the papers, such disputes being in relation to how two agreements of sale could have been concluded for the same property with the fourth respondent. These issues, it is contended, cannot be adequately addressed in affidavits.

The third reason stated is that the applicant has not challenged or caused the suspension of the “compellation orders authorising transfer of the property in issue emanating from Case No.1206/06 granted by the Magistrates Court.”

They contend that the court therein decided that the property belonged to the first respondent, and, until that order is suspended, this court cannot hear the applicant's case.

The fourth reason stated is that the applicant has no real rights over Stand 382 Good Hope Township of sub-division B of Good Hope and that the Registrar of Deeds has confirmed, by letter, that the property belongs to the first respondent.

It is contended, that, the applicant's supposed title deed is not a valid title deed and does not confer any rights on him. Consequently, the applicant cannot challenge the registration of a property which he does not own. They contend that there is no double registration of the immovable property in issue.

The fifth reason stated is that the applicant's purported agreement of sale, dated 1999, with the executrix testamentary, is invalid because the executrix testamentary did not then have authority from the sixth respondent to sell the property, such authority only having been granted by the sixth respondent on 27 February 2006.

The applicant has, in any event, sued the wrong party as he should sue the estate from which his rights emanate in terms of the agreement of sale.

Finally, it is stated that the relief prayed for by the applicant is impracticable and unprocedural as he may not sue to remove an executor or challenge the Master's decision in these proceedings.

In addition to the above, the first respondent states that he has been in occupation of the property since July 1998 and has built a two bed-roomed house thereon. He has also been paying all utility bills and rates. Even before transfer of the property to him, he used to pay the bills.

The first respondent also says, that, at the time of the alleged sale to the applicant, he was already in occupation of the property, and, if the applicant had been diligent, he could easily have found that out.

Furthermore, the second respondent could sell the property to him as he was the beneficiary and he had full authority to do so.

The respondents thus contend that the application should be dismissed with costs on the higher scale....,.

Regarding the case of X-Trend-A-Home (Pvt) Ltd v Hoselaw Investments (Pvt) Ltd 2000 (2) ZLR 348 (S) which was cited in the respondents heads of argument, counsel for the applicant submitted that what is prohibited by law is an agreement for the transfer of ownership before the granting of a subdivision permit.

He submitted that such agreement is not proscribed by the Deeds Registries Act and that the Regional, Town and Country Planning Act has no relevance in matters of registration of title as title does not flow from the agreement but is a product of the powers conferred on the Registrar of Deeds and is regulated by the Deeds Registries Act.

The provisions of the Deeds Registries Act are not affected by the Regional, Town and Country Planning Act.

Counsel for the applicant submitted that section 5(b) of the Deeds Registries Act requires the Registrar to examine all deeds or other documents submitted to him for execution or registration, and after examination reject any such deed or other such document the execution or registration of which is not permitted by this Act or by other law, or to the execution or registration of which any other valid objection exists.

He submitted that there is no requirement in this provision for the contract of sale of a piece of land to be submitted to the Registrar together with the Deed for examination. Neither does it require the Registrar not to register transfer of a property the sale agreement of which contains a suspensive condition.

He submitted that the Deeds Registries Act does not require the Registrar to do so, and the registrar should not concern himself with the agreement of sale as it is not his duty to do so.

It was further submitted, that, in any event, there is no counter-application before this court for the setting aside of the Deed of Transfer registered in favour of the applicant. This, it was submitted, must be taken as an indication that the first respondent knew or must have known that his title was defective....,.

Counsel for the applicant, furthermore, submitted that, in casu, the first respondent has opted to use a shield instead of an offensive weapon as he has resorted to merely defending himself without seeking to assert his own title....,.

It would appear to me, that, the issue of whether or not the provisions of the Regional, Town and Country Planning Act are applicable, and, if so, with what effect, cannot be of any avail to the respondents in the circumstances of this case.

Neither can it be the basis for this court, in these proceedings, to declare invalid the agreement of sale in favour of the applicant.

That agreement has not been subjected to scrutiny by this court.

