MAFUSIRE
J:
This
judgment was written without the benefit of the defendants' closing
submissions. I could not wait for ever. The trial, the commencement
of which was in fits and starts owing to a myriad of excuses, finally
concluded on 9 October 2014. The parties opted to make closing
submissions in writing. A time table was agreed upon. The plaintiffs
would submit their closing address by 13 October 2014. They did not.
Counsel gave an excuse and promised to file it on the following day.
He did not. On 2 December 2014 the defendants' counsel complained
about the non-filing of the plaintiffs' address. It was only on 16
December 2014 that the plaintiffs' closing address was finally
filed. I waited for defendants'. It did not come. According to the
original time table it was supposed to have been filed on 21 October
2014. On 2 February 2015 I caused the registrar to issue a reminder.
There was no immediate reaction. I decided to get on with the
judgment.
This
case was a double sale situation. At this stage I use the phrase
“double sale” in a non-legal sense, simply to denote that the
immovable property in question was sold twice by the same person to
two different parties. Whether or not there was a double sale in the
legal sense is one of the issues I shall have to decide.
The
immovable property which was at the centre of the dispute was a
subdivision in one of the low density suburbs of Harare (“the
property”).
The plaintiffs, husband and wife, were the first buyers (“the
first sale”).
The second buyer was the third defendant (“the
second sale”).
The seller was the first defendant, a trust (hereafter referred to as
“the
trust”
or “the
seller”
or “the
developer”).
The second defendant was both the founder or settlor and a trustee of
the trust. The other trustees were not disclosed.
The
second defendant ran under the title Managing Director. He said it
was wrong for the plaintiffs to have joined him to the action in his
personal capacity because all what he had done had been on behalf of
the Trust. The plaintiffs dismissed that argument. They said at law a
Trust is not a juristic person. It is not a body corporate. In legal
proceedings you sue the trustee or trustees. It was up the second
defendant to disclose who his other co-trustees were. I shall come
back to this aspect later on.
In
substance the plaintiffs sought specific performance. To get it they
had to get rid of other legal impediments. They were these. The
property had now been registered in the name of the third defendant.
She said she had been an innocent buyer. The plaintiffs disputed
that. They accused her of having colluded with the second defendant
to defraud them of the property. So they sought that the title deed
in her name be cancelled. On the other hand, the second defendant
said the trust had properly cancelled the first sale and that
thereafter it had become free to conclude the second sale. The
plaintiffs disputed that. So they sought an order declaring that
their agreement, the first sale, be declared to be still subsisting.
By
the time of the trial some of the peripheral disputes had fallen
away, the parties having streamlined the issues. Those issues were
agreed upon as follows:
(i)
Was the first sale validly cancelled? The parties were agreed that,
in terms of the first sale agreement, if the sale had validly been
cancelled then the plaintiffs would be entitled to half the amount of
the purchase price paid by the third defendant in the second sale.
That amount was US$48,000-00. So half of it was US$24,000.
(ii)
If the first sale was not validly cancelled, the parties agreed that
the situation would be a double sale proper. In that event the court
would have to determine in whose favour, between the plaintiffs and
the third defendant, did the balance of equities lie. The party in
whose favour the balance of equities lay would be entitled to the
property and the other party to damages against the seller. The
quantum of such damages would be the average of the two valuations
commissioned by the parties; one in the sum of US$112,000, and the
other in the sum of US$88,500. Thus, such average would be
US$100,250.
Most
of the facts were common cause. In fact the parties filed a statement
of agreed facts. Evidence was only led on the disputed areas.
But
before I decree who gets what, I must first deal with the technical
issue whether the second defendant was properly cited. This
inevitably entails pronouncing on the legal status of a trust.
(a)
Was the second defendant properly cited?
The
second defendant was properly cited. Despite running under the title
“Managing Director”, he was merely a trustee of the seller, the
first defendant. That was common cause. It seems to me that such
title was just a management convenience, the trust being the vehicle
through which the second defendant was running his property
development business.
