The
facts
Sometime
in 1979, the late Jeffery Dhliwayo acquired the right to purchase a
vacant Stand known as Stand 5389 in Glenview ('the Glenview Stand')
through a cession agreement with the City of Harare. It is not in
dispute that the person who ended up building a seven-roomed house on
this Stand was the first defendant, Marshall Dhliwayo. According to
the plaintiff, who is the deceased's daughter, this circumstance
came about as a result of an alleged swop between the two brothers of
their properties with the first defendant, Marshall Mwashoreni
Dhliwayo, purportedly swopping his two-roomed house in Chitungwiza,
namely, Stand 4362 Unit D, Chitungwiza (the Chitungwiza Stand), for
the Glen View Stand.
According
to the plaintiff, the swop was so that the first defendant in
particular could be nearer his workplace. She stated that the verbal
swop agreement took place sometime between 1979-1982 but was unable
to say exactly when. The plaintiff could also not say exactly when
her family moved to Chitungwiza but alleged it was some time in the
1980s and that her siblings, born in 1982, 1985 and 1992 were all
born when they were staying in Chitungwiza. No evidence, however, was
put forward in support of this claim. She however admitted that she
herself was schooling in the rural areas when it was put to her that
she only came into town in 1994.
It
was also her testimony that the crystal evidence that there had been
a swop was contained in an agreement authored by the first defendant
himself in 1998 in which he stated his wish to swop his house with
Jeffery Dhliwayo. It was her position that it was in 1998 when the
purported swop was formalised with the Glen View
Stand being ceded to the first defendant. However, the Chitungwiza
cession, according to her testimony, was not finalised as the late
Jeffery Dhliwayo, her father, did not have the requisite funds to
complete the process – which was a sum of Z$300= that was needed to
effect the cession. Thus, according to the plaintiff, instead of a
cession of the Chitungwiza house what the late Jeffery Dhliwayo got
was a lodger's card reflecting him as a tenant at the Chitungwiza
Stand.
It
was not disputed that by 1982/3 the first defendant had completed the
construction of the house in Glenview and had moved onto the
property. The plaintiff did not lay claim to this house. She agreed
that the house on the Stand was built by the first defendant but
insisted that the whole arrangement where one family lived in Glen
View
and the other in Chitungwiza had its origins in a swop. She had
lodged a formal claim to the property in 2012 after registering her
father's estate and being appointed executor. This followed the
purported acquisition of the house by the first defendant's son,
one Newman Dhliwayo, through a donation from the first defendant
sometime in 2003 and his effecting extensive improvements to the said
house. He successfully brought an action in the Magistrate's Court,
in case No.17/13, against the first defendant to sign all relevant
papers and to effect transfer in his name. The plaintiff was not a
party to this matter.
The
plaintiff was the only witness in her case.
In
support of her claim that there was a swop, the plaintiff produced as
exhibits the application for cession of Stand 5389 from Jeffrey
Dhliwayo to Marshall Dhliwayo (exhibit 1); the City Council's
Memorandum of Agreement regarding the cession of the Glen View
property (exhibit No.2); and with regards to the Chitungwiza property
she placed before the court the letter penned by the first defendant
and his wife (exhibit No.3); and a lodgers card showing her father as
a tenant to the Chitungwiza property which she said he had gotten in
lieu
when he was unable to pay the full cession fees required (exhibit No.
4). Her Letters of Administration were also produced (exhibit No. 5).
The
first defendant, on the other hand, denied that there was ever a
swop, and, instead, locates his taking over of the Stand in 1979 in
the late Jeffery Dhliwayo's inability to pay for it himself. Rather
than losing the opportunity to acquire the Stand, the late Jeffery
Dhliwayo allowed his brother to take over the purchase of the Stand
and to build on it. His version was that there could not have been a
swop in 1979, as alleged by the plaintiff, since he only entered into
an Agreement of Sale with Chitungwiza Town Council, with respect to
the Chitungwiza Stand, in March 1981. He produced as exhibit No. D1 a
copy of the Deed of Sale with the Council showing that the sale was
in 1981.
