The
applicant, an employee of the sixth respondent, filed this
application on 5 December 2014 seeking an order compelling the first
to fourth respondents to facilitate and register the transfer of an
undeveloped Stand, being a certain piece of land in extent (120
Morgen sixty-four (64) square roods, forty-eight (48) square feet,
being the remaining extent of 100 Acre Lot Henry Mangizan situate in
the District of Bulawayo, held in the name of Hayler & Company
under Deed of Transfer No. 780/1946).
Further,
the applicant sought an order authorizing the Sheriff of this court
to sign any necessary papers on behalf of the first to fourth
respondents effecting the transfer of the property to him.
The
basis of the application is the applicant's claim to have bought
the said property on 22 January 2006 from the first to fourth
respondents for the sum of Z$620,000,000=. He relied on an Agreement
of Sale marked as Annexure 'B'. The applicant contended that he
could not take transfer immediately because he could not raise the
money to bear all the costs involved in taking transfer. He is now
desirous of facilitating transfer but his “predicament” is that
he has lost touch with all the respondents and is unaware of their
present whereabouts….,.
The
sixth respondent was alarmed by this application leading to its
decision to oppose it. It then filed an application, under cover of
case number HC589/15, seeking to be joined as a party in this
particular application. The applicant did not oppose this application
which was duly granted.
Having
been joined as a party, the sixth respondent filed its notice of
opposition.
In
her opposing affidavit, the Chamber Secretary and Acting Town Clerk,
one Sikhangele Zhou, stated that the power of attorney presented to
their offices is a forged document that should not be relied upon by
this court. She also attacked the authenticity of the Agreement of
Sale (Annexure B) on the basis that it was allegedly signed by only
one beneficiary to the exclusion of the rest of them. Further, that
beneficiary who allegedly signed did not have the requisite authority
to represent the company. According to her, the applicant is clearly
trying to fool this court into awarding or transferring the property
to him by devious, fraudulent, and unlawful means.
At
the hearing of this matter, two issues arose for consideration,
namely:
1.
Whether or not the sixth respondent has locus
standi in judicio
to oppose the court application in
casu?
2.
Whether or not the applicant has made a good case for the relief
sought?
Although
the applicant had filed heads wherein he addressed the first issue in
extenso,
he abandoned it during the hearing. This left only the second issue
for determination….,.
As
pointed out above,
there is no appearance for the first to the fifth respondents.
The
sixth respondent strenuously opposed the application. In her founding
affidavit, the Chamber Secretary and Acting Town Clerk of the sixth
respondent makes the following factual averments:
1.
The applicant's Annexure B is signed by Gavin Edwin Hayler
representing Hayler & Company. However, there is no company
resolution attached to the application showing that Gavin Edwin
Hayler had authority to sign on behalf of the company.
2.
Since the first to fourth respondents are beneficial owners of that
property, the applicant would have needed Powers of Attorney from
these owners for Gavin Edwin Hayler to sign the Memorandum of
Agreement of Sale on their behalf. No such powers of attorney have
been filed, meaning that there is no independent confirmation from
them that they agreed to the sale.
3.
There is no proof that the purchase price which was supposed to be
paid in full on the signing of the agreement was even made as the
applicant had not attached any receipt as proof of payment.
4.
The applicant's assertions, in paragraphs 2 – 5 of his founding
affidavit, that he does not know the whereabouts of the first
to
fourth respondents cannot withstand scrutiny for the following
reasons:
(a)
Sometime in November 2014, the applicant approached the City Valuer
with a Special Power of Attorney allegedly from the first respondent,
the person who had allegedly signed Annexure B – the Agreement of
Sale of the property to the applicant. This Power of Attorney gave
the applicant authority to sign all documents necessary for the
property and to represent him “without restriction”.
(b)
The said Power of Attorney shows that the said Gavin Edwin Hayler
resides at No.7 Rufus Street, Birchleigh North, Kempton Park,
Johannesburg, Republic of South Africa. It is notarised. In view of
this, it is “reprehensible, to say the least, for the applicant to
come to court and allege in an affidavit signed on the 5th
of December 2014 that he “does not know” the whereabouts of the
respondents when less than a month earlier he met with the
respondents, obtained a Power of Attorney, gave the respondents his
own details as are endorsed on that Power of Attorney.
