MAFUSIRE
J:
The
facts of this matter were largely common cause. But the dispute was
most convoluted. It had several facets.
[a]
Introduction
The
hearing of the matter was happening almost ten years after the
proceedings had been instituted. The dispute had begun even earlier -
almost sixteen years to the date of this judgment. Along the way
there had been some profound developments. Among other things, one of
the litigants – one of the main protagonists – had passed on. The
property at the centre of the dispute had changed complexion. It had
been split in two. Not only that, but it had changed hands several
times over. To the original litigants had been added two more.
Several supplementary or answering affidavits had been filed. Some
aspects of the dispute had been brought to this court, to the Supreme
Court, and to arbitration on no less than seven separate occasions.
The
matter itself had started off as an opposed application. On the
hearing, two years before this judgment, the presiding judge had felt
there were disputes of facts that could not be resolved on the
papers. The parties had failed to convince him otherwise. The matter
had been referred to trial. Before me, there appeared little else by
way of facts that would require viva
voce
evidence. The parties readily agreed. By consent I referred the
matter back to motion court. However, I would hear it myself. When
eventually I did, I reserved judgment.
In
this judgment I have had to pack sixteen years of legal wrangling
that had too many twists and turns. It was a morass.
[b]
The
parties
The
first applicant was the mother of the second, third and fourth
applicants [hereafter referred to as “applicants
2 to 4”].
Her status in the proceedings was the subject of one of two
objections in
limine.
Her locus
standi
was challenged. I reserved judgment. I shall revert to this shortly.
All
the applicants sued via one Veronica Nzara [“Veronica”].
She was the deponent to the main affidavits. She was the mother of
the first applicant and the grandmother of applicants 2 to 4. She had
been resident here. At the commencement of the proceedings all the
applicants had been resident abroad. There had been a dispute over
the authenticity and validity of the powers of attorneys granted by
the applicants in favour of Veronica. But this dispute had petered
out eventually. Among other things, the applicants had simply
submitted fresh powers of attorneys. To be doubly certain, they had
flown back into the country in time for the hearing. But the dispute
relating to the first applicant's locus
standi
had lingered on right up to the time of the hearing.
The
first respondent [“Ceciliah”
or “the
executrix”]
was the wife of the Late Dzingayi Kashumba [“the
Late Dzingayi”
or “the
deceased”].
She had been appointed the executrix dative to his estate. The Late
Dzingayi was the original purchaser of the original immovable
property at the centre of the dispute [“the
original property”].
The
second and third respondents were nominal parties on account of their
statutory rights and obligations. The second respondent, the
Registrar of Deeds, was a party right from inception. The property
was registered in the Deeds Office, an office under his control and
supervision. The third respondent, the Master of this court, had been
joined to the proceedings upon the demise of the Late Dzingayi. The
Master has an oversight role over estate matters.
The
fourth respondent came into the proceedings much later. After the
Late Dzingayi's demise, Ceciliah had sold him one of the
subdivisions to the original property. By the time of the hearing he
had already taken title. It was one of the two Deeds the applicants
wanted nullified.
[c]
Relief
sought
The
applicants seek the cancellation of Deed of Transfer No.3030/2006, in
the name of estate Late Dzingayi, and Deed of Transfer No.773/2011,
in the name of the fourth respondent.
At
the hearing, the applicants amended their prayer, with no objection,
to include a claim for the ejectment from the respective subdivisions
occupied by them, of the first and fourth respondents, and anyone
else claiming occupation through them.
The
first and fourth respondents oppose the claims.
Among
other things, the first respondent maintains that the first applicant
was paid all her dues long back and that therefore she has no basis
to seek cancellation, let alone to vindicate.
The
simplicity with which the relief sought and the defences proffered
were cast belied sixteen years of complex and ferocious legal
wrangling.
[d]
Points
in
limine
The
first respondent said the first applicant had no business being in
the proceedings. She might have been the mother of the other
applicants. However, that did not constitute such legal interest in
the suit as might have clothed her with locus
standi.
At any rate, applicants 2 to 4 were majors. They did not require
another major to assist them in their legal suits.
In
response, the applicants said in no way could the suit happen without
the first applicant. She was at the heart of the dispute. She was the
one with the original title to the original property before the
illegal subdivisions and the illegal transfers by the deceased. She
was the one that had donated the original property to applicants 2 to
4. She had an interest in the efficacy of that donation. It was after
that donation that the first respondent had unlawfully taken transfer
from applicants 2 to 4.