His
further testimony was that the late Jeffery Dhliwayo had moved to
Chitungwiza in 1996 as his tenant and prior to that had been staying
in Highfield as a lodger. His explanation of the 1998 events, in
contrast to those alleged by the plaintiff, was that in May 1998,
when it became evident that the late Jeffrey was critically ill, both
brothers took action, in fear of his impending death, to transfer the
property into the first defendant's name. However, in attempting to
effect change of name, they encountered a hurdle in that in that the
City of Harare refused to effect cession into his name by merely
changing ownership. He said he was told that there had to be
something in favour of Jeffery Dhliwayo and it was then that the
parties, following some advice as to how they could get around the
hurdle, put into motion the simulated swop using his Chitungwiza
Stand. The intention he says was never to take the Chitungwiza
cession to its logical conclusion which is his explanation as to why
it was never concluded but it was every intention, according to him,
to change over the Glenview property into his name.
Girlie
Dhliwayo, the first defendant's wife, having been party to the
process, also gave evidence with the leave of the court, after the
first defendant, a stroke patient, could not be available due to
illness to complete what remained of being cross examined and
re-examined.
The
gist of her testimony was that Jeffery Dhliwayo, whom she
characterised as wayward and irresponsible in his family matters, was
staying in Highfield, in a cabin, with his wife and children, in very
crammed conditions. Having observed the very hard conditions his wife
and children were living under after he had chased his wife from the
rural home where she had been staying, her evidence was that it was
her suggestion that they be offered their Chitungwiza home as a
humane gesture.
She
corroborated her husband's version that it was only in 1996 that
the family of the late Jeffery Dhliwayo went to stay in Chitungwiza.
She further confirmed that in 1998, when they went to the Harare
offices to effect change of name, they were told by the officials
that they needed a valid reason for the change of name. Their claim
that they had bought the property could not hold since they were
unable to produce an Agreement of Sale or any proof in the form of
bank statements confirming that any money had changed hands. She
reiterated that it was when they got outside that someone suggested
that they do a swop and that it was then that they devised the plan
to say they had swopped the Chitungwiza house. She said at the
Chitungwiza Council offices, the officials had insisted on a letter
pertaining to the purported swop and it was in that context that she
says the letter was written. It was also her evidence that the reason
why the late Jeffery Dhliwayo was given a lodgers card was in fact so
that he could be allocated a Stand since lodgers were prioritised. It
was her testimony that in fact a Stand had been allocated to Jeffery
Dhliwayo - albeit after he had died.
Newman
Dhliwayo, the first defendant's son to whom he is said to have
donated the house to resulting in an order from the Chitungwiza Court
that the first defendant should transfer the house to him, also gave
evidence.
It
was to the effect that following Jeffery Dhliwayo's death in 1999,
bills at the Chitungwiza house mounted and remained unpaid. His
father asked him to settle the bills if he had money; which he went
on to do. Thereafter, his father said that he could take over the
house if he wanted to as it was his and explained to him the context
that had led to Jeffery Dhliwayo's family being on the property. He
explained that he went on to install electricity in 2004 and in 2005
started building extensions on the house completing his seven-roomed
project in 2011. His evidence was furthermore to the effect that it
was in 2012, after he moved in, that conflicts started with the
children of the late Jeffrey Dhliwayo who now claimed that he had
come to take over their father's house. He said he explained the
problems to his father and that he wanted the house to be put into
his name for the avoidance of further problems. He took the matter to
court as he was of the view that as his father was staying in Glen
View
he was not taking the matter seriously. It was in this context that
the Chitungwiza Magistrate Court issued a document compelling the
first defendant to transfer the property to his son.
Also
produced as exhibits for the first defendant claim was the court
order from the Magistrates Court ordering Marshall Dhliwayo to
transfer the property to his son Newman Dhliwayo (exhibit D3); the
Council of Chitungwiza's Building Inspector's report confirming
that renovations to the house were being done as way back as 2005
(exhibit D2).
Therefore,
in the context of all the above facts, this court is asked to decide,
primarily, on the following issues:
1.
Whether there was a Swop Agreement between the late Jeffrey Dhliwayo
and the first defendant in respect of Stand 5389, 72 Crescent, Glen
View
and Stand 4362 Unit D, Seke, Chitungwiza owned by the first
defendant.