(c)
The Power of Attorney was signed by one beneficiary instead of the
second to fourth respondents. It was notarized in South Africa by a
South African law
firm
called Wentzel & Partners, and, in particular, signed by a Notary
Public called J. Mazibuko. Investigations established that although
the law firm did exist, it did
not have a J. Mazibuko in their practice. This information was
supplied by the South African Law Society in Annexure E.
(d)
Further inquiries with Wentzel & Partners revealed that they are
not Notaries and they disowned the so-called Power of Attorney –
see Annexure G.
(e)
The sixth respondent, convinced that the applicant was using forged
documents reported him to the police who arrested and placed him on
remand – see Annexure H which shows that the applicant was charged
with the following crimes;
(i)
Fraud, as defined in section 136 of the Criminal Law (Codification
and Reform) Act [Chapter 9:23] in that he tendered a false power of
attorney to the sixth respondent.
(ii)
Contravening section 39(i)(a) of the Regional, Town and Country
Planning Act [Chapter 29:12] in that he unlawfully subdivided the
land in dispute without a permit from the sixth respondent.
(iii)
Fraud, as defined in section 136 of the 'Code' (18 counts) in
that with intent to deceive or realizing that third parties mentioned
might be deceived and act upon the misrepresentation to their
prejudice, the
applicant
sold residential Stands which are part of the remaining Extent of 100
acre lot of Henry Mangizan which is the land in issue in this
application.
The
sixth respondent summarised its argument thus;
“11.8
What is clear from the above is that using the Power of Attorney
signed as late as the 10th
November 2014, applicant sought to deal with this property. This is
why he approached the City Valuer. When he failed, he has tried
other means and has filed this court application alleging that the
whereabouts of the 1st
– 4th
respondents are unknown. Surely, if the Power of Attorney is
authentic, he should be using that Power of Attorney. Further, if it
is authentic, then he knows the whereabouts of at least the 1st
respondent, Gavin Edwin Hayler, as his address is on that Power of
Attorney. That Power of Attorney, as stated earlier, was only signed
on the 14th
of
November 2014.
Why
then come to court on the 5th
December 2014 less than 30 (thirty) days later and pretend that their
whereabouts are unknown and publish something in the newspapers
knowing that they will not see that publication. After
all to his knowledge, they would be in South Africa, and so why
publish in 'The Chronicle' newspaper?
This
buttresses our view that the applicant has got serious explanations
to make and his application cannot stand.
11.9
We may also draw the Honourable Court's attention to the fact that
applicant has brought a number of applications seeking
transfer of land to him on the basis that the land had been donated
to him.
He has sold most of those pieces of land and is now failing to
transfer them.
What is common in all these cases is that he will target the absent
landlords' properties that have not paid rates for more than five
years and property owners who are more than 100 years old. He would
know that these people would no longer be in Zimbabwe and probably
deceased and there would be no-one to contest those applications.
It is our view that applicant is perpetrating a
massive land scam
which must be investigated because innocent people are being or may
be defrauded of their hard earned cash.
12.
As of now, there are 20 more Stands which are being investigated
because he acquired them under dubious circumstances.
We hardly spend a day without a person coming to our offices
complaining that they bought a Stand from him and that he is failing
to transfer it to them. These donations are suspicious and must
therefore be investigated because the Donors
are all white, who have not paid rates for a long time
and he would divert the bills to his box number first before claiming
a Donation. The Donors are in most cases no longer in Zimbabwe and
are either deceased or too old.
13.
It is our view, therefore, that this application should be dismissed
as applicant is not entitled to the transfer of the property.
At the very least, he should explain that Power of Attorney and why
it has turned out to be fake. He must explain why he did not use that
Power of Attorney for purposes of this application and why he is now
pretending that he does not know the whereabouts of the 1st
respondent when it is endorsed on that Power of Attorney.
In any event, the sale agreement is suspect as stated above.”…,.
As
a result of these fraudulent machinations, the sixth respondent
prayed for the dismissal of the applicant's case with costs at an
attorney and client scale.
I
have deliberately set out the parties' averments in their papers in
order to expose not only the seriousness of the allegations but also
the response to those allegations. Let me turn to the applicant's
responses in the answering affidavit.