It
is trite that a trust is not a juristic person. It has no corporate
personality. It has no existence separate from that of the trustees.
A trust is no more than a legal arrangement through which one
administers property for another or for some impersonal object: see
HONORE The
South African Law of Trusts;
Greenberg
v
Greenberg's Estate;
Crundal
Brothers v
Lazarus;
Gold
Mining & Minerals Development Trust v
Zimbabwe
Miners' Federation.
In
terms of Order 2A rule 8 of the Rules of this Court associates may
sue or be sued in the name of their association. In terms of rule 7,
“association”
includes a trust. “Associate”
in relation to a trust, means a trustee. In my view, it must have
been on account of these provisions that the second defendant did
not, or could not, protest when the trust was cited as a stand-alone
party. As an association he and his co-trustees could be sued in the
name of the trust. There was nothing wrong with him being cited
separately. In reality, the suit was against him and his co-trustees.
(b)
Was the first sale validly cancelled?
(i)
Plaintiffs' case
Much
of the dispute was on the aspect whether or not the first sale had
been validly cancelled. The plaintiffs' story was told by the first
plaintiff and their witness, Mrs Dorothy Kaseke (“Mrs
Kaseke”).
It was this. He and his wife bought the property in terms of an
agreement of sale dated 12 September 2003. The land was vacant. They
meant to build a dream home. The purchase price was ZW$75 million.
They paid it in full. Soon after payment they took occupation. This
was with the consent and blessing of the second defendant. Among
other things, he gave them a letter authorising water connection to
the property. They built a two bedroomed cottage up to roof level.
The building plan had been approved by the City of Harare on 25
October 2004. A copy was produced. Loads of bricks were piled on the
edge of the property. They also installed a wooden cabin on the
property for their gardener-cum-caretaker who looked after the
property. During the rainy seasons they grew maize. These details
were thrown in to refute the third's defendant's story that when
she visited the property for viewing she had seen no sign of human
occupation. She said other than the pile of bricks, she had seen no
cottage, no cabin or any maize crop.
The
first plaintiff said there was no further contact from the first or
second defendants after the agreement of sale. The onus had been on
them to offer transfer in accordance with clause 3 of the agreement
of sale. That clause provided, among other things, that the
plaintiffs would execute the transfer documents within fourteen days
of being required to do so by the developer. He said no such
invitation had been extended. They had waited for over seven years.
The
first plaintiff asserted that the seller had not been in a position
to pass transfer because it was yet to comply with the numerous
conditions of the subdivision permit. These related to, among others,
the installation of a water reticulation and sewerage disposal
system; provision of culverts, construction of roads; et
cetera.
The
first plaintiff said they got to know that the property had already
been sold and transferred to the third defendant only in May 2010. In
June 2010 their gardener-cum-caretaker advised them of visits by
several people to the property who were coming for pre-purchase
inspections. He said when they investigated they discovered that the
third defendant had taken transfer of the property on 12 April 2010
and that she was now herself re-selling it. They discovered that the
trust had purported to cancel the first sale.
The
first plaintiff said their gardener had given them an unsigned letter
which had been dropped at the property. It was dated 22 June 2009. It
was from the seller and addressed to his wife, the second plaintiff.
The letter was produced in court. It commenced by quoting the clause
in the agreement of sale that required the purchaser to pay all the
rates and taxes on the property. It then advised that the developer,
i.e. the trust, had paid the capital gains tax, the rates, and the
endowment fees (hereafter referred to as “the
taxes”)
on behalf of the plaintiffs, totalling US$4,000, and that this had
been done to expedite the transfer. The letter concluded by asking
the plaintiffs to refund the money within fourteen days after which
the developer would instruct its conveyancers to pass transfer to
them. The address on the letter was the plaintiffs' domicilium
citandi et executandi
in terms of the agreement of sale.
