NDOU J: The
single issue which falls for decision is whether, on the facts, the cession of
the stand known as number 30161, Entumbane, Bulawayo by the 1st
plaintiff into the names of the 1st defendant was done of the 1st
plaintiff's free will and volition. The
parties agreed at the pre-trial conference that the onus to prove lack of
volition rested on the 1st plaintiff. During the course of the pleadings the 1st
plaintiff has, procedurally, remained the sole plaintiff after Cain Moyo, who
was the 2nd plaintiff withdrew his claim and opted to abide by the
court's order. Henceforth any reference
to plaintiff will be reference to the original 1st plaintiff.
There is a chequered history to this
matter. Plaintiff's son, one Reggy
Mkandla sold the disputed property to the 2nd defendant in 1984 for
the sum of $2 500,00. Reggy represented
to 2nd defendant that the property was in fact his but registered in
the name of the plaintiff to avoid Bulawayo City Council's by-laws since he
already owned another property under the area of the Bulawayo City
Council. The parties could not
immediately transfer the property into 2nd defendant's names because
at the time there was no agreement of sale between the plaintiff and the
Bulawayo City Council because the latter had not commenced selling the stands
in that area to occupants. Reggy later
reduced into writing his acknowledgement that he had sold/ceded the stand to
the 2nd defendant.
In 1998, at the 2nd
defendant's instance his agent Forget Nkomo and Reggy went to Harare where the
plaintiff was resident to collect her to come and effect the transfer into 2nd
defendant's names. They brought
plaintiff to Bulawayo but the cession was not effected on account of the
above-mentioned problem of agreement of sale.
During the middle of 1999, the 2nd defendant went to Harare
personally to collect plaintiff. When
they got to Bulawayo City Council and they were told the issue of the
agreements of sale was not yet out. The
2nd defendant then sold his right to this property to the 1st
defendant and this was done before the cession from plaintiff to 2nd
defendant. In 2000 2nd
defendant again went to Harare to collect the plaintiff. It was then that plaintiff revealed to him
that she had sold the rights to the property to Cain Moyo. This dispute commenced as a result. A meeting was held involving plaintiff, her
two children Reggy and Precious and 2nd defendant. It was resolved that Cain Moyo should be
refunded his money by plaintiff. Another
meeting was arranged at Cheda & Partners legal practitioners. The 2nd defendant's rights to the
property were asserted and to avoid complications at the Bulawayo City Council
it was agreed that plaintiff should sign the agreement of sale to effect
transfer into 1st defendant's name.
Subsequently, in November 2001 the plaintiff went with the 1st
defendant to the Bulawayo City Council where she signed a consent form to
enable the cession of property into the 1st defendant's name. When the lease agreement from Bulawayo City
Council finally became available, the plaintiff collected it and handed it over
to the 2nd defendant. The
transfer had been effected into the 1st defendant's name. The plaintiff testified that she is 78 years
old. She said that at the time of the
acquisition of the property she was staying at a widows' hostel in Harare's
Lochinvar suburb. Her son Reggy Mkandla,
realizing the miserable life that she was leading, approached her and advised
of his intention to buy her a property in Bulawayo. Reggy then bought her the property in dispute
and had her name registered against the property. She said she regarded the property as
hers. She said at some stage a woman
known as Violah came to see her in Harare claiming to have bought the same
property from the 2nd defendant.
She came to Bulawayo to see 2nd defendant whereupon she
discovered that there other people who had already taken occupation of the said
property with the blessing of the 2nd defendant. These people, she said, were in occupation at
the instance of Cain Moyo. Cain Moyo,
too, claimed to have bought the same property from the 2nd
defendant. When Cain Moyo realized that
she was indeed the registered owner of the rights in the property he then
opened negotiations with her about the sale of the said property. She said that was the beginning of her troubles
with 2nd defendant. She later
sold the property to Cain Moyo and received the full purchase price of $144
000. The 2nd defendant would,
therefore, incessantly visit her in Harare to fight over the property. She said eventually she was worn out of the
troubles and decided to relocate to Bulawayo but the 2nd defendant
would not relent. He visited her at her
Pelandaba house now and again demanding that she cedes the property into his
name. She said at some stage he
threatened to take her to his legal practitioners to which she agreed, knowing
that she had nothing to fear. She said
the dispute eventually spilled into the offices of Messrs Cheda and Partners
where legal practitioners Mr B. Ndove and G Nyoni were representing 2nd
defendant and Cain Moyo respectively.
