MALABA DCJ: The unanimous view of the Court is that the appeal has no
merit. The appellant went to the High
Court seeking the enforcement of a personal right namely to take transfer of
certain immovable property against payment of the purchase price in terms of
the agreement of sale.
The
High Court granted the order sought by the appellant. The order granted the appellant personal
rights which were conditional upon payment for the property within three
days. To date there has been no
payment. Having been granted a personal
right, the principle of res litigiosa could
not be the basis for a vindicatory action for the recovery of the immovable
property purchased by the fourth respondent at a time he was unaware of the
rights of the appellant. The fourth
respondent paid for the property and had it registered in its name.
In
the court a quo the appellant sought
a declaration to the effect that the first respondent had lost dominium in the property by virtue of it
having become res litigiosa at the
closure of pleadings on 24 March 2006.
It
was conceded before the court a quo
and before this Court that the first respondent had not lost dominium in the property. The effect of the concession is that the
court a quo could not have granted
the declaration sought. Mr Uriri, however, argued that the Court
ought to have granted an order which was consistent with the law.
The
Court found that the order sought to be enforced granted personal rights which
could not be enforced on the basis of the principle of res litigiosa. As such the
court a quo could not have granted
the alternative relief suggested by Mr Uriri
in argument. The appellant had not
complied with the order granted in his favour whilst the fourth respondent was
not only a bona fide purchaser without notice of the appellant's personal right
but had paid for the property and taken transfer.
Paragraph
1 of the draft order having fallen away the court a quo correctly found that the consequential orders seeking
specific performance also fell away.
The
Court finds that there was no misdirection on the part of the court a quo.
I
would accordingly dismiss the appeal with costs.
It
is agreed by the parties that the costs of 24 January 2012 which had been
reserved are to be met by the fourth respondent.
Accordingly
it is ordered as follows:
"1. The appeal is dismissed with costs.
2. The
wasted costs of 24 January 2012 are to be met by the fourth respondent."
ZIYAMBI
JA: I agree
GARWE
JA: I agree
Messrs
Kantor & Immerman, applicant's legal
practitioners
Messrs
Costa Madzonga, first respondent's legal
practitioners
Messrs Mawere & Sibanda, fourth respondent's
legal practitioners
