MAKONI J: The applicant
and the first respondent entered into an agreement of sale in respect
of a 4.2% undivided share, being share number E8 and 90.15% undivided
share being share number J4 of a certain piece of land situate in the
District of Salisbury called the Remaining Extent of stand 759A
Greystone Township (“the property”).
This was sometime in July 2004.
A misunderstanding arose regarding payment of the purchase price
which culminated in the applicant suing the first respondent for an
order of specific performance in case number 11495/04. Judgment was
entered in favour of the applicant on 4 April 2006. The order was to
the effect that the applicant was to tender the purchase price and
the first respondent would then transfer its rights, title and
interest in the property to the applicant.
The first respondent appealed against the judgment and later withdrew
the appeal.
In the meantime, sometime in March 2006, the first respondent sold
the same property to the second and third respondents. It effected
transfer of the property to the second and third respondents on 13
April 2006. The second and third respondents subsequently sold and
transferred the property to the fourth respondent on 18 September
2007.
Against this background, the applicant, then brought the present
application seeking an order in the following terms:
“It is declared that:
1. That the first respondent lost dominion in respect of a 4.2%
undivided share, being share number E8 and a 0.15% undivided share
being share number J4 of a certain piece of land situated in the
District of Salisbury called the Remaining Extent of Stand 759A
Greystone Township with the closure of pleadings in case number
HC11495/04.
2. The sale and transfer of the
said property by the first respondent to the second and third
respondents, and the subsequent sale and transfer of the same
property by the second and third respondents to the fourth respondent
is accordingly null and void.
Consequently it is ordered that:
3. The sale and transfer of the
said property by the first respondent to the second and third
respondents, and the subsequent sale and transfer of the same
property by the second and third respondents to the fourth respondent
be and is hereby set aside.
4. The first respondent shall,
within seven days of the service of this order upon its registered
address by the Deputy Sheriff, tender transfer of the said property
to the applicant and shall do all such things as are necessary to
effect transfer thereof to the applicant.
5. In the event of the first
respondent failing to comply with paragraph 4 above, the Deputy
Sheriff be and is hereby authorized to do all such things and to sign
all such documents as will be necessary to effect transfer of the
said property to the applicant.
6. The first respondent shall pay
the costs of the application at the legal practitioner and client
scale.”
The applicant avers that he tendered payment in accordance with the
judgment and same was rejected by the first respondent.
He contends that the sale of the property to the second and third
respondents was void because the first respondent had lost dominion
of the property with the closure of pleadings. He retained an
absolute right to repossess the property from whoever had title at
the time of judgment if such title was obtained subsequent to joinder
of issues.
The first respondent opposes the matter on the basis that the
property was sold to the second and third respondents before the
judgment in case number 11495/04 had been delivered. He disputes that
it lost dominion over the property.
In case number 10425/04 the applicant's application to interdict
the first respondent from disposing of the property was dismissed. It
does not accept that the second and third respondent is title to the
property was defective in any way.
The fourth respondent opposes the application on the same grounds as
advanced by the first respondent.
It was submitted on behalf of the
applicant that once the pleadings in HC11495/04 were closed, the
matter became litis
constatatio. The
parties lost dominion over the property which become res
litigiosa. As such the
property could not be disposed of before the termination of the
proceedings. The proceedings in HC11495/04 were only terminated with
the withdrawal of the first respondent's appeal.
It was further submitted that the sale of the property to the second
and third respondents and subsequently to the fourth respondent was
void because at the material time the first respondent had no
dominion over same. The applicant is entitled to vindicate same.
It was submitted on behalf of the
first respondent that the mere operation of the doctrine of
letigiosity does
not result in dominion over property being lost. It is an accepted
principle of law that res
litigiosa can be
alienated.
It was further submitted that at no time did the applicant become the
owner of the property. He did not pay the purchase price. He cannot
therefore seek to vindicate property which is now owned by the fourth
respondent.
The fourth respondent associated itself with the argument by the
first respondent. It was further submitted on its behalf that the
agreement of sale between a litigating party and the third party is
valid inter parties.
The present application was
equated to a vindicatory action in exparte
Deputy Sheriff Salisbury in re Doyle
v Salgo
1957 (3) SA 740 (SR).
One of the essential elements of
an actio rei vindicatio
is that a party seeking such relief must establish the right of
ownership. The author D Carey Miller in The Acquisition and
Protection of Ownership (1986) at p256 after making the above point
goes on to stress that:
“As Voet points out, the action
is not available to those who have not yet obtained ownership as for
example, a purchaser who has paid the price but not yet obtained
delivery. Nor, indeed, is it enough for the plaintiff to gain
ownership pendente
lite because
it cannot be competent for a party to institute a vindiatory action
anticipating the acquisition of ownership”.
It is not in dispute that the
applicant is not and has never been the owner of the property.
