The dispute in casu is steeped in the sale of a deceased immovable property whose purchase price was paid by the applicant but transfer of which the respondent failed to effect. The draft order the applicant seeks is couched in these words:

“IT IS HEREBY ORDERED THAT:

1. The respondent is hereby ordered to deliver and register a four roomed house; comprising two bedrooms, kitchen, dining room and a toilet in either Nyameni, Dombotombo, Rujeko or Rusike high density Suburbs of Marondera, to the plaintiff (sic) within thirty (30) working days of this order.

2. In the event of the respondent failing to perform in accordance with para 1 above, the applicant is hereby empowered to execute this order against respondent's property.

3. The respondent to pay costs of suit on a client legal practitioner scale.”

THE FACTS

The respondent is a co-director of Pricassons Investments (Pvt) Ltd, a company, as can be gleaned from its letterheads, whose core business is buying and selling of Stands and houses, developers and brokers, driving school, car hire, dealers in imported new and used cars, trucks and mini buses and construction of agreements of sale.

In December 2007, the respondent, acting on behalf of Joseph Tsamwayi, the appointed executor of the estate of the late Patrick Tsamwayi, entered into an agreement of sale with the applicant in terms of annexure A1-A5 wherein the applicant purchased Stand Number 8 Dziva, Dombotombo, Marondera for a purchase price of Z$18 billion. The salient terms of annexure A1-A5 are:-

(i) Clause 2(c), providing that all the moneys shall be deposited into Pricassons (Pvt) Ltd's Standard Chartered account number 0100254284900;

(ii) Clause 9, providing that in the event of the seller breaching any term or condition of this agreement and the seller fails to remedy the breach within 7 days of written notice to do so, then, without prejudice to his rights at law, the purchaser shall be entitled to either cancel the agreement and claim damages which shall be equal to the value of purchasing a similar comparable property at the time of such claim or seek an order of specific performance;

(iii) Clause 10, providing that the seller shall cede all rights in the property to the purchaser within three months of signing this agreement which time it is anticipated the seller would have been issued with the certificate of authority by the Master of the High Court; and

(iv) Clause 11, providing that the agent, Mr Patson Nawasha, of Pricassons (Private) Limited hereby undertakes and guarantees that the seller will perform as per the agreement, and, in the event of any material breach, he will be jointly responsible with the seller in paying damages to the purchaser.

The applicant paid the full purchase price for the house, which was brick under asbestos, composed of two bedrooms, kitchen, lounge and toilet.

The respondent failed to fulfil his part of the agreement and admitted that he had sold a deceased estate house which had a dispute – the minor children of the deceased having refused to approve of the sale.

On 4 July 2008 the parties signed a Memorandum of Understanding (annexure 'B') clause two of which stipulated that the respondent would deliver to the applicant an alternative house within 14 days of signing of the memorandum. Despite this undertaking, the respondent still did not deliver the alternative house. On 26 July 2008 the respondent wrote to the applicant and her then husband, Gideon Muchada, reiterating that he wanted to honour his undertaking in annexure 'B' vide annexure 'C'. However, to date the respondent has not fulfilled his undertaking.

THE DEFENCE

In his opposing papers, as well as the heads of argument, the respondent basically raised three issues or defences.

The first is that there exists a material dispute of fact which cannot be resolved on the papers without hearing viva voce evidence. This is premised on the allegation by the respondent that the applicant averred that the respondent knew that the estate property had a dispute and despite that knowledge he fraudulently misrepresented to the applicant to enter into the contract of sale. Because the respondent disputes this averment this necessitates the hearing of viva voce evidence.

The second issue raised is one of supervening impossibility. This is premised on the fact that the purchase price was deposited into the respondent's trust account and it remained there until the Zimbabwe dollar currency became moribund through no fault of the respondent. This was out of his control hence constitutes a supervening impossibility to perform. He could not provide the alternative house he had guaranteed to do because the purchase price paid had been rendered valueless.

The third issue raised relates to non-joinder of the principal, viz Joseph Tsamwayi. For this averment, the respondent relies on clause 11 of the agreement of sale alluded to supra, viz that in the event of any material breach of the agreement by the seller the respondent will be jointly responsible with the seller in paying damages to the purchaser. The non-joinder of the seller, so the argument went, is fatal to the application.

Mr Mahuni is from the law firm Matsanura and Associates who are corresponding attorneys of Messrs Laita and Partners representing the respondent. The latter firm drafted the respondent's opposing papers including the heads of argument. At the hearing of argument Mr Mahuni conceded, correctly in my view, that the averments that there exist a material dispute of fact and also supervening impossibility have no legal leg to stand on. The concession's propriety is hinged on the fact that the alleged material dispute of fact is misplaced because the applicant's cause of action is founded not on the agreement of sale annexure 'A1-A5' but on annexures 'B' and 'C' and also that for more than a year the purchase price lay in the respondent's trust account without the respondent either purchasing an alternative house for the applicant or reversing the transfer of the deposited funds.

The sole issue that is left for my resolution is the one relating to the alleged non-joinder of the principal.

THE LAW AND ITS APPLICATION TO THE FACTS

In Wood v Visser 1929 CPD 55 WATERMEYER J…, restated the general rule regarding the liability of agents in these words:-

“The general rule, undoubtedly, is that a person contracting with an agent can only sue the principal on that contract, but, in some cases, he can sue the agent; if, for example, he contracts with the agent as a principal, makes him his debtor and gives credit to him and not to his principal, then he can sue the agent personally on such contract.”

See also Blower v Van Noorden 1909 T.S. 898 where INNES CJ said:-

“The usual test would be to enquire to whom the contracting party looked. Nam in talibus contractibus semper inspictur cujus fides secuta sit. That would be the governing principle.”

In clause 11 of the agreement of sale quoted above, the respondent holds himself out as a guarantor and surety, and will be “jointly responsible with the seller in paying damages to the purchaser” in case of a material breach of the contract. He thus makes himself a co-principal debtor.

In Neon & Cold Cathode Illuminations (Pty) Ltd v Ephron 1978 (1) SALR 463 it was held that the only consequence (albeit an important one) that flows from a surety also undertaking liability as a co-principal debtor is that vis-à-vis the creditor he thereby tacitly renounces the ordinary benefits available to a surety, such as those of excussion and division and he becomes liable jointly and severally with the principal debtor…,. See also CANEY's The Law of Suretyship In South Africa, Juta and Co. Ltd 3^rd ed. 1982…,.

In the instant case, it is beyond caevil that the unassailable interpretation that must be gleaned from the wording of clause 11 of the agreement of sale is that by holding himself out as a guarantor and surety, followed by his conduct of retaining the purchase price in his company's trust account for some 13 months, coupled with his undertaking in annexure 'B' as “agent and guarantor in the main agreement of sale…, to secure for the purchaser an alternative property within 14 days from the signing of this agreement”, the applicant purchaser looked to the respondent not only as a co-principal debtor, but, through novation, via annexure 'B', as the sole debtor who could be sued in either instance alone without joining the principal or original principal as the case may be.

In any event, by agreeing to be a co-principal debtor, the respondent tacitly renounced the benefit of excussion, and, consequently, it is idle for him to now clamour or grope for it.

The applicant is perfectly entitled, at law, to proceed against either party at her discretion. The party successfully sued may be reimbursed by the other party who has not been joined to the suit.

The salient aspects of the opposition are as follows:-

1….,.

2….,.

3….,.

4. The mortgagor bound itself as a surety and co-principal debtor yet that mortgagor was not cited as a party to the proceedings despite it being an interested party….,.

Regarding aspect number 4 supra the mortgage bond clearly states that the mortgagor is a surety and co-principal debtor.

In Muchabaiwa v Grab Enterprises (Pvt) Ltd 1996 (2) ZLR 691 (SC) it was pointed out that a person who subscribes to an act of suretyship in solidum and as co-principal debtor is, as far as the creditor is concerned, a surety who has undertaken the obligations of a co-debtor. His obligations are co-equal in extent with those of the principal debtor. See also Neon and Cold Cathode Illumination v Ephron 1978 SA 463…, where TROLLIP JA stated that:

“It appears that generally the only consequence (albeit an important one) that flows from a surety also undertaking liability as a co-principal debtor is that vis-a-vis the creditor he thereby tacitly renounces the ordinary benefits available to a surety, such as those of excussion and division, and he becomes liable jointly and severally with principal debtor.”

Furthermore, CANEY, The Law of Suretyship, 4^th ed…, in regard to the significance of the surety also binding himself as co-principal debtor states “he is liable with him jointly and severally.”

On the strength of the above authorities, the mortgagor should have been joined in this suit it being a co-principal debtor, who, in the process of being such, had renounced the ordinary benefits normally available to a surety such as those of excussion and division.

The respondent's contention on this score has merit constituting a bona fide defence.

The applicant is a company with limited liability which purports to own all agricultural equipment and implements and runs farming operations at ELDORADO OF GWINDINGWI commonly known as MAFOSHORO FARM (PVT) LTD.

The first respondent is a beneficiary of land wherein he was offered the “whole of Eldorado of Gwindingwi in Mutare District of Manicaland Province.”

The farm is approximately 472.46 hectares in extent. He has an offer letter dated 25 September 2007 in respect thereof.

The second respondent is said to be the first respondent's Farm Manager.

On the third of July 2008 the applicant obtained a provisional court order against the respondents. The order was in the following terms:

“First respondent and all those claiming and/or acting through him be and are hereby ordered to refrain from:-

1.1. Using applicant's farming implements and equipment.

1.2. Reaping bananas from applicant's farm.

1.3. Barricading applicant's access road to the farm.

1.4 Barring applicant's directors and employees from entering the farm.”

The applicant has approached this court on a complaint that the respondents are in contempt of court in that they have not complied with that court order.

In paragraph 8 of his founding affidavit, Johannes Jacobus W Vorster, the applicant's Director, stated that despite the respondents' having been duly served with the provisional order and being aware of the contents of the said order they have continued to deny the applicant's directors and employees access to the farm....,.

Regarding the second respondent, the first respondent said he has no employee by that name, and the applicant has not shown that anyone by that name was served with the court application for contempt of court proceedings, and so, no decision can be made on the second respondent.

The first and second applicants are directors of the third applicant, which operates safari activities in the Zambezi Valley Area.

The first and second respondents are directors of the third respondent, which is also a safari operator.

The fourth respondent is the National Parks and Wildlife Management Authority (the Authority) responsible for managing all safari operations in Zimbabwe.

Background

The applicants were granted two written concessions to operate hunting safaris in the Rifa Safari Area for a period of 10 years expiring on the 31st of December 2007.

Before this date, on the 18th of October 2007, the National Parks and Wildlife Management Authority (the Authority) conducted an auction for a new 5 year concession in respect of the applicants' concession area. At that auction, the applicants were prevented from bidding for the concession because they had failed to furnish the requisite Bank guarantee.

According to the first applicant, he then approached the first respondent who undertook to bid on behalf of the applicants after exhausting the respondents' own bidding limit.

The first respondent won the final bid for the sum of $750 billion.

The first applicant then thanked him and was congratulated by all present for having retained the concession.

Subsequently, on the 20th of October 2007, the respondents reneged on their arrangement and sought to retain the concession for themselves.

The respondents deny the applicants averments.

They contend, that, all bidders at the auction were fully aware of the Bank guarantee stipulation, as was clearly stated in the National Parks and Wildlife Management Authority's prospectus, and that there was no arrangement between the parties prior to the auction.

They did, subsequently, discuss the possibility of sub-letting part of the concession area to the applicants but nothing concrete materialised thereafter.

They further aver, that, if their Concession Agreement with the National Parks and Wildlife Management Authority (the Authority) were to be cancelled, they would suffer irreparable harm.

The National Parks and Wildlife Management Authority (the Authority) avers, that, the application is fatally defective in that it does not cite the Minister of Environment and Tourism (the Minister) as required by the Parks and Wildlife Act [Chapter 20:14].

Moreover, the Parks and Wildlife Act stipulates a maximum period of 10 years for hunting concessions and, therefore, the applicants cannot be granted any further extension.

On the 19th of February 2008, the applicants filed an urgent application to assert their rights, and, on the 22nd of February, they were granted a Provisional Order interdicting the respondents from evicting the applicants from the Rifa Safari Area and from interfering with the applicants' operations in that area.

They now seek a Final Order confirming the above relief, and, further interdicting the respondents from exercising any rights in the applicants' concession area pending the determination of Case No. HC891/08.

In that case, the applicants seek the setting aside of the written concession granted by the National Parks and Wildlife Management Authority (the Authority) to the respondents in November 2007. The Concession Agreement was signed by the Minister on the 10th of January 2008....,.

The issues for determination herein, as I perceive them, and as concurred by counsel, are as follows:

1. Whether the non-citation of the Minister as a party to these proceedings is fatally defective....,.

Non-citation of Minister

It is submitted by counsel for the applicants, that, the non-citation of the Minister in these proceedings is not fatal for two reasons:

(i) Firstly, she relies upon Rule 87(1) of the High Court Rules 1971, which stipulates that non-joinder of a party does not preclude the determination of the issues in dispute.

(ii) Secondly, she argues, that, the applicants are not presently seeking the grant of any concession from the Minister and that, in any event, the Minister is simply required to concur with the grant of a concession by the National Parks and Wildlife Management Authority (the Authority) in respect of a specific area and is not concerned with the identity of the grantee.

As regards the non-joinder and misjoinder of parties, Rule 87(1) of the High Court Rules provides as follows:

“No cause or matter shall be defeated by reason of the mis-joinder or non joinder of any party and the court may, in any cause or matter, determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.”

Section 37 of the Parks and Wildlife Act [Chapter 20:14] empowers the grant of leases and hunting rights in safari areas as follows:

“The Authority, with the concurrence of the Minister, may —

(a) Lease sites in a safari area to such persons and for such purposes as it deems fit;

(b) Grant hunting or other rights over or in a safari area to such persons as he deems fit; subject to such terms and conditions as he may impose:

Provided that —

(a) The period of a lease in terms of paragraph (a) shall not exceed twenty-five years;

(b) The period of hunting or other rights in terms of paragraph (b) shall not exceed ten years;

(c) A grant of hunting or other rights, in terms of paragraph (b), shall not prohibit persons from entering into the safari area concerned for purposes other than those for which the rights have been granted.”

