MAFUSIRE J: After the preliminaries on 18 March 2013,
the trial in this matter began in earnest on 8 April 2013. The defendant had
the duty to begin. That had been the agreement at the pre-trial conference.
At the close of the defendant's case the plaintiff applied
for absolution from the instance. I reserved judgment. This is the judgment.
The facts of this case are virtually common cause. The
plaintiff, a duly registered private company, seeks an order for the eviction
of the defendant from premises known as Lot 4 of Lot 9 of Chicago situate in
the district of Kwe Kwe [“the property”]. The Plaintiff is the
registered owner of the property. Through one of its directors at the time, one
Emmanuel Papayianis, now deceased, the plaintiff had bought the property at an
auction sale in June 1996. The owner of the property had been one Anesu Anthony
Muringani, now deceased [hereafter referred to as “the late Muringani”].
The defendant is his surviving widow.
The property had been auctioned at the instance of the City
of Kwe Kwe as the judgment creditor. The late Muringani had been the judgment
debtor. The plaintiff's bid, at $120 000-00, had been the highest. The
plaintiff had paid a deposit of $30 000-00 on the date of the sale. The
provincial magistrate at Kwe Kwe had subsequently confirmed the sale to the
plaintiff. However, the late Muringani had successfully challenged the purchase
price on the basis that it was too low. The magistrate had increased the
purchase price from $120 000 to $160 000 and had directed a sale by private
treaty. The late Muringani had further challenged the new price in this court.
That had been in 1997. He had lost. The sale by private treaty to the plaintiff
had been confirmed by the magistrate in September 1997.
The plaintiff had paid the balance of the purchase price in
the sum of $130 000. Transfer of the property to the plaintiff had been
registered in the deeds office on 14 May 1999 under deed of transfer no
2421/99.
Plaintiff's summons for eviction was issued on 24 March
2010. That was more than ten years after the registration of transfer. In its
pleadings plaintiff's explanation for the delay was that its director at the
time, the said Mr Papayianis, had subsequently died. His surviving widow had
subsequently fallen ill. No one had had any knowledge of the existence of the
property and its registration in plaintiff's name and in its books until in
late 2009.
It transpired through defendant's case that the defendant
and her husband, the late Muringani, had at one time been estranged. He had
wanted to take on another wife. The late Muringani had died in 2004. In
September 2008 the defendant had obtained from the Master's office a
certificate of authority authorising her to take transfer of the property.
However she did not succeed. In proceedings in this court, in 2010, under HC
355/10, the plaintiff, represented by one of its directors at the time, one
Daniel Mackenzie Ncube, sought an order not only to stop the defendant's bid to
take transfer of the property, but also to have the certificate of authority
set aside. The defendant consented to those orders. She only sought to be
excused from the order of costs.
In the current proceedings the defendant's defence to
plaintiff's claim for eviction was that the plaintiff was not the lawful owner
of the property; that the plaintiff had obtained the title to the property
fraudulently; that as the lawful beneficiary to the estate of the late
Muringani she had the right, title and interest in the property; that she had
issued her own summons against the plaintiff and its directors to have
the property transferred back to her late husband's estate and that she was
entitled to occupation of the property until the dispute was resolved.
The defendant's summons was issued on 17 May 2010 under the
name Emily Ntombizodwa Luwaca in HC3285/10. She sought an order setting aside
the transfer of the property from the late Muringani to the plaintiff that had
occurred in May 1999. She also sought an order directing the Messenger of
Court, Kwe Kwe, to sign all the necessary transfer papers.
The defendant gave evidence. She called one witness,
Majorie Quinisela Tshuma [hereafter referred to as “Ms Tshuma”].
Ms Tshuma is the defendant's daughter and the late Muringani's step-daughter.
The defendant testified that the property had been illegally transferred by the
messenger of court to the plaintiff; that neither she nor her husband, the late
Muringani, had been aware of the purported sale and transfer; that the transfer
bordered on fraud; that the messenger of court was not supposed to have made
the transfer and that she had contributed directly to the purchase of the
property through mortgage finance.