Further what the applicant acquired through the judgment is a
personal right. The doctrine of res
litigiosa applies in
an action in rem
and not in a personal action.
In para 1 of the draft order, the
applicant seeks a declarator that the first respondent lost dominion
in respect of the property with the closure of pleadings in case
number HC11495/04. The issue then is whether the operation of the
doctrine of litigiosity
results in dominion over property being lost.
No authority to that effect was quoted to the court by the applicant
and I have been unable to find any.
Mr Uriri
in his reply made a concession that dominion is not lost but that it
is diminished. He did not however seek to amend para 1 of the draft
order.
The concession was properly made.
The defendant's real rights as
dominius,
in a res litigiosa
are diminished to that extent to which he cannot dispose of the thing
to the prejudice of the plaintiff. See Exparte
Deputy Sheriff Salisbury in re Dayle
supra
and Siberberg and Schoeman's The Law of property 3rd
ed p 304. Dominus
is not lost as a result of litigiosity. Paragraph 1 of the draft
order is therefore not the correct position in law.
In view of my finding above, the relief being sought by the applicant
in para 1 of the draft order cannot be granted.
In para 2 of the draft order, the applicant seeks a declarator to the
effect that the sale to the first and second respondents and the
subsequent sale and transfer of the same property to the fourth
respondent is accordingly null and void.
From the wording of para 2, in particular the use of the word
“accordingly”, it would appear that the granting of para 2 is
linked to the granting of para 1. Having made a finding that I cannot
grant para 1 it follows that para 2 falls away.
Assuming I am wrong on this point I will proceed to determine the
next issue which is the validity of the sale of the property to the
first and second respondents and the subsequent sale and transfer of
the property to the fourth respondent.
It is now settled in our law that
the fact that a thing is res
litigiosa does not
preclude or prevent it from being alienated or similarly dealt with,
so long as the rights of the non-alienating litigant in the res
are protected.
The above position come out
clearly in the recent case of Supa
Plant Investments (Pvt)
Ltd
v Edgar Chidavaenzi
HH92-09 at p6–7 wherein MAKARAU JP analysed the authorities on the
point.
The authors Siberberg and Shoeman
in the Law of Property
3rd
ed at p304 made the point that the agreement of sale of the res
litigiosa between the
litigating party and a third party is valid inter
partes. They go
further to say that the purchaser is bound by the judgment in the
action and the successful party can recover it from the new possessor
by execution and without fresh proceedings.
The issue that confronts me in this matter is not of a third party
who contracts with the litigating party but that of a party who
purchases from the third party.
It was submitted on behalf of the
fourth respondent that recovery of the property would only apply if
the property is in the hands of the second and third respondents and
not against the fourth respondent. I was referred to the case of
Menezes
v McGaili
1971 (2) SA 12 (c).
In that case a certain van Schoor had been prohibited by an order of
court from passing transfer of certain property to any person other
than Mcgaili. In breach of the prohibition van Schoor passed transfer
to one Eckard who in turn sold the property to Menezes. Mcgaili
argued that because of the existence of the prohibition, Menezes had
not validly acquired ownership. It was held that the transfer from
vanSchoor to Eckard had not been void even though it was done in
violation of a court order. STEYN J at p14G made the following
remarks:
“Provided however that the
transaction between van Schoor and Eckard complied with the
requirements of a valid sale, in that, e.g., it was a genuine and not
a simulated transaction negotiated with the object of defeating the
court's order the mere prohibition would not, in my opinion, render
the transfer from vanSchoor to Eckard void. Probably such transfer is
voidable, but until it has been set aside, it stands, and if then
Eckard transfer the property to a bona
fide transferee, the
latter transfer is valid”.
The learned judge went further
and explained his reasoning which was the consideration that if a
transfer effected in breach of an order of court were to be held
void, a series of transfers might have to be set aside. This would
constitute a serious inroad upon the unavailable title of a bona
fide transferee and
could lead to grave inconvenience and uncertainity.
I share the views as expressed by
STEYN J in the Menezes
case supra.
The applicant has not alleged any
mala fides
on the part of the fourth respondent. The fourth respondent would
therefore be a bona
fide transferee.
In any event the applicant only acquired a personal right, if any,
through the court order and he cannot successfully claim the property
from the fourth respondent as his rights are only enforceable against
the first respondent.
The author D Caney Miller supra
lends support to the point that the successful litigant can recover
the res
by execution from the third party only when he states at p257:
“In essence the successful
plaintiff could recover the thing from
the one who had
acquired from the
defendant merely by
recourse to execution – based upon the judgment against the
defendant and without the need for vindication”. (my own
underlining).
In the result, and on the basis of the foregoing I make the following
order:
1. The application is dismissed.
2. The applicant to pay costs of
suit.
Kantor & Immerman, applicant's legal practitioners
Costa & Madzonga, first respondent's legal practitioners