While I accept that the non-joinder of a party is not necessarily and invariably fatal to the continuance or determination of any matter, it is trite, that, Rule 87(1) does not absolve a litigant of the obligation to cite all relevant parties.

The discretion of the Court, in this regard, must be exercised so as to ensure that all persons who might be affected by its determination of the issues in dispute be afforded the opportunity to be heard before that determination is actually made.

Turning to section 37(b) of the Parks and Wildlife Act [Chapter 20:14], it is abundantly clear, that, the concurrence of the Minister is an essential statutory sine qua non to the grant of any hunting rights in a safari area.

Although it is the National Parks and Wildlife Management Authority (the Authority) that actually administers and grants such hunting rights, it can only do so “with the concurrence of the Minister” and “subject to such terms and conditions as he may impose.”

This is clearly recognised not only in the concession granted to the first applicant in 2003, but, is also explicitly declared in the preamble to the Concession Agreement concluded with the third respondent in 2007.

In short, the Minister's direct and personal involvement in the approval of any hunting concession cannot be obviated.

By the same token, where the Minister has already approved the grant of hunting rights, he must, of necessity, be concerned with any dispute concerning the exercise or non-exercise of such rights.

In the instant case, the applicants seek an order interdicting their eviction from the Rifa Safari Area and any interference with their operations in that area as well as an order interdicting the respondents from exercising any rights in the same concession area.

In essence, the relief that they seek impinges upon rights previously conferred upon the first applicant in 2003 and those granted to the third respondent in 2007.

In both instances, the determination of this Court will impact upon and interfere with decisions already taken by the Minister.

In my view, he is undoubtedly a highly relevant party to these proceedings with a very direct interest in the outcome and determination thereof.

It follows, that, the failure to cite the Minister in this matter is fatal and that the application should be dismissed simply on that preliminary basis.

However, given the possibility that my conclusion in this regard is incorrect, I shall proceed to consider and determine the merits of this case.

This is an application for contempt of court.

The background to this application is that the applicants were the owners of Disi Farm (the farm). The farm has since been acquired by the State. The respondent was issued with an offer letter for subdivision 7 (Plot 7) of the farm by the Minister responsible for land resettlement on 24 June 2008. When he moved onto the plot, he locked the tobacco grading shed, the irrigation pump station and borehole thereby denying the applicants access to the infrastructure.

The applicants approached this court, and, on 18 August 2008, successfully obtained, in case No. HC4110/08, an order directing the respondent to remove the locks and desist from interfering with the applicants' peaceful and undisturbed occupation of the farm.

The order was granted with the consent of the respondent.

The respondent complied with the court order until the beginning of December 2008 when he denied the applicants access to barns on the farm and interfered with the curing of the applicants' tobacco.

The applicants approached this court again on 11 December 2008 seeking an order for restoration of access to the barns.

A spoliatory order was issued by GOWORA J on 16 December 2008 in case No. HC7003/08 in default of the respondent.

The order was served on the respondent's wife on 12 January 2009.

It appears access to the barns was granted following the service of the order.

In April 2009, the applicant again approached this court after the respondent had again denied the applicant access to the barns, and sheds, and to water.

On 4 May 2009, PATEL J issued an order, with the consent of the respondent, in case No. HC1916/09. The following were the terms of the provisional order:

“1. 1st respondent, and all those claiming occupation through him, be and are hereby ordered to forthwith restore to applicants and their employees full possession, use, and access to the tobacco barns, grading sheds, workshop, office, and irrigation pump station on Plot 7 and all farming implements owned by applicants and located thereon so as to restore the status quo prevailing on Plot 7 as at 15th April 2009.

2. 1st respondent and all those claiming occupation through him permit the applicants and their employees to grade their tobacco and remove it for sale thereafter.

3. 1st respondent desists from threatening any of applicants workers (sic) or management in carrying out their normal duties.

4. 1st respondent shall be entitled to the full use and occupation of Plot 7, other than the structures and equipment referred to in paragraphs1 and the applicants shall refrain from interfering with 1st respondent's farming activities, equipment, and employees on Plot 7.

5. Should the applicants or 1st respondent breach any provision of this Order, the Zimbabwe Republic Police, Guruve is hereby authorized to enforce the terms of this order.”

This is the order (PATEL J's order) which is the subject of this application.

The basis of this application is that the applicant averred that, in defiance of this order, the respondent forcibly evicted the second applicant's manager from the office on Plot 7. He has again locked the gates to Plot 7 thereby denying the applicants possession, access to, and use of workshop, barns, and sheds.

It is on the basis of this defiance that the applicant seeks an order of contempt.

The respondent raised three preliminary issues:

(i) The first issue is that the Minister responsible for lands should be joined to the present application.

(ii) The second issue is that Robert Strong, who deposed to the founding affidavit, did not produce authority from the applicants to institute the present proceedings.

(iii) The third issue is that the applicants do not have the locus standi to institute these proceedings as they are in unlawful occupation of the farm.

I shall deal with the first and last issues jointly as they are linked.

As the applicants rightly observed, the remedy sought in this application is intended to ensure that the respondent and not the Minister responsible for Lands, complies with PATEL J's order.

The order compelled the respondent to restore the status quo ante obtaining as at 15 April 2009 and to desist from interfering with the applicants' activities.

The respondent seems not to appreciate the import of this application.

It is not an application for the confirmation of the provisional order granted in case No. HC1916/09. It is an application for contempt of court in which the respondent is alleged to have disregarded that provisional order.

The Minister responsible for lands is not enjoined in that order to perform any acts or desist from any conduct. It seems to me that the Minister cannot therefore be part of these proceedings.

The first applicant, the Movement for Democratic Change, is a political party, commonly known as the (“MDC”). It will be referred to as the first applicant. The second applicant, Mr Morgan Tsvangirai, is its President. He was the first applicant's Presidential candidate in the just ended harmonized elections held on 29 March 2008. He will be referred to as the second applicant.

The first respondent is the Chairman of the Zimbabwe Electoral Commission, a Commission established in terms of section 61(1) of the Constitution of Zimbabwe. He was appointed in terms of section 61(1)(a) of the Constitution. He will be referred to as the first respondent. The Zimbabwe Electoral Commission is commonly known as (“ZEC”), in reference to the abbreviation of its name. It will be referred to as ZEC in this judgment.

The second respondent is the Zimbabwe Electoral Commission's (ZEC) Chief Elections Officer appointed in terms of section 11 of the Zimbabwe Electoral Commission Act [Chapter 2:12], hereinafter called the Zimbabwe Electoral Commission Act. He will be referred to as the second respondent.

The Facts

The first respondent, through the Zimbabwe Electoral Commission (ZEC), conducted harmonised elections which were held on 29 March 2008. The elections were contested by candidates aspiring for the following positions, Councilors of local authorities, Members of the House of Assembly and the Senate, and President of the Republic of Zimbabwe.

It is common cause that the contestants of the first three positions now know the results of their elections. The results were announced at the Ward Constituency, House of Assembly and Senatorial constituency levels. The winners were declared by the respective Ward and Constituency Elections Officers. House of Assembly and Senatorial results have also been announced by the National Collation Centre presided over by the second respondent.

It is conceded, by the respondents, that this was merely for the benefit of the general public as the legal requirements had been satisfied at constituency level.

The applicants, who have an interest in Presidential election results, filed an urgent application seeking this court's provisional order, compelling the respondents to announce the results.

The respondents, while conceding that Presidential results have not yet been announced, contented that they will announce them when they are ready....,.

Procedural Issues

In response to counsel for the applicants submissions on the merits, counsel for the respondents raised several procedural issues which he should have raised as preliminary issues....,.

Counsel for the respondents final procedural issue was on what he alleged was an improper joinder of the first and second respondents.

He submitted that the first respondent plays no role in the processing and announcement of Presidential results, and should, therefore, not have been joined with the second respondent in these proceedings.

Counsel for the applicants, in his response, correctly submitted that the first respondent was correctly cited in his nominal capacity as the Chairman of the Zimbabwe Electoral Commission (ZEC). Section 18 of the Zimbabwe Electoral Commission Act provides for his being a nominal citee, just as the Minister of Home Affairs would be cited together with a Constable who would have committed a delict during the course of his duties.

I find no merit in counsel for the respondents submission on this issue - especially in view of CHIWESHE J's concession that there was no issue on the citation of the parties.

The respondents', in their opposing affidavit, said the Zimbabwe Electoral Commission received complaints about mis-counting of the Presidential votes which it is considering with a view to ordering a recount before those results are announced.

This clearly confirms the importance of citing the first respondent as a party as it is the Commission which is considering the complaints.

The second respondent cannot deal with that issue, and cannot process and announce Presidential results until that issue is resolved.

The first respondent has therefore been correctly cited as a party in these proceedings.

On 15 October 2009, after hearing counsel, I dismissed this application with costs. The applicant's legal practitioners have now indicated that they require reasons for the dismissal and these are they:

During his lifetime, Peter Kandeya entered into an agreement with the third respondent in terms of which he, Peter Kandeya, leased from the respondent certain premises known as Stand 1124 Samaita Crescent, Ruwa. The lease was concluded on 18 August 1999 but was effective from July 1999 and would endure for a period of six years.

On 2 December 2003, Peter Kandeya entered into an agreement with Aston Musunga in terms of which the latter purchased a piece of land called Stand 3408 Gora Crescent, Ruwa. Although there seems to be a difference in the Stand numbers and the street address it is clear from the lease agreement between Peter Kandeya and the third respondent that it is in fact the same Stand. On the same day that the two concluded an agreement of sale, they also entered into an agreement of lease wherein Peter Kandeya leased the property in question from Aston Musunga. The lease was to expire after six months.

According to the founding affidavit deposed to by the applicant, on 21 June 2005, Aston Musunga then donated Stand 3408 Gora Crescent, Ruwa to him.

The Deed donating the property to the applicant has not been produced.

I do not doubt that indeed such donation took place. It is on the basis of this donation that the applicant seeks that the first respondent cede and transfer her right, title and interest in Stand 3408 Gora Crescent, Ruwa to himself.

The third respondent has opposed the granting of the relief on the basis that, as the owner of the Stand, his written consent to the alienation had not been sought prior to Peter Kandeya entering into any agreement for the transfer of rights that Peter Kandeya had in the lease agreement.

The first respondent contends that the Agreement of Sale being alleged by the applicant is null and void ab initio due to the provisions of clause 12 of the lease agreement governing the relationship between the deceased and the third respondent.

In Nkomo v Mujuru 1997 (1) ZLR 155, ROBINSON J found that an agreement of sale in respect of premises subject to an agreement of lease with the Government as lessor wherein the prior written consent of Government was required before rights therein could be alienated, whilst not being void ab initio, was, nevertheless, unenforceable against the Government at the instance of the seller or purchaser of rights accruing from the lease.

In my view, this clear legal position and the stance adopted by the third respondent herein, that it would not consent to the order being sought, should have alerted the applicant and his legal practitioner that there would be very little mileage to be made in pursuing this court application further.

It should have occurred to the applicant and his legal practitioners that Aston Musunga had to obtain cession of rights from Peter Kandeya before the donation could be effective in favour of the applicant in which case a real right would have been donated. However, wiser counsel did not prevail and the applicant proceeded regardless.

Despite the fact that the applicant did not conclude an agreement with the first respondent or the deceased, the applicant seeks an order for specific performance for the cession of rights in the Stand to himself.

I have not been addressed on the legal premise on which I should find that the first respondent is obligated to transfer rights in the Stand to the applicant. There is no agreement between the two parties, and, as such, the applicant has not advanced any cause for this court to find that he is entitled to the relief that he is seeking.

When I questioned the applicant's counsel on the issue I was advised that the practice was that a party in the shoes of the applicant could sue for the transference of such rights. Her response was indicative of knowledge that this practice was not grounded on any principle in law. Nevertheless, she persisted to argue that the applicant was entitled to an order of specific performance.

I was unable to understand the submission, as it was not backed by legal principle.

There is no privity of contract between the applicant and the first respondent. In the circumstances, I find myself unable to accede to the applicant's prayer for relief in the terms sought.

The second respondent, the Ruwa Local Board, did not file an opposing affidavit to the application but a letter written by the Board to the applicant has been attached to the papers filed by the respondent.

The letter, dated 26 September 2006, clearly stated that the applicant was in occupation of the Stand in question without having met stipulated conditions for such occupation. It also advised that the purported sale between Peter Kandeya and Aston Musunga was illegal and of no force and effect in the absence of the consent of Government. Therefore, the donation by Aston Musunga to the applicant was itself null and void. He was further informed that the property was now being dealt with as part of the deceased estate of Peter Kandeya.

It does not seem as if the applicant was in the mood to heed this advice. He did not respond to the letter and did not suspend his building operations.

His position is unenviable as he is unable to prove the alleged contract between Peter Kandeya and Aston Musunga. As the receipient of a free Stand he cannot drag Aston Musunga to court for an order of specific performance for the transfer of rights in the Stand to him.

Aston Musunga did not however obtain a real right from Peter Kandeya when he “purchased” the said Stand. All he obtained were personal rights against Peter Kandeya. Since Aston Musunga did not obtain real rights he could pass no better right to the applicant and without Aston Musunga having been joined to the dispute the applicant's case has no starting point as it is the alleged rights that Aston Musunga “purchased” which are in issue. Without Aston Musunga having obtained rights the applicant cannot claim from the estate of Peter Kandeya, and, in the circumstances, I find that there is no merit in the application.

The application is therefore dismissed. The applicant is ordered to pay the costs of the first and third respondents.