Plaintiff's plea on the merits of the defendant's claim was
filed on 15 June 2010. It stated that it had bought the property from an
auction sale and had subsequently obtained title on 14 May 1999. It further
stated that there had been nothing illegal or improper about the sale; that the
late Muringani would have known about the sale in execution and the subsequent
transfer and that the defendant had not laid out any basis upon which the
transfer of the property should be set aside.
The parties had subsequently filed further pleadings in the
two matters. On 1 February 2011 the two matters had been consolidated at a
pre-trial conference and had been referred to trial on three issues.
The three issues on which the matters had been referred to
trial were (a) whether the purchase of the property by the plaintiff and the
subsequent transfer was tainted by fraud; (b) whether the transfer should be
set aside, and (c) whether the plaintiff was entitled to eviction.
The plaintiff subsequently filed an amendment to its plea
to include the special plea of prescription. It argued that the defendant's
claim had become prescribed; that the sale in execution had taken place in
1996; that transfer had been effected as far back as 1999; that it had been
more than three years since that transfer and that in terms of the Prescription
Act the claim had become prescribed.
Following argument on the question of both the propriety of
the application for amendment and the merits of the defence of prescription I
handed down my judgment on 10 April 2013. It was judgment no HH112/2013. I
allowed plaintiff's application for amendment and its special plea of
prescription. I dismissed the defendant's claim in HC 3285/10. The full reasons
are in my judgment.
At the close of the defendant's case there was no shred of
evidence relating to any fraudulent dealings or illegal conduct by anyone associated
with the sale and transfer of the property to the plaintiff. The sale and
transfer had been open, public and plainly above board.
The defendant was at first adamant that the
transactions had not been clear to her and that the plaintiff had not paid the
full purchase price. She said she had not been privy to the goings-on. However,
she eventually conceded the absence of fraud after she was shown the
documentary proof. The crucial exhibits produced in court included, among
others, the letter to the messenger of court from the provincial magistrate
dated 16 September 1997, exh 5, confirming the auction sale and authorising the
transfer; the proof of payment of the full purchase price by the plaintiff in
the form of a receipt of $30 000 on 31 October 1997, exh 8 (a); a statement by
the conveyancers, Danziger & Partners dated 3 December 1997, exh 8 (c),
showing receipt of the full purchase price; and a schedule of distribution by
the messenger of court on 18 September 1997, exh 8 (d) showing that all the
creditors of the late Muringani had been paid out and, crucially, that 82% of
the balance of the proceeds amounting to $167 378.16 had been remitted to him.
After defendant's evidence, particularly her concession
aforesaid, one would have thought that that would have been the end of the
matter. However, the defendant insisted on calling her daughter. But none of Ms
Tshuma's evidence was relevant. Her evidence was largely hearsay and therefore
inadmissible. It was surprising that Mrs Matshiya, despite my raising
of a concern on what was manifestly a red herring, went the full distance in
her cross-examination.
Ms Tshuma had in fact sat in court as defendant was giving her evidence. Mr Manyurureni
had been candid enough to bring this to my attention and to highlight the
caution with which I would have to approach her evidence.
Ms Tshuma's evidence was that after the trial had begun she
had conducted some kind of investigation of her own. She had been to Stanbic
Bank in Harare and had been told that the late Muringani had had no account
with them. Stanbic Bank had been one of the late Muringani's creditors whose
name had appeared on the schedule of payments prepared by the messenger of
court as having received an amount in the sum of $4 277.21 through lawyers
Wilmot & Bennett, Kwe Kwe.
Ms Tshuma also said that she had been to the deeds office
in Harare where she had asked someone there whether it was usual to make
alterations on title deeds without proper “endorsements”. She claimed that she
had worked in some “records office'' and that therefore she knew “the
procedure”. She said the deeds office at Harare had referred her to the deeds
office at Bulawayo. That had been the office that had handled the transfer of
the property way back in May 1999.
Ms Tshuma went on to say that she had telephoned the deeds
office at Bulawayo but that she had been asked to bring the original title deed
in question as no one could pass judgment in the absence of the document.