The
first plaintiff said they had never received that letter. Their
domicilium
address was a property that they had sold to Mrs Kaseke. She had
lived there with her family since 2006. They had an arrangement with
Mrs Kaseke to pass on their mail to them. Mrs Kaseke had previously
testified, and would still come to testify, that at no stage had she
received any mail for the plaintiffs ever since she had taken
occupation of that address.
Further
investigations by the plaintiffs and/or their attorneys established
that on 7 May 2010, i.e. a month after the second sale and transfer
of the property to the third defendant, the seller had obtained a
default judgment in the Magistrate's Court against the second
plaintiff alone, purporting to cancel the first sale. The plaintiffs
had proceeded to place a caveat on the property, rescind the default
judgment and eventually have the Magistrate's Court proceedings
dismissed for want of prosecution.
In
court, the first plaintiff was referred to another letter from the
trust to the second plaintiff at the same domicilium
address and dated 27 November 2009. That letter commenced by making
reference to the previous one. It then proceeded as follows:
“We
write with regret that you are in default of your obligations
therefore the agreement entered between us have been cancelled,
clauses 10, 11 and 14 of the agreement (sic). By copy of this letter
we are advising our Legal Practitioners to take the necessary steps
to give effect to cancellation.”
The
first plaintiff's attention was also brought to a tax invoice from
a mail delivery agency called, Courier Connect. The invoice had
details of several items allegedly delivered to a number of people,
one of them “M. Dzokai”. The date was 27 November 2009. The
second defendant said that the invoice was the proof of delivery of
the letter of 27 November 2009 that had cancelled the first sale
agreement.
The
first plaintiff denied that he or his wife had ever received that
letter. He said the first time that they had seen the letter had been
at the pre-trial conference.
The
plaintiffs' witness, Mrs Kaseke, testified that ever since 2006
when they had moved into the plaintiff's previous residence, she
and her family had continuously lived there. None of the members of
her family had received any mail for the plaintiffs. In the
Magistrate's Court case, the return of service in respect of the
action for cancellation by the trust had said that the summons had
been served at that address on one Tapiwa, allegedly a cousin of the
second plaintiff. Mrs Kaseke said she knew nobody by that name who
had stayed with her at the property during that period, or any other.
The first plaintiff said neither he nor his wife had a relative by
that name either.
In
summary, the plaintiffs' evidence was that the first sale had never
been properly cancelled. The purported cancellation alleged by the
second defendant had not complied with the first sale agreement. That
agreement had provided that if the purchasers fell in breach and
remained in breach thirty days after a written notice sent by
registered post, then the seller would be entitled to cancel and
re-sell the property to someone else. The first plaintiff's case
was that not only had the seller failed to give the requisite thirty
days' notice to both him and his wife as joint purchasers, but also
that the letters that the second defendant had relied upon had not
even been sent by pre-paid registered post. Regarding the
Magistrate's Court proceedings, the first plaintiff's case was
that they were a confirmation that the sellers knew that they had not
validly cancelled the first sale, and that all they wanted then was
for a court to rubber stamp the fraud that they had already committed
against him and his wife.
(ii)
Defendants' case
The
defendants' case was told by the second and third defendants. The
second defendant produced evidence that by 5 December 2002, i.e. less
than 3 months after obtaining the subdivision permit, the seller had
complied with all the conditions of the permit save for minor
adjustments that the City of Harare had pointed out. He said the
seller had been ready to offer transfer soon after they had complied
with the conditions of the subdivision but that the plaintiffs had
been in default.
The
second defendant said when the plaintiffs' case had started in this
court he had obtained documents from the local authority that showed,
among other things, that the plaintiffs had forged signatures to get
approval for the building plans for their two-bedroomed cottage. He
had never officially given the plaintiffs vacant occupation of the
property.
The
first sale agreement provided that the purchasers would be entitled
to take vacant possession within fourteen days of “… the
date of registration of the Agreement.”