As for the third respondent, having had the privilege of hearing him in court, in addition to his own filed opposing affidavit, I am satisfied that the applicant must be deemed to have accepted his occupation of the portion of the farm which he is occupying. For a long time, the applicant's representative has seen the third respondent working on the piece of land, and for such a long time, the applicant never raised any objection.

In any event, the filed founding affidavit does not seem to suggest that the third respondent has attempted to despoil the applicant.

This is an opposed application where the applicant seeks the following relief:-

“1. Applicant shall deposit $10,000,000,000= into the Registrar of High Court's temporary deposit account the outstanding balance towards the purchase price of Stand No.3519, Dzivaguru Crescent, Ruwa, for first respondent.

2. Thereafter, first respondent shall proceed to cede his rights, interests and title in Stand No.3519, Dzivaguru Crescent, Ruwa, into applicant's name within ten (10) days of service of this order on him failure of which the Deputy Sheriff, Harare, be and is hereby authorised to sign all relevant cession papers for purpose of ceding first respondent's rights interests and title in Stand No.3519, Dzivaguru Crescent, Ruwa, into the applicant's name.

3. First respondent shall be evicted forthwith from Stand No.3519 Dzavaguru Crescent, Ruwa.

4. First respondent shall pay the costs of this application on client legal practitioners.”

In seeking the above relief, the applicant alleges that the respondent breached a contract relating to his purchase of Stand No.3519 Dzivaguru Crescent, Ruwa, (the property).

It is common cause that on 15 February 2008 the applicant and the first respondent entered into a written agreement whereby the first respondent would sell his rights in the property to the applicant for a sum of ZW$20,000,000,000= (twenty billion Zimbabwe dollars). The applicant paid ZW$10,000,000,000= (ten billion Zimbabwe dollars) upon the signing of the agreement. It was then agreed that the balance of ZW$10,000,000,000= would be paid over a period of three months.

On 21 April 2008 (i.e. 66 days after paying the deposit) the applicant tendered payment of the balance of ZW$10,000,000,000= but the first respondent refused to accept the payment arguing that he had since cancelled the agreement after the applicant refused to pay $3,300,000,000= on 15 March 2009, which payment, according to the first respondent, would have constituted the first instalment.

On 9 May 2008, the applicant filed this application praying for specific performance in terms of the draft order (relief) quoted in full herein…,.

On 9 July 2008, the applicant obtained a default judgment against the first respondent from this court, and, on the basis of that judgment, he caused the registration of the property into his name. However, the default judgment was later rescinded on 7 May 2009.

In opposing the application, the first respondent argued that the purchase agreement was not enforceable because it did not carry the consent of the lessor, namely, the Minister of Local Government and National Housing (the Minister) who was not even cited in the proceedings.

The first respondent based his argument on clause 12 of the lease agreement between himself as the lessee and the Minister as the lessor. The said clause provides as follows:

“That the lessee shall not cede or assign this lease or sublet or part with the possession of the stand/stands, or any part thereof, or alienate, mortgage, donate or otherwise dispose of the same, or cede or assign any right acquired by him/it hereunder without the previous consent in writing of the Lessor, or until title to the stand/stands shall have been granted to him/it as hereafter mentioned.”

The first respondent conceded that, although he, as the seller, had not complied with the above condition, the agreement between him and the applicant was not null and void. It was only unenforceable and would remain so until the Minister (lessor) placed him in a position to pass title. He, however, correctly argued that the Minister, who was not a party to the proceedings, could not be compelled to pass title to either of the two parties.

The first respondent argued that Ruwa Local Board, cited in the case as second respondent, was merely an administrative entity and could not take the place of the lessor who could pass title. It was further submitted that the second respondent had indeed confirmed that it would require authority from the Minister for it to pass title. The second respondent was not therefore compellable to pass title to the applicant.

The first respondent further submitted that when the parties concluded the contract their main intention was that the balance of $10,000,000,000= would be payable in three equal instalments over a period of three months. However, in breach of that arrangement, the applicant had, on 15 March 2008, upon demand, refused to pay the first instalment of $3,300,000,000=. The applicant had indicated that he would pay the whole balance at the end of the three months' period. That refusal to pay led to the cancellation of the agreement by the first respondent. The first respondent regarded refusal to pay the first instalment as a breach of contract justifying cancellation of the same.

On his part, the applicant submitted that upon payment of the balance of $10,000,000,000=, through the High Court, following the rescinded court order granted on 9 July 2008, he had fully discharged his obligations under the contract. He had initially tendered the payment on 21 April 2008 but the first respondent had rejected the same.

It should, however, be noted that notwithstanding the rescission of the court's order of 9 July 2008, on 7 May 2009, the applicant went ahead to register the property into his name.

The applicant averred that the refusal by the first respondent to accept the balance was due to the fact that he (the first respondent) wanted to fetch a higher price from an unnamed third party. He said the agreement did not spell out any specific instalments for the three months period. The first respondent could not therefore resile from a contract that was entered into freely and voluntarily. Payment had been made within the confines of the agreement and that payment was subsequently paid through the court.

The applicant agreed that although the agreement in question was legal it did not bind the lessor (Minister). See Jangara v Nyajuyamba 1998 (2) ZLR 475 (H) and Chanda v Mutandadzi and Anor SC74-94.

He said clause 12 of the lease agreement merely enunciated general policy. In the main, however, the City Councils/Local Boards are, on behalf of the Minister, the ones who approve of persons who are eligible to purchase or occupy any piece of land. The City Council(s) or local board(s), with authority from the Minister, can ratify what the parties will have concluded outside the non-cession clause. To that end, it was argued, it is the city councils/local boards that obtain the necessary authority for cession(s) from the lessor (in casu: the Minister). He said authority to cede would only be withheld where public policy would be injured.

In the premises, and because the applicant had fully discharged his obligations under the contract, it was argued, it would be unjust and inequitable for the court not to order specific performance. He urged the court to find the agreement legal and enforceable – hence his cry for specific performance.

In dealing with this matter, I want to take judicial notice of the fact that, generally, State land in municipalities is administered by local councils through delegated authority from the Minister. The lessee, for all practical purposes, dealt with the Ruwa Local Board which was mandated by the lessor (Minister) to approve developments on the Stand or property that was the subject of purchase. Ruwa Local Board was therefore the authorized agent of the Minister.

To that end, I do not see any prejudice in the non-citation of the Minister who appears in the lease agreement as the lessor.

The first respondent is the registered owner of a motor vehicle Isuzu KB 250, registration number 524-884G. The applicant prays for an order that the vehicle be released to him on the basis of an Agreement of Sale he alleges was concluded in respect of the vehicle on 29 August 2008.

The background to the dispute is as follows:

On 29 August 2008, the applicant visited the second respondent's showroom and observed an Isuzu KB250 on display. It was apparently on sale. Since he liked the vehicle he made enquiries regarding the purchase price and other conditions attaching to the agreement. The applicant avers that he dealt with Harris Kufunga and Shadreck Dzapasi. The applicant avers in the founding affidavit that they are directors of the second respondent. The price was agreed and settled at $112,000= which had to be paid by RTGS. The applicant avers further that he was informed by Harris Kufunga that he would have the registration book and the number plates once payment had been effected. An Agreement of Sale was then concluded. The applicant then paid the purchase price and subsequently took delivery of the vehicle.

On 14 November 2008 police officers from the Vehicle Theft Section attended on him and advised him that the vehicle had been reported stolen. He surrendered the vehicle to the police. Thereafter, attempts to follow up the vehicle with the police raised his suspicions as the vehicle was not parked at the police station as would be expected. It was subsequently returned to the police station after the intervention of his legal practitioners. He avers that he is a bona fide purchaser and should not be inconvenienced by a dispute between the first and second respondents.

I find that the vehicle was indeed displayed in the second respondent's showroom.

The circumstances under which the vehicle came to be displayed in the showroom, viewed from the explanation by the first respondent, raises question marks. The first respondent's explanation is that one Dzapasi had come to his residence on the evening of 29 August 2008 and had begged that the first respondent give him his vehicle as he had a client who required an Isuzu. The first respondent avers that he had been reluctant, initially, to surrender the vehicle to him; firstly, because of the manner in which Dzapasi's uncle Shadreck and Harris had treated him in the past. He did not elaborate on what this treatment related to. Secondly, he averred that he had pointed out to Dzapasi that it was night time and it would have been proper if the transaction were conducted during the day. He states that had had relented when Dzapasi gave him an assurance that the client seeking the vehicle was Dzapasi's, and, further, that the second respondent was not going to play a part in the sale. The first respondent had been assured by Dzapasi that if the client was satisfied with the vehicle, then the former would arrange for a meeting to discuss the purchase price. He had therefore retained the registration book and number plates on the understanding that the purchase price and payment arrangements would be negotiated by himself. They had not agreed on a purchase price with Dzapasi.

The first respondent denied that he had authorized Harris Kufunga or Shadreck Dzapasi to sell his vehicle. He further denied that Dzapasi had authority to sell the vehicle. He stated that if he had authorized the second respondent to sell the vehicle, he would have been given a mandate form to sign signifying the agreement between himself and the company for the disposal of the vehicle. This is the procedure they had adopted when they sold a Toyota Hilux on his behalf. He stated that the second respondent had defrauded him in respect of the sale of the Hilux and he would not have been so naïve as to take another vehicle to the second respondent to sell on his behalf.

Whilst he does not dispute the contention by the applicant that he may have seen the vehicle in the second respondent's showroom he, the first respondent, contends that if the applicant saw the vehicle on 29 August 2009 it must have been after 20:30 hours when he gave the vehicle to Dzapasi. The first respondent states that the vehicle must have been given to the applicant that night because when he visited the second respondent's showroom the following day, the vehicle was not there. He was not unduly worried by its absence because Dzapasi had told him that he would not involve the second respondent or its directors in the deal. He subsequently met Dzapasi and asked about the whereabouts of the vehicle, which is/when Dzapasi asked if Harris or Shadreck had not phoned him. That is when he heard about the alleged sale.

He reported the matter to the police, and, as a result, charges of theft of motor vehicle were preferred against Harris and Shadreck on 14 November 2008. They persuaded him to drop the charges. When the applicant refused to surrender the vehicle, he then made a report at the vehicle theft in Southerton. He said he used to see the applicant at the showroom when he was following up the issue of his vehicle but the latter never let on that he had purchased the vehicle until the first respondent had caused the arrest of Harris and Shadreck and it then came to light that the applicant was the purported buyer of the vehicle.

The first respondent denies having sold the vehicle or authorized its sale. The applicant has not filed an answering affidavit....,.

What we have here, however, is that the applicant has cited the first respondent and sought an order for specific performance against the first respondent when he is not alleging an Agreement of Sale between himself and the first respondent. He is bringing this action as the owner of the vehicle when he did not get a transfer of the rights qua owner from any of the parties he allegedly dealt.

Although the first respondent has produced a registration book which shows that the vehicle is registered in the name of the first respondent the applicant has decided to ignore this factor. It needed an explanation as the applicant does not state that he purchased the vehicle from the first respondent.

The applicant has omitted to cite the persons he purchased the vehicle from as parties to this action. He has, instead, cited the first respondent and yet he never at any stage dealt with him. He seeks that the Agreement of Sale of 29 August 2009 be declared valid but has failed to cite the alleged parties to the sale in this application.

The agreement is on the letter head of Leo Chris Auto but the seller in the agreement is described as G R Chikoto. Chikoto is not the owner nor has he been cited. In citing the first respondent he is therefore non-suited as is clearly shown in his affidavit. He never dealt with the first respondent as regards the sale of the vehicle.

The two applicants herein were parties, together with 77 others, in a matter that was adjudicated by the Southern African Development Community Tribunal (the Tribunal) in the case of Mike Campbell (Pvt) Ltd & Others v The Republic of Zimbabwe Case No. SADC(T) 2/2007.

The Tribunal gave its judgment in favour of the applicants on the 28th of November 2008. They now seek an order for the registration of the decision of the Tribunal for the purposes of its enforcement in Zimbabwe....,.

Before dealing with the main issues in this matter, it is necessary to attend to several preliminary issues that have arisen for determination....,.

Application for Joinder

The intervener in this matter avers that he is the holder of an offer letter to hold, use and occupy the property held by the applicants and that the effect of the relief sought by the applicants would be to nullify his offer letter. He accordingly submits that he has a direct personal and legal interest in the outcome of this case and should therefore be joined in opposition as the third respondent.

The applicants oppose the intervener's application for joinder on the grounds that he does not have any direct or substantial interest in the subject-matter of these proceedings, and that, in any event, he has not furnished any written proof of his acceptance of the State's offer. Moreover, registration of the Tribunal's judgment, per se, will not have the effect of dispossessing him of his right to occupy the property. That would only occur at a later stage, if and when separate proceedings are instituted for the enforcement of the judgment by way of eviction proceedings against him.

In terms of section 16B(2) of the Constitution, ownership of the property in question vests in the State.

Any right of occupation conferred by the offer letter is in the nature of a personal right, deriving from the State's ownership of the property. Therefore, even if the intervener were to establish his acceptance of the State's offer, which, on the papers, he has failed to do, his right to occupy the land is purely derivative.

On the other hand, the papers indicate that there are two other matters currently pending before this Court, in Case Nos. HC7256/07 and HC3995/08, which involve a dispute between the applicants and the intervener concerning their respective rights to occupy and use the farm in question.

The effect of granting the relief sough in casu would be to pre-empt and render academic the outcome of those two cases.

More significantly, it seems somewhat artificial and casuistic to argue that registration of the Tribunal's judgment is entirely separate and distinct from the consequential enforcement of that judgment.

While proceedings for the enforcement of the judgment may entail a different process, registration of the judgment will substantially operate to negate the intervener's rights in terms of the offer letter and he will be left with no defence whatsoever to any action taken by the applicants in enforcing the judgment.

If he is not afforded the opportunity to be heard at this stage, he would clearly be prejudiced in the assertion and protection of the personal contractual right of occupation that he claims to the property in casu: see Rose v Arnold & Others 1995 (2) ZLR 17 (H); Nyamweda v Georgias 1988 (2) ZLR 422 (S).

