Counsel for the appellants, citing authorities which will be analysed below, submitted that the court a quo erred and misdirected itself when it granted relief which had not been sought by either party.

Counsel for the first respondent and counsel for the fourth respondent supported the court a quo's decision without legally establishing the court a quo's authority to grant orders not sought by the parties.

The fact that the court a quo granted orders not sought by the parties can be demonstrated by comparing the orders sought by the parties and the orders granted by the court a quo.

In terms of their application and the subsequent notice of amendment the appellants, who were the applicants in the court a quo, sought the following relief:

1. “Deed of Transfer No.3030/06, held in the name of Dzingai Kashumba, be and is hereby cancelled and title in respect of the remainder of Subdivision 'A' of Subdivision 'F' of Quinington of Borrowdale Estate should revert back to the second, third, and fourth Applicants.

2. Deed of Transfer No.773/2011, in the name of Tafirenyika Kambarami, be and is hereby cancelled and title in respect of Stand 553 Quinington Township of Subdivision A of Subdivision F of Quinington of Borrowdale Estate reverts back to second, third, and fourth Applicants.”

Through her opposing affidavit, Cecilia Kashumba merely sought the dismissal of the applicants' application.

The fourth respondent, in his opposing affidavit, also merely sought that the applicants' application be dismissed with costs.

In the determination of the application before it the court a quo made the following orders:

“1. It is hereby declared as follows:

1.1 That the Deed of Sale between the first applicant and the Late Dzingai Kashumba (hereinafter referred to as “the deceased” on 11 and 12 May 1999 in respect of the property described as Stands 552 and 553 Quinington Township of Subdivision A of Subdivision F of Borrowdale Estate, measuring 3,999 square metres and 4,002 square metres respectively (hereinafter referred to as “the original property”, was never cancelled.

1.2. That the balance of the purchase price due and owing by the deceased to the first applicant, as at 9 May 2001, in respect of the Deed of Sale aforesaid, was never paid.

1.3. That the transfer of 3 May 2006, in favour of the deceased, of the two properties known as certain pieces of land situate in the District of Salisbury, respectively called Stands 552 and 553, Quinington Township of Subdivision A of Subdivision F of Quinington of Borrowdale Estate, respectively on Deeds of Transfer Nos.3030/2006 and 3031/2006 (hereinafter referred to as “Stands 552 and 553 Quinington Township”) was unlawful and therefore invalid.

1.4 That the subsequent transfer of Stand 553 Quinington Township on Deed of Transfer No.773/2011 on 17 February 2011 in favour of Tafirenyika Kambarami, was unlawful and therefore invalid.

1.5 That the balance of the purchase price outstanding, due and owing by the deceased to the first applicant as at 9 May 2001 in respect of the sale and purchase of the original property was in the sum of ZW$503,573=02, being the total of ZW$337,178=77, reflected on the deceased's cheque subsequently rejected by the first applicant, and ZW$166,394=25 subsequently found by the arbitrator to have been the shortfall on the cheque amount aforesaid.

2. Notwithstanding the declaration of invalidity of the transfers referred to in paragraph 1 above, but subject to paragraphs 3, 4, 5 and 6 below, if the 1^st respondent pays, or causes to be paid, to the applicants, or one or other of them, the one receiving payment, the others to be bound, the equivalent of the balance of the purchase price referred to in paragraph 1.5 above in the functional currency current at the time of payment, together with interest thereon as envisaged herein, then the title deeds in respect to which the transfers aforesaid have been declared unlawful and invalid shall not be set aside, and the declarations of invalidity herein shall automatically lapse.

3. Unless the equivalent amount of the balance of the purchase price referred to in paragraph 1.5 above is otherwise agreed to in writing within thirty (30) calendar days of the date of this order, or such other extended period not exceeding a further thirty (30) calendar days as they may agree to in writing, the parties shall engage the Commercial Arbitration Centre in Harare solely to determine the equivalent amount of that balance, in any of the functional currencies, and the decision of the arbitrator shall be final and binding.

4. The first respondent shall pay the equivalent amount of the balance of the purchase price referred to above within thirty (30) days of the date the amount is ascertained either by agreement between the parties, or through determination by arbitration as contemplated by paragraph 3 above, together with interest thereon at the prescribed rate from the date of such agreement or determination, whatever the case might be, to the date of payment.