I
must point out that I find the
applicant's argument not only flawed but also anchored on fragile
reasoning. I say so for the following reasons:
(a)
When it was pointed out to him that Gavin Edwin Hayler (Gavin) could
not represent the company in the Agreement of Sale since there is no
company resolution authorizing him to do so, his response was;
'All
relevant documents' were exhibited to him at the time of
contracting.
Interestingly,
he does not specify or attach these documents to his answering
affidavit. Surely, once challenged, the evidentiary burden shifted to
him to prove this point. He did not do so. Instead, he proffered a
lame and unconvincing explanation.
(b)
Further, upon being confronted with an averment that for the
Agreement of Sale to be valid, the applicant would have needed Powers
of Attorney from the beneficial owners authorizing Gavin to sign on
their behalf, the applicant exposes his naivety by stating;
“It
is therefore premature for the 6th
respondent to speculate that those relevant papers will not be
produced before the 5th
Respondent.”…,.
Now,
what I find preposterous and unbelievable is that this contention
presupposes that these 'relevant documents' are in the
applicant's possession and that he will produce them at the
appropriate time, namely, before the fifth respondent for purposes of
transferring title to himself. The critical and determinative
question that begs an answer is why has the
applicant failed to produce these documents now in order not only to
strengthen his case, but, more importantly, to be candid with the
court.
Why
is he withholding such crucial pieces of evidence from the court?
I
take the view that the applicant's failure to attach these
documents is a clear indicator of his full knowledge that these
documents are fictitious, or, at the very least, are bogus in that
they were fraudulently acquired.
The
applicant's response is thoroughly incredible.
(c)
Also, he has unsatisfactorily dealt with the question of how the
pretium was paid. Asked about proof, in the form of a receipt, all he
could say was;
“It
was paid in
casu
upon signing of the agreement.”
The
applicant should have done more by perhaps attaching affidavits from
those indicated as witnesses to the agreement. He, in fact, has not
fully identified these 'witnesses' to the Agreement of Sale.
(d)
The applicant admitted that he approached the sixth respondent's
City Valuer brandishing the bogus power of attorney. He contended
that the purpose was “not meant for conveying title to me, but for
subdivision of the property.” See paragraph 14 of his answering
affidavit. The purpose for which he produced the forged document is
neither here nor there.
In
any case, why was the applicant subdividing property that has not
been registered in his name?
(e)
When the applicant was challenged to explain why he contended, in an
affidavit signed on 5th
December 2014, that:
'He
does not know the whereabouts of the respondents' when less than a
month earlier, he met with the respondent, obtained a power of
attorney and gave the first respondent his own details, he wrote, in
paragraph 10 of his Answering Affidavit;
“My
dealings with 6th
respondent and its officials was strictly on business basis and not
as an employee. I must state that it is not correct that I travelled
to South Africa in November 2014 to meet the 1st
respondent. The said Power of Attorney was attested to in my absence
and posted to me. 1st
respondent used to do hunting and safari business in Zimbabwe. I
lost contact with him in 2008.
However, one
of his business associates indicated that he had come into contact
with him during hunting expeditions in the transfrontier game parks
and other conservancies in Zimbabwe and the Southern Region. I then
agreed that 1st
respondent grant me a power of attorney for purposes of subdivision
of the property in dispute.
I did not travel to South Africa at this stage as alleged.”…,.
What
is noteworthy here is that the applicant has deliberately not
divulged the name of the so-called 'business associate'. Not only
that, the applicant has not provided details of how this mysterious
person assisted him to communicate with Gavin Edwin Hayler. More
importantly, the applicant does not mention where and when he himself
met this person. Even the description of the hunting area is vague.
In
my view, this whole episode is a figment of the applicant's
imagination. It never took place at all.
(f)
Although admitting that the power of attorney “turned out to be
unauthentic”, the applicant stated that this, in fact, spurred him
to mount this application. Astonishingly, he omitted to mention this
fact in his founding affidavit. He also did not attach the forged
power of attorney. All he said is;
“My
predicament now is that I have lost
touch with the respondents and I am, as such, unaware of their
present whereabouts.”…,.
What
is puzzling is why the applicant was not candid with the court.
He
certainly did not put the court into his confidence by intentionally
concealing this crucial fact from its eyes. It appears the applicant
was trying to pull the proverbial wool over the court's eyes. More
interestingly and baffling is why Gavin Edwin Hayler would, mero
motu,
forge a power of attorney that would benefit the applicant.