In the event, I am satisfied that the intervener has established a sufficiently direct and substantial interest in the outcome of these proceedings. His application to be joined as a party to this case is accordingly granted, but with no order as to costs.

This is an application for joinder of the second respondent.

The applicant issued summons on the 7^th of May 2008. After issuing summons, she then discovered that the matrimonial assets had been donated to the second respondent. The effect of this is that, left as it is, the assets do not form part of the matrimonial property.

It is for this reason that this application was filed.

The applicant's argument is that in the absence of the second respondent being joined as a party under case no. HC 997/08 she will be prejudiced as the first respondent has, by transferring the property to the second respondent, intended to defeat her claim. This is the long and short of her argument.

Counsel for the applicant has urged the court to adopt a robust approach in this matter.

In support of that assertion, reference was made to Order 13 Rule 87(2)(b) of the High Court Rules which reads :–

“(2) At any stage of the proceedings, in any cause or matter, the court may, on such terms as it thinks just, and either of its own motion or on application-

(a) ...,.

(b) Order any person who ought to have been joined as a party, or whose presence before the court is necessary to ensure that all matters in dispute in the cause or matter me be effectually and completely determined and adjudicated upon, to be added as a party.”

This Rule is all-emcompassing and covers all matters.

In Marais and Another v Pongola Sugar Milling Company and Other 1961 (2) SA 698, a two-tier approach was formulated in the determination of a joinder and is thus –

“(1) That a party must have direct and substantial interest in the issues raised in the proceedings before the court; and that

(2) His rights may be affected by the judgment of the court.”

The court went further and stated that once the applicant has established the above then it can proceed to determine the matter of joinder in accordance with the requirements of convenience and common sense.

This is the legal position.

The same principle was adopted in Lewis N.O. v Schoeman N.O. and Others 1951 (4) SA 133.

 What the court should consider is the effect of the joinder to both parties.

In a case where liability is in dispute, a joinder should be ordered as long as there is no prejudice to be suffered by the respondent. In any event, in the event that the respondent unduly suffers prejudice, the respondent's remedy will lie in costs against the plaintiff.

In Ettling v Schiff (5, S.C.131) quoted with approval in Lewis N.O. v Schoeman N.O. and Others 1951 (4) SA 133 and in Sieff v Wilhemina and Others 1911 OPD 24, DE VILLES CJ stated –

“In case of this sort (misjoinder) it seems to me that the court in which the trial takes place is the best judge of what would be convenient in the cause of its practice.”

With regards to the question as to whether the second respondent should be joined or not, counsel for the first and second respondents was unable to cite any authorities in the first respondent's favour.

The question which falls for determination, in my view, still remains as to whether or not the second respondent should be joined in these proceedings.

The applicant has been married to the first respondent for fifteen years. It is her evidence that when she married him he was not possessed of such wealth as he is now. The first respondent is the only real beneficiary as he has awarded himself, together with the minor children, eighty percent, and awarded the applicant twenty percent, in the whole estate.

For this reason, without more, she has direct and substantial interest in the issues raised in the proceedings, and, therefore, her rights may be affected by the judgment of this court.

It is, therefore, pertinent to enquire as to the consequences of a non-joinder.

The prejudice is there for anyone to see, there will be a lot of inconvenience, not only to the applicant, but to the court as well. No doubt, this will result in the applicant being oppressed, and in an attempt to extricate herself therefrom, there will be a multiplicity of actions, a situation which should be avoided if possible.  See Morgan and Another v Salisbury Municipality 1933 AD 167.

The respondent's argument, therefore, has no merit, and is accordingly rejected.

In the interest of justice, it will only be proper that the second respondent be joined to the main action to enable all the issues to be ventilated in court. It will be convenient and makes common sense to do so anyway.

The application succeeds and the following order is made:-

1. The second respondent be and is hereby joined as the second defendant in the matrimonial action between the applicant and the first respondent in Case No. HC 997/08.

As for the second respondent, counsel for the second respondent submitted that his client denies any involvement in the conduct complained of. He thus submitted that the application is directed at the wrong respondent. This is because in the second applicant's founding affidavit, the leaders of the despoilers are named as Maliswa/Mliswa and Vashco. There is also reference to Minister Mutasa.

It is therefore my finding that the non-citation of the President in this application is fatal to the applicant's application.

As indicated..., it is untenable for the applicant to suggest that he can attack the recommendation of the Tribunal only without affecting the act of the President to remove him from office. The act of removing him from office cannot lawfully exist without the requisite recommendation, and, thus, to attack one is of necessity to attack the other.

In that regard, and to be procedurally correct, the President must be made a party to the proceedings.

In the result, I make the following order -

The applicants in this matter are all duly elected Members of Parliament. The first respondent is the Clerk of Parliament, cited herein in his official capacity.

The second respondent was elected to the position of Speaker of the House of Assembly on the 25th of August 2008.

The applicants challenge the validity of the second respondent's election as Speaker on several grounds.

They originally sought an order setting aside the second respondent's election, and, consequentially, an order nullifying all acts performed by him qua Speaker. However, at the hearing of this case, counsel for the applicants conceded the excessiveness and enormity of the consequential relief sought and opted not to pursue that aspect.

Background

By virtue of section 39(2) of the Constitution of Zimbabwe, the Speaker must be elected in accordance with the Standing Orders of the House of Assembly.

On the 25th of August 2008, following the swearing-in of Members of Parliament (Members), the first respondent announced the procedure for the election of the Speaker. As there was more than one person proposed as Speaker, the election was to be conducted by secret ballot as enjoined by Standing Order Nos. 4 and 6 of the House of Assembly.

According to the applicants, what ensued in Parliament thereafter was chaotic and disorderly and quite contrary to the requirements of a secret ballot.

The first respondent concedes that there was an unprecedented number of Members in the Chamber on that day but denies that the voting process was disorderly or improper. The second respondent supports this position and also raises several preliminary objections to the application, pertaining to locus standi, non-joinder, and the exhaustion of domestic remedies.

The Issues

In the event, the preliminary and substantive issues for determination in this matter, as I perceive them, are as follows:

(i)...,.

(ii) Whether other Members and entities should have been cited as respondents....,.

Non-joinder of Other Respondents

The second respondent contends that, in addition to the respondents in casu, the applicants should have cited all other Members who participated in the election as well as the MDC-T party itself. Because a declaratur is sought, so it is argued, the Court should proceed on the basis of full information from all relevant parties.

I must confess that I am unable to see any merit in this contention.

In terms of Standing Order No.6, the first respondent is assigned the responsibility for conducting the election of the Speaker. It is the first respondent, whose conduct is impugned by the applicants, and the second respondent, who was declared the winner of the election, who are the most apposite respondents in the present contestation. It is their specific actions that are pointedly challenged and their interests that are directly affected by the declaratory relief presently sought.

Quite apart from the practical and logistical implications of citing over 200 respondents, the other Members, and the MDC-T party, were not responsible for administering the election process and are not being called upon to rectify the conduct complained of.

If the second respondent's argument were to be taken to its logical conclusion, it would warrant the citation of every Zimbabwean as having some legitimate interest in the election to the highest office of Parliament.

Rule 87(1) of the Rules of this Court provides that “no cause or matter shall be defeated by reason of the misjoinder or nonjoinder of any party.”

Even where any mis-joinder or non-joinder does occur, the Court remains with the discretion to “determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.”

While I accept that not all possibly relevant parties have been cited as respondents herein, I do not think that their non-joinder is fatal to these proceedings inasmuch as the determination of the issues in dispute will not directly impact upon their rights and interests.

The plaintiff sued the two defendants claiming basically for his restoration as the registered buyer of House Number 360 Makusha Township, Shurugwi.

In his summons and declaration, the plaintiff alleged, that, on 20 August 1981 he entered into a written agreement of sale with Dickson Katerere (“D. Katerere”) in respect of House Number 360 Makusha Township, Shurugwi.

The plaintiff was the purchaser and D. Katerere was the seller.

In pursuance of that agreement, D. Katerere and himself attended at the offices of the second defendant and caused all rights, title and interest D. Katerere had in the property in dispute to be formally transferred and registered in the plaintiff's name. Thereafter, the plaintiff took occupation of the house as the new holder of such rights and interests in the house.

In 1986 he vacated the house to take occupation of a plot he had just bought in the same town. He left some people in occupation of the house. The proprietor of Popular Bakery, Mr Gokwe, who was his brother in-law, requested him to let some of his employees occupy the house. He acquiesced to this request.

Amongst the Popular Bakery employees who took occupation was Raphias Jokonoko, the first defendant's elder brother. They took occupation in 1986 when the plaintiff left. When, later on, the first defendant was employed by Popular Bakery, he also took occupation in the house together with his elder brother.

It was only in about January to June 2000 that the plaintiff said he discovered that the second defendant had formally transferred and registered his rights and interest in the property in the name of the first defendant.

Upon this discovery, he demanded that such transfer be reversed and that the house be transferred back into his names as the lawful holder of rights, title and interest in the house.

Both the first and second defendants did not accede to this demand hence this suit filed on 15 May 2002.

In this suit, the plaintiff's claim is for an order:

(a) Declaring him to be the lawful holder of all the rights, title, and interest in House Number 360 Makusha Township;

(b) Directing the second defendant to formally transfer and register all the rights, title, and interests in House Number 360 Makusha Township, Shurugwi in the name of the plaintiff; and

(c) Costs of suit jointly and severally against the first and second defendant with one paying the other to be absolved.

The first and second defendants filed a joint plea in which they disputed the plaintiff's claim and entitlement to have the house transferred and registered in his name.

In their plea, the defendants denied that:

1. Dickson Katerere's rights, title, and interest in the property were ceded or transferred to and registered in the plaintiff's name.

2. The property in dispute was ceded by the second defendant to the first defendant.

3. The house in question is or ever was on home ownership scheme contending that Dickson Katerere was a mere tenant of the second defendant just like the first defendant.

4. That the plaintiff acquired any title to the house in question.

The issues for determination were identified as:

1. Whether or not Dickson Katerere was the owner or a mere tenant of the house in dispute;

2. Whether or not Dickson Katerere's rights, title, and interest in the house were transferred or ceded to and registered in the plaintiff's name; and

3. Whether or not the plaintiff is entitled, at law, to the relief that he seeks.

The plaintiff gave evidence and called two witnesses, namely, Gertrude Nhendereko and Thomas Mandiamba. He also tendered into evidence a bundle of documents he relied on in his evidence.

The first defendant, thereafter, gave evidence. He also tendered a bundle of documents in support of his case.

From the evidence adduced in court, it was apparent that the house in question was, at one time, registered in the name of Dickson Katerere. It was also apparent that the nature of the lease that the plaintiff alleged D. Katerere had was not an outright purchase.

The plaintiff's evidence was to the effect that D. Katerere had a lease to buy agreement and it is this agreement that he took over.

On taking over, he filled in cession forms and lease to buy agreement forms at the second defendant's office. This was in 1981. The lease to buy forms he filled in were similar to the lease to buy agreement that the first defendant had as part of his bundle of documents titled “purchase/sale agreement conversion of rental accommodation into homeownership.” This form has three parties to it, being Shurugwi Town Council, as owner of the house, the Government, as the owner of the land onto which the house is built, and the purchaser.

In Hundah v Murauro 1993 (2) ZLR 403 (S)…, the court alluded to the fact that:

“Land in the high density suburbs belonged to the local authorities, or, occasionally, to central government. Occupants of the houses built in these suburbs fall into three categories (ignoring the 4th category of lodgers or dependants). They are:

1. Simple tenants under a lease agreement with the local authority or central government;

2. Tenants to buy under an agreement which permitted them to take title once the property was surveyed and the full price paid; and

3. Owners who graduated from category two in the fullness of time.”

In casu the plaintiff claimed that the house in question was under Category Two whilst the first defendant contended that it was under Category One.

It is pertinent to point out, at this stage, that, at the time the two defendants filed their joint plea up to the close of pleadings, they were represented by the same law firm.

On 6 October 2008, that law firm renounced agency in respect of both defendants. On 20 April 2009, a new law firm assumed agency on behalf of the first defendant.

This was after the defendants had both been served with the notice of set down for a pre-trial conference, and, in fact, this pretrial conference had been held on 31 March 2009. Only the first defendant was present at the pre-trial conference. The second defendant defaulted, or, at least, was not present. Equally, at trial, the second defendant was not represented.

Counsel for the plaintiff indicated, that, the second defendant indeed defaulted at the pre-trial conference and has not appeared to contest the plaintiff's claim since then.

The record before me is however silent on what happened when the second defendant defaulted at the pre-trial conference despite having been served with the notice of set down.

I now turn to the issues at hand.

1. Whether or not Dickson Katerere was the owner or a mere tenant of the house in dispute

The plaintiff's evidence on the issue was to the effect, that, on 20 August 1981 he entered into an agreement of sale with Dickson Katerere in respect of House Number 360 Makusha Township, Shurugwi. The house was in D. Katerere's name and it was in a homeownership scheme. In that regard he referred to p2 of the bundle of documents, as the agreement of sale. The document is an uncertified photocopy. It reflects the parties to the agreement as CG Musoni and Dickson Katerere. It is dated 29 August 1981.

The main body of the document states that:

“C Musoni Matambo has paid Mr D. Katerere the sum of four hundred and forty eight dollars for house number 360 in Makusha, up easy Stereo Radiogram, two speakers $360. Total paid for the lot $808.”

The plaintiff confirmed that it was only him who appended his signature to the document.

As proof that the house in question was on the second defendant's homeownership scheme, the plaintiff referred to p1 of his bundle of document exh 5. This is a document containing a list of houses he contended were on the second defendant's home-ownership scheme. The house in question is number 6 on that list.

Apart from the house number, other details pertaining to this house included;

(i) Type - Up easy;

(ii) Purchaser - Dickson Katerere;

(iii) Date - 1 April 1980;

(iv) Purchase price - $980=25;

(v) Period of purchase - 5 years;

(vi) Monthly rent - $18=68;

(vii) Land value - $125=00; and

(viii) Monthly rent, service electricity - $33=06.

