DUBE J: This is an application for eviction.
The brief facts of this matter are as follows. The
applicant is the registered owner of stand 8141 Salisbury Township of Salisbury
Township Lands, otherwise known as Number 17 St Dominic's road, Milton Park,
Harare. Sometime in August 2011 the Sheriff of Zimbabwe advertised the sale of
the stand. The property was to be sold by public auction in a suit involving
Kingdom Bank Ltd, and Colforth Investments (Pvt) Ltd and 10 others undercase No
HC 5917/10. The plaintiff in that matter had obtained default judgment after
the defendants had failed to attend a Pre Trial Conference. The Sheriff
advertised the sale of this stand which was subject of this suit by public
auction in execution of the default order. On 2 September 2011 the applicant's
brother,Ayoob Omar attended the public auction and was declared the highest
bidder. He purchased it for the applicant. On 6 October 2011 the respondent
filed an objection to the confirmation of the sale. The sale was confirmed on
20 October 2011. Payment of the purchase price was made and the property
was subsequently transferred into the applicant's name on 7 December 2011. The
applicant has requested vacant possession of the said property and the
respondent has refused to comply alleging that he has objected to the
confirmation of the sale of the property. The applicant's prayer is for
the eviction of the respondent from the property.
The respondent is opposed to the application for eviction.
The respondent raised a preliminary issue which he requested the court to
determine. He contends that this application is improperly before the court.
The respondent submitted that the application is a nullity on the basis of
non-compliance with the rules of the court. He asserts that in proceedings of
this nature, the Registrar of Deeds must be cited in compliance with r 250 of
the High Court Rules. The respondent also took issue with the fact that the
Deputy Sherriff has also not been cited. That he should have been cited as the
application makes reference to a sale in execution. The respondent urges the
court to dismiss the application with costs.The applicant in response to the
preliminary issue responded as follows. Rule 250 requires that the Registrar of
Deeds be served with a copy of the application only in the case of an
application in connection with the performance of any act in the deeds
registry. The applicant does not seek any recourse against any performance of
any act by the Registrar of Deeds and ultimately there was no basis to cite the
Registrar of Deeds. The Deputy Sherriff was not cited because he never
conducted the sale, the Sheriff did. The applicant does not seek recourse or an
order against the Deputy Sheriff .The court directed the parties to proceed and
argue the matter on the merits and indicated that its ruling on this point
would be encompassed in the main judgment.
On the merits, the applicant justified the confirmation of
the sale on the basis that the objections were lodged out of time and are of no
force and effect. The matter said to be pending is therefore a nullity as the
objections were made after the sale was confirmed. The applicant maintained
that the respondent did not file any opposition to the auction of his property
and the sale was properly confirmed. There is nothing to show that an
application was made to set aside the sale in terms of r 359. The allegation
that the matter is pending before the courts does not suffice. The court was
urged to consider that in practice once a sale is confirmed and transfer
effected to the purchaser, courts are reluctant to set aside such sales. The
court was referred to the case of Mapedzamombe vCommercial Bank of
Zimbabwe & Anor 1996 (1) ZLR 257 for that proposition. The applicant
contends that she is the lawful owner of the property and the respondent has no
lawful right to continue occupying the house.
On the merits Mr Magwaliba who represented the
respondent submitted that although the respondent has not yet filed an
application to set aside the sale in terms of s 359 of the rules it has filed
objections with the Sheriff of Zimbabwe. He urged the court to consider that
the sale giving rise to the transfer of the property to the applicant was
objected to. This application cannot be granted whilst the main matter that
gave rise to the default order is still pending. An application for rescission
of judgment still has to be determined and it has prospects of success. The
Sherriff of the High Court wrote to the respondent in October 2011 indicating
that he would set down the objection and the matter has not been set down since
then. There is a likelihood that the court will set aside the sale despite that
it has been confirmed. To uphold the application for eviction before the
finalization of the main matter would defeat the purpose of litigation. If the
application for eviction were to be granted, this would defeat the pending
matter. Evicting the respondent at this stage would cause extreme hardship on
the respondent and his family as they would be rendered homeless. That the
validity of the sale is still an issue pending before the court and
since that matter has not yet been determined, it is inappropriate to bring
this application. That this application is premature.
Mr Magwaliba urged the court, in considering
whether or not to order the ejectment of the respondent from the property not
to turn a blind eye to the irregularities that vitiate the sale or transfer of
the property. He submitted that the Sheriff violated the provisions of r 347
which requires that a notice and writ of execution be served on the owner of
the property. The respondent also took issue with the failure by the Sheriff to
give notice of the attachment and imminent sale to the secretary of the
Ministry responsible for the administration of Housing and Building Act [Cap
22:07] in terms of r 348 A(5a).
