On
27 August 2007, one Fefa Michael Moyo – who was being represented by his wife Ruth
Nyathi – the applicant, entered into a Memorandum of Agreement of cession with
the first respondent Hilda Mhlanga wherein she bought the rights, title and
interests of Fefa Michael Moyo in the property known as Stand 3174 Nkulumane,
Bulawayo.
According
to the Memorandum of Agreement, Ruth Nyathi derived the authority to represent
her husband through a general power of attorney granted to her by Fefa Michael
Moyo on 28 April 2000.
The
purchase price was $1.5 million which was paid in full by a cash payment when
the Agreement was signed.
In
terms of the Memorandum of Agreement, the seller was supposed to cede his
rights, title and interest upon signing of the Agreement. He was also supposed
to give vacant possession of the property within three (3) months of the
signing of the Agreement, which was by 1 December 2007.
The
seller failed to honour his side of the agreement whereupon the buyer i.e. Hilda
Mhlanga sought and was granted an order on 27 March 2008 against Fefa Michael
Moyo. He was ordered and directed to proceed to the Housing Office at Nkulumane
within five days of service of the order and sign all necessary papers to cede
his rights, title and interest in the said property to Hilda Mhlanga. In the
event of him failing to do so the Deputy Sheriff, or her lawful assistant, was
ordered and directed to do so. Fefa Michael Moyo and all those claiming through
him were evicted from the said property. An award of costs on an attorney and
client scale was made against him.
The
judgment was granted by default.
When
notice to evict Fefa Michael Moyo and all those occupying the property through
him was issued Ruth Nyathi applied for, and was granted, a provisional order on
24 July 2008 stopping her ejectment from the property.
On
14 August 2008, she filed a court application seeking condonation for the late
noting of an application for rescission of the default judgment granted on 27
March 2008 under HC300/08 and its rescission. She sought, in addition, leave to
file opposing papers in respect of that case within 10 days of granting of this
order.
Hilda
Mhlanga, through her legal representative, raised a point in limine pointing out that Ruth Nyathi had no
locus standi to file both the urgent application and the court application.
Firstly,
when she entered into the Memorandum of Agreement of Sale she represented her
husband, Fefa Michael Moyo, by power of attorney granted to her by him. She did
not get authority to institute proceedings on her own behalf. She was not a party to the proceedings in
case HC300/08 wherein Fefa Michael Moyo was ordered and directed to sign all
the necessary papers for the cession of his rights, title and interest in the
said property. She, therefore, could not seek the rescission of a judgment to
which she is not party. Order 9 Rule 63 of the High Court Rules only relates to
a party against whom judgment has been granted in default. It states:
“A
party against whom judgment has been given in default, whether under these
rules or under any other law, may make a court application, not later than one
month after he has had knowledge of the judgment, for the judgment to be set
aside.”
The
provisions of Order 49 Rule 449(1) of the Rules of Court would also not avail
her either. The provisions would only avail a party affected by a judgment to
seek its correction, rescission or variation where:-
(a)
The judgment was erroneously sought or erroneously granted in the absence of
such party; or
(b)
There is an ambiguity or patent error or omission but only to the extent of
such ambiguity, error or omission; or
(c)
It was granted as the result of a mistake common to the parties.
The
judgment, in casu, was neither
granted no sought in error. It is a clear judgment with no error, omission or
ambiguity. It was not granted as a result of a mistake common to the parties.
Further,
Ruth Nyathi claims occupation through her husband not through her own right. It
is, therefore, Fefa Michael Moyo alone who can institute proceedings against
his eviction from the property. She could only institute proceedings as Fefa
Michael Moyo's agent - which is not the case here. Consequently, she lacks the
locus standi to institute these proceedings.
Her
case is equally devoid of any merit. Firstly, she entered into a Memorandum of Agreement
of Sale of the property as an agent of her husband using a power of attorney
and received the full purchase price.
She now turns round that she had no authority to sell the property and
alleges that the power of attorney was a forgery. It must have been forged by
someone else and was in fact not granted to her by her husband.
She
adduced no evidence from her husband to support her story.
On
the other hand, Hilda Mhlanga filed two affidavits from one Phanuel Pfende and
Dick Mbulaye who actually witnessed Ruth Nyathi producing the power of attorney
and was handed a sum of R48,000=. She also
alleged that she repaid the purchase price through one Mr Ncube whom she denied
was her agent. The evidence, on the papers filed of record, clearly shows that
he was her agent. She alleged that she had received R47,000= instead of R48,000=.
The evidence of Phanuel Pfende and Dick Mbulaye is that she received R48,000=.
In
the light of the foregoing I would issue the following order. It is ordered
that:-
(1)
The applicant in case number HC1617/08 be and is hereby dismissed with costs on
an attorney and client scale; and
(2) The provisional order granted by this court
on 24 July 2008 be and is hereby discharged with costs on an attorney and
client scale.