She said meetings were arranged where attempts were made to resolve the
impasse about who between Cain Moyo and 2nd defendant would legally
be entitled to claim cession of the property.
In one of these meetings, she alleged her son Reggy also attended to
clear the question of ownership of the property. She said pursuant to a series of events she
was later called to the offices of Cheda and Partners where she was made to sign
a document. She said she would later
learn of the documents as being an agreement of sale dated 7 January 2000
between her and the 1st defendant.
She said she got to know of this development after a secretary with the
said legal practitioners asked her whether she was the seller in the papers
drawn up for signing. She said upon
realizing that she had been made to sign, unknowingly, an agreement of sale she
then took the legal practitioners concerned to task about the feasibility of a
double sale since she had already sold the same property to Cain Moyo and had
no reason to cancel the earlier sale.
She said she was told that once signed by her, the deal was done and
that was the end of the matter.
Thereupon she said she proceeded to
the offices of Mr G Nyoni who was representing Cain Moyo to relate her ordeal
of having been made to sign an agreement of sale in favour of the 1st
defendant without being aware of that fact.
She said on the last date of her agony at the hands of the 2nd
defendant certain words were uttered which compelled her to accompany 2nd
defendant to the Bulawayo City Council offices with a subdued mind. She narrated that the threatening utterance
were to the effect that the 2nd defendant would “take a woman and be
intimate with her in front of the plaintiff.”
This, he is alleged to have said whilst drawing a sign of a cross on his
forehead. She said this scared her to
such an extent that she signed the cession of the disputed property in favour
of the 1st defendant. She
said at Bulawayo City Council Housing Office she was virtually a passenger in
the unfolding process. It was the 2nd
defendant who in fact answered questions put to, and meant for her, in the
affirmative. She said she was at that
stage weary of 2nd defendant's threats. She said she wanted it to pass. Under cross-examination she said she did not
report 2nd defendant's threats to the police or bring them to the
attention of Bulawayo City Council Housing Officers because she had referred
the matter to her legal practitioners.
Apart from the above alleged duress, it can be discerned from her
testimony that she implies that she signed the agreement of sale at the offices
of Cheda and partners mistakenly. She
said in her mind the meeting was about the improvements that the 1st
defendant had made on the disputed property.
She said she would not have signed had she known the true contents of
the documents. She said she was coerced
by the 2nd defendant and misled by his legal practitioners to sign
the documents ceding the disputed property into the names of the 1st
defendant. I find the allegations by the
plaintiff not credible. First, the
alleged duress took place over a long period of time thus giving her an
opportunity to bring it to the attention of the law enforcement agents. She would have made a report to the police or
her own legal practitioner at the time of the alleged threats and not after she
had squandered the purchase price from Cain Moyo. Second, her two adult sons Reggy and Precious
were involved at some of these meetings and were well aware of the 2nd
defendant's position throughout. When
she was first collected from Harare to come to sign the cession in Bulawayo,
she was collected by her own son, Peggy and 2nd defendant's agent
Forget Nkomo. This is not consistent
with someone being coerced unless if she claims her own son was also coercing
her. The involvement of Reggy is
consistent with him having sold the property to the 2nd
defendant. Further, she would have
refused to come to Bulawayo a year later when Forget Nkomo went to collect her
for the same purpose. Further, she
signed the agreement of sale ceding the disputed property into the names of the
1st defendant with her own son Precious signing as a witness. This was done at Cheda and Partners legal
practitioners yet she did not dispute its contents.
Further, on a separate date she
accompanied the defendants to the housing Office to sign consent papers to cede
the disputed property into the names of the 1st defendants. Before they went to the Housing Office they
first went to see her son Reggy at his plot in Lockview. This is not the conduct of people who were
coercing her. Further, Reggy acknowledged
in writing that he sold the property to 2nd defendant. It is worthy to note that the plaintiff
herself does not dispute that the house was bought by her son, Reggy. She admits to this, but quickly points out
that the property was donated to her by her son. Why would Reggy sell the property? The only credible explanation is the one
given by the 2nd defendant that plaintiff names were only to conceal
from the relevant housing officers that the true purchaser was in fact Reggy
who already had another property in the Bulawayo City Council's area, a thing
not permissible under the latter's regulations.
