DUBE J: The applicant seeks an order for transfer of a
stand. The applicant and the first respondent were formerly married. The second
and third respondents are cited in their official capacities. Sometime in June
1996 the applicant and the first respondent, (hereinafter referred to as the
respondent), jointly bought a commercial stand being Stand No 2024 Ruwa
Township, (the stand), and registered it into both their names. The applicant
emigrated to the UK in the year 2000 with the respondent following in 2002. In
the year 2000 the applicant's half share of the stand was transferred into the
respondent's name making him the sole owner of the stand. A power of attorney
supposedly given by the applicant to a legal practitioner who is now late was
used to transfer the stand. The applicant denies giving a power of attorney to
transfer her share of the stand to the legal practitioner.
The applicant's account is that she never sold her half
share of the stand to the respondent. Sometime in 2010, the parties commenced
negotiations for the sale of the respondent's half share of the stand to her
and these failed. She discovered in the year 2012 after a deeds search that
transfer of the full stand had been effected into the respondent's name in 2000.
She denies giving a power of attorney to a legal practitioner to transfer her
50% share of the stand to the respondent.
The respondent's version of events is that the applicant sold her half share of
the stand to him for ZW 350 000-00 in the year 2002 and transfer was effected
after the applicant had given power of attorney to a legal practitioner to pass
transfer of her half share to the respondent. The respondent maintains that the
transfer of the stand was done above board and denies having committed any
fraud. In the year 2009 the respondent offered to sell the whole stand to the
applicant which was in his name and negotiations commenced but later collapsed.
The respondent contended that a dispute of fact arises on the papers. He
submitted that the dispute relates to whether the sale transaction referred to
in the emails and agreement document related to the sale of a half share or
full stand. The respondent submitted that the applicant being aware of the
existence of material disputes of fact should not have chosen to proceed by
notice of motion. That the applicant should have come by way of trial action as
the dispute of fact requires full ventilation in a full trial. He urged the
court to dismiss the application. The court was referred to the cases ofAdbro
Investments Co Ltd vMinister of the Interior 1956 (3) SA 345 AD,Masukusa
vNational Foods Ltd and Anor 1983 (1) ZLR 232, for this
proposition.
The applicant did not pursue the challenge related to the
respondent's opposing affidavit. I will proceed and deal with the point
relating to the existence of disputes of facts. In any case where there is a
material dispute of fact the court is required to determine whether it can
resolve the matter on the papers before it. Where it cannot do so, it has a
discretion, it may dismiss the application, order the parties to go to trial or
hear oral evidence. The court must where possible try and resolve the dispute
on the basis of the papers before it. The approach was enunciated in Tamarillo(Pvt)
Ltdv B.N. Aitken (Pvt) LTD 1982 9 (1) SA 398, where CORBETT J
remarked thus,
“But if, notwithstanding that there are facts in dispute on
the papers before it, the court is satisfied that on the facts stated by
respondent, together with the admitted facts in the applicant's affidavits, the
applicant is entitled to the relief, it will make an order giving effect to
such finding, with an appropriate order as to costs.”
The court is satisfied that there is other evidence upon
which it can base its decision. I am going to adopt a robust approach and
resolve this matter on the papers before me.
The key issue that this court is being called upon to
determine is whether the applicant sold her rights and interest in the stand to
the first respondent in the year 2000. Both parties seem to be labouring under
the erroneous view that the stand was transferred into the respondent's name in
2002. In effect it was transferred in 2000 as reflected on the deed of
transfer. The court will analyse the e-mails and agreement document exchanged
between the parties and try and deduce what the subject of the discussions was.
The first e-mail is dated 6 November 2010 and records part of the negotiations
that took place and was sent by the applicant. She adverts as follows,
“We can make some arrangements for you to see an
acknowledgement of debt that I am holding.”
