The
plaintiff purchased the right, title and interest in House Number 3750,
Magwegwe North in Bulawayo from the second defendant in 1978. He lived in
the house thence up to 1999 when he retired from employment and went to live at
his rural home in Zhombe. He left his wife, Tombana, his two sons,
Nkululeko and Melusi Ndlovu, living in the house. The plaintiff's case is that
Nkululeko Ndlovu sold the house to the first defendant and several other people
without his knowledge, authority, or consent, using a fake general power of
attorney to achieve the fraudulent sale of the property. As a result of
the fraudulent sale, Nkululeko Ndlovu was arrested on charges of fraud and
theft by false pretences and subsequently died in prison.
The
first defendant is one of the several purchasers of the house from Nkululeko
Ndlovu. The first defendant has refused to vacate from the house or
transfer it back to the plaintiff thus necessitating this action against the
defendants claiming the following reliefs:
1.
An order declaring the sale of House Number 3750 Magwegwe North, Bulawayo to
the 1st defendant by Nkululeko Ndlovu unlawful, null and void;
2.
An order that the plaintiff is the rightful and legal owner of Stand Number
3750 Magwegwe North, Bulawayo;
3.
An order directing the 1st defendant to transfer Stand Number 3750
Magwegwe North, Bulawayo into the plaintiff's name at the 2nd
defendant's offices within 5 days of this order failure of which the Deputy Sheriff
is directed to sign the transfer papers in the stead of the 1st
defendant;
4.
An order directing the 1st defendant and all those claiming
occupation through him to vacate House Number 3750 Magwegwe North, Bulawayo
within 5 days of this order failure of which the Deputy Sheriff is directed to
evict the 1st defendant and all those claiming occupation through
him;
5.
Alternatively, the 1st defendant be ordered to pay the plaintiff the
sum of R150,000= being the current market value of the house on grounds of
unjust enrichment within 10 days of this order;
6.
The 1st defendant to bear costs of suit on an attorney-client scale.
The
plaintiff's evidence was as follows:
He
purchased the property in question from the second defendant in 1978 as
evidenced by the Agreement of Sale….,. He resided in the property
thenceforth up to 1999 when he retired from his employment and went to live at
his rural home. He left his wife, Tombana Ndlovu, his two sons, Nkululeko
and Melusi, and two tenants, staying in the house. Occasionally, he would
come to Bulawayo to pay rates for his property. When he came here for the
same purpose, in February 2002, he discovered a document in the house bearing
his house number but with the first defendant's name on it. When he took
this document to the second defendant's offices to enquire, it was then that he
discovered that the house had been sold to the first defendant by his son,
Nkululeko. and change of ownership effected.
At
the time, his son, Nkululeko, was already under arrest for having fraudulently
sold the same house to one Masuku. In all, five buyers of the house,
including the first defendant, Thathalephi Moyo, Masuku and Edmond Nherudzo had
been duped and paid money to Nkululeko. He went to Bulawayo Central Police
Station where he gave a statement on 21 February 2002 explaining what
transpired. That statement is exhibit 11…,.
He
remained resolute that he never authorized Nkululeko or anyone else to sell his
house. He vehemently denied ever signing the General Power of Attorney used by
Nkululeko to defraud the purchasers of his house. He rubbished his wife's
affidavit which purported to confirm that he had given Nkululeko power of
attorney to sell his house. He knew his wife as Tombana and not Norah as
stated in her affidavit. He last saw his wife in 2002 at the police station
where she was saying she just signed the affidavit as told to do so without
knowing the contents thereof.
When
Nkululeko subsequently died in prison it had to take the intervention of the
community for him to agree to go and collect his corpse and bury him as he was
very bitter for what Nkululeko had done to him. The first defendant is
still occupying his house and that propelled him to issue summons against him
seeking the relief outlined above. The plaintiff then closed his case.
The
first defendant's evidence was this:
He
resides in the house in dispute, having assumed occupation in February 2002. He
purchased it in September 2001. What happened was that he returned to Zimbabwe
from the Democratic Republic of Congo (DRC) in 2001. He grew up in a two-roomed
house in Makokoba so he needed a house of his own. He then bought the
Chronicle Newspaper to search for a house on sale. He then came across
exhibit 3, an advertisement of the sale of the house in question with phone
numbers. He telephoned the number and was directed to an agent who then
facilitated him to meet with Norah and Nkululeko. He went to view the
house and Norah showed him around. He was interested in the house so they
proceeded to the Housing Office. While there, he asked the two the whereabouts
of the plaintiff upon which he was shown a power of attorney (exhibit 5), an
affidavit deposed to by Norah (exhibit 4) and a marriage certificate (exhibit
9). He was told that the plaintiff was at the rural home in Kwekwe and
that they were given the power of attorney to sell the house. After seeing
the certified copy of the power of attorney he accepted it and a letter
requesting for consent to sell the house (exhibit 6) was then drafted by
Nkululeko Ndlovu. Two weeks later, the agent phoned him advising that the
consent to sell had been granted. He then proceeded to make payment for
the house. After paying the full purchase price of Z$500,000= they went to
the Housing Office to effect change of ownership which was done after he had
cleared outstanding bills owed to ZESA and the second defendant which had not
been paid for eight months. At no time did he ever suspect that there was
something amiss with the purchase of the house.