5. In the event that the first respondent fails or neglects to pay as envisaged in this order, then the applicants, or one or other of them, shall ipso facto, forthwith have the right to declare, in writing, the immediate and automatic cancellation of the Deed of Sale aforesaid and, without prejudice to any other rights they might have at law, shall be entitled to keep as rouwkoop all such monies as they might have received as purchase price for the original property.

6. Subject to any rights to compensation for improvements that they have in the event that the title deeds mentioned herein have been cancelled as aforesaid, the first and fourth respondents, and all those claiming occupation through them, shall, within thirty (30) calendar days of the date of such cancellation, vacate, the respective properties occupied by them, failing which the Sheriff of Zimbabwe, or his lawful deputy or assistant deputies, or such of his agents as might be duly authorized by him, shall be empowered, authorized and directed to evict the aforesaid respondents and all those claiming occupation through them.

7. Save and except for the fourth respondent, whose costs of suit shall be borne by the first and second respondents, jointly and severally, the one paying the other to be absolved, each party shall bear its own costs”….,.

It is clear from the court a quo's orders that some of the orders it granted had not been sought by either party. It is also clear that the parties had not made submissions for or against those orders. They were granted mero motu by the court a quo. It did so without seeking the parties' views on those orders. There is no doubt that the court a quo exceeded its mandate which was to determine the issues placed before it by the parties through pleadings and proved by the evidence led.

The function of a court is to determine disputes placed before it by the parties. It cannot go on a frolic of its own. Where a point of law or a factual issue exercises the court's mind but has not been raised by the parties or addressed by them either in their pleadings, in evidence, or in submissions from the bar, the court is at liberty to put the question to the parties and ask them to make submissions on the matter.

In Welkom Municipality v Masureik and Herman T/A Lotus Corp 1997 (3) SA 363…, MARAIS JA commenting on what the court should base its decision on said:

“I should add that whether or not South Africa did or did not fail to do so is a question of fact upon which there was no evidence before the court a quo, and for reasons too obvious to require enumeration, the learned Judge was not entitled to enquire into this issue of fact after reserving judgment and without any reference to the parties, and then to decide it. Compare Kauesa v Minister of Home Affairs and Others 1996 (4) SA 965 (NmS) at 973H–974C.”…,.

In the Namibian case of Kauesa v Minister of Home Affairs and Others 1996 (4) 965 (NmS) DUMBUTSHENA AJA…, said:

“The above matters are not crucial to the determination of this appeal. They are, however, important because a frequent departure from counsel's, more correctly, the litigant's case, may be wrongly interpreted by those who seek justice in our courts of law. It is the litigants who must be heard and not a judicial officer.

It would be wrong for judicial officers to rely for their decisions on matters not put before them by litigants either in evidence or in oral or written submissions. Now and again a Judge comes across a point not argued before him by counsel but which he thinks material to the resolution of the case. It is his duty in such a circumstance to inform counsel on both sides and invite them to submit arguments either for or against the Judge's point. It is undesirable for a court to deliver a judgment with a substantial portion containing issues never canvassed or relied on by counsel.

To produce a wide–ranging judgment dealing with matters not only extraneous and unnecessary to the decision but which have not been argued is an exercise full of potential pitfalls and the judgment of the court a quo has placed this court in a difficult position.

Are we to consider every opinion expressed in the judgment, however unnecessary it was to the decision and say whether it accords with our own? Or can we leave such matters well alone until such time as they become necessary to decide and are fully argued?

In our view, the latter course is the proper one to take and in doing so we emphasize that it must not be thought that this Court in any way approves or endorses the many obiter opinions expressed in the judgment of the court a quo.”

Before leaving this aspect of the appeal I consider it appropriate to refer to what was said by BHAGWATI J…, in M.M. Pathak v Union (1978) 3 SCR 334 in relation to the practice of the Supreme Court of India:

“It is the settled practice of this Court to decide no more than what is absolutely necessary for the decision of a case.”…,.

In Groenewald NO and Anor v Swanepoel 2002 (6) SA 724…, PICKERING J, commenting on what a judicial officer should do if he wants to take into consideration issues not covered in pleadings, evidence and submissions of the parties said:

“It was therefore the duty of the learned Judge to have informed plaintiff's counsel of the relevant point, more especially where that point was, in her view, conclusive of the matter, and to have invited him to submit argument to her. Had she done so counsel would no doubt have been in a position to address her concerns and the necessity for this appeal may well have been obviated.