In
my ruling, I find that the first applicant was at the centre of the
dispute. She was the one with the original story, not merely as a
witness, but actually as a party in her own right. Over time, the
original dispute, like a cancer, had regenerated and mutated into
numerous other facets. But neither the passage of time nor that
cancerous growth had diminished or even affected its character. The
original dispute was whether or not the agreement of sale of the
original property had been cancelled, or cancelled properly. The
first applicant was the seller. The Late Dzingayi was the buyer. It
was the first applicant who maintained that the agreement had been
duly cancelled. So I find that the first applicant has a direct
and substantial
interest in the lis.
That is the test for locus
standi:
see Zimbabwe
Teachers Association & Ors v
Minister of Education and Culture.
The
first respondent's second point in
limine
was that the applicants' hands were dirty. As such, they were unfit
for the audience of the court. On 28 February 2002, this court, per
HLATSHWAYO J, as he then was, had barred the first applicant from
selling or disposing of that property to any third party without an
order from this court. The second respondent, i.e. the Registrar of
Deeds, had equally been barred from registering transfer of the
original property to any person other than the deceased. However, in
defiance of that order, the first applicant had purported to donate
the original property to applicants 2 to 4 without a court order.
Applicants 2 to 4 had subsequently proceeded to take transfer.
First
respondent's second point in
limine
hit a brick wall.
The
interdict by HLATSHWAYO J was only an interim one. It had been
operative only pending the finalisation of some arbitration
proceedings then underway. Those arbitration proceedings had been
finalised on 17 May 2002. The donation had been on 2 August 2002. The
transfer in pursuance thereto had been registered on 31 January 2003.
Mr Uriri,
for the first respondent, readily conceded the point and wisely
abandoned the objection.
[e]
The
dispute
The
main dispute, as already mentioned, was whether the agreement of sale
of the original property between the first applicant, as the seller,
and the deceased, as the purchaser, was ever duly cancelled. The
applicants said it was. The first respondent said it was not. Within
that main dispute were several others.
As
time went on there were new developments. They gave birth to new
disputes. These included:
(i)
the propriety or lawfulness of the Late Dzingayi getting an
extension, with the City of Harare – the local authority with
jurisdiction over the property – of the expired subdivision permit
which had been in the name of the first applicant as the owner and
seller of the property;
(ii)
the propriety or lawfulness of the Late Dzingayi taking transfer of
the original property, not from the first applicant who, because of
the donation, no longer had title, but from the applicants 2 to 4 who
now had title;
(iii)
the propriety or lawfulness of the Late Dzingayi, not only in taking
transfer from applicants 2 to 4 whom he had no relationship with, but
also in doing so on the basis of a superannuated court order that not
only had given him no right to take transfer as such, but also whose
main direction, i.e. to pay the balance of the purchase price within
30 days, he had failed to comply with;
(iv)
the propriety or lawfulness of the second respondent, the Registrar
of Deeds, agreeing to register transfer in favour of the Late
Dzingayi, and subsequently, the fourth respondent, in the face of not
only pending court proceedings to which he had been cited as a party,
but also in the face of specific XN caveats that he himself had
noted, or ought to have noted, on the properties at the specific
instance and request of the applicants;
(v)
the propriety or lawfulness of Ceceliah selling and transferring one
of the subdivisions to the fourth respondent in the face of pending
litigation;
(vi)
whether or not the fourth respondent was an innocent buyer.
[f]
The
facts
At
the hearing in February 2016 there were two properties. The first was
Stand 552 Quinnington Township of Subdivision A of Subdivision F of
Quinnington of Borrowdale Estate [hereafter referred to as “Stand
552”
or “552”].
It was 3,999m2
in extent. It was registered under Deed of Transfer No.3030/2006 in
the name of the Late Dzingayi. As said already, this Deed was one of
two the applicants wanted set aside.
The
second property was Stand 553 Quinnington Township [“Stand
553”
or “553”].
It was a twin subdivision of Stand 552, except that, at 4,002m2,
it was slightly larger. This property was registered under Deed of
Transfer No.773/2011 in the name of the fourth respondent. It was the
second Deed the applicants wanted set aside.
Sixteen
years ago, at the start of the dispute, there had been only one
property, i.e. the original property. It was known as the Remainder
of Subdivision A of Subdivision E of Quinnington of Borrowdale
Estate. It was 1,2141 hectares in extent. It had been registered
under Deed of Transfer No. 350/2003 in the name of the first
applicant.
How
the original property became two, and how those two subdivisions came
to be registered in names other than that of the first applicant, has
been the controversy that has seen the parties being in and out of
court more than seven times. I have to deal with the developments in
stages.