Ms Tshuma further said that she had asked her brother in
Kwke Kwe to check on the messenger of court's office about the sale in
execution. The messenger of court's offices had allegedly professed no
knowledge of the sale in execution in 1999.
Ms Tshuma conceded that she was living in Harare when the
events in relation to the sale and transfer of the property were unfolding in
Kwe Kwe. She however maintained that from time to time she would visit Kwe Kwe.
She was adamant that the property could not have been sold because the late
Muringani, whom she said was very close, would have told her. She said the late
Muringani had not told her anything and that therefore no such sale or transfer
could have taken place as claimed by the plaintiff. Ms Tshuma conceded that in
her enquiries she had spoken to people in the front office who had no records
of the transaction and whose names she did not get. However, she said she had
obtained their telephone numbers in case anyone wanted to verify her
information.
In the light of the documentary evidence produced in court and
the concessions made by the defendant herself, Ms Tshuma's “evidence” was of no
value. She was merely being argumentative. She conceded that she was pained by
the fact that her mother, the defendant, stood to lose out if she was evicted.
In applying for absolution from the instance at the close
of the defendant's case Mrs Matshiya submitted thatgiven that the
defendant's defence had been predicated on the question of fraud; that since
none of the elements of fraud had been raised, let alone proved at the close of
the defendant's case; that in fact the evidence having established that the
sale and transfer of the property had been above board; the defendant's own
claim for a reversal of the transfer having been dismissed and that the
defendant having had the duty to begin, there was no need to put the plaintiff
on its case and that it was proper to absolve it from the instance. She
suggested that if the plaintiff was absolved from the defendant's case the
plaintiff could then open its own case for eviction.
After I queried the propriety of her application and her
intended course of action plaintiff's counsel clarified her position and said
that if plaintiff was absolved from the instance there would be no longer any
issue for determination in the plaintiff's case because the plaintiff's case
for eviction was predicted on the fact of its ownership of the property and
that the only issue standing in the way was the defendant's defence of fraud
but that this defence had no substance.
In terms of Order 49 Rule 437 (1) if the burden of proof is
on the plaintiff, he shall adduce his evidence first. If absolution from the
instance is not decreed the defendant will then adduce his evidence. However,
Rule 441 provides that when the right or obligation to begin lies on the
defendant, the order of procedure should be read as if the defendant was the
plaintiff and the plaintiff was the defendant. Therefore the plaintiff in this
case could properly apply for absolution from the instance at the close of the
defendant's case since the duty or obligation to begin had lain on the
defendant.
Where absolution from the instance is refused at the close
of the plaintiff's case the defendant can go to his own case, can simply close
it and still apply for absolution on the same evidence. But the considerations
at that stage are different.
The test for absolution from the instance at the close of
the plaintiff's case was laid down in the case of Gascoyne v Paul
and Hunter 1917 TPD 170 which BEADLE CJ accepted as the locus
classicus on the point. This was in the case of Supreme Service
Station [1969] [Pvt] Ltd vFox and Goodridge (Pvt) Ltd 1971 (1)
RLR 1.
In the Gascoyne's case the test was formulated as
follows[1]:
“At the close of the case for
the plaintiff, therefore, the question which arises for the consideration of
the Court is: Is there evidence upon which a reasonable man might find for the
plaintiff? …. The question therefore is, at the close of the case for the
plaintiff, was there a prima facie case against the defendant …: in
other words, was there such evidence before the Court upon which a reasonable
man might, not should, give judgment against (the defendant)?”
In the Gascoyne's case the court noted the
difference in the tests where the defendant closes his case without calling any
evidence. The court formulated the test for absolution where the defendant
closes his case without calling any evidence as follows[2]:
“Is there such evidence upon
which the Court ought to give judgment in favour of the plaintiff?”