The fact is that the applicant is currently registered as the owner of the property and there is no basis for the court, in these proceedings, to deny the relief sought by the applicant.

The first respondent cannot herein ask the court to declare the agreement invalid.

The submission that the agreement of sale in favour of the applicant was subject to a suspensive condition based on a proposed or desired subdivision of the main property, and therefore illegal, has been the mainstay of the first respondent's stance.

There is no application before this court challenging or impugning the said agreement of sale.

Thus, the dicta quoted from X-Trend-A-Home (Pvt) Ltd v Hoselaw Investments (Pvt) Ltd 2000 (2) ZLR 348 (S), in support of the first defendant's case, are not of any relevance in the circumstances of this matter.

The respondent has refused to reimburse half the purchase price paid and costs incurred in surveying the land. 

That is the subject of the alternative claim. 

The respondent initially claimed that it was entitled to set off the amount owed to the applicant against what the applicant owes in outstanding rates. The respondent's counsel conceded that no counter-claim had been filed and the defence of set off was not specially pleaded and is therefore not available to it. No basis has been laid for holding onto half the purchase price and other costs claimed.

A company is a person. It is a juristic person, or, in legal parlance, a legal persona, but all the same a person. It has an identity separate from that of its members. It can own property independently of, and separately from, its members. Thus, a company's assets are not the members' assets.

These cardinal principles seem to have been purposefully ignored or inadvertently overlooked in this matter. The result has been prolonged litigation for over five (5) years.

The facts were largely common cause.

The plaintiff was a duly registered private company. At all relevant times, prior to 16 June 2008, its major asset was an immovable property situate Stand 12896 Salisbury Township, measuring 3,066 square metres, held under Deed of Transfer No.39/76 and otherwise known as 98 Churchill Avenue, Gunhill, Harare (hereafter referred to as “the property”). Its principal officer, in the sense of being the majority shareholder and director, was the third defendant (hereafter referred to as “Sandra Muir”).

On 21 May 2008, this court, MTSHIYA J, granted a default judgment in HC1393/08. This followed an application by the first and second defendants herein who therein were the first and second applicants respectively. Hereafter, I shall refer to the first and second defendants as “Mr and Mrs Gurupira” or “the Gurupiras”. The default judgment effectively directed the plaintiff herein, the first respondent therein, to transfer the property to the Gurupiras. Sandra Muir, the second respondent therein, was ordered to sign the necessary papers within 10 days of the order failing which the Sheriff, who is the fourth defendant herein, or the Deputy Sheriff, who is the fifth defendant herein and was also the fifth respondent therein, would sign the transfer papers in place of Sandra Muir. The order by MTSHIYA J read as follows:

“IT IS ORDERED THAT;

1. The 1^st Respondent [the plaintiff herein] is hereby interdicted from transferring the property known as No.98 Churchill Avenue, Harare, also known as a certain piece of land situate in District of Salisbury Township Lands measuring 3,066 square metres under Deed of Transfer 39/76 to anyone except the 1^st and 2^nd Applicants.

2. The property in paragraph 1 above be transferred to Asswell Africa Gurupira and Jean Jane Gurupira and the 2^nd Respondent [Sandra Muir] is directed to sign all the necessary documents to finalise the transfer within 10 days of the Order.

3. Should the 2^nd Respondent fail or refuse to sign the necessary documents to effect transfer the 4^th or 5^th Respondent [Sheriff and Deputy Sheriff respectively] are hereby directed to sign all the necessary documents to effect the transfer by the 3^rd Respondent [Registrar of Deeds] to 1^st and 2^nd Applicants.

4. The 1^st and 2^nd Respondents shall bear all the costs of this application on attorney-client scale jointly and severally one paying the other to be absolved.”

The order was granted in default of appearance by the plaintiff and Sandra Muir.

Through their erstwhile lawyers, Manase and Manase, the Gurupiras said they had served their application in HC1393/08 in a letter-box at the property.