The second defendant said the common understanding between the
parties had been that “… registration
of the Agreement”
meant registration of transfer. He said this had never been done.
Noting
or implying that it was unreasonable for the plaintiffs to have
waited for seven long years without as much as engaging him for
transfer, the second defendant further pointed out that in terms of
the first sale, only after the plaintiffs had fully complied with
their monetary obligations would the conveyancers be instructed to
offer them transfer. However, in spite of the seller having paid the
taxes for them, and in spite of him having written to them seeking
reimbursement, the plaintiffs had ignored or failed to comply. He had
then taken steps to cancel the first sale. His evidence was that the
notice letter and the subsequent cancellation one had properly been
delivered at the plaintiffs' domicilium
address. In terms of the first sale, a notice delivered by hand was
deemed to have been received within 12 hours of such delivery.
Therefore, so the second defendant argued, the plaintiffs must be
deemed to have received the letters within the 12 hours of delivery
by Courier Connect.
The
second defendant said that the cottage that the plaintiffs claimed to
have built on the property had not been approved by the local
authority. Furthermore, the structure had become derelict. The
property itself had become neglected. Among other things, it was
overgrown with grass. Other than the pile of bricks, there was no
evidence of occupation. Following the cancellation of the first sale
he had caused the property to be advertised for re-sale. It was the
third defendant who had eventually bought it and got transfer. Even
though their own cancellation as sellers had been proper, he had
nevertheless gone on to seek confirmation from the Magistrate's
Courts.
The
third defendant's evidence was that at no stage prior to buying the
property had she been aware of the first sale. She had seen an advert
in the press and had driven to the site for viewing. Other than the
pile of bricks that the estate agent had expressly told her about,
she had seen nothing else to suggest that the property was occupied.
In particular, she never saw the cottage or the wooden cabin. The
place was overgrown with tall grass. There was no maize crop. There
was nobody around on the day of her visit. She had just driven around
the property and had been satisfied. She had not come out of her
vehicle.
The
third defendant further testified that after her inspection of the
property she had contacted her husband. They firmed up on the
decision to buy. For the purchase price, she obtained a loan from her
employer, a bank. The second sale was on 7 April 2010. On 12 April
2010, i.e. five days later, transfer had been registered in her name.
In
a nutshell, that was the evidence before me on which I had to decide
whether or not the first sale had validly been cancelled.
The
crucial question, in my view, is whether or not the alleged notice
and cancellation letters dated 22 June 2009 and 27 November 2009
complied with the agreement of sale. All other issues are
diversionary side shows. For example, it is curious that the
plaintiffs would wait for seven years without as much as demanding
transfer. Furthermore, the first plaintiff did not refute the second
defendant's allegations that he had forged signatures on the
application for approval of the building plan for their two-bedroomed
cottage.
Equally,
given that by 2 December 2002 it had complied with virtually all the
conditions of the subdivision permit, and technically, would have
been in a position to pass transfer to any of the buyers of the
subdivisions, including the plaintiffs, the seller had waited for a
number of years before seeking reimbursement of those taxes that they
had paid on behalf of the plaintiffs.
It
is also equally curious that the third defendant, who had driven all
the way to view the property, would simply make a cursory inspection
from the comfort of her car and go back to expend US$48,0000 in
buying it. It does not sound right. Conveniently, she did not see the
two-bedroomed cottage or the cabin, let alone anyone who could have
been staying at the property. Furthermore, the third defendant took
transfer in a record time. Within a space of about five days she had
concluded the second sale agreement and taken transfer of the
property in her name.
But
all the above are enquiries that lead to nowhere. Admittedly, they
raise eye-brows. But they do not help decide whether or not the first
sale was validly cancelled. They may be relevant on the question of
the credibility of the witnesses. However, I do not see the matter as
being one dependant on the credibility of witnesses on the crucial
question whether or not the letters of notice and cancellation
aforesaid complied with the agreement of sale. I am satisfied that
the facts that are common cause on the point are sufficient to decide
the issue.