Secondly, the remark made by the learned Judge concerning the alleged arrest of the defendants was not based on any averment made in either the pleadings or the evidence adduced before her at the hearing or in the course of argument by Mr Pretorius. It would appear that she must have gleaned this information from some outside source. It hardly needs stating that a judge may only have regard to the evidence placed before him or her during the course of the hearing and that a reliance on facts not averred in the pleadings or raised in court constitutes a serious misdirection.”…,.

I respectfully agree with the views expressed in the authorities referred to above.

The function of a court is to determine the dispute placed before it by the parties through their pleadings, evidence, and submissions. The pleadings include the prayers of the parties through which they seek specified orders from the court.

This position has become settled in our law.

Each party places before the court a prayer he or she wants the court to grant in its favour. The Rules of Court require that such an order be specified in the prayer and the draft order. These requirements of procedural law seek to ensure that the court is merely determining issues placed before it by the parties and not going on a frolic of its own. The court must always be seen to be impartial and applying the law to facts presented to it by the parties in determining the parties' issues. It is only when the issues or the facts are not clear that the court can seek their clarification to enable it to correctly apply the law to those facts in determining the issues placed before it by the parties.

The judgment of the court a quo unfortunately fell short of these guiding principles. In seeking to find middle ground, the court a quo granted orders which had not been sought by either party. It granted the first and fourth respondents a further grace period and a referral to arbitration. The first and fourth respondents had not sought such orders.

Such orders cannot be sustained at law.

They seem to have been motivated by equity and sentiments of justice rather than the law and the facts, as demonstrated by the court a quo's narration of the exploits of the legendry “judge jackal” in setting free a man who was about to be eaten by a leopard he had rescued from a trap.

Where a court is of the view that an order not sought by the parties may meet the justice of the case, it must put that possible relief to the parties and allow them an opportunity to address it on such an order.

In Proton Bakery (Pvt) Ltd v Takaendesa 2005 (1) ZLR 60 (S)…, GWAUNZA JA said:

“The appellant argues, in the light of all this, that the action of the court a quo, in reaching a material decision on its own, amounted to gross irregularity justifying interference by this court on the principles that have now become trite.

I am, for the reasons outlined below, persuaded by this argument…,.

The misdirection on the part of the court a quo is left in no doubt. It is my view, so serious as to leave this Court with no option but to interfere with the determination of the lower court.”

The determination by the court a quo, of matters not placed before it, goes against a litigant's right to be heard and this view is supported in the fourth edition of Judicial Review of Administrative Action by J. M. EVANS…, where it was highlighted that the principle that “no man is to be judged unheard” is an age-old view adopted from the ancient Greeks. This principle has been adopted in our system under the audi alteram partem rule.

Therefore, the fact that the respondents are not taking issue with the court's mero motu decision is neither here nor there. This irregularity militates against the validity of parts of the judgment of the court a quo.

The “grace period” of thirty days granted to the first respondent by the court a quo has no founding at law and cannot be legally justified. The initial thirty days awarded by BARTLETT J were in terms of the Contractual Penalties Act. The purchaser, having already been granted this thirty-day period in terms of the law, cannot be granted a further thirty-day period not provided for in terms of the law to the prejudice of the seller on no legal basis.

Judicial discretion should at all times remain guided by the dictates of the law.

A court is not entitled to determine a dispute placed before it, wholly based on its own discretion, which is not supported by the issues and facts of the case. It is required to apply the law to the facts and issues placed before it by the parties.

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 first, third, and fifth respondents, on the other hand, made submissions to the following effect:

The submissions by counsel for the applicant, about the inapplicability of the Regional, Town and Country Planning Act have already been considered and rejected by the Supreme Court in X-Trend-A-Home (Pvt) Ltd v Hoselaw Investments (Pvt) Ltd 2000 (2) ZLR 348 (S).

In casu, on Deed of Transfer 1597/07, the causa is given as a sale. He also highlighted that both the Deeds Registries Act and the regulations made in terms thereof require that each deed of transfer must, on the face of it, disclose the cause of the transfer and that this is what, in conveyancing terms, is referred to as the causa clause.

Such causa must be valid otherwise the resultant Deed, if based on an invalid causa, is necessarily invalid.

The Deeds Registries Act and the Regional, Town and Country Planning Act are complementary, and, a causa which is invalid by reason of breach of the Regional, Town and Country Planning Act is necessarily invalid for purposes of the Deeds Registries Act.

He quoted the famous “you cannot put something on nothing and expect it to stay there” statement by LORD DENNING in Macfoy v United Africa Co Ltd [1961] 3 ALL ER 1169 (PC)…,.