Following that default judgment, the property was transferred to the Gurupiras on 16 June 2008 under Deed of Transfer No. 4778/2008. The then Deputy Sheriff for Harare had signed the transfer papers. Manase and Manase had been the conveyancers. After that, Manase and Manase had applied for, and had obtained, ex parte, an order of eviction from the Magistrate's Court.

Meanwhile, the plaintiff had changed hands.

One John Legget had become the majority shareholder. This had followed a series of agreements with Sandra Muir. She, on her part, had by then emigrated to Israel. One Diniwe Chinyani (“Diniwe”) had been staying at the property. She had been Sandra Muir's employee of 10 years and more. With the change of ownership of the plaintiff, Diniwe's continued stay on the property, as an employee of the plaintiff, had been through an arrangement with John Legget. As the Messenger of Court was executing the ex parte order of eviction from the Magistrate's Court Diniwe Chinyani raised alarm. It did not help. She and her family were evicted. After that, the Gurupiras took occupation and moved in.

The plaintiff, through John Legget, filed an urgent chamber application for rescission of judgment. However, the matter was adjudged to be not urgent. The plaintiff then filed an ordinary court application for rescission of judgment. It also sought the reversal of the transfer of the property from the Gurupiras back to the plaintiff. Finally, it also sought the eviction of the Gurupiras. The application was filed under the reference no HC4211/08. The application was said to have been brought in terms of both Order 9 Rule 63 and Order 49 Rule 449.

The Gurupiras, through Manase and Manase, opposed the application.

The matter came before PATEL J…, The learned judge felt that there were serious and irreconcilable disputes of facts. On 24 September 2009 he referred the matter to trial. The application would stand as a summons. The parties would file further pleadings in accordance with the rules of court. That was done.

The trial came before me on 10 February 2014....,.

The plaintiff called seven (7) witnesses. The first was one Paradzayi Matambanadzo, a technician from Net One Cellular, a cellular network provider. His evidence was that without a special device, which Net One Cellular did not have, it was not possible for it to decrypt a short message service (sms) transmitted through its platform by one user to the other. This evidence was led to deal with one of the issues in the matter. That issue was whether or not Sandra Muir had transmitted to the Gurupiras an sms advising them of the Zimbabwean dollar balance due by them to her in respect of the sale of shares. It was in issue whether the purchase price would be paid in Zimbabwean dollars or in foreign currency. These transactions had been entered into before the advent of the multi-currency system adopted by this country in February 2009.

The second witness called by the plaintiff was one Leonard Nhari, a forensic scientist. One of the issues was whether or not Sandra Muir had acknowledged receipt of certain payments made by the Gurupiras. Mr Nhari's evidence was that after he had examined Sandra Muir's purported signatures on the questioned documents it was his conclusion that the signatures were not hers but forgeries or imitations.

The third witness called by the plaintiff was John Legget himself. His evidence was that at the time the Gurupiras had taken transfer of the property, through a court order that they had obtained in default, he had already become the owner of the plaintiff through an initial allotment of 98 of the un-issued shares and a subsequent buy out of the remaining two (2) shares still held by Sandra Muir.

John Legget said that neither he nor the plaintiff had been aware of the court application by the Gurupiras. Until the time of eviction he had never heard of the Gurupiras, let alone of their interest in the property. If their application had been served through the letter box at the property then Diniwe Chinyani ought to have seen it. She stayed permanently on the property. She would bring him all mail that concerned Sandra Muir or the plaintiff. John Legget questioned why Manase and Manase had chosen to serve the court application meant for the plaintiff and Sandra Muir through a letter box when they were, at all relevant times, duly represented by legal practitioners, Thompson Stevenson & Associates. At that time there was already litigation pending between the Gurupiras and Sandra Muir under HC6660/07. That was an application by the Gurupiras to compel Sandra Muir to furnish them with her local Bank account details allegedly to enable them to deposit the balance of the purchase price.