The heading/title of the list is hardly legible.

It was the plaintiff's evidence, that, after paying D. Katerere a total of $448 the two of them approached the second defendant with the intention of effecting cession. They indicated to the second defendant's officials that he had bought D. Katerere's rights and interests in the house so can the house now be registered in the plaintiff's name.

The second defendant's officials did not deny that the house was in D. Katerere's name. Their only query was that they should have approached the second defendant before entering into the purchase agreement so that D. Katerere's lease is cancelled first and the plaintiff would then enter into a fresh lease to buy agreement with the second defendant. The plaintiff said the second defendant's official he dealt with was one named Mr Nhubu. At no time was it ever said that D. Katerere was a mere tenant with no rights or interest to sell in the house.

Gertrude Nhendereko gave evidence next on this issue.

She indicated, that, as a resident of Shurugwi, she knew that the house in dispute was amongst houses that were for home ownership. She confirmed that exhibit 1(a) is indeed from the second defendant and it does confirm that the house in question was on the home-ownership scheme. She knew this as a resident of Shurugwi, and, later, as a councillor.

It was her evidence that she had known the plaintiff for a long time as a fellow resident of Shurugwi. At one time they lived in the same neighbourhood before the plaintiff moved into the house in question in 1981.

Apart from the above, most of this witness's evidence was based on reports she received from the plaintiff which is of no probative value.

The first time she came to know that there was now a problem with the house in question was in 2000 when the plaintiff came to the second defendant complaining about the manner in which the house in question had been registered in the first defendant's name when he had infact bought it from D. Katerere and had had it ceded to him at the second defendant's offices in 1981.

Gertrude Nhendereko said she got to know this as she was now a councillor with the second defendant and she was in the committee that was tasked with looking into such complaints and cases of double allocations.

As far as the nature of lease D. Katerere had, Gertrude Nhendereko could not be of much use as she had not seen the lease agreement between D. Katerere and the second defendant. The most she could do was to confirm, that, to her knowledge, the houses in question were for homeownership from inception. She also confirmed that most of the documents tendered by the first defendant were in the file pertaining to the house in question when this dispute came to light.

Further support of the nature of lease D. Katerere had, is gannered from the first defendant's documents.

For instance, on p15 of the first defendant's bundle of documents is a letter dated 7 June 1982. The letter is addressed to Dickson Katerere and was authored by JMN Nhubu. This JMN Nhubu was the second respondent's Township Superintendent. The letter reads in part:

“RE: HOUSE NUMBER 360 MAKUSHA BREACH OF CONTRACT

It came to the notice of council, late 1981, that you are no longer staying at the above house and that you have allocated the house to someone without council authority. Any efforts to get in touch with you have failed as we gather you had gone to Malawi.

I now say that you have breached the contract you entered into on 8 April 1980 to purchase the above house for homeownership purposes for over a period of five years. In pursuing my explanations, therefore, I quote para nine of the home ownership forms:

'Until title to the property has been granted to the lessee by government, the lesser shall not, without written consent of the council, let property or any portion thereof to any person nor without such consent shall any person other than the lease or his dependants occupy the same or any portion thereof.'”

Mr Nhubu made it clear the contract D. Katerera had entered with the second defendant, on 8 April 1980, was for the purchase of the property in question over a period of five years. The scheme was for home ownership and not mere tenancy.

Further correspondence between the second defendant and the Ministry of Local Government over this house and others further confirm that this was a lease to buy agreement on what is termed home-ownership scheme.

I am satisfied, beyond reasonable doubt, that, Dickson Katerere occupied this house on a lease to buy agreement. Such agreements, by their very nature, do not confer title or ownership to the lessee till the lessee has complied with all the terms of the contract or in the fullness of time.

In casu, there is no denying that D. Katerere had not met all the requirements.

The rentals towards the purchase price had not been paid in full.

The plaintiff confirmed, that, as at the time he bought the property, D. Katerere had not paid in full. The plaintiff was to take over payment of the rentals.

Title had therefore not passed to D. Katerere.

By virtue of entering into the lease to buy agreement D. Katerere had acquired certain personal rights and interests in the property but not title or ownership.

The concept of ownership entails that one has full title to the property. This was not so with D. Katerere.

It may also be noted, that, the evidence adduced, and the documents tendered into evidence, show that D. Katerere was not a mere tenant. As already alluded to, he had entered into a lease to buy agreement with the second defendant. That agreement gave him certain rights and interests that he purported to sell to the plaintiff.

He had no title to pass to the plaintiff.

One would say the sale was conditional on the second defendant granting its consent and accepting the plaintiff to step into the shoes of D. Katerere.

This brings me to the second issue, namely:

2. Whether or not Dickson Katerere's rights, title, and interest in the house were transferred to and registered in the plaintiff's name

The plaintiff's evidence was to the effect, that, pursuant to the agreement of sale, D. Katerere and himself attended at the second defendant's offices with the intention of having D. Katerere's rights and interests ceded to him.

On their first visit, they met resistance from Mr Nhubu who indicated that they should have come to the second defendant before entering into the agreement. The second defendant would then have cancelled D. Katerere's lease before entering into a new lease with the plaintiff.

They left without filling in the necessary forms for cession.

He sought ministerial guidance as he believed Mr Nhubu's point of view was incorrect. Later, D. Katerere and himself were called back to the second defendant's offices. On this occasion, he was made to fill in and sign cession forms together with lease to buy agreement forms. He was given a copy of the cession forms. On the lease, he was told, that, those forms would be sent to the Ministry of Local Government for execution by ministry officials on behalf of the Government.

He was further advised that the process would take three to four years for the forms to be executed and returned.

He thus waited to no avail.

He nevertheless took occupation and continued paying the lease to buy rentals as per the agreement.

When asked to produce a copy of the cession forms, the plaintiff said he could not produce this copy as it was being kept by his late wife. Efforts to locate the forms since his wife's death have yielded nothing.

As regards payments towards the lease to buy agreement, the plaintiff produced some receipts showing some payments he made to the second defendant in respect of this house. He could not produce a lot of such receipts due to lapse of time and the fact “that the receipts were being kept by his late wife.” As with the cession form, he could not locate more of the receipts. Those that he produced do show that he indeed made some payment.

It was his further evidence that he continued making the payments till the five years period was up. He also remained in occupation of the house till 1986 when he moved to a plot he had bought within the same town. At the time he moved out he had made the full payment for the house.

Though the plaintiff could not produce most of the receipts and the cession forms due to the reasons he advanced, his evidence that he signed the cession form and the second defendant thus consented to him taking over from D. Katerere was largely unchallenged.

The second defendant, as the other party to the cession and lease to buy agreement, could easily have rebutted that evidence had it not been true. Equally, if the plaintiff had not paid the sums of money he claimed, the second defendant was better placed to rebut that.

The second defendant's default meant that the plaintiff's evidence in that regard went unchallenged.

The first defendant could not sustainably challenge the plaintiff's evidence or assertion as he was not privy to the agreement and was not even in the picture during the period in question.

The first defendant's contention, that the plaintiff's failure to assert his rights over the property for a long time while the first defendant occupied it casts doubts to the credibility of the plaintiff's version, is without merit.

If the first defendant seriously believed the plaintiff's version was not the truth, he could easily have called witnesses from the second defendant who were alleged to have dealt with the plaintiff during the period in question. These would have been better placed to rebut the plaintiff's evidence.

The first defendant also attempted to rebut the plaintiff's evidence by referring to events that occurred after the date of the agreement of sale and cession. In this regard, he referred to the second defendant's purported cancellation of D. Katerera's lease in 1982.

As already alluded to, that letter, of 7 June 1982, contradicts the defendants plea in which they contended that D. Katerere was a mere tenant and the house in question was never on a home ownership scheme. That letter confirms to the contrary.

In any case, by 7 June 1982, the plaintiff said he had already signed cession forms and the agreement of lease to buy at the second defendant's offices.

So, for all intents and purposes, at the time that letter was written, the house had been ceded to the plaintiff and no longer in D. Katerere's name. The second defendant did not avail itself to rebut the plaintiff's evidence in that regard.

I am of the view that the probabilities are that D. Katerera's rights and interest were transferred to and registered in the plaintiff's name.

The third issue is:

3. Whether or not the plaintiff is entitled to the relief that he seeks?

The plaintiff's claim was for an order:

(a) Declaring him to be the lawful holder of all rights, title, and interest in House Number 360 Makusha Township, Shurugwi;

(b) Directing the second defendant to formally transfer and register all the rights, title, and interest in House Number 360 Makusha Township, Shurugwi; and

(c) Costs of suit.

The plaintiff's evidence was to the effect, that, he discovered that the property had been unlawfully registered in the first defendant's name in the year 2000 when he went to the second defendant's offices to inquire about the price for the land as he had long paid up for the house.

From his own words, therefore, he had not paid for the land, or, at least, he was not certain that he had paid for the land hence the inquiry.

The standard lease to buy agreement, which he said is similar to the one he signed, states the parties to the agreements as three: Shurugwi Town Council, as the first part and owner of the dwelling; the Government of Zimbabwe, as the second part and owner of the land on which the dwelling is built. The dwelling and the State land together are referred to as the “property”: the third part is the purchaser.

The first defendant contended that the non-joinder of the State, through the Minister responsible for Local Government and National Housing, in this suit is fatal to the plaintiff's relief.

The plaintiff only cited two parties with a contractual interest in the property but left out the owner of the property who has real rights. The relief seeking a transfer of the rights, title and interests to the property is not competent if it does not compel the owner of the property. In support of this posture, the first defendant's counsel cited the case of Rose v Arnold & Ors 1995 (2) ZLR 17 (H).

The plaintiff, on the other hand, argued, that, failure to cite the Minister responsible for Local Government and National Housing was not fatal to the plaintiff's claim.

The plaintiff's counsel argued that the second defendant is a form of decentralized government which was established under the Rural Districts Councils Act [Chapter 29:13] with powers to sue and be sued in its own name: see section 12 of the Rural Districts Councils Act.

Section 71(2) of the Rural Districts Councils Act provides for the derogation of administrative functions.

In this regard, counsel cited the case of Reddy v Town Council for the Borough of Kloof 1964 (3) SA 280 wherein the court held, that, once authority has been delegated, it is a misjoinder to cite the superior controlling body as the delegated officer is responsible for the exercise of the delegated authority on its own.

The plaintiff's counsel argued that, in casu, the second defendant was endowed with delegated authority by the Minister of Local Government and National Housing to handle the allocations, leases, sales and transfers of the houses and stands within its area.

Further, the second defendant is the authority that is actually responsible for the transfer and registration of rights, title, and interest in the houses within its area.

The relief being sought is therefore capable of being granted and effectively enforced as against the second defendant alone.

Whilst the plaintiff's argument was forceful, counsel could not cite any authority or piece of legislation where the Minister granted the second defendant authority to pass title on the land.

A reading of the Standard lease to buy agreement that was tendered by the first defendant shows that the second defendant owned the dwelling whereas Government owned the land on which the dwelling was built.

In its administration of its area, the second defendant took upon itself certain responsibilities when entering into the lease to buy agreement. The second defendant can be ordered to fulfil those responsibilities.

Whilst the lease agreement cites three (3) parties, the second defendant and Government are, in fact, joint sellers in as far as the second defendant owns the house whilst Government owns the land.

The second defendant was given overall responsibility in the leasing out and selling of the house and the land on which the house is built. The house is leased/sold on the second defendant's own behalf whilst the land is sold on Government's behalf. It is the second defendant that must account to Government for the State land. The Government's side seems to be a mere formality of granting title when Council has fulfilled its part and made such a request in favour of its lessee or purchaser.

This is apparent from the fact that the consent required for one to obtain.cession or to deal with the property in any other way is that of the second defendant. No where does the standard agreement refer to the need for consent by Government.

For instance, clauses 11 and 20 make it clear that the consent is that of the second defendant.

Clause 11 states that:-

“Until title to the property has been granted to the purchaser by the government the purchaser shall not, without the prior written consent of the council, let the property or any portion thereof to any person nor without such consent shall any person other than the purchaser or his dependants occupy the same or any portion thereof.”

Clause 20 states that:-

“The purchaser shall not part with the possession of the property or any part thereof nor cede nor assign nor hypothecate this Agreement or any rights hereunder to any person without the previous consent in writing of the council.”

In terms of the agreement, the term property is used to mean the dwelling owned by Council and stand (land) owned by Government.

It is apparent, therefore, that, in granting consent over the property, Council will be granting consent over State land as well. That is as Council was empowered by Government.

The Government's role, as reflected in clause 18, is that it 'agreed to grant title in accordance with the provisions of clauses 16 and 17.'

These two clauses deal with the purchaser paying agreed sums to Council or satisfying Council that payment has been guaranteed.

Clause 16 states that:-

“The purchaser may, on payment of any principal outstanding and any other charges payable in terms of this agreement to the Council, including the charges referred to in clause 18 hereof, which charges may be paid in instalments in such amounts as maybe agreed to be Council, and, on payment by the Council to the government of the sum of…, due to it for the land and the sums due in terms of clause 18 hereof receive title to the land.”

Clause 17 states that:-

“Notwithstanding the provisions of Clause 16 hereof title to the property may be granted to the purchaser in terms of this clause provided the purchaser satisfies Council that:-

(i) He has been granted a loan to be secured by mortgage bond over the property; and

(ii) The principal and interest outstanding, and any other charges payable in terms of this agreement, have been paid or guaranteed to the satisfaction of the Council against issue of the title.”

Clearly, though two parties are cited as sellers, it is Council that is saddled or clothed with all the administrative functions. Council virtually exercises all the functions of the seller after which Government grants title as a formality. It is Council that passes the purchaser as deserving of title and Government merely caps the purchaser.

It may be pertinent at this stage to note that at the conclusion of the trial of the matter in March 2009, but before counsel had made their closing submissions, counsel for the plaintiff indicated that he intended to make an application for joinder; to join to the proceedings Total Zimbabwe (Private) Limited as the second defendant.