2.
Whether the first defendant can be compelled to transfer Stand 4362
Unit D, Seke, Chitungwiza into the Estate of the Late Jeffrey
Dhliwayo.
3.
Whether the first defendant can be compelled to transfer Stand 4362
Unit D, Seke, Chitungwiza in view of the judgement dated 18 January
2013 handed down by Chitungwiza Magistrates Court.
4.
Whether the plaintiff's claim is prescribed in terms of the law.
While
there was appearance by counsel for the second defendant, she did not
make any submissions. Counsel for the third defendant…, also cited
in an official capacity as custodians of the records of the property
in dispute indicated that they would abide by the decision of the
court with no order as to costs against it….,.
The
issue of prescription as well as that of the Magistrate's Court
decision obviously need to be dealt with first as both would dispose
of the case…,.
Was
there a swop?
The
document dated 12 May 1998 that captures the purported swop with
regard to the Chitungwiza property, and submitted as exhibit no.3 by
the plaintiff, reads as follows:
“I,
Marshall Mwashereni Dhliwayo, 63-1193020P13, wish to swop my house
with Jeffrey Munyika Dhliwayo, Nr 63-199102R 13, for free.”
It
is signed by the first defendant and his wife also signs giving her
consent.
It
is a vague document that does not detail which house is being swopped
for what house and cannot be said to constitute any agreement between
the parties to effect a swop. It is void for vagueness. Besides,
there is no indication that the late Jeffrey Dhliwayo was party to
it.
As
stated, in resolving such disputes as these, much will of course rest
on the facts of the particular case.
As
regards the swop, if indeed the only thing that stalled the cession
of the Chitungwiza property was lack of funds, there is no reason why
payment could not have been subsequently made. Even accepting the
death of Jeffrey Dhliwayo, in 1999, it still boggles the mind why, if
the property was, in essence, that of the deceased by virtue of a
swop, his late wife, who only died in 2003, almost five years later
than him, never took any steps to register the property. The fact
that there was no effort to assert a claim, in my view, bolsters the
claim by the first defendant's wife that the reason was because it
was always known to her, in no uncertain terms, that the property did
not belong to her. The fact that the late Jeffrey Dhliwayo was given
a lodger's card for allocation of a Stand also supports the first
defendant's argument that the letter regarding the swop was never
intended to have any real meaning as a basis of any swop.
Even
more puzzling to the plaintiff's claim is why no concrete legal
action was taken in the face of the improvements that were being
effected by the first defendant's son to the property as way back
as 2005 if she genuinely believed the property was her father's.
Her argument that she registered her complaints with the first
defendant, who took no action, cannot absolve her failure to take
more stern action.
Counsel
for plaintiff argued that the evidence of Girlie Dhliwayo should be
discounted for its inconsistencies with her husband's with respect
to whether the advice to simulate a swop had come from an outsider or
from Chitungwiza Town Council.
Far
from implying that the advice was that of Chitungwiza
Town Council officials,
her evidence stated that it was when they got outside, that in
talking, someone suggested a swop. It was after that they had decided
to use their Chitungwiza property that they had proceeded to
Chitungwiza where they were advised to do the letter.
I
saw no glaring inconsistencies
that go to the root of the matter in her testimony.
Instead,
there were many positive indicators from her testimony compared to
that of the plaintiff and the first defendant who both encountered
credibility pitfalls as a result of blatantly seeking to answer
questions to suit a particular argument. For instance, in not pinning
herself to an exact date of the alleged agreement, besides the fact
that having been born in 1975, the plaintiff would have been too
young to appreciate the events that took place at the time; the
impression formed was that she was deliberately trying to evade the
pitfall that there could not possibly have been any swop in 1979
since the record from the Chitungwiza Urban Council confirms that the
Chitungwiza property was only acquired in 1981 consisting of the
two-roomed core house.
The
first defendant equally emerged as not being entirely truthful when
asked if he had faced any impediments in seeking transfer of the
Glenview property into his name or on who had advised him to swop. It
may have been a bid to protect any Council officials who may have
been party to facilitating the ruse of the simulated swop.