The 1st defendant testified that he bought the
property from the 2nd defendant sometime in 1999 for the sum of $450
000,00. He paid a deposit of $50 000,00
and the balance was settled after the completion of the cession process. He said that he was indeed informed that the
property was registered in the names of the plaintiff but in actual fact
belonged to Reggy Mkandla, who is plaintiff's son. He said he was informed that Reggy Mkandla
had sold the property to 2nd defendant and had not been able to
effect cession to his name because the requisite documents to enable such
cession to occur were not available. He
said that the earlier meetings between the other parties were personally
unknown to him except the one at the offices of Cheda and Partners. In that meeting he got an assurance that he
will get the property and an agreement of sale was signed and backdated to the
time of payment of the first installment of $50 000,00. This agreement was signed by the plaintiff
and witnessed by her son Precious Mkandla.
He said he never had direct dealing with the plaintiff, and that is why
on 20 May 2002, the day of cession, he was collected by the 2nd
defendant who was in the company of the plaintiff and another person to go to
the Housing Office. He said at the
Housing Office the plaintiff was asked as to whether she was the owner of the
property to which she agreed and also to the fact that she sold it. This testimony was uncontroverted. He said he was not aware of any duress on the plaintiff. I am satisfied that he gave his evidence
well. He gave a consistent and credible
account of how the property was eventually ceded to his names.
The 2nd defendant
testified. He said he bought the
property from Reggy and sold it to the 1st defendant. In his evidence he points out the following
pertinent points. He sent and financed
Reggy and Forget Nkomo to travel to Harare to collect plaintiff to come and
sign cession papers. He also attended
the meeting at Cheda and Partners were the agreement of sale was signed. He also collected the plaintiff from her home
and took her to Reggy's plot and then to the Housing Office to effect the
cession. He vehemently denied any
implications of duress. Under
cross-examination he said that at all times before contacting or dealing with
plaintiff, he would contact her son Reggy.
He said at all times the plaintiff never indicated that she was an
unwilling party to the process. He
denied ever threatening to bed a woman in front of the plaintiff and indicated
that he treated the plaintiff as his own grandmother. I find that the 2nd defendant is a
credible witness. His conduct throughout
is not consistent with someone placing another under duress.
As alluded to above, the merx, stand number 30161 Entumbane,
Bulawayo is currently registered under the names of the 1st
defendant. The plaintiff has to prove
that the cession was done with duress.
If she fails, the cession is confirmed, if she succeeds, the cession would
be reversed. To discharge the onus, the
plaintiff has to show that:
(a)
The threats were
directed towards her and/or her family;
(b)
The threats must
be directed towards the formation of the contract, that is the conclusion of
the contract must be induced by fear or threat of harm;
(c)
The threats must
be ongoing, that is performance should be done whilst still under pressure, not
when the pressure has ceased;
(d)
The threats must
pose imminent danger to the threatened; and
(e) The threats must be exercised unlawfully or contra-bonos mores.
AJ
Kerr -The General Principles of the Law
of Contract (4th Ed) (1989) at pages 238-245.
The law is that a contract which is
induced by duress, metus, is not void
ab initio but is voidable at the
option of the coerced party – R H Christies – The Law of Contract in South Africa (2nd Ed) at 367, Smith v Smith 1948 (4) SA 61 (N) at 67-8 and Broodryk v Smuts 1942 TPD
47 at 53. The onus, as alluded to above,
is on the plaintiff to prove that the improper pressure is of a kind and severity
recognised by law in this context – Savvides
v Savvides & Ors 1986 (2) SA 325
(T); Dr Fergusson & Partners v Zimbabwe Federation of Trade Unions &
Ors HB-57-04.
From my above findings, the
plaintiff has dismally failed to discharge the onus. She failed to prove that the cession was
induced by duress or mistake.
Accordingly, the plaintiff's claim is dismissed with
costs.
Shenje & Company, plaintiff's legal practitioners
James, Moyo-Majwabu & Nyoni, 1st
and 2nd defendant's legal practitioners