The fourth witness called by the plaintiff was Thompson David Stevenson. He had, at all relevant times, been Sandra Muir's attorney. No application had been served on him. He found it strange that Manase and Manase had not directed that the court application in HC4211/08 be served on him. He was at that time still seized of Sandra Muir's mandate in HC6660/07 in which she was vigorously contesting the Gurupiras' claims. Mr Stevenson also said that nobody had approached him for the original title deed for the property. It was strange that Manase and Manase had resorted to applying for a replacement copy in order to register the transfer of the property to the Gurupiras.

The fifth witness called by the plaintiff was Washington Meda. His firm, Admew Management Services, had provided secretarial services to the plaintiff. It had, among other things, registered the transfer of shares in favour of John Legget and had drawn up the share certificates for him.

The sixth witness for the plaintiff was Diniwe Chinyani. She explained that she checked the mail box everyday. She had seen no application. Although at the particular time the application is alleged to have been served Sandra Muir was now in Mozambique on her way to Israel, her home country, she would remit all her mail or that of the plaintiff to John Legget.

The seventh and last witness for the plaintiff was one Anthony Neil Purkis (“Mr Purkis”). He was a chartered secretary in real estate. His evidence was that it was him that had fixed the sale of shares agreement between Sandra Muir and John Legget. Initially, a Mr Stephen Lennox Attwell had offered to buy Sandra Muir's shareholding in the plaintiff. The agreed price had been around US$220,000. However, Mr Attwell had only paid a deposit of $30,000 and had defaulted afterwards. The sale had been cancelled. Mr Purkis had subsequently closed another deal with John Legget. That agreement had been consummated. Out of the proceeds from John Legget, $30,000 would be kept in trust for Mr Attwell. Mr Purkis said he had not heard of the Gurupiras prior to the agreement with John Legget. It was only much later that he had heard of them from Sandra Muir. He had heard that other than a trifle US$17,000, the Gurupiras had failed to pay the sum required on the plaintiff's shares.

For the defence, only Mr Gurupira gave evidence.

Basically, his evidence was that following an advert in one of the local newspapers they had learnt that the property was on sale. The property was owned by the plaintiff. They had been advised that in order to get the property they had to buy Sandra Muir's shares in the plaintiff. Although they were not really interested in the plaintiff they had signed an agreement for the purchase of those shares. This was the only way to get the property. The agreed purchase price had been ZW$7 billion payable over 6 months in local currency. They had fully paid the purchase price; partly in foreign currency, partly in local currency, and partly in kind.

Towards the end, when the balance owing was ZW$6 billion, Sandra Muir had started to prevaricate and it was becoming difficult to remit payments to her. In November 2008, which was the deadline for payment in terms of the agreement, they had had to apply to court for an order to compel her to disclose details of her local Bank account to enable them to make the last payment. This had been the application under HC6660/07. However, that application had not been proceed with. Sandra Muir had agreed to accept cash. She had received and had signed for it on 13 November 2008. The date on the acknowledgement of receipt had incorrectly been entered as 14 November. He had altered it in long hand to read 13 November.

Mr Gurupira denied that they had breached the agreement of sale. He confirmed that Manase and Manase had applied on their behalf to compel the plaintiff and Sandra Muir to transfer the property to him and Mrs Gurupira. The actual registration of transfer had been in terms of the court order.

The defence closed its case after the evidence of Mr Gurupira.

Having heard all the evidence and having read the voluminous record I was left in no doubt that Manase and Manase had snatched a judgment for the Gurupiras who, through their new attorneys, Sawyer and Mkushi, were improperly clinging onto it. The words of McNALLY JA in Zimbabwe Banking Corporation Ltd v Masendeke 1995 (2) ZLR 400 (S) (the Zimbank case) have kept playing in my mind. At p402E the learned judge of appeal made the following terse remarks (KORSAH JA and MUCHECHETERE JA agreeing):

“Here there was a mistake. It was clearly a mistake. Zimbank had no possible reason to allow the claim against it…, to go by default. No-one, and in that term I include My Moyo of Chikumbirike and Associates, who acted for Masendeke, could have reasonably have thought otherwise.”