Phase
1
This
phase is May 1999. By a written Deed of Sale [“the
DOS”]
signed by the parties on 11 and 12 May 1999, the first applicant
sells the original property to the Late Dzingayi who buys it. The
payment of the purchase price is spread over a period of time in
excess of seventeen instalments. In the event that the purchaser
fails to pay, the seller is entitled to cancel, but upon 14 days'
notice requiring payment. If the DOS is cancelled for reasons of
breach, the purchaser forfeits, and the seller keeps as rouwkoop
[i.e. pre-estimate of damages] any payments already made.
The
other significant aspect of the DOS is that the original property is
described as two Stands, namely Stand 552 and 553 Quinnington
Township. But on the ground it is one property. This reality is later
to be confirmed by this court when GOWORA J, as she then was, refuses
to grant an interdict on the basis that the two purported Stands are
non-existent in the Deeds Office.
However,
by referring to two Stands in the DOS, the parties are in agreement
that the first applicant is in the process of subdividing the
original property into two. She already possesses a conditional
subdivision permit. As it panned out, this permit is extended from
time to time. The DOS captures this reality. It refers to the two
Stands as undeveloped pieces of land. It names the sub-division
permit that has already been approved by the City of Harare and makes
reference to survey diagrams that “… are
being approved by the Surveyor General
…”
Phase
2
The
Late Dzingayi does pay part of the purchase price. However, in this
phase he is seen failing, or neglecting, to pay the balance of the
purchase price in accordance with the DOS. The first applicant
cancels, or purports to cancel, the DOS. Apparently in her endeavour
to cancel, she overlooks the provisions of the Contractual Penalties
Act, [Chapter
8:04].
In terms of it, no cancellation of an instalment sale of land on
account of breach where the purchase price is paid over three or more
instalments, or by way of a deposit and two or more instalments, is
valid unless the purchaser is given not less than 30 days' notice,
or the number of days stipulated in the agreement, whichever is the
greater, to rectify such breach.
Phase
3
The
Late Dzingayi rejects the first applicant's purported cancellation.
He sues. On 9 May 2001, this court, per BARTLETT J, in HC 10065/2000,
grants the following relief:
“1.
That the purported cancellation of the agreement of sale between
Dzingayi Kashumba and Mavis Shorai Nzara be and is hereby declared
null and void and set aside.
2.
That the purchaser, Mr Dzingayi Kashumba, be and is hereby directed
to pay the balance of the purchase price due and outstanding within
30 days of the date of this order.
3.
That the Respondent be and is hereby ordered to transfer to Dzingayi
Kashumba the properties known as Stands 552 and 553 Quinnington
Township of Subdivision F of Quinnington of Borrowdale Estate
measuring in extent 3,999 square metres and 4,002 square metres
respectively by signing all the necessary transfer documents within
10 days of payment of the balance of the purchase price.
4.
That in the event of the Respondent failing to comply with the
provisions of paragraph 3 hereof that the Deputy Sheriff for Harare
be and is hereby authorised and empowered to sign the relevant
transfer papers.
5.
That the Respondent pays the Applicant's costs of this
application.”
There
is an immediate major fall-out over this order. The parties read or
discern different things into and from it. Despite further subsequent
proceedings and further court orders, the major controversy over the
order remains unresolved right up to the date of the hearing before
me.
Phase
4
In
this phase the Late Dzingayi complies, or purports to comply, with
the order of BARTLETT J. He tenders, or purports to tender, and
indeed does forward, a cheque in an amount which he considers to be
the balance of the purchase price under the DOS. The amount of the
cheque is $337,178-77, old Zimbabwean currency.
Immediately
there are sharp differences between the parties over this tender
and/or payment. The first applicant says, firstly, that the payment
has been made outside the 30 day period set by the court, and,
secondly, that it is not the full balance outstanding. She rejects,
or purports to reject, the cheque. She returns, or purports to return
it.
On
the other hand, the Late Dzingayi is adamant that his payment is
within the 30 day deadline and that the amount represents the full
balance of the purchase price.
At
the hearing before me, there was another dimension to this particular
controversy. Despite the purported rejection of the cheque, and
despite certain correspondence on behalf of the first applicant
suggesting that the cheque had indeed been returned, Mr Uriri
maintained that the cheque had, in fact, never been returned, and
that the applicant had in fact, helped herself to the proceeds.
I
must briefly focus on some of the contemporaneous communication
regarding this particular cheque dispute. Whether or not this cheque
was paid timeously, and whether or not the first applicant in fact
returned it, is a matter of fact.