He
then called his father, Ernest Ndlovu, who told the court that he knows nothing
concerning the sale/purchase of the house save for what his son told him.
Thereafter,
the first defendant closed his case….,.
It
is clear from the facts of the case that the plaintiff's action is squarely
predicated upon the actio rei vindicatio whose legal
principle is that the true owner of a thing is entitled to recover it from any
person who has possession of it without his consent. The two essential
elements of this principle, which the plaintiff must establish in order to be
successful, are;
(i)
That he is the owner of the thing; and
(ii)
That possession of it is with the first defendant.
The
basic principle under the actio rei vindicatio,
according to SILBERBERG and SCHOEMAN, The Law of Property,
2nd edition, Butterworth, Durban…, is that “an owner cannot, as a
general rule, be deprived of his property against his will; nemo plus iuris transfer e potest quam ipse habet. Therefore, neither a
thief nor any other person who is not the owner (e.g. hirer or a borrower) can
transfer the right of ownership to another person, irrespective of whether the
person who acquires the thing from a thief or a hirer acts in good or in bad
faith and gives value for it or whether the transferor or himself was a bona fide possessor or genuinely but mistakenly believed
that he is authorized by the owner to dispose of it.”
R.H.
CHRISTIE, Business Law in Zimbabwe, 2nd
edition, Juta & Co…, succinctly expressed the position in these words:
“An
owner whose property has been sold and delivered without his consent remains
the owner, as the seller cannot pass ownership that was not his. The true
owner can bring a vindicatory action to recover his property from anyone,
including a bona fide buyer, in his hands he finds
it. The general rule that the seller can give no better title than he has
operates in favour of the true owner, unless the purchaser proves that the true
owner is estopped from denying the seller's authority to sell.”
See
also Mashave v Standard Bank of South Africa Ltd 1998
(1) ZLR 436 (S).
In
Oakland Nominees Ltd v Gelria Mining & Investment Co
Ltd 1976
(1) SA 441 (A)…, HOLMES JA said:
“Our
law jealously protects the right of ownership and the correlative right of the
owner in regard to his property, unless of course the possessor has some
enforceable right against the owner.”
The
legal principle enunciated above is solidly noble because since time
immemorial, at every stage of human evolution, societies have suffered the inevitable
unfortunate phenomenon of having in their midst, an array of thieves,
fraudsters, robbers, cut-throats, the throwbacks in evolution, etc, with no
qualms whatsoever in employing force or chicanery to dispossess fellow humans
of ownership of their property. If the law did not jealously guard and
protect the right of ownership and the correlative right of the owner to
his/her property, then ownership would be meaningless and the jungle law would
prevail to the detriment of legality and good order.
In
the instant case, the first defendant did not plead any estoppel against the
plaintiff.
It
is common cause that the plaintiff did buy the property in dispute from the second
defendant as evidenced by exhibit 8 – the Agreement of Sale between
them. The plaintiff gave his evidence credibly well and the court has no
reason to fault that evidence. The crux of that evidence is that he never gave
his rogue son, Nkululeko Ndlovu (may his soul rest in peace), any general power
of attorney or consent to his erstwhile wife, Tombana/Norah Ndlovu, to sell his
house. Both the general power of attorney (exhibit 5) and Norah's affidavit
(exhibit 4) were fake documents. That Nkululeko Ndlovu had no mandate
whatsoever to sell the plaintiff's house is clearly borne out by his selling it
to at least five buyers (the first defendant included) and that he was
subsequently arrested for that fraud and met his demise in prison whereupon the
plaintiff refused to bury him and had to be persuaded by the community to
relent, forgive, and bury his son in spite of his waywardness. A close analysis
of the circumstances surrounding the first defendant's purchase of the house in
question bears no iota of evidence that the plaintiff ever at all made out to
the first defendant that Nkululeko Ndlovu had any semblance of authority
granted him by the plaintiff to dispose of that house to anyone. The
evidence reveals clearly that both the plaintiff and the first defendant (not
to mention the other four buyers) were defrauded by Nkululeko Ndlovu….,.
In
the event, on the given facts, the plaintiff has succeeded in establishing the
requirements of the action rei vindicatio on a
preponderance of probabilities and accordingly I make the following order:
1.
An order declaring the sale of House Number 3750 Magwegwe North, Bulawayo to
the 1st defendant by Nkululeko Ndlovu unlawful, null and void;
2.
An order that the plaintiff is the rightful and legal owner of Stand 3750,
Magwegwe North, Bulawayo;
3.
An order directing the 1st defendant to transfer Stand Number 3750,
Magwegwe North, Bulawayo into the plaintiff's name at the 2nd
defendant's offices within 5 days of this order failure of which the Deputy Sheriff
is authorized to sign the transfer papers in the stead of the 1st
defendant;
4.
An order directing the 1st defendant and all those claiming
occupation through him to vacate House Number 3750 Magwegwe North, Bulawayo within
5 days of this order failure of which the Deputy Sheriff is directed to evict
the 1st defendant and all those claiming occupation through him;
5.
The 1st defendant shall bear the plaintiff's costs of suit.