Mr Magwaliba contented that there are grounds for
objection to the sale in that the property was sold for $160 000-00 when its
value is placed at $250 000-00. That there are good grounds for setting aside
the sale if the respondent was to file that application. That for these
reasonsand that there is anapplication for rescission of judgment, the court
cannot exercise its discretion to evict the respondent from the premises. That
the failure of the Sheriff to comply with the rules cannot be ignored.
The court will deal with the preliminary point first. Order
32 r 250 reads as follows:-
“In any case of any application in connection with the
performance of any act in the Deeds Registry, a copy of the application shall
be served on the Registrar of Deeds concerned not less than ten days before the
date of set down for his consideration, and for report by him if he considers
it necessary or the court requires such a report”.
The property in issue was transferred into the applicant's
name on 7 December 2011. The relief sought is for eviction and does not require
that the Registrar of Deeds perform any act in “connection with the performance
of any act in the Deeds Registry” as the property has already been transferred.
The applicant is not seeking registration or revocation of registration which
would require the registrar to perform any act in Deeds Registry. There was no
legal basis to cite the Registrar as an order for eviction does not affect the
title of the property and does not concern the Registrar of Deeds. The
Registrar will not be affected by the decision of the court nor is he required
to do anything resulting from the outcome of this application. There was no
need to cite the Deputy Sherriff because the order sought does not require him
to perform any act in relation to it. The sale the respondent challenges was
not conducted by the Deputy Sheriff but the Sheriff. No basis has been shown
for the citation of both the Registrar of Deeds and the Deputy Sheriff. The point
in limine does not find favour with the court and must fail.
The respondent erroneously supposes that he can challenge the confirmation of
the sale through an application for eviction. That is not so. The
procedures regulating sales by public auction are provided for in r 359.
Whether or not the sale was confirmed in accordance with the law is not the
subject of these proceedings. The court can only determine the propriety or
otherwise of a sale where an application has been brought in terms of the
relevant section. The irregularities concerning the conduct of the sale cannot
be determined in this application and I am not going to deal with the merits of
those objections. The respondent is attempting to set aside the sale
through the back door.
On 30 September 2011 the respondent filed an application for rescission of
judgment and no attempt has been made to set down that application for
determination. The respondent's contention that this application is premature
does not find favour with this court. The respondent submitted that he has
applied to set aside the sale and argues that this application is premature and
cannot be dealt with whilst the main matter that gave rise to the default order
is still pending. No reference to that application was given. The applicant's
assertion that there is no such application was not refuted. After default
judgement was granted against the respondent the other side proceeded to
execute the order in its favour. It cannot be blamed for taking that course. It
does not appear that the respondent made any application to stay execution
pending the application for rescission of judgment or nor made an application
to set aside the sale. It is the duty of the courts to regulate their own
orders and judgements.There was nothing to stop execution of the order. The
respondent's ineptitude has proved futile for the respondent as ultimately
there is nothing to stop execution and eviction of the respondent from that
property. The respondent sat on his laurels and he only has himself to blame.
The court has in the exercise of its discretion decided to proceed and deal
with the application. An order for eviction does not bar the respondent from
pursuing the objections. The court has been persuaded to proceed and deal with
this application primarily because the respondent has not shown that it filed
an application to set aside the sale and it is not known whether he will do so.
This matter cannot be held in abeyance forever. The court cannot allow the
applicant to endure the ineptitude of the respondent.
Once the property was registered in the Deeds Registry, the
applicant acquired real and absolute rights over the property. The applicant
now has the sole right and exclusive beneficial ownership of the property, See Kassim
v Kassim 1989 (3) ZLR 234 (H), for that proposition. Similar
sentiments were echoed in Takafuma v Takafuma 1994 (2) ZLR
103 (S). At 105H-106A, where MCNALLY JA had this to say:
"The registration of rights in immovable property in
terms of the Deeds Registries Act [Cap 139] now [Cap 20:05])
is not a mere matter of form. Nor is it simply a device to confound creditors
or the tax authorities. It is a matter of substance. It conveys real rights
upon those in whose name the property is registered. See the definition of
'real right' in s 2 of the Act. The real right of ownership, or jus in
re propria, is 'the sum total of all the possible rights in a thing' -
see Wille's Principles of South African Law 8 ed p 255."
The property is registered in the applicant's name. That
registration is an announcement to the whole world that he now owns the
property. Having acquired real rights over the property there is nothing to
stop her exercising rights over the property. The respondent's rights over the
property have ceased. He has no justification to remain on the property.
I am not persuaded that the respondent has shown good cause why he should not
be evicted from the premises.
In the result it is ordered as follows:-
1. The
respondent and all those claiming occupation through him from the property
known as 8141 Salisbury Township of
Salisbury Township Lands., otherwise known as Number 17 St Dominics road,
Milton Park, Harare, vacate the property within 7 days.
2. The respondent
is to pay costs of suit.
Gula Ndebele and Partners,applicant's legal
practitioners
G.N.
Mlotshwa & Company, respondent's legal
practitioners