The difference is in the expressions “might”
and “ought to”. This difference was then amplified and
explained by BEADLE CJ in the Supreme Service Station [1969] case
aforesaid. At p 4A – 5D the then learned Chief Justice said:
“I think it is unfortunate that
the magistrate's attention was not specifically directed to the manner in which
he should have approached this case. It was never stressed that the test to be
applied was might a reasonable court give judgment for the
plaintiff? No attempt was made to elaborate what the word 'might' meant in this
context, and it is as well that I should do so now. The locus classicus
of the cases dealing with the procedure of absolution from the instance is the
old Transvaal case of Gascoyne v.Paul and Hunter, 1917 T. P.
D. 170 … Gascoyne's case stresses that it is perfectly
competent for a court to refuse an application for absolution from the instance
when the application is made at the close of the plaintiff's case but to grant
it if the defendant then promptly closes his case and renews the application
without calling any evidence at all. There is no inconsistency in two such
diametrically opposed orders, though the evidence before the court in each
application is identical.
“The reason why there is no
inconsistency is because the test to be applied when application is made before
the defendant closes his case is 'what might a reasonable
court do?'; whereas the test to be applied when the application is made after
the defendant has closed its case is 'what ought a reasonable
court do?'.
“The distinction here between
'might' and 'ought' in this context is an important one. It must be assumed
that any judgment which a court 'ought' to give must be the correct judgment,
as no court 'ought' to give a judgment which is incorrect. Once it is accepted
that a judgment which a court 'might' give may differ from that which it
'ought' to give, it is clear that the judgment which it 'might' give and which
differs from the judgment which it 'ought' to give must be an incorrect
judgment. As a matter of logic, therefore, in considering what a reasonable
court 'might' do, allowance must be made for its making a reasonable mistake
and giving an incorrect judgment. …. The test, therefore boils down to this: Is
there sufficient evidence on which a court might make a reasonable mistake and
give judgment for the plaintiff?”
BEADLE CJ further pointed out that the practice in the
South African courts and ours was always that in the case of doubt as to what a
reasonable court “might” do, a judicial officer should always lean on the side
of allowing the case to proceed. He also pointed out that a defendant who
closes his case without giving evidence risks having an inference being drawn against
him from his failure to give evidence contradicting that of the
plaintiff.
The test on absolution from the instance as formulated in Gascoyne's
case has been followed in numerous other cases. HERBSTEIN AND VAN WINSEN The
Civil Practice of the Superior Courts in South Africa, 3rd ed,
at p 464 state that in view of the principles on absolution from the instance,
a trial court should be very chary of granting absolution at the close of the
plaintiff's case. JUTA J's remarks in Theron vBehr 1918 CPD
443[3] which were
quoted with approval by SUTTON J in Erasmus v Boss 1939 CPD
204[4], by BEADLE CJ
in the Supreme Service Station (1969) case above[5], SMITH J in Standard
Chartered Finance Zimbabwe Ltd vGeorgias & Anor 1998 (2) ZLR
547 (H)[6] and MATIKA J
in Bailey NO v Trinity Engineering (Pvt) Ltd & Ors 2002
(2) ZLR 484 (H)[7]were to the
effect that the practice is that judges are very loath to decide upon questions
of fact without hearing all the evidence.
As was stated in the Supreme Service Station (1969)
case aforesaid and followed in the case of Standard Chartered Finance and
that ofBailey NO above a defendant who might be afraid to go into the
box should not be permitted to shelter behind the procedure of absolution from
the instance. I should say the same applies to a defendant, or in this case,
the plaintiff, who might be unwilling to take the witness' stand.
It should not shelter behind the procedure of absolution from the
instance.
In this case the plaintiff took a calculated risk to seek
absolution at the close of the defendant's case. Despite the query that I
raised with its counsel regarding her intended course of action should I grant
absolution the plaintiff did not seek to close its case even though she made
submissions to the effect that absolution at that stage would effectively mean
the end of the case as there would be nothing else for plaintiff to say in
support of its case for eviction.