The contents of the acknowledgement of debt are not known as same was not
produced or its details revealed. The respondent responded the same day and
indicated that he had put together an agreement. The proposed agreement records
that transfer of the property was to be made into the applicant's name and
records the purchase price. Title deeds would transfer to the applicant and she
would be responsible for rates payments from the date of signing of the
agreement to date of transfer. The agreement was signed by the first respondent
alone. On 19 December 2010, the first respondent withdrew the agreement with a
view to make some changes to it. The agreement does not reflect whether it
related to the whole stand or half of it. On 3 January 2011 first respondent
e-mailed the applicant notifying her that he had decided not to sell the stand
to her. These communications are not very helpful to the court in so far as
they do not identify whether a full stand or half was being discussed.
If the applicant had indeed sold her 50% share of the stand
earlier on to the respondent, the respondent was free to sell the stand to
anyone else. It seems to me that the reason that he engaged her is because of
her 50% share in the stand. The inference is that the parties were discussing
the sale of the respondent's half share. There is very little support for the
assertion that the applicant entered into an agreement of sale of her half
share of the property and sold it to respondent in 2000. That support is found
in the disputed power of attorney. No agreement of sale and proof of payment
was tendered in support of the assertion that the applicant sold and received
the purchase price for half the stand resulting in transfer. Respondent does
not suggest how he paid the purchase price. No details are given as to how,
where and when the purchase price for the half share was paid by the
respondent. The applicant challenged the power of attorney she purportedly gave
to the legal practitioner to effect transfer of the property. Ultimately, the
only document available suggestive of a sale of the stand is the power of
attorney which is challenged. The respondent's version is highly improbable.
There is no sufficient evidence to show that the applicant sold her half share
of the stand to the respondent in the year 2000. The indications are that the
stand was fraudulently sold and transferred and hence that transfer is a
nullity. A litigant who acts fraudulently cannot expect to benefit from
activities carried out nicodimously. He cannot have his cake and eat it. It is
the duty of the courts to protect unsuspecting victims who fall victim to such
form of creativity. The applicant remains the lawful owner of a 50% share of
the stand.
An issue of prescription arose at the beginning of the hearing. The court
deliberately left the determination of that issue to the end as some of the
findings on the merits have a bearing on this point. The first respondent's
counsel submitted that the cause of action arose in the year 2000 when the
transfer of the whole property was purportedly made to the respondent. That
therefore the applicant's claim has prescribed. The applicant opposed the
preliminary point. Applicant's counsel submitted that she only became aware of
the transfer of the stand into the respondent's name in the year 2012 after a
deeds search. That she could not have taken any action much earlier than this
date because she was not aware of the transfer of her share of the stand into
the respondent's name. The applicant referred the court to the case of Chirinda
vVan Der Merwe and Anor HH 51/13for the requirement of knowledge
of the debt or cause of action.
I am not convinced that this action has prescribed. At the time that transfer
was purportedly transferred, there was no dispute between the parties and I
have found that the applicant was not aware that her half share had been
transferred to the first respondent. In Chirinda v Van der Merwe (supra),
the court held that a debt will become due when a creditor becomes aware of the
identity of the debtor and the factors upon which the debt arises. Similar
sentiment were expressed in Hadson vGranger and Anor 1994 (2)
ZLR 10 (HC) where the court held that prescription starts to run from the date
when the creditor becomes aware of all the factors necessary to create the need
to approach the court.
In this case, it was only after the deeds search in February 2012 that the
applicant became aware that transfer of the full stand had been effected into
the respondent's name. That is when her cause of action arose. It appears to me
that it is this realisation that necessitated the need to take action. The
applicant's claim has not prescribed.
The applicant is entitled to the order sought. In the result it is ordered as
follows,
a)
The first respondent be and is hereby ordered to transfer ownership of an
undivided half share of Stand No. 2024 Ruwa Township of Stand 856 Ruwa Township
into the name of the Applicant within fourteen days of service of this
order.
b)
Should the first Respondent fail to comply with (a) above, the Deputy Sheriff
of Harare be and is hereby ordered to sign all necessary documentation to
effect transfer of the said undivided half share of Stand No. 2024 Ruwa
Township of Stand 856 Ruwa Township measuring 867metres squared into the name
of the Applicant.
c)
The respondent shall bear the costs of this application.
Messrs Chingeya, Mandizira,
applicant's legal practitioners
Venturas
and Samukange, first respondent's legal practitioners
