NDEWERE J: The applicant is the registered
owner of LOT 1A, Johannesburg Norton, held under Deed of Transfer No. 1231/98.
The background is that in September, 1997,
the applicant purchased LOT 1A of Johannesburg at an auction done in terms of a
writ of execution issued against Mawanzatsoka (Pvt) Ltd in a matter with
Stanbic Bank Ltd under Case No. HC 3242/92. The second respondent, Mr
Chirenje was a director of Mawanzatsoka.
The sale in execution was duly confirmed by the Master of the High Court and
transfer was passed in favour of the applicant under Deed of Transfer No
1231/98.
The second respondent's wife and co-director of Mawanzatsoka (Pvt) Ltd, Tabeth
Chirenje, challenged the sale of the property in execution in the case Tabeth
Chirenje v Adore Gold ( Pvt) Ltd and Ors HC4420/98. Her
application was dismissed. She did not appeal against the dismissal of
her application. The second respondent himself never mounted a legal
challenge of the sale of LOT 1A of Johannesburg, Norton. In his own
words, he chose to negotiate a settlement out of court and later he decided to
use what he calls “political muscle” in his opposing affidavit. So the sale in
execution remained valid as there was no successful legal challenge to it.
Consequently, in 1998, the applicant applied for a subdivision permit which was
granted as indicated by Annexure F in the record. In 2002, LOT 1A of
Johannesburg was incorporated into the Norton Town Council area as part of the
urban expansion of Norton Town in terms of Proclamation 8 of 2002 published in
the Government Gazette of 31 May, 2002. In the meantime, the second respondent
approached the Ministry of Lands and Rural Resettlement with an application to
lease LOT 1A of Johannesburg in 2004. Pursuant to this, on 12 March,
2009, the second respondent was issued with an offer letter which offered him
“the whole of LOT 1A of Johannesburg” for “agricultural purposes”.
Paragraph 7 of the offer letter states the following:
“7. The Minister reserves the right to
withdraw or change this offer if he deems it necessary, or if you are found in
breach of any of the set conditions. In event of a withdrawal or change of this
offer no compensation arising from this offer shall be claimable or payable
whatsoever.”
In 2011, while the applicant was in the
process of pursuing its project on Lot 1A Johannesburg its representative
visited Norton Town Council, only to be told by the council that the second
respondent was pursuing the same project on the same land. On 18 October,
2011, the applicant filed the current court application in terms of s 14 of the
High Court Act [Cap7:06] for an order declaring it the legal owner of
LOT 1A of Johannesburg and an order requiring the second respondent to vacate
the property and not interfere with the applicant's project.
On 16 November, 2011, the first respondent
who is the Minister of Lands and Rural Resettlement filed a notice of
opposition and an opposing affidavit. Paragraph 5 of the opposing
affidavit filed on behalf of the Minister of Lands says:
“LOT 1A of Johannesburg was incorporated
into Norton Town Council in 2002, thereby making it urban land. However,
it was erroneously acquired as agricultural land by the state and an offer
letter was issued to the second respondent. The offer letter that was
granted to the second respondent is therefore null and void as the acquisition
that was done did not pertain to urban land but to agricultural land for
farming.
At the time the offer letter was done the
first respondent was not privy to the fact that the land in question had since
been incorporated into Norton Town Council. In light of the above, the
second respondents offer letter is of no force or effect and the first
respondent intends to withdraw the second respondent's offer letter.”
The second respondent filed his opposition papers on 2 November 2011. He
says the Sheriff's sale was irregular because he had already paid the judgment
debt by the time the property was sold. He however, conceded that he did
not approach the courts for recourse but sought what he calls “political
intervention”. He concludes by saying that the property was duly awarded
to him on 12 March, 2009 in terms of the Agricultural Land Resettlement Act [Cap
20:01] and he refers to the offer letter he got from the Ministry of Lands
and Rural Resettlement.
Unfortunately for the second respondent the affidavit from the first respondent
puts holes to his claim. That affidavit stipulates that the offer letter he is
relying on is null and void. This is factually and legally correct. The
proclamation incorporating LOT 1A Johannesburg into Norton Town Council area
was done in 2002. So by 2009 when the offer letter was done, the property
was already urban land by a prior Government Act. So indeed, the offer
letter which was given to the second respondent in 2009 is null and void
because land which had already been proclaimed and gazetted as urban land for
urban expansion could not, a few years down the line, be compulsorily acquired
for the agricultural purposes covered by the offer letter. And once the
offer letter is null and void, then the second respondent's claim to Lot 1 A
above has no legal basis because as stated in Mc Foy v United
Africa Company Ltd 1961 3 ALLER p 1169 at p 1172,
“If an act is void, then it is in law a
nullity .... There is no need for an order of court to set it aside. It is
automatically null and void without more ado, ... and every proceeding which is
founded on it is also bad and incurably bad. You cannot put something on
nothing and expect it to stay there. It will collapse.”
The first respondent has said he intends to withdraw the offer to second
respondent, but even if there is no withdrawal, the fact still remains that a
null and void offer amounts to nothing as stated in the above case.
In his heads of argument, the second
respondent objects to the High Court's jurisdiction to hear the current
application and he uses s 16 B (3) (a) of the Constitution of Zimbabwe.
The second respondent did not raise this objection in his opposing
affidavit. Raising the issue for the first time in his heads of arguments
is therefore irregular. However, for the avoidance of doubt, it should be
noted that s 16 B (3) (a) of the Constitution does not apply to invalid
acquisitions and offer letters. So once more the first respondent's
affidavit clarifies the issue because the above section applies only if the
acquisition is legal and first respondent has conceded that the acquisition and
subsequent offer letter was done in error.
On the issue of the sale having been irregular, the case of Mapedzamombe
v Commercial Bank of Zimbabwe and Anor, 1996 (1) ZLR 257 (S) referred
to by the applicant is relevant. It states as follows:
“.....under common law, immovable property
sold by judicial decree cannot after transfer had been passed, be impeached in
the absence of an allegation of bad faith or knowledge of prior irregularities
in the sale or fraud.”
The second respondent is free to institute
the common law proceedings referred to above and allege bad faith, knowledge of
prior irregularities in the sale or fraud but until that is done, the sale and
subsequent transfer of LOT 1A Johannesburg to the applicant is valid and
lawful. So it is irregular for the second respondent to allege irregularities
surrounding the sale in the present proceedings where the Sheriff is not cited
as a party.
Consequently, it is ordered that:
1.
The applicant be and is hereby declared the legal owner of LOT 1 A of
Johannesburg measuring 111, 9776 hectares held under Deed of Transfer number
1231/98.
2.
The second respondent be and is hereby ordered to vacate the said plot
forthwith and not to interfere with the applicant's project.
3.
The second respondent pays the costs of suit.
Messrs Ngarava, Moyo & Chikono, applicant's legal practitioners
Attorney General's Office,1st respondent's legal practitioners
M.E.
Motsi & Associates, 2nd
respondent's legal practitioners