This was to enable the plaintiff to get satisfaction of whatever judgment I may hand down in its favour from the second defendant as it emerged during the trial of the matter that the first defendant disinvested from Zimbabwe in or about 2006 and sold all its assets to the second defendant.

I postponed the hearing of the matter to enable the plaintiff to file and serve the intended application on all the parties.

NON-JOINDER OF TOTAL ZIMBABWE (PVT) LTD

The argument raised by the defendant was that because Total Zimbabwe (Pvt) Ltd had an interest in this matter its non-joinder was fatal to the plaintiff's case.

I do not accept this argument.

The issue of misjoinder or non joinder of parties is sufficiently covered in our Rules and it is clear that non-joinder is not fatal to the case before the court. For the avoidance of doubt, the specific Rule, Order 13 Rule 87(1) of the High Court Rules, 1971, provides as follows –

“87(1) No cause or matter shall be defeated by reason of the misjoinder or non-joinder of any party, and the court may, in any cause or matter, determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.”

For the respondents', it is submitted that the present application is entirely misdirected in that it is BP Africa Limited and Shell Petroleum Company Limited who are selling their shares in the second and third respondents and who should have been joined in this matter from the outset.

The first and second respondents further contend, in limine, that the applicant company sold the property in question to Total Insurance Company Limited..., in 2004 when Oniyas Gumbo was still a Director, and that the failure to cite Total Insurance Company Limited is a non-joinder that renders the application totally defective and warrants the dismissal of the urgent chamber application without going into the merits of the matter.

The third and fourth respondents also raised a point in limine in their opposing affidavit. They aver that the third respondent purchased the property in question from Total Insurance Company Limited on 19 May 2008. They aver that the transfer which the applicant seeks to interdict is transfer of the said property from the applicant company to Total Insurance Company Limited, and that such transfer was being attended to by Messrs Machingambi Legal Practitioners. They contend that the failure to cite Total Insurance Company Limited and/or Messrs Machingambi Legal Practitioners as parties to these proceedings is fatal to this urgent chamber application.

The applicant seeks a provisional order in the following terms:-

“Terms of the provisional order granted

1. Respondents be and are hereby ordered to forthwith hand over a property listed in Annexture 'B' to the founding affidavit to the applicant upon service of this order.

1(a) In the event of the respondents refusing or forbidding to comply with the terms of para 1 above, the Deputy Sheriff be and is hereby authorized to retrieve the said property from the respondents' property and deliver it to the applicant.

2. Respondents are required to account for one applicant's property sold prior to 14 of July 2010 and to handover all proceeds of such sales to the applicant within 48 hours of service of this order.

3. Leave is given to the applicant's attorney to serve a copy of this order.”

The terms of the final order sought are constructed as follows:-

“Terms of the final order sought

1. It is hereby declared that the property listed in annexture 'B' attached to the founding affidavit is the exclusive property of the applicant.

2. Respondents be and are hereby ordered to pay costs of suit on legal practitioner client scale.”

The brief facts of the matter can be briefly stated as follows:-

The applicant conducts the business of interior and exterior decorations and sells diversified specifically-designed household goods and effects. On or about October 2009, the applicant entered into negotiations with the first respondent who was allegedly representing herself and the second respondent. It was agreed that that the first respondent, through the second respondent, would act as an agent of the applicant.

The nature of the agency relationship was that the applicant would supply the respondents with goods for sale which would be sold on the applicant's behalf by the respondents who would, in turn, receive 20% commission on any goods sold.

On 14 July 2010, the applicant wrote to the respondents cancelling the agency agreement alleging improper conduct and breach of the material term of the agreement between the parties by the respondents.

The second respondent, by way of letter on 15 July 2010, confirmed the cancellation of the agency agreement but sought to remain in possession of the property listed in Annexture 'B' until a certain date and that the respondents be paid certain amounts due arising from the applicant's cancellation of the agreement.

The applicant persisted in demanding to be handed over the property in Annexture 'B' valued at US$116,627=50 but the respondents refused indicating that certain conditions should be met.

When the applicant visited the respondent's shop, on 13 August, ostensibly for a stock take, the applicant was denied access into the shop. The applicant alleges that some of the property had been removed from the shop and property valued at about US$100,000 was no longer in the shop.

The applicant's fear was that the respondents were disposing of the applicant's property hence causing possible irreparable loss to the applicant.

The applicant then approached this court, on a certificate of urgency, praying for the interim relief already alluded to.

This application is opposed.

Counsel for the respondents raised three points in limine, two of which he argued are capable of resolving the matter without even going into the merits of the application. The points in limine are;

(i)...,.

(ii) Secondly, that the first respondent is improperly cited;...,.

That first respondent is improperly cited

Counsel for the respondents, in argument, stated that it was improper to cite Maria Katsande as the first respondent in these proceedings in her personal capacity as the Agency Agreement was between the applicant and the second respondent. He argued that the first respondent, despite being both a shareholder and director of the second respondent, should not be party to these proceedings in her personal capacity.

Counsel for the respondents submitted that the second respondent is a duly registered company in terms of the Companies Act [Chapter 24:03] and has a separate legal persona distinct from the first respondent.

On the other hand, counsel for the applicant countered that the first respondent was properly cited as she is the one who negotiated the Agency Agreement on her own behalf and that of the second respondent. Counsel for the applicant submitted that the first respondent at no stage produced a resolution from the Board of Directors of the second respondent indicating that she was acting on behalf of the second respondent.

Reference was made to the case of Madzivire & Ors v Zvarirwadzwa & Ors 2005 (2) ZLR 148 (H) in support of counsel for the respondents argument.

My view is that this case is irrelevant to the point in issue as it dealt primarily with the right of individual directors or shareholders to bring action on behalf of the company.

It is common cause that the second respondent prima facie is a duly registered company in terms of the Companies Act [Chapter 24:03]. I say prima facie because the applicant did not contest this point although the certificate of incorporation attached as Annexture 'A' to the second respondent's opposing affidavit is unsigned by the Registrar of Companies and is a photocopy.

Section 9 of the Companies Act [Chapter 24:03] provides as follows:-

“A company shall have the capacity and powers of a natural person of full capacity in so far as a body corporate is capable of exercising such powers.”

In the absence of any basis to pierce the corporate veil, I would agree with counsel for the respondents that there would be no proper basis in law to cite the first respondent in these proceedings in her personal capacity, albeit, being both a director and shareholder of the second respondent. Accordingly, the first point in limine is upheld.

However, this would not dispose of the matter as the second respondent remains party to the proceedings.

However, the evidence given by the applicants does not link any acts of spoliation to the respondents.

The first, second, and third respondents deny any involvement in the events narrated by the applicants.  The applicants have not said they saw any of these three respondents with this group of youths. All they say is that they understood the youths to have been sent by one or other of the three respondents.

Any evidence to that effect is simply hearsay evidence and cannot be relied upon.

The three respondents are holders of offer letters relating to this estate. They say it is on that basis that it is suspected they have links to the “youths”.

In my view, the applicants should have checked their facts before embarking on this application.

I am fortified in this regard by the mention of the applicants of individuals, other than the respondents, who were clearly with the “youths” at the time and directing ”operations” so to speak. These individuals have been identified by name. They have not been cited.

The amendment does not fulfil the requirements for a joinder which are contemplated by Order 13 Rule 85 of the Rules of Court.

As if that was not enough, in his heads of argument, the applicant never addressed the issue at all. It was only in his viva voce submissions in court that counsel for the applicant referred to the issue of the first family as the basis for the locus standi. But surely being a son or daughter to another does not, on its own, clothe the son or daughter with legal capacity to act for and on behalf of the parent in legal proceedings.

The plaintiff issued summons in which he claims for an order setting aside the cancellation of an Agreement of Sale between him and the first defendant and an order for specific performance for the delivery of the property, being a flat called Block 12, Room 93, Mufakose Flats.

He later, by consent, amended his claim by adding an alternative claim for damages if the relief of specific performance cannot be granted to him.

During the trial, and as the plaintiff gave his evidence, he indicated that he was abandoning the claim for specific performance. As a result, the outstanding issue for the determination of this court is the claim for damages.

The quantum of damages claimed in terms of the amendment is the amount of ZW$40,000,000,000= or the value of the property at the time of judgment whichever is greater. However, during the trial the parties advised the court that they had agreed on the quantum of damages in the event that the court found the first defendant liable to pay damages to the plaintiff. They advised the court that they had agreed that the quantum of damages be the amount of US$22,000=.

The following issues were referred for determination at trial:

“1. Whether Denrose Agent was an agent for plaintiff and or defendant.

2. Whether or not the oral agreement was entered into by the first defendant and plaintiff prior to 6^th September 2006.

3. Whether or not the oral agreement of sale entered into between the first defendant and plaintiff is valid.

4. Whether or not the plaintiff entered into a written agreement of sale with the first defendant. If so, what were the terms of the agreement?

5. Whether or not the plaintiff honoured all his contractual obligations.

6. Whether or not the cancellation of the agreement is valid.

7. Whether or not the cancellation of the Agreement of Sale complies with the Contractual Penalties Act [Chapter 8:04].

8. Whether or not the plaintiff is entitled to have the property ceded to him.

9. What order should be made as to costs?”

The pertinence of the above issues will emerge from the evidence that was adduced before the court as detailed below.

One Memory Chatambudza Makope was the first witness to give evidence on behalf of the plaintiff. His evidence was to the following effect. He was involved in all transactions involving this matter and was always acting on behalf of his brother, the plaintiff.

He produced a special power of attorney executed in his favour by the plaintiff.

The plaintiff, whilst in the United Kingdom, saw an advertisement in a newspaper to the effect that the immovable property in issue, being a flat in Mufakose known as Block 12 Room 93 was on sale in Zimbabwe. The advert was allegedly placed in the said newspaper by estate agents known as Denrose Real Estate (Denrose). The plaintiff asked the witness, who was in Zimbabwe, to go to the offices of Denrose Real Estate and see one Patrick Disban (Disban) in connection with the advertisement. The witness went to the offices of Denrose Real Estate together with his parents. Patrick Disban indicated that he was already waiting for the witness' arrival. Disban then gave the witness an Agreement of Sale (exhibit 2) in respect of the said property and the witness signed on behalf of the purchaser.

The first defendant was reflected on the agreement as the seller of the property.

The purchase price for the property was $6,500,000= (Zimbabwe currency). The plaintiff made payments from the United Kingdom directly to Denrose Real Estate and Patrick Disban would advise the witness and family accordingly whenever such payments were received. The witness did not receive any receipts in respect of any such payments from Denrose Real Estate. He produced a print-out (exhibit 3) purportedly made by Denrose Real Estate and handed to him which reflects that the plaintiff had made a payment of $6,500,000=; that interest accumulated after investment was $698,082=19; that the purchase price after interest was added on was $7,198,082=19; that to make the purchase price of $10,000,000=, the balance to be paid was $2,801,917=81.

Towards the liquidation of the balance of $10,000,000= the plaintiff made two payments directly to Denrose Real Estate in the respective amounts of $1,196,000= and $800,000= as reflected in exhibit 4 being copies of the relevant receipts.

When the witness inquired why the purchase price had changed to $10,000,000= from $6,500,000= Patrick Disban advised him that as he could not release the money paid as purchase price by the plaintiff to the first defendant before cession was effected, the seller had indicated that because payment of the purchase price was taking long, he had increased the purchase price to $10,000,000=.

Patrick Disban also advised him that the plaintiff had agreed to pay the revised amount.

The witness said that he saw the cession form, exhibit 5, sometime in December 2006 or January 2007. Section 1 of the cession form headed “To be completed by Cedant” was filled in, in the name of the first defendant but was not signed by the first defendant in the space provided for his signature. There is what purports to be a witness' signature and which appears to be the same signature as appears on the Agreement of Sale as that of the witness to the seller's signature thereon. The cession form purports to have been signed by the said witness on 25 September 2006, the same date on which the Agreement of Sale was signed by the seller and his witness. The other sections of the cession form meant for completion by the cessionary, the local authority and the Ministry of Local Government, Public Works and Urban Development were not completed.

It was also the witness' evidence that sometime in December 2006 or January 2007 Patrick Disban gave his father the keys to the flat and since then his father has been in control of the flat to this day.

The witness never had any dealings with the first defendant.

One Mr. Zimbudzana (Zimbudzana), also of Denrose Real Estate, then took over from Patrick Disban. He appeared to occupy a more senior position to Disban. When the witness inquired with him why cession was never completed, Mr Zimbudzana said it was because the first defendant had an outstanding debt that he had to pay to the Ministry of Local Government first before cession could be effected. Thereafter, the witness and his father would regularly go to the offices of Denrose Real Estate and they would be told that the first defendant was in Bulawayo and would be given another date when he would allegedly be in Harare for purposes of effecting the cession. This happened on a number of occasions but cession was never effected.

The witness disputed that Denrose Real Estate was the plaintiff's agent and said that the plaintiff never got his money back from Denrose Real Estate.

The witness produced, as exhibit 6, a letter dated 7 February 2007 from the first defendant's legal practitioners to the plaintiff's legal practitioners. The letter states, inter alia, that the agreement that the plaintiff was seeking to enforce was formally terminated and cancelled by the first defendant and that this was communicated to the plaintiff “through the agents Messrs Renson Real Estate.” The letter further states that the termination was occasioned by the plaintiff's failure to meet the pertinent terms of the agreement and that the first defendant had instructed them to demand that the plaintiff vacates and hands over the keys to the premises failing which legal proceedings would be instituted for the said relief.

The plaintiff then communicated with legal practitioners and since then the witness was not aware of any further attempts thereafter to evict the plaintiff.

When the keys to the flat were handed to his father by Denrose Real Estate, the indication made was that they could have the keys as they had paid in full for the flat and the only outstanding issue was the cession. He disputed the suggestion made that the keys had been given to them only for purposes of viewing the property. He said that they had viewed the property in September 2006 and were not given the keys then. He was not at any time given any written notice that there was a breach on the plaintiff's part which was to be remedied.