In
my view, there was no valid cancellation of the first sale.
In
my view, the sellers' two letters in question failed to comply with
the agreement of sale. There are a number of reasons. In terms of the
first sale agreement the seller, as developer, could properly pay the
taxes on behalf of the purchasers and properly seek to be refunded.
And until the purchasers had fully complied with their monetary
obligations, including, by parity of reasoning, the refund of those
taxes, the seller would have had no obligation to tender transfer. So
the seller having paid the taxes on behalf of the plaintiffs,
naturally had to notify them and formally seek to be refunded. Clause
16(b) of the agreement of sale read:
“Any
notice to be given by either party in terms of this Agreement shall
be in writing and addressed to the other party at its domicilium
citandi et executandi chosen in paragraph (a) hereof or such
alternative address in Zimbabwe as that party may from time to time
specify in writing for such purpose. Any such notice shall be
hand-delivered or sent by prepaid registered post to the address of
the other party. A notice left by hand shall be deemed to have been
received within 12 hours after it has been delivered and any notice
sent by prepaid registered post shall be deemed to have been received
72 hours from time of posting provided that such period shall exclude
Saturdays, Sundays and Public Holidays.”
At
the hearing, none of the parties spent any time on the nature or
proof of delivery of the first letter. I presume this was so because
there simply was no evidence as to how and when that letter had been
delivered. The invoice from Courier Connect dated 27 November 2009
was said to relate to the second letter which bore the same date as
the invoice. Therefore, there was no proof of delivery of the first
letter. It was the second defendant that alleged that he had sent or
caused the letter to be delivered. The law says he who alleges must
prove. The first plaintiff vehemently denied they had received the
letter. He said the first time he and his wife had got wind of it was
in May 2010 when their gardener-cum-caretaker had given them an
unsigned copy. That evidence was consistent with the second
plaintiff's averments in her founding affidavit in January 2011
when she had sought rescission of judgment in the Magistrate's
Court. It seems to me that whoever had eventually decided to send a
copy of that letter to the property must have been convinced that the
plaintiffs had never received the original that allegedly had been
sent to their domicilium
address.
The
other problem with the first letter was that it could hardly be
construed as the notice of cancellation in terms of clause 9 of the
sale agreement as the second defendant implied or insinuated. That
clause provided that if the purchaser failed to comply with any of
the terms and conditions of the agreement, and remained in default
for thirty days after the dispatch of a written “registered”
notice “… requiring
such default to be remedied
…” then the developer would be entitled to re-sell the property
and refund the purchaser 50% of the purchase price, with the
developer retaining the balance as rouwkoop,
and regain vacant possession of the property. Despite the imprecision
of words used, I have no doubt that by “… written
registered notice
…” the parties meant pre-paid
registered post
in terms of clause 16(b).
The
seller's first letter aforesaid was plainly a notice of the list
and quantum of the taxes that it had paid on behalf of the plaintiffs
and a request for a refund. Plainly, it was not a notice of
cancellation of the agreement. Thus, the letter did not place the
plaintiffs in
mora
regarding breach or cancellation. Furthermore, the letter gave the
plaintiffs only fourteen days within which to pay. The agreement
provided for thirty days' notice.
The
second letter of 27 November 2009 was purportedly the cancellation
letter. It relied on the first letter. But since there was no
evidence that the first letter had been delivered in accordance with
the agreement of sale, or at all, and since the letter was in any
event not the notice of breach required by the agreement, the second
letter, or rather its purpose, was invalid. It stood on nothing. You
cannot put something on nothing and expect it to stay there. It will
collapse.
As
such, there is no need for me to decide whether the second letter was
properly delivered in accordance with the agreement of sale.
It
is on account of my findings above that I hold that the first sale
was never validly cancelled.
(c)
Since the first sale was never validly cancelled, and it now being a
double sale situation, in whose favour does the balance of equities
lie?