In
the founding affidavit, the applicants, speaking through Veronica,
stated that the cheque for $337,178-77 was paid on 5 July 2001. She
said that that date was outside the 30 day period. But no supporting
documents were tendered to show that it had been paid on 5 July 2001.
In the opposing affidavit, the Late Dzingayi insisted that the cheque
had in fact been released by his lawyers before the 30 days were up
and had been receipted by the first applicant's then lawyers,
Munangati & Associates [“Munangati]
well within that 30 day period. He produced two documents as proof.
The first was a copy of a delivery note from his lawyers. It showed a
list of items delivered by his lawyers on 31 May 2001. One of those
items was the cheque. It had been signed for by Munangati on the same
day. The second document was a receipt for the cheque payment. It had
been issued by Munangati on 4 June 2001.
In
the answering affidavit Veronica, despite Late Dzingayi's proof
aforesaid, was adamant that the cheque for $337,178-77 had been
received on 5 July 2001 and that therefore it had been paid outside
the 30 day period. She made reference to an Annexure VN 17. But there
was no such annexure attached.
Whichever
method of computation one uses, the 4th
of June 2001 was within 30 days of 9 May 2001, the date of the order
by BARTLETT J.
At
the hearing, Mr Mpofu,
for the applicants, was in obvious difficulty on this point. His
position was, with all due respect, at best equivocal, but otherwise
incoherent. In one breath he would argue that the 4th
of June 2001 was outside the 9th
of May 2001. In another, he would argue that Munangati might have
receipted the cheque on 4 June 2001 but that it was known that the
cheque necessarily had to be cleared. As such, it would take some
days before the cheque proceeds would be available to the applicants.
He said the cheque proceeds had only become available to the first
applicant on 5 July 2001, thus outside the 30 day period.
But
obviously, the applicants could not rely on that argument. Receipt of
the Late Dzingayi's cheque by Munangati on 31 May 2001 was payment
within 30 days of the order of BARTLETT J on 9 May 2001.
Strangely,
that was not the end of this particular side-show. Given that this
matter had commenced by notice of motion, given the developments that
had occurred over time, and given the fact that at some stage it had
been referred to trial but had subsequently gone back to motion
court, I had purposefully given the parties, both during the case
management meeting in Chambers, and at the end of the hearing, a kind
of open cheque to submit as much further information or argument on
any aspect of the matter as they might feel could assist, and I would
consider such information if it reached me before I concluded my
judgment. The parties obliged. As I began writing this judgment, I
received further information that sort of threw open again the
question of when exactly the Late Dzingayi had submitted that cheque,
and when exactly Munangati had received or receipted it.
Among
the documents that I subsequently received was one that I found
rather curious. It was a letter from Late Dzingayi's then legal
practitioners, Wintertons, to Munangati. It made reference to an
enclosed cheque for the same $337,178-77 amount. The letter was dated
2 July 2001. It had been received and signed for by Munangati on 5
July 2001. This was intriguing. But I shall revert to the intrigue
later on.
Phase
5
Some
aspects of the controversy whether or not the Late Dzingayi has paid
the balance of the purchase price spills back to this court, back to
BARTLETT J. The specific aspect on this controversy is whether or not
the Late Dzingayi paid the balance of the purchase price in full, not
whether or not he had paid it within the 30 days deadline.
There
are other fresh disputes the court is seized with. The conditional
permit over the original property to create the two subdivisions had
since expired. The first applicant is now refusing to proceed with
the agreement of sale, her argument being that the DOS will be in
violation of the Regional, Town and Country Planning Act, [Chapter
29:12].
It is trite that in terms of this Act, an agreement to, among other
things, sell a subdivision of a piece of land without a subdivision
permit is invalid and therefore unenforceable.
On
11 December 2001 BARTLETT J issues his second order. The issue
whether or not the Late Dzingayi has paid the balance of the purchase
price in full in terms of the earlier order on 9 May 2001 is referred
to arbitration. The issue whether or not the agreement has become
unenforceable, by reason of want of compliance with the Regional,
Town and Country Planning Act, is withdrawn.
Phase
6
The
arbitrator finds that the Late Dzingai has not paid the balance of
the purchase price in full. He determines the amount by which it had
been underpaid. The arbitration outcome is the source of new further
wrangles.
Phase
7
On
the basis of the arbitrator's award, the first applicant takes the
view that the Late Dzingayi, not having paid the balance of the
purchase price in full, the DOS has definitely been cancelled. On 4
June 2002, about two weeks after the arbitration award, her new
lawyers, Mudambanuki & Associates [Mudambanuki”]
write to Wintertons, Late Dzingai's lawyers, drawing attention to
the award, and stating, categorically