The facts of Zimbabwe Banking Corporation Ltd v Masendeke 1995 (2) ZLR 400 (S) (the Zimbank case) were far removed from those of the instant case.

In Zimbabwe Banking Corporation Ltd v Masendeke 1995 (2) ZLR 400 (S) the respondent's suit had been preceded by a letter of demand. The letter had been acknowledged and had been said to have been under consideration. In the present case, apart from HC6660/07 which Sandra Muir was defending to the hilt, there was no prior demand for the transfer of the property prior to the application under HC421/08 being filed.

In Zimbabwe Banking Corporation Ltd v Masendeke 1995 (2) ZLR 400 (S) the summons had been served and had been acknowledged on behalf of the applicant. It had been served on the accountant of one of the branches of the applicant. The accountant had referred it to the applicant's Head Office where it had reached the office of the General Manager. In the present matter, the summons had been served in a letter box, notwithstanding that Sandra Muir was, at that time, duly represented by Mr Stevenson. The court application in HC4211/07 had actually cited the earlier application under HC6660/07 as a reference matter.

In one of Mr Gurupiras affidavit in opposition to the application for rescission of judgment it was claimed that it was not competent to have served the application on the legal practitioners in the absence of evidence that they had the mandate to represent Sandra Muir in that particular application.

Without doubt, this was a self-serving subterfuge. If no confirmation had been sought how could it be given?

In Zimbabwe Banking Corporation Ltd v Masendeke 1995 (2) ZLR 400 (S) the summons had been inexplicably filed away. The General Manager had not seen it. Default judgment had been sought without any further communication when no appearance to defend had been entered. The judgment was easily rescinded. The respondent's lawyers, who had unreasonably opposed the application for rescission of judgment, just as in this case, narrowly escaped an order of costs de bonis propriis.

In this matter, it is unbelievable that given the surreptitious manner in which Manase and Manase obtained the default judgment and the order of eviction from the Magistrates Court, ex parte, they had the audacity, not only to seek costs, and not only to seek such costs on the higher scale of attorney and client against the plaintiff and John Legget for having applied for rescission of judgment, but also they sought costs de bonis propriis against the plaintiff's attorneys, then, Matimba and Muchengeti.

In this mater, to allow the default judgment to stand would make justice turn on its head. See Zimbabwe Electricity Supply Authority v Maposa 1999 (2) ZLR 452 (S)…,.; and Pamire & Ors v Dumbutshena NO & Anor 2001 (1) ZLR 123 (H)…,.

What Manase and Manase were doing offends against all notions of justice even though the return of service by the Deputy Sheriff, on the application to compel transfer, stated that the application had been served through the letter box,

I am sceptical that such a huge bundle of documents, which, from its index, was 56 pages long, could be shoved into a standard letter box and fit. The return did not even say that this had been done after a diligent search for someone responsible to receive the papers. Diniwe Chinyani and her children stayed at the property. None of them saw the papers. This lends credence to John Legget's rejection that any such documents had been placed in the letter box. Manase and Manase deliberately avoided service on Sandra Muir's attorneys. It obviously meant that the application was intended not to be served on the plaintiff or on Sandra Muir.

Furthermore, it was manifestly reprehensible for Manase and Manase to rush an ex parte application for eviction through the Magistrate's Court. It was clearly an abuse of the court process. The main matter was playing out in the High Court. It is doubtful that the Magistrate's Court had jurisdiction over such a matter. The High Court was avoided deliberately because evidently no judge of this court would have countenanced an application for such profound and life-changing relief as eviction to be determined ex parte.

The application for an order to compel transfer was itself replete with patent falsehoods. It was claimed that Sandra Muir was the Managing Director of the plaintiff; that she owned 32,000 shares allegedly being the entire share capital of the plaintiff and that Sandra Muir was the sole beneficial owner of the property.

That was false.

Sandra Muir did not own 32,000 of the plaintiff's shares. To the knowledge of the Gurupiras and their lawyers, Manase and Manase, because this was manifest in the agreement of sale, Sandra Muir owned only 2 shares. That was all that had been issued at that time. 32,000 shares was the authorised share capital. Sandra Muir was not the beneficial owner of the property. She may have enjoyed a right of occupation but ownership of the property was vested in the plaintiff.