The
law on double sales is well settled. In Guga
v Moyo & Ors,
the Supreme Court (McNALLY JA) unpacked it as follows:
“The
basic rule in double sales where transfer has not been passed to
either party is that the first purchaser should succeed. The first in
time is the stronger in law. The second purchaser is left with a
claim for damages against the seller, which is usually small comfort.
But that rule applies only 'in the absence of special circumstances
affecting the balance of equities'. See McKerron (1935) 4 SA
Law Times
178, Burchell
(1974) 91 SALJ
40;..., and in BP
Southern Africa (Pty) Ltd
v
Desden Properties (Pvt) Ltd
1964 RLR 7 (G), Macdonald J (as he then was) said:
'In
my view, the policy of the law will best be served in the ordinary
run of cases by giving effect to the first contract and leaving the
second purchaser to pursue his claim for damages for breach of
contract. I do not suggest that this should be the invariable rule,
but I agree with the view expressed by Professor McKerron that save
in “exceptional circumstances” the first purchaser is to be
preferred.'
...,.
The broad principle as set out above was acknowledged to be our law
in Barros
& Anor v
Chimphonda
1999 (1) ZLR 58 (S)...,. Similarly, in Charuma
Blasting & Earthmoving Services (Pvt) Ltd v
Njainjai
& Ors
2000 (1) ZLR 85 (S).”
Where
transfer has passed, for example to the second buyer, as in this
case, then the second buyer acquires an indefeasible right if he had
no knowledge, either at the time of the sale, or at the time of
transfer, of the prior sale to the first buyer. The first buyer's
remedy is an action for damages against the seller. If however, the
second buyer had had knowledge of the prior sale, either at the time
of the second sale, or at transfer, then, in the absence of special
circumstances affecting the balance of equities, the first buyer can
recover the property from the second buyer. In that event the second
buyer's remedy is an action for damages against the seller: see
Barros
& Anor
v
Chimponda
and Crundall
Bros (Pvt) Ltd v Lazarus NO & Anor.
“Balance
of equities”
refers to a balance of fairness. “Equitable”
means fair and reasonable; treating everyone in an equal way.
In this case, the balance of equities between the plaintiffs and the
third defendant, in relation to the property were, in my view, equal.
Their circumstances may have been different, but on balance, the
positives and negatives of the one cancelled out the negatives and
positives of the other. I give a few examples:
(1)
The plaintiffs, for seven years, manifestly slept on their rights.
They had paid the purchase price in full. The next thing would have
been transfer and payment of the costs associated with it. Yet the
evidence established that they made no appreciable effort to take
transfer. The law helps the vigilant and not the sluggard.
On the other hand, the third defendant undoubtedly “snatched”
the transfer. I refer to the record time within which she saw the
advert; viewed the property; concluded the second sale and then took
transfer. But whilst such speed raises eye-brows, I refrain from
imputing to her knowledge of the first sale. She denied that she had
been aware of it. Furthermore, the first sale had, at any rate, been
purportedly cancelled. Still further, it transpired that the
defendants' legal practitioners of record, T.
H. Chitapi and Associates,
were the ones involved to the hilt in virtually all the transactions
and legal disputes that flowed from them. It is them that knew what
was going on.
(2)
Despite claims that they intended to build a dream home and live on
the property, and despite have taken possession of the property
immediately after the agreement, the plaintiffs, for more than seven
years, had only put up an unfinished two bedroomed cottage that
evidently was neglected over time. The property was in a suburb of
Harare called Philadelphia, a part of Borrowdale. It is a posh area.
The evidence established that the plaintiffs had another property in
Chisipite, another posh area of Harare. It was there that they were
staying all along.
On
the other hand, the third defendant claimed that her intention with
her husband in acquiring the property had been to build their own
house. However, I took this with a pinch of salt. The evidence
established that soon after acquiring it they quickly changed their
minds. They decided against the inevitably tedious and arduous
process of building. They simply bought a cluster home elsewhere in
Harare. About three months after taking transfer they put up the
property for sale.