In
my opinion, because of the straight forward factual nature of Girlie
Dhliwayo's testimony, and its grounding in everyday realities in
providing a picture of what really transpired in relation to the two
properties, I found her testimony the most believable of the
witnesses. It assisted the court greatly to understand the murky
areas that appeared to have arisen as a result of clearly rehearsed
responses.
I
also had no difficulties with the testimony of Newton Dhliwayo as it
was also of a straight forward factual nature.
Ultimately,
the reality is that simulations such as these, within family
contexts, to acquire property or facilitate transfers in instances
where City Council officials may appear to be placing impediments,
are not uncommon. It is not an unusual occurrence in our setting for
parties to acquire property by navigating their way through the City
Council's requirements.
See
for
instance,
Kamanga
v Estate Late Chikondo (as represented by Oswold Bute Chikondo in his
capacity as executor) and Others
93/2011).
Also,
disputes such as these often times in our context have their origins
in some desire to maximise the opportunity to acquire property within
an extended family context if one cannot take it up themselves, as
opposed to letting the opportunity slip without helping one's own.
Legal effects of property being registered in someone else's name
when they are not entitled to it are often not appreciated. It cannot
be said that lack of foresight to resultant problems amounts to
breaking the law. In light of economic woes and the significance of
having a roof over one's own head, the deceased's children in
some such arrangements, as in this case, who may in some instances
have been no more than toddlers at the time of the arrangement,
nonetheless assert their claim to the property with the tenacity of
those who were part of the contract at the time.
In
reality, there had never been a sale of the Stand to or by Jeffrey
Dhliwayo since from the outset it was Marshall Dhliwayo and his wife
who had paid for the Glenview property and built on it. The
impediment that they faced was getting it transferred into their name
and it is in this context that the stimulated swop of the Chitungwiza
property, which understandably was never taken to its logical
conclusion, came into play.
It
is my finding there was never intended to be a swop of the
properties.
It
is equally my finding that the first defendant cannot be compelled to
transfer Stand 4362 Unit D, Seke, Chitungwiza into the Estate of the
Late Jeffrey Dhliwayo.
As
summarised in the case of Page
Automation (Pvt) Ltd v Profusa Properties t/a Homenet OR Tambo and
Others
2013
(4) SA 37 (GSJ)…,
the
elements of a cession
are
as follows:
(a)
An act of transfer;
(b)
The
subject matter of the transfer is a right in movable incorporeal
thing;
(c)
The transfer is effected by agreement between the cedent and the
cessionary; and
(d)
The
agreement consists of the concurrence between the cedent's animus
transferendi
and the cessionary's corresponding animus
acquirendi.
There
was never intended to be a cession of rights which the first
defendant held with the Chitungwiza Urban Council in relation to the
Chitungwiza Stand. However, there was intended to be a cession of
rights which the late Jeffrey Dhliwayo held with the City of Harare
in relation to the Glen View Stand. The evidence suggests that there
was a clear meeting of minds among the parties involved regarding
what was intended.
As
explained in the South African case of Hippo
Quarries (TVL) (Pvt) Ltd v Eardley
1992
(1) SA 567 (A)…,;
“Cession,
it is trite, is a particular method of transferring a right. The
transfer is effected by means of agreement. The agreement consists of
a concurrence between the cedent's animus
transferendi
of the right and the cessionary's corresponding animus
acquirendi.
If
a complete surrender of a right is not intended, the transaction,
however dressed up, is not an out and out cession. The aim is to
discover the true intention of the parties to the disputed cession.
That enquiry, like any enquiry into intention, is a purely factual
one. If found to be feigned the simulation is disregarded.”
From
an assessment of the facts placed before the court, the true
intention of the parties was to complete the transfer of rights which
Jeffrey Dhliwayo held with the City of Harare in the Glen View
property from being held by himself to being held by the first
defendant…,. This one was not a feigned cession. It was real. The
parties were agreed and the complete surrender of rights was
effected.
In
casu,
there
was no animus
transferendi
in
relation to the Chitungwiza property and there was equally no animus
acquirendi.
Accordingly,
the plaintiff's claim is hereby dismissed.