With regards to the contents of exhibit 3, the witness said that neither the plaintiff nor he instructed Denrose Real Estate to invest the money and that Denrose Real Estate was supposed to pay the money to the first defendant.

The witness produced as exhibit 7 a letter dated 9 November 2007 from the Ministry of Local Government, Public Works and Urban Development stating that the Ministry would not consent to the cession of the first defendant's rights and interests in the property to the plaintiff. The witness said that it was because of that letter that the plaintiff is now only pursuing the claim for damages only. It was at this stage that both legal practitioners advised the court that they had agreed that if the alternative order for damages is granted the award should be in an amount of US$22,000.

The witness said that he does not know the date when the amount of $6,500,000= was paid by the plaintiff into Denrose Real Estate's account. (NB) They only received the information from Denrose Real Estate that that the amount had been paid and when they asked for cession to be effected, after payment was made, the agent told them that they were waiting for the person who was going to come from Bulawayo (presumably Felix Dzumbunu) to sign the cession forms.

The second and last witness to testify for the plaintiff was Tawona Mike Munetsiwa Makope. He is the father of the last witness and the plaintiff. He said that after the plaintiff had seen an advertisement in the newspaper, while he was in the United Kingdom, he telephoned him and asked him to go and see one Patrick Disban at Denrose Real Estate. Patrick Disban took them to view a residential flat. After that, and on 4 September 2006, Memory Chatambudza Makope, the last witness, signed an Agreement of Sale, exhibit 2, in his presence. They were told to go back home and return the following day in order for cession to be effected. When they went back to Denrose Real Estate the following day they were told that Mr. Dzumbunu, from Bulawayo, had not arrived to attend to the cession. They were told to come back the following day. They did and were, again, told that Mr. Dzumbunu had not yet come from Bulawayo but had made arrangements with his brother, one Geofrey Dzumbunu who was said to stay in Sunningdale. The witness and members of his family went back to Denrose Real Estate the following day, and, again, there was no attendance by the seller.

To date, cession has not been done.

The witness said that when they asked Mr. Zimbudzana, of Denrose Real Estate, why cession was taking so long, he said that they had discovered that Mr. Dzumbunu, of Bulawayo, owed the Ministry of Local Government some money in respect of the flat. Thereafter, he was advised that Mr. Dzumbunu had settled what he owed the Ministry and that cession was imminent - but cession did not take place.

In November, the witness was given the keys by Patrick Disban who told him that the flat was now theirs and that cession would be done later. At the end of November the witness went to the flat and found papers from the Municipality for payment of rates, water, electricity and rentals. He took the papers to Mr. Zimbudzana who told him to pay the bills as Mr. Dzumbunu was not going to do anything about them. All in all the witness paid Z$100,000=. He did not move into the flat at that stage as he was waiting for cession to be done. He later took occupation of the flat through his nephew who moved in at the beginning of January 2007.

When the witness went back to Denrose Real Estate to find out when cession would be done Mr. Zimbudzana showed him exhibit 3 reflecting that the plaintiff had paid an amount of Z$6,500,000=. He said that he paid the monies reflected in the two receipts on exhibit 4 and that the money was not returned to him at any stage. Even though the agreement provided that occupation of the flat would only be after cession, he took occupation because the agent from Denrose Real Estate told him to do so as there was nothing to wait for, the delay in having the cession done having been caused by the other party. Mr. Zimbudzana told him that if there was any money owing by the plaintiff to the first seller he would have advised the witness.

The plaintiff's case was closed after this witness' testimony.

The first defendant then gave evidence to the following effect. He is the present leaseholder (of rights and title) in respect of the property in issue. He acquired the property after making application to the City of Harare after which he was called to an interview by the Ministry of Local Government. Thereafter, the flat was allocated to him.

Although he is not privy to everything that transpired concerning the Agreement of Sale, he agreed to the property being sold.

He stayed in the flat for one and half years but it became too small for his family. He acquired another property and built a house big enough to accommodate his family. He then decided to give the flat to his brother, Felix, who is based in Bulawayo as he used to have accommodation problems when he came to Harare. After some time had elapsed Felix said that he wanted to sell the flat and he gave Felix the go-ahead to sell the flat and deal with the flat as he saw fit.

Under cross examination, the witness was unable to say off-hand the terms of his lease with the City of Harare. He said that there was no paperwork to show that he had ceded his rights to Felix Dzumbunu. He said that exhibit 7, the letter from the Ministry of Local Government, was incorrect in stating that the Ministry entered into an Agreement of Sale with him on 23 September 2006. Initially, the witness said that he did not sign any cession forms. When he was shown exhibit 5 he said that he did not remember signing it. When he was then asked to compare the signature thereon with that on the Agreement of Sale, he then said that the signature was his. He also said that when he signed the Agreement of Sale he did not read it. He received no money from Felix for the property. Felix told him that the people were crooks and that no money had been paid. He also said that the address given in the Agreement of Sale as his address is in fact Felix's address. The address is in Harare and not in Marondera as it states. The two mobile phone numbers recorded thereon are for his brother and him respectively. He does not know and did not have any dealings with the people from Denrose Real Estate and that the agreement was brought to him for his signature by his brother. He said that from the time that he gave the property to Felix he has no knowledge about the movement of the flat keys to Denrose Real Estate and has no knowledge of any other events that transpired. He also said that he started living at his new home in 2004 or 2005 and by then he had already signed the Agreement of Sale. When he signed the Agreement of Sale the flat was still registered in his name at the Ministry of Local Government.

Felix Dzumbunu was the next witness for the first defendant. He is based in Bulawayo. His evidence was to the effect that he is familiar with this matter. The first defendant is his brother. About ten years ago the first defendant, who was renting the flat in question from the Ministry of Local Government, offered the flat to him as it was no longer suitable for his needs due to the size of his family. He accepted the offer which included the responsibility to choose who occupies the flat, to pay rentals and any dues relating to the flat to the relevant authorities and assume all risk in relation thereto. The first defendant however remained, and still remains, the leaseholder of this immovable property.

Sometime in July or August 2006 the witness decided to dispose of the flat. The first defendant was agreeable to the idea. The rest of his siblings were also involved in discussions concerning the witness' decision. It then happened that one distant cousin of the witness, whilst having drinks somewhere in Mufakose where he lives, mentioned this to Patrick Disban of Denrose Real Estate. The witness eventually talked to Patrick Disban and expressed his reservations about the possible complications that were likely to arise as the property was leased to the first defendant. Disban assured him that he was conversant with all the necessary procedures that had to be undertaken in such circumstances. The witness, having been assured that Disban knew all the procedures then gave him the responsibility of ensuring that all the necessary procedures and requirements regarding the transaction were properly attended to. He also gave him the authority to sell the flat. This was about the first week of September 2006. The witness was and remains unfamiliar with the procedures that needed to be done for cession to be effected. They discussed and agreed that the selling price would be between Z$5 million and Z$5,5 million. The discussion took place sometime in early September 2006.

A day after their discussion, Patrick Disban phoned the witness and indicated that he had a prospective buyer for the property. Disban did not name or identify the prospective buyer. They agreed that Disban should prepare a preliminary agreement. Sometime during the first week of September Disban faxed the agreement to him in Bulawayo. The seller was stated to be F. Dzumbunu (the witness) and he asked Disban to correct it. Before faxing the corrected agreement, Disban advised the witness that the buyer had sent money for the purchase price from the United Kingdom. The witness asked Disban to quickly attend to the amendment of the agreement so that he could come to Harare to sign it but Disban took his time, and, in the process, spanning a period of about one and half to two weeks, he was saying that the money which was destined for the account of Denrose Real Estate was lost as the buyer had quoted the wrong name or account number and that the money had to be “resent”.

The witness said that according to their agreement the money was supposed to be passed on to him upon the signing of the agreement. When Patrick Disban said that the money had been lost the agreement had not yet been signed and the witness had had no direct communication with the buyer. After the lapse of the one and half to two weeks period referred to above Disban said the money had been found. The witness was suspicious. Because of the hyper inflationary environment they were forced to re-look at the purchase price which they then agreed to place at Z$6,5 million. He told Disban to prepare the Agreement of Sale. He told Disban that he was going to come to Harare to sign as a witness as the first defendant was not prepared to sign as seller before the witness had signed the agreement as a witness. The witness eventually signed that agreement on 20 September 2006. The first defendant also signed the agreement on the same date. He said that his understanding of the agreement as well as that of Disban was that he was to get the purchase price upon or soon after signing the agreement and that he greatly emphasised the need for him to receive the money expeditiously. His understanding was also that cession would be effected after payment and only after cession would the purchaser take occupation.

The witness did not receive any payment after the signing of the agreement.

When he contacted Patrick Disban, the day after the signing of the agreement, to inquire whether transfer of the money had been made into his account he was surprised to hear that cession had to be done first before payment could be made into his account. Before then the understanding had always been that payment was going to be made first. The witness became suspicious again and thought that Denrose Real Estate possibly did not have the money which had been claimed to have been received from the purchaser for onward transmission to him and on the basis of which information the seller had proceeded with the signing of the agreement. He had been advised that the Z$6,5 million was already available before the signing of the agreement. Thereafter, Disban sent the witness a text message or “sms” asking him to inform the first defendant to go and sign the cession forms in order to speed up transfer of the purchase price into the witness' account before 11.30am on 22 September 2006. He said that he reluctantly asked the first defendant to go to the relevant local authority offices with the agent for the said purpose. At the local council offices, the first defendant was told that an amount of about Z$300,000= had to be paid. The witness said that he declined the purchaser's offer to pay the said amount and that he paid the money himself.

When the witness asked if he could get payment of the purchase price first to enable him to pay the required amount, the response he received was that the cession had to be done first.

A legal practitioner…, who had come onto the scene purporting to be a representative of the purchaser suggested that they pay some Government officials Z$80,000 in order to secure the processing of the documents. He did not agree with the suggestion.

The witness raised with Mr Zimbudzana his concerns over what had happened. He also raised the issue of payment of the purchase price again. Several excuses were raised and sometimes Mr Zimbudzana would avoid talking to the witness when he called from Bulawayo. About the first or second week of October 2006, after several phone calls from both sides, Mr Zimbudzana suggested that they hold a meeting primarily to look at another agreement as the witness was complaining about the delay in payment. Mr Zimbudzana advised him, over the phone, whilst he was still in Bulawayo, that there had been unforeseen delays in paying the money to the witness. He met with Mr Zimbudzana and Patrick Disban in Harare at the Jameson Hotel. They asked him what he thought would be a fair price as at that date. He assumed that they were mandated by the purchaser when they indicated a revised offer of Z$9 million. The witness suggested Z$12 million. They eventually agreed at Z$10 million which was to be paid immediately after the signing of the agreement (NB: No second agreement was ever signed).

It was agreed at the said meeting that Denrose Real Estate would prepare a new agreement by the Monday following the day of the meeting and that it would be faxed to the witness for verification and signing. They also agreed on certain variations to the previous agreement, exhibit 2. They agreed that because of the history of unfulfilled promises, if Z$9 million was not paid within a week or five working days the witness would “automatically” cancel the agreement. He then sought to qualify this by stating that the Z$10 million was split into two amounts; Z$9 million was to be paid immediately upon signing the agreement and the remaining Z$1 million was to be paid at the end of December 2006. The agents said that they had Z$6,5 million in the Bank and were expecting the plaintiff to send through telegraphic transfer the balance to make up the Z$9 million. Payment to the witness would thus be done within a few days. He then also stated that they agreed that the Z$6,5 million was to be paid immediately by way of bank transfer as it was alleged to be available and that as he used the same bankers with Denrose Real Estate it was going to be an internal transfer which would have immediate effect.

Neither the Z$6,5 million nor the Z$9 million was paid or transferred into the witness' account as agreed. The witness said that he never saw any proof that the plaintiff had paid the monies he was alleged to have paid to Denrose Real Estate.

It was also the witness' evidence that at the time that the agreement placing the purchase price was reached the flat was vacant but he had since given the keys to the estate agents before then so that they would be able to show the flat to prospective purchasers. He was not however sure as to how the plaintiff managed to obtain possession and control of the flat but only assumed that the plaintiff was given the keys by the estate agents. He did not authorise the estate agents to give the keys to the plaintiff as he had not received the purchase price in terms of the agreement, and, in terms of the agreement, occupation was supposed to be after payment and cession. He only became aware that the plaintiff had taken control of the flat at the end of November 2006 when he sent one of his employees on a routine check of the property. The witness' employee found a man who claimed to be the plaintiff's nephew. Thereafter, the witness advised the nephew to let the plaintiff know that there were outstanding issues relating to the sale of the flat.

When the witness checked on his bank account during the first week of December 2006, in the normal course of business, he found that an amount of Z$6,650,000 had been transferred into his account. The Bank confirmed that the money had come from Denrose Real Estate. The said amount was credited into his account on 24 November 2006. Noone from Denrose Real Estate had communicated to him about the transfer.

The witness said that he immediately called the estate agents and advised them that he was cancelling the agreement due to their non payment, in violation of their agreement, and that he made this communication during the third week of November 2006 (note discrepancy in dates here). He wrote cheques payable to Denrose Real Estate in the full amount and hand deposited the envelope to Denrose Real Estate offices during the period around 13 and 15 December 2006. He was told that the purchaser would be advised of this development. As his account was later debited he took it that Denrose Real Estate deposited the cheques into its account. There was no further communication between the witness and the estate agents representatives concerning the Agreement of the Sale of the flat.

With regard to cession, the witness said that after signing the cession form the parties proceeded to the City Council offices and to the offices of the Ministry of Local Government where relevant payments were made. The witness said that after he signed the cession form he handed it back to the estate agents who were familiar with the necessary procedures and who were supposed to finalise the matter with the first defendant. As he never saw any document confirming that the cession was finally approved, his assumption was that cession was not finalised or effected.