The
point is, none of the parties could be said to have been desperate
for shelter. All they now wanted was compensation. But money can do
that adequately.
(3)
The plaintiffs claimed that they had a longer attachment to the
property and that they had already invested heavily on it by building
the cottage. They said that on the other hand, given that the third
defendant was already selling the property, it meant that she had
bought it for speculative purposes. She never developed any form of
attachment to it.
But
that argument is neatly cancelled out by the fact that the third
defendant now had title. She was now the registered owner, enjoying
all the attendant rights of ownership.
In
the circumstances, I consider that none of the contending parties has
any greater or lesser claim to the property than the other. The loss
of the property by either would be nothing that money could not
ameliorate. But the third defendant is undoubtedly in the stronger
position in that she has title. Therefore, there are no strong
grounds to upset the status quo as far as title in the property is
concerned.
Since
the parties had already agreed on the formula for the compensation
due to the party that loses the property, all that remains now is to
declare the final outcome.
As
regards the costs of suit, I consider that the plaintiffs and the
third defendant have achieved substantial success. But other than the
last paragraph in the closing submissions by plaintiffs' counsel,
in which costs were claimed for the first time (against no one in
particular), and on a legal practitioner and client scale for that
matter, nowhere else did the plaintiffs claim costs. On the other
hand, the third defendant, in her plea, prayed for the dismissal of
the plaintiffs' claims with costs. Obviously, she looked to the
plaintiffs for her costs. But the plaintiffs have not lost. Neither
has she. With this state of affairs, it seems to me appropriate that
there be no order as to costs.
(d)
Disposition
It
is hereby declared and ordered as follows:
1.
The agreement of sale dated 12 September 2003 between the plaintiffs
and the first defendant in respect of the property that was then a
subdivision of the Remaining Extent of Sherwood known as Stand 273,
measuring 4,026m2,
but which is now registered as Stand 273 Philadelphia Township of
Sherwood A (“the
property”)
was never validly cancelled.
2.
In spite of paragraph 1 above, the plaintiffs' claim that the sale
of the property to the third defendant by the first and second
defendants; that the subsequent registration of title of the property
in favour of the third defendant under deed of transfer no. 1448/2010
be declared null and void; and that the property be transferred to
them, is hereby dismissed.
3.
As compensation for the loss of the property, the first and second
defendants, jointly and severally, shall pay the plaintiffs the sum
of one hundred thousand two hundred and fifty United States dollars
(US$100,250-00).
4.
There shall be no order as to costs.
11
February 2015
Donsa-Nkomo
& Mutangi,
plaintiffs' legal practitioners
TH
Chitapi & Associates,
defendants' legal practitioners
1.
5th
ed. P 419
2.
1955 (3) SA (AD)
3.
1990 (1) ZLR 290 (SC)
4.
2006 (1) ZLR 174 (H)
5.
Per LORD DENNING MR in Macfoy
v United Africa Co. Ltd
[1961] 3 ALL ER 1169
6.
2000 (2) ZLR 458 (SC)
7.
At p 459
8.
1999 (1) ZLR 58 (S) @ p 63A – B
9.
1991 (2) ZLR 125 (S); 1992 (2) SA 423 (S)
10.
Oxford Advanced Learner's Dictionary
11.
Ndebele
v Ncube
1992 (1) ZLR 288, 290; Masama
v Borehole Drilling (Private) Limited
1993 (1) ZLR 288 (SC); Mubvimbi
v Maringa & Anor
1993 (2) ZLR 24 (HC); Maravanyika
v Hove
1997 (2) ZLR 88 (HC); Beitbridge
Rural District Council v Russel Construction Co (Private) Limited
1998 (2) ZLR 190 (SC) and Kodzwa
v Secretary for Health & Anor
1999 (1) ZLR 313 (SC);