This
is not only odd but highly improbable and illogical too.
(g)
The applicant used the fake power of attorney well knowing that it
was bogus. It purports to appoint him as Gavin Edwin Hayler's
“attorney in Zimbabwe…,” when it is common cause that the
applicant is not an attorney in Zimbabwe. Notwithstanding, he
proceeded to parcel out land and sell it to innocent third parties.
The so-called power of attorney tells a lie and the applicant,
nevertheless, used it and eventually uttered it to the City Valuer.
(h)
As regards the criminal charges, the applicant has proffered a bold
denial without addressing his mind to the specific factual averments
therein. He has deliberately avoided to explain why he subdivided the
land in question in October 2014 without a permit from the sixth
respondent. More tellingly, he has skirted the allegation that he
sold portions of the land in question between October 2014 and
February 2015 before he acquired title to that land.
(i)
For some strange reasons, the applicant totally underplays the
seriousness of the criminal charges he is facing. In his answering
affidavit, he adopts a cavalier approach in stating that the charges
were not sustainable as I was 'placed off remand.' Further, in
his heads of argument, he submitted that;
“…,
the criminal charges against the applicant, which were preferred at
the instance of the 6th
respondent, were withdrawn
by the National Prosecuting Authority for
lack of merit and evidence
as shown by annexure I…,. There
is no basis whatsoever to impugn the applicant's bona
fides
in the circumstances.”…,.
Quite
to the contrary, Annexure I, which is an extract from the Court
Record Book, shows the result as “Further remand refused. State to
proceed by way of summons.”
Therefore,
to state that the charges were withdrawn for lack
of evidence,
is to misrepresent the facts.
In
my view, the charges and facts, as outlined in the State Outline,
constitute a solid and reasonable basis for the suspicion that the
applicant is engaged in fraudulent activities. A prima
facie
case has clearly been established. The fact that the State will
proceed by way of summons does not make the allegations less serious,
doubtful or ice cold. These charges are certainly not dead and
buried; to the contrary, they are alive and kicking.
(j)
While the applicant's founding affidavit is silent on what efforts
he made to locate the first respondent, or any of them, he,
surprisingly, in paragraph 13 of his answering affidavit, has the
audacity to state;
“A
fair attempt had been made to locate the 1st
respondent but to no avail. Hence, the court application was lodged
in December 2014.”
This
submission falls short of stating what exactly it is that the
applicant did to locate the first respondent. More significantly, he
does not say why he did not go to the address on the power of
attorney in South Africa. Such conduct is very odd and illogical.
I
take the view that the applicant did not go there, or attempt to
initiate any kind of communication with the first respondent at that
address, because he knew the first respondent was not resident at
that address.
(k)
The applicant's denial of the allegation that he targets absentee
landlords' properties is hollow in that while he, tongue in cheek,
states;
“The
property owners, who have either sold me land or donated to me, are
all in Zimbabwe and alive.”
He
has dismally failed to parade them before the sixth respondent to
prove his case once and for all. The applicant is the only person who
knows where these people are.
Surely,
if these people freely and voluntarily sold or donated their
properties to the applicant, why is it that all of them have suddenly
become difficult to locate. Is it a mere coincidence that the
applicant has failed to produce even a single seller or donor. I
think not.
In
the result, I find that the applicant has not dealt with this
allegation in a meaningful manner….,.
Evidently,
the applicant, unashamedly, intends to feather his own nest at the
expense of other people's sweat. Obviously, such conduct is
disgraceful and outrageous in that the applicant could be stealing
from the dead. In my view, to grant this application would
intolerably hurt the conception of justice in the minds of sensible
and fair-minded persons.
For
these reasons, I am convinced, on a balance of probabilities, that
the Agreement of Sale and the power of attorney are forged documents.
Consequently, the so-called sale is a sham and this court cannot
enforce an illegal contract. I find the explanation given by the
applicant untenable, mainly because he is not being truthful. His
reasoning, submissions and conclusions are so flawed that nothing
meaningful comes out of them. The applicant has failed, on a balance
of probabilities, to establish good cause for the order he seeks….,.
Accordingly,
it is ordered that the application be and is hereby dismissed with an
award of costs on attorney and client scale.