Counsel for the first, third, and fifth respondents submitted, that, the applicant is in fact seeking to enforce an illegal contract and that that is another reason why the application must fail as the maxim ex turpi causa applies and cannot be relaxed in the circumstances....,.

The respondents represented herein raised the point that the applicant's case is premised on an agreement of sale which is void ab initio for the reason that the sale was conditional upon the grant of a subdivision permit in terms of the Regional, Town and Country Planning Act [Chapter 29:12].

It was submitted, that, the Regional, Town and Country Planning Act specifically proscribes such agreements and that both the Supreme Court and the High Court have held such agreements are void ab initio.

It was submitted that it follows, therefore, that nothing can be founded thereon and the applicant cannot seek to enforce that which he does not have.

In support of these submissions, the following cases were cited. inter alia: Macfoy v United Africa Co Ltd [1961] 3 ER 1169 (PC) at 1121 where LORD DENNING stated:

“If an act is void, then it is, in law, a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It as automatically null and void without more ado, although it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

In Muchakata v Netherburn Mine 1996 (1) ZLR 153 KORSAH JA stated:

“If the order was void ab initio it was void at all times and for all purposes. It does not matter when and by whom the issue of its validity is raised; nothing can depend on it.”

In X-Trend-A-Home (Pvt) Ltd v Hoselaw Investments (Pvt) Ltd 2000 (2) ZLR 348 (S) McNALLY JA, having revisited the history of section 39 of the Regional, Town and Country Planning Act sated at 355A-D:

“The agreement with which we are concerned is clearly 'an agreement for the change of ownership' of the unsubdivided portion of a stand. What else could it be for? Whether the change of ownership is to take place on signing, or later on an agreed date, or when a suspensive condition is fulfilled, is un-important.

It is the agreement itself which is prohibited.

The evil which the statute is designed to prevent is clear. Development planning is the function of planning authorities, and it is undesirable that such authorities should have their hands forced by developers who say 'but I have already entered into conditional agreements; major developments have taken place; large sums of money have been spent. You can't possibly now refuse to confirm my unofficial subdivision or development.'”...,.

The following are the facts which emerge from the papers and upon which this matter will be determined:

(i) Firstly, the applicant purchased the property in issue from the estate, as represented by the executrix testamentary. The first respondent, on the other hand, purchased the same property, purportedly from the same estate, but, in his case, the estate was represented by the executor dative.

It is an undisputed fact that the executor dative was appointed to the office while the executrix testamentary was still alive, holding office, not incapacitated, and still sane. Neither had the executrix testamentary been removed from office.

(ii) Secondly, the applicant's agreement of sale preceded that of the first respondent.

(iii) Thirdly, it is also clear from the papers that the property was registered into the applicant's name on 2 April 2007 by Deed of Transfer 1597/2007 while the transfer to the first respondent was done 3 (three) months later, on 4 July 2007, by Deed of Transfer 4079/2007....,.

None of the arguments raised by the first respondent, as detailed earlier in this judgment, can be of any avail to the first respondent in the face of the above-stated and established facts.

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 ground of appeal…, states that Article 34 of the Arbitration Act [Chapter 7:15] is unconstitutional, as it fails to uphold the right to equal protection and benefit of the law guaranteed in accordance with section 56(1) of the Constitution of Zimbabwe Amendment (No.20) Act, 2013. 

The ground of appeal raises a Constitutional question which was never before the court a quo. 

Counsel for the appellant persisted with this ground of appeal and urged the Court to find that Article 34 of the Arbitration Act [Chapter 7:15] is a violation of the appellant's rights.

This submission is erroneous.

A Constitutional question cannot be raised as a ground of appeal as it should arise in the context of proceedings. The Supreme Court is a court of record and deals with issues that were before the court of first instance. A Constitutional question does not just arise on appeal because it is merely contemplated in the mind of a litigant. It should be properly raised in the court a quo for the Court to determine it.

The Court will also state that this is a classic display of mala fides by the appellant as it is clear that, having seen that its application in terms of the provision failed, it now seeks an order declaring the same provision unconstitutional.

It is trite that where there are two courses of action open to a litigant, as the appellant had, to either challenge the constitutionality of Article 34 of the Arbitration Act [Chapter 7:15] or apply for the setting aside of the arbitral award in terms of that provision, and it unequivocally elected to take one of them, it cannot turn round afterwards and take the other course of action. The point was made in S v Marutsi  1990 (2) ZLR 370…, that:

“It is trite that a litigant cannot be allowed to approbate and reprobate a step taken in the proceedings. He can only do one or the other, not both.”