When asked to comment on exhibit 7, the letter from the Ministry of Local Government, the witness said that he was led by the estate agents to believe that it was possible to sell the property legally. Furthermore, in terms of their agreement (which one, if the written one, is he therefore saying it was not cancelled?) the purchaser ought to have acquainted himself with all the encumbrances that might apply to the property. He said that the date of September 2006 which is stated in the letter is wrong and that to his knowledge the lease agreement between the first defendant and the Ministry of Local Government was entered into in 1994.

The witness said that he did not receive the purchase price of Z$6,5 million in terms of the written Agreement of Sale, exhibit 2, neither did he receive the purchase price of Z$10 million in terms of the subsequent agreement. He did not authorise the plaintiff to take occupation of the flat.

Under cross-examination, the witness said that whilst in terms of the Agreement of Sale, exhibit 2, the payment of the agent's commission by the seller meant that Denrose Real Estate was the seller's agent, it was not conclusive proof that Denrose Real Estate was not also acting as the purchaser's agent as well. Although Denrose Real Estate was supposed to be the seller's agent the actions of Messrs Patrick Disban and Mr Zimbudzana, and the authority that they exercised during negotiations, made it clear to him that they were also acting as the purchaser's agent.

As to why he, as witness would, before the first defendant, as seller, sign the Agreement of Sale he said that that was because he had effective control of the flat as the first defendant had given it to him. He said that although the Agreement of Sale did not specifically make time of payment of the essence of the agreement it was, at all relevant times, the clear understanding that payment was going to be made immediately after signing or within a reasonable time “for as long as it took to effect transfer.”

It was highlighted to him that whilst he signed the agreement as a witness on 20 September 2006 the first defendant only signed as the seller on 25 September 2006. He answered that after signing the agreement he left it with another of his brothers who was to take it to the first defendant for his signature and he was not sure what transpired thereafter.

He was then asked why he would expect payment soon after he had signed yet he was only signing as a witness. His response was that they had always agreed that because of the inflationary environment, payment had to be prompt.

The witness' attention was drawn to the first defendant's synopsis of evidence which states that the parties entered into an agreement on or about 6 September 2006. He commented that this was not correct and said that there was no written agreement on 6 September 2006. He was also referred to paragraph 1 of the first defendant's plea which states that the…, defendant entered into a written agreement of sale on 4 September 2006 and he said that he had no comment to make about that. He said that the only discussions that he ever had concerning the agreement of sale were with the two named gentlemen from Denrose Real Estate. He only had a brief casual discussion with Mr. Makope (senior) but it was not about the contents or details of the agreement of sale.

He was asked why it had taken him until the third week of November 2006 to cancel the Agreement of Sale yet their agreement at the Jameson Hotel meeting was that if payment of Z$9 million was not made within a week thereof, translating to about the third week of October 2006, cancellation would be immediate.

His response was that communication was always being made to establish the reasons for the non-payment. Sometimes the agent would not take his calls whilst at other times he would be told that payment would be made the following day but he eventually decided to cancel as the payment was not made.

It was put to the witness that the plaintiff's stance was that he only paid the additional amount because he wanted the flat and not because of any new agreement.

He said that there was a new agreement which he negotiated with Denrose Real Estate as the plaintiff's agent. He said that Denrose Real Estate represented both the plaintiff and the first defendant. He also said the figure of Z$11 million, in paragraphs 5 and 6 of the first defendant's synopsis of evidence, looked like an error to him and he denied the suggestion put to him that he kept increasing the purchase price for the flat.

The witness was referred to clause 6 of the Agreement of Sale, exhibit 2, which requires the giving of 14 days' notice to remedy a breach and was asked if he had given such notice in relation to the written agreement.

He said that he did not need to give notice as the action that cancelled the agreement came from the plaintiff who made new proposals.

It was put to him that as no notice had ever been given the Agreement of Sale, exhibit 2, had therefore never been cancelled and was still a valid agreement of sale.

He denied this and said that they had entered into a new agreement of sale which naturally superseded exhibit 2. Although the new document that the parties were supposed to have signed was never produced, the parties' actions, particularly the payment of Z$6,6 million into his account by the purchaser and subsequent payments of Z$800,000 and Z$1,1 million were all meant to fulfill the new purchase price.

The witness said that he asked for, but Denrose Real Estate never produced proof of any payment that they allegedly received from the plaintiff. Neither did the plaintiff furnish him with any proof of payment to Denrose Real Estate except for the manually produced exhibit 3 which does not give the dates or methods of payment. He insisted that the plaintiff took occupation in November 2006 and not end of December 2006 or beginning of January 2007 as claimed by the plaintiff.

His attention was drawn to paragraph 3.5 of the first defendant's plea which states that the first defendant allowed the plaintiff to occupy the flat in September 2006. It was put to him that he allowed the plaintiff to take occupation because he had paid Z$6,5 million in terms of the written agreement.

He denied this. He was asked to produce, but could not, documentary proof that the Z$6,6 million was returned to Denrose Real Estate. He was however surprised by the suggestion that the plaintiff had never received that money as the agents in their correspondence never disputed that they had received the money. The said correspondence was not however produced before the court.

As to why the witness did not claim rentals from the plaintiff after he took occupation of the flat the witness said that they instead wanted to take action to evict the plaintiff from the premises. He had however not filed any papers for the eviction of the plaintiff. It was then put to him that that was because the plaintiff was in lawful occupation. He also believed that any such dues or any monies that would have accrued to him through the occupation of the premises by the plaintiff would be taken into account when this court makes its judgment.

The witness also said that he had not called Denrose Real Estate to testify because “to a certain extent the agent was surprisingly hostile” to him and he felt that they were conniving with the plaintiff.

The first defendant's case was then closed.

The first issue referred for determination is whether Denrose Real Estate was agent for the plaintiff or for the defendant

In Frazer NO v Ruwisi 1990 (2) ZLR 99 (SC)…, KORSAH JA said:

“In Balzun v O'Hara & Ors 1964 (3) SA 1 (T) at p4, Colman J quoted, with approval, the following words from the judgment of Lord Greene MR in Wragg v Lovett [1948] 2 All ER 968 (CA) at p969G:

'…, we must not be understood as suggesting that when a vendor merely authorises a house agent to 'sell' at a stated price he must be taken to be authorising the agent to do more than agree with an intending purchaser the essential (and, generally, the most essential) term, ie the price. The making of a contract is no part of an estate agent's business, and, although, on the facts of an individual case, the person who employs him may authorise him to make a contract, such an authorization is not lightly to be inferred from vague or ambiguous language.'

Relying on the above quoted words of Lord Greene MR, QUENET JP held, in Guest and Tanner (Pvt) Ltd v Lynch 1964 RLR 252 (A)…, that:

'.., the words 'go ahead and prepare the agreements to clinch the sale' are susceptible of the meaning, 'prepare the agreement so that a sale can be concluded', and do not necessarily, mean 'prepare the agreements and you conclude the sale'.

And CHRISTIE, in his book Business Law in Zimbabwe…, observes that:

'…, the presumption that the ordinary relationship (between an estate agent and his principal) is intended is so strong that instructions to 'sell' or to 'go ahead and prepare the agreements to clinch the sale' will not be interpreted as authorizing an estate agent to conclude the sale.'

It seems to me that the mere acceptance of a deposit by an estate agent, without more is not unequivocal evidence of a mandate to conclude a contract on behalf of his principal. It is susceptible to the inference that if the deposit and the proposed terms of the payment of the balance of the purchase price meet with the approval of his principal, then the seller and purchaser may conclude an agreement of sale. The doctrine of consideration has no place in the law of Zimbabwe, and I do not see that the only inference to be drawn from the acceptance of a deposit by an estate agent, without more, is that he has a mandate to conclude an agreement on behalf of his principal.…,.

I think this issue of a receipt of a deposit from a buyer was succinctly dealt with by WATERMEYER J in Earlie Homes Estates v Miller 1977 (4) SA 288 (C)…, where the learned judge said:

'In my view, the estate agent, unless he is the agent of the seller to receive the purchase price which, in the absence of express or implied authority, he is not (see Tank v Jacobs 1 SC 289; Wessels v De Villiers, 1 G 141 (1885 OFS 141); Field & Co v Marks & Co Ltd 12 EDC 13; Roberts v Bryer Bros 1931 OPD 197; Burt v Claude Cousins & Co Ltd [1971] 2 All ER 611 at pp615-618; and Sorrel v Finch [1976] 2 All ER 371) must hold the deposit for the would-be purchaser. Until such time as the contract of sale is completed the would-be purchaser can call upon the estate agent to return the money, but if the contract of sale is completed then the estate agent is bound to deal with the deposit in terms of the contract of sale.'

It seems clear from the authorities that, where an estate agent, before any binding contract is made, asks for and receives a deposit, giving the receipt in his own name without more, he does not receive as an agent for the vendor; for it that were so the estate agent would be under duty to pay the deposit to the vendor forthwith. Since, however, he can only pay it to the vendor against transfer of the property or return it to the purchaser if the contract is not concluded, he holds the deposit in trust for both to await the event. He is nothing more than a 'stakeholder' and not a mandated agent of the vendor.”…,..

On the basis of the above-cited authorities, and the evidence adduced before this court, Denrose Real Estate or Messrs Patrick Disban and Mr Zimbudzana cannot, in this case, be said to be agents of one party to the exclusion of the other. They received and held the deposit for the would-be purchaser whilst awaiting the completion of the contract. They did not pay the money to the vendor....,.

It appears to me that if I am correct in the above summation that the rest of the issues stated above as having been referred to trial or for determination at trial become irrelevant.

The fact of the matter is that the seller, the first defendant, did not receive any payment for his property and that position prevailed even up to the time of trial.

From the authorities discussed above, Denrose Real Estate was not the first defendant's agent and was nothing more than a stakeholder. There can thus be no justification for the granting of the relief sought by the plaintiff. Neither Denrose Real Estate nor Patrick Disban nor Mr Zimbudzana are parties to this action. There is no explanation by them as to the fate of the monies that they apparently received from the plaintiff and from members of the plaintiff's family. It can only be for the plaintiff to ascertain the true position with them....,.

The preliminary issues

The first respondent raised three preliminary issues. The first was that the application was defective for the non-joinder of the acquiring authority.

It would also not be competent for the court to include in the matrimonial estate the Mazda B1600 registration number AAM 1146 which the plaintiff claims was purchased by the parties but was registered by the defendant in his brother's name without her consent.

In proceeding with his case, the plaintiff gave evidence after which the third defendant gave evidence. In his evidence, the plaintiff explained how he paid for the house after which the late Jackson Jekera and himself approached the second respondent for transfer. Transfer was not effected due to the fact that he was not on the housing waiting list. It was his evidence that after a year he looked for the late Jackson Jekera to no avail. He only found him in 1989 and by then the third defendant had already bought the same property.

The third defendant gave evidence basically on his claim that the property should be ceded to him as he bought the property in July 1989 and he fully paid for it. He took occupation in that same year and he has been in occupation since. At the time of purchase he was not aware of any prior purchaser. In 1991 he was served with court papers in HC1375/91 in which the plaintiff was seeking his eviction from the house in question. He maintained that he is a bona fide purchaser for value.

From the evidence adduced it is apparent that this is a question of competing interests. Both the plaintiff and the third defendant are seeking cession of rights and interests in House Number 13451 Unit N, Seke. In HC1375/91, the plaintiff's case is principally and substantially against the Seller. In order for the plaintiff to obtain judgment against the Seller the proceedings must be brought to the notice of the Seller. The issues that were referred to trial begged for the Seller's participation and required the plaintiff to also produce or tender certain evidence.

In casu, I ruled that the plaintiff had not properly served the declaration, amended declaration and other pleadings on the Seller. In the circumstances, the plaintiff could not ask the court to grant him relief against a party who was not aware of the proceedings.

The first defendant…., was married to one Mfakazi Dennis Ndlovu who died at Plumtree on 4 October 2001. She was the surviving spouse of Mfakazi Dennis Ndlovu and sole beneficiary of his estate. By virtue of being married to the deceased in his life time she is also known as Pumulo Mulemba Ndlovu.

In his lifetime, the deceased owned a residential Stand known as Stand Number 1401 Dingumuzi Extension, Plumtree as reflected in a letter by the Rural District Council dated 28 August 2002 which was filed of record by the defendant and reads thus-

“To Whom It May Concern

Dear Sir/Madam

Confirmation of Stand Number 1401: Dingumuzi Extension, Plumtree

Bulilimamangwe Rural District Council confirms that residential Stand Nnumber 1401 Extension, Plumtree is being owned by Mfakazi Dennis Ndlovu identity number 08-305325-B39.

Thank you

A S Khumalo

For: Chief Executive Officer”

The defendant was seeking confirmation of ownership of the said Stand since she had been appointed executrix dative to the estate of her late husband on 15 July 2002 which she was going to administer.

In the distribution account, dated 10 April 2003, as the sole beneficiary, she was awarded all the assets of the estate including the said Stand. The estate was accordingly wound up; all the property which it had belonged to the defendant.

That being the case she took steps to have the residential Stand registered into her name.  Armed with the award in the distribution account she approached the Plumtree Town Council seeking registration of the said property into her name. A determination was made at a full Council meeting on 31 August 2003.  The defendant was informed by the following letter-

“15 October 2003

Pumulo M Ndlovu

Phakamani Secondary School

P O Box 156

Plumtree

Re: Confirmation of change of ownership to Stand 1401 Matiwaza Township

I am glad to advise you that this Council has approved change of ownership from Mfakazi Dennis Ndlovu I.D 08-305325-B39 to Pumulo Mulemba Ndlovu ID No.79-023193-Z39. Reference is made to Full Council Meeting Number 6 resolution F115 dated 31/8/08 at 1700 hours.

Thank you

D D Luthe

Town Secretary”

What comes out clearly from all the documents filed of record is that by the time summons was issued out of this court the estate had long been wound up. The defendant, who was the sole beneficiary to the estate, had taken ownership of the estate property and had the immovable property registered in her name. There was no property left in the estate.