I say the plaintiff was taking a risk because it is the principle
of absolution from the instance that the onus is higher where the application
is made at the close of the plaintiff's case than where it is made after all
the evidence has been led. At p 5F – G BEADLE CJ in the Supreme Service
Station (1969) case above said:
“… the onus on a defendant who
applies for absolution from the instance before closing his case is greater
than the onus placed upon him when he applies for absolution from the instance
after closing his case …”
Furthermore, it is the practice in our courts to lean more
in favour of deciding questions of fact after all the evidence has been led.
However every case depends on its own special set of facts. In the present case
I am satisfied that the risk that the plaintiff took in applying for absolution
from the instance at the close of the defendant's case and without closing its
own case was well taken. Even if I were to apply the more stringent test of
what “ought” a reasonable court do as opposed to what “might”
a reasonable court do, and even bearing in mind that the practice in our courts
is to lean more in favour of hearing all the evidence before deciding on
questions of fact I still come to the conclusion that the plaintiff is entitled
to be absolved from the instance.
The special circumstances of this case are that plaintiff's
cause of action against the defendant was predicated purely on its ownership of
the property. An owner of a property is entitled to the full enjoyment of
the property unless by agreement or operation of the law there has been a
diminution of that right. In the judgment on prescription aforesaid I
highlighted that the registration of a real right in the deeds office protects
the holder and the public alike. Once a real right has been registered it
becomes enforceable against the world at large: see HARRY SILBERBERG The
Law of Property, Durban Butterworths, 1975, at p 67. Therefore, in this
case, unless there is established a superior right to deprive it of its right
to the full enjoyment of the property, the plaintiff is plainly entitled to
recover possession of the property.
The defendant's sole ground for resisting plaintiff's claim
for eviction was predicated on the question of fraud. It was her defence that
the transfer of ownership in 1999 had been fraudulent. But that defence
completely evaporated once she took the witness' stand. Even her counsel
implored her to pin point the time and place at which the fraud might
have taken place, from the time that the magistrate had given judgment in
favour of the City of Kwe Kwe against the late Muringani way back in 1995; the
time when the messenger of court had sold the property by public auction; the
time when the magistrate had confirmed the sale; the time when the late
Muringani had challenged the auction price; the time when the magistrate had
directed a sale by private treaty; the time when the late Muringani had
unsuccessfully challenged the new price; the time when the magistrate had
confirmed the new price and had directed the registration of transfer; the time
when the messenger of court had signed the transfer papers; the time when the
conveyancers Danziger & Partners had caused the registration of transfer,
and finally, to the time when the registrar of deeds had registered the
transfer in the deeds office. She could not say where or when or by whom the
fraud could have been committed.
In some of her papers the defendant had claimed rights of
occupation until the “dispute” had been resolved. She said she was the
surviving spouse of the late Muringani and the executrix dative to his
estate. This was not the bulwark of her defence. But again this other ground
also evaporated once she took the witness' stand. The certificate of authority
from the Master's office that had given her the limited authority to take
transfer of the property was set aside with her consent. The transfer to
herself was stopped with her consent. She had been fully represented in those
proceedings. The property had been registered in the sole name of the late
Muringani.
In terms of the Deeds Registries Act, [Cap 20: 05]
an owner of an immovable property is the registered owner. Registration
of real rights in the deeds office is not a mere matter of form. In the case of
Takafuma vTakafuma 1994 (2) ZLR 103 (S) the Supreme Court[8] stated as
follows:
“The registration of rights in
immovable property in terms of the Deeds Registries Act [Cap 139] 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 s2 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'sPrinciples
of South African Law 8 ed p 255”.
In the circumstances of this case the defendant has no
right to remain in occupation of the property without the plaintiff's
authority. The plaintiff is entitled to immediate vacant possession of the
property. There is nothing further for the plaintiff to say that should require
its witness to take the stand.
In the final result the plaintiff's application for
absolution from the instance at the close of the defendant's case is hereby
granted with costs. The defendant is hereby ordered to vacate the plaintiff's
property known as Lot 4 of Lot 9 of Chicago, held under deed of transfer no
2421/99 situate in the district of Kwe Kwe.
Mtetwa & Nyambirai,plaintiff's
legal practitioners
Manyurureni
&Company,defendant's legal practitioners