It was further alleged in Mr Gurupira's affidavit that on 25^th day of some undisclosed month, but in the year 2007, Sandra Muir had sold to him and Mrs Gurupira her entire shareholding in the plaintiff and that those shares had entitled the holders thereof to an exclusive right of ownership, occupation and use of the property. The reference to Sandra Muir's “entire shareholding” could only have been to the 32,000 shares that Sandra Muir was alleged to own. This was calculated to mislead. Sandra Muir had sold to the Gurupiras' only 2 shares. Whilst this was her “entire shareholding” the reference in the preceding paragraph to her owning 32,000 was evidently calculated to give the impression that Sandra Muir had sold Mr and Mrs Gurupira the entire 32,000 shares.

Furthermore, it was false to claim that the shares in the plaintiff gave the holder an exclusive right of ownership of the property. The order by MTSHIYA J directed that the property be transferred to the Gurupiras. Clearly, that relief was sought erroneously. Clearly, it was granted erroneously. Clearly, it was granted in the absence of the plaintiff. There had been no proper service of the papers. Therefore, under Rule 449, the order was liable to be set aside.

I am also satisfied that under Rule 63 the plaintiff has established good and sufficient cause why the order should be set aside. In order to show good and sufficient cause under Rule 63 the applicant has to give a reasonable explanation for the default, the bona fides of the application for rescission of judgment, and the prospects of success on the merits: see Roland & Anor v McDonnell 1986 (2) ZLR 216 (S); Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S); Stockill v Griffiths 1992 (1) ZLR 172 (S); and Enock Govha v Ashanti Goldfields Zimbabwe Limited & Anor HH48-12.

These aspects are considered cumulatively and not individually: Stockill v Griffiths 1992 (1) ZLR 172 (S)…,.

I have already considered that the plaintiff was not in wilful default. Regarding the bona fides of the application for rescission; it is quite clear that the plaintiff, without due process, was deprived of its only major asset. Section 183(1)(b) of the Company's Act [Chapter 24:03] prohibits the disposal of the whole or the greater part of the assets of a company without the approval of the company in a general meeting.

This was not done in this case.

The property was just about the only asset of significance owned by the plaintiff. The evidence placed before me showed that the Gurupiras never took transfer of the shares of the plaintiff. All that they were ever interested in was the property even though their agreement was for the purchase of the shares in the company, not the purchase of its assets. The evidence also showed that by the time that the Gurupiras took transfer John Legget had already become the majority shareholder and the Managing Director of the plaintiff. Thus, transfer of the property to the Gurupiras was a nullity. The plaintiff did not sanction it. Regarding the prospects of success, I have decided to leave this aspect for determination at the hearing of the main matter under HC1393/08.

Procedurally, once I set aside the order by MTSHIYA J, as I must, the application under HC1393/08 becomes alive again even though I have already heard viva voce evidence on it. In the end, this court shall have to pronounce the fate of the plaintiff and the fate of the assets owned by it. In my view, and without in any way being prescriptive or pre-emptive, some of the issues to be determined in the main application includes the question of whether or not there had been a double sale in the true sense; whether or not the Gurupiras breached the agreement of sale with Sandra Muir by failing to pay the purchase price either timeously or in full; and whether or not that agreement had automatically lapsed.

There is one final aspect of this matter.

When the application was referred to trial and the parties were directed to file further pleadings with the application taking the place of the summons, the Gurupiras, through Manase and Manase, had purported to join John Legget to the matter and had gone on to claim a substantive relief against both him and the plaintiff. It was pleaded that the sale and transfer of the shares in the plaintiff by Sandra Muir to John Legget had been a nullity. The counter-claim was for the reversal of that transfer of the shares.

