The
applicant has approached this court on an urgent basis seeking to
save an order granted by this court in his favour in HC1409/07 from
falling into disuse and being rendered a brutum
fulmen.
He
would like to have a caveat registered over the title deed holding
Stand 23 Clovelly Township, Masvingo (the property), registered in
the name of the late Campion Mapanzure, the late husband of the first
respondent.
The
application attests to the fact that, during his lifetime, the late
Campion Mapanzure had sold the property to the applicant who paid the
full purchase price but later cancelled the sale agreement in favour
of a refund of the purchase price. When the deceased failed to
refund, as agreed, the applicant sued him, in HC1409/07, and obtained
an order directing the deceased to pay the applicant $20 billion in
Zimbabwean currency.
Of
course, that currency became moribund in March 2009.
The
applicant says that Campion Mapanzure died before he had refunded the
money and before enforcement of the court order leaving him to
grapple with a claim against the estate. Such a claim has not been
lodged because the estate has not been registered and the applicant
has filed an application, in HC851/16, seeking an order compelling
the registration of the estate to enable him to lodge a claim.
In
HC1409/07, the applicant sued the deceased and one Lancelot Riyano
seeking to enforce a sale agreement he had entered into with the
deceased on 16 September 2003 in terms of which he had purchased the
property. The deceased had later purported to sell the property to
Lancelot Riyano. On 28 February 2008, this court, per NDOU J, granted
an order in favour of the applicant in the following terms:
“IT
IS ORDERED THAT:
An
order for summary judgment under case HC1635/06 be and is hereby
granted in the following terms:
1.
The sale by the respondent of Stand number Lot 24 Clovelly Township,
Masvingo, formerly held under Deed of Transfer 3380/87, to one
Lancelot Riyano be and is hereby declared ultra
vires
the applicant and respondent's Deed of Sale dated 16 September
2003.
2.
The respondent be and is hereby ordered to pay $20 billion as
compensation to the applicant for Lot 24 Clovelly Township, Masvingo
or the current market value as arrived at by the estate agents
whichever is greater.
3.
The respondent be and is hereby ordered to pay costs of suit in this
matter and under HC1635/06 at an attorney-client scale.”
The
applicant does not appear to have done anything about enforcing that
judgment and does not state when the deceased died. All he says is
that the property is still registered in the deceased's name at the
Deeds registry and he would therefore want to lay a claim of about
$46,000=, being the value of the property, against the estate.
In
HC851/16, the applicant has sued the first respondent, the estate,
and the Registrar of Deeds for an order for the registration of the
estate and ancillary relief. No opposing papers have yet been filed
in that matter and it is yet to be finalized. Pending that, the
applicant seeks the following relief:
“TERMS
OF FINAL ORDER SOUGHT
That
you show cause to this Honourable Court, if any, why a final order
should not be made in the following terms:
1.
The 1st
respondent, her agents, nominees and appointees are interdicted from
alienating or in any way disposing of Lot number 23 Clovelly
Township, Masvingo of Fort Victoria Lands also known as Number 24
Corner Flower Street and Water Street, Clovelly Township until
finalization of HC851/16.
2.
The 1st
and 2nd
respondents shall pay costs of suit on an attorney-client scale only
if they oppose the present application.
INTERIM
RELIEF GRANTED
Pending
the confirmation of the provisional order, the applicant be and is
hereby granted the following relief:
1.
The Registrar of Deeds (Harare) is ordered and directed to register a
caveat over Lot number 23 Clovelly Township, Masvingo of Fort
Victoria Township Lands, also known as Number 24 Corner Flower Street
and Water Street, Clovelly Township immediately upon service of the
provisional order on him.”
The
applicant complains that according to information reaching him, the
first respondent intends to have the property either transferred into
the name of her son or to sell it altogether. It is for that reason
that he now seeks its protection by way of a caveat….,.
Counsel
for the first respondent had nothing meaningful to say on the merits.
All
that the applicant seeks is to preserve the property until his
application in HC851/16 has been heard. He has shown that he has a
claim against the estate in whose name the property is registered and
is therefore entitled to that relief.
In
the result, the provisional order is hereby granted in terms of the
draft order.