At the trial, however, counsel for the Gurupiras, wisely, abandoned the counter-claim. John Legget had not been a party to the action. He had not been joined properly. His name had just been inserted in the citation as second defendant. Such crass conduct and wanton disregard of the rules by Manase and Manase properly ought to have attracted a penal order of costs at the very least. However, no such order was asked for. But, it was a correct decision by counsel for the Gurupiras to have abandoned the counter claim.

I believe the year 1989 is a good starting point for the story of one John Chidyiwa, the Managing Director of the plaintiff, and the defendant. Then, the two knew each other as work-mates in the Department of Customs and Excise (as it was then known).

In or about 1993, the two became quite close friends. The friendship grew so close that members of John Chidyiwa's family knew members of the defendant's family and vice versa. The defendant could visit John Chidyiwa's home in Chivhu in the absence of John Chidyiwa and the reverse would also happen. As of May 1997, the friendship between them could be described as excellent. They then went into business together.

In or about May 1997, two Italian nationals approached John Chidyiwa (alone or in the company of the defendant), and encouraged him to start a freighting company. Urgent Services (Private) Limited came into existence. The directors of this company were one Marinella Cernuschi (one of the Italians), John Chidyiwa, and the defendant.

A dispute arose between the parties as to when and how the defendant became a director of Urgent Services (Private) Limited. For the purposes of determining the real dispute between the parties, it is not important that I make a finding in respect of this dispute. In my view, it is sufficient to note that as of May 1997, when Urgent Services (Private) Limited submitted its register of directors and secretaries to the Registrar of Companies, the defendant was listed as a director of the company.

In due course, Urgent Services (Private) Limited became the plaintiff through a change of name in accordance with the provisions of the Companies Act [Chapter 24.03]. John Chidyiwa assumed the position of Managing Director of the company while the defendant became the Operations Manager.

In or about September 1998, six haulage trucks and six trailers were purchased. Three of each were registered in the name of John Chidyiwa with the remainder registered in the name of the defendant. A few days after each registration, the registration of some of the trucks and trailers were amended to add, at the end of each name, the words “trading as U-Freight”.

The circumstances of the purchase and registration of these trucks and trailers form the centrepiece of the legal dispute before me…,.

In or about April 2001, the defendant and the plaintiff parted company. The defendant tendered a letter of resignation, and, upon leaving the plaintiff, indicated, by word and by deed, that he regarded three of the trucks and three of the trailers as his personal property. As a result of this indication by the defendant, few skirmishes occurred on the highways during which trucks were “hi- jacked” by one party from the other, resulting in a number of applications in this and the Magistrates Court, culminating in this action.

The plaintiff has, throughout these applications, maintained that the entire fleet of six trucks and six trailers are its sole and absolute property.

Before I proceed to deal with the matter on its merits, let me get out of the way one procedural issue. This relates to whether or not there is a counterclaim by the defendant in the matter before me.

Counsel for the plaintiff made much about the absence of a counter-claim in the action between the parties under case no HC4250/01. This he raised not necessary as a procedural issue, but as tending to prove that the defendant has never asserted any legal right to the three trucks and trailers registered in his name and some of which are in the possession of the plaintiff.

In my view, the absence of a counter-claim in this matter is an academic issue.

Firstly, the plaintiff is praying for an order declaring it to be the legal owner of the six trailers and the six trucks. A declarator, by its nature, is binding on both parties to the litigation as it merely defines the legal position within which the parties exercise their rights. A finding that the trucks and trailers are the properties of the plaintiff necessarily means that the defendant has no right to them. The reverse also holds true.

Secondly, and more importantly in my view, this matter was referred to trial after the parties attended before a judge in chambers at a pre-trial conference. The issue of the incomplete nature of the proceedings was not raised at the pre-trial conference stage.

Issues for trial were framed using the affidavits filed by the defendant as an outline of his defence. In my view, this is the appropriate stage at which the incomplete nature of the pleadings should have been raised and rectified. To settle the pleadings between the parties is one of the main functions of a judge at a pre-trial conference. 

In an effort not to delay justice between the parties, and with the consent of the plaintiff, I condoned the departure from the rules by the defendant. His opposing affidavits are to be regarded as his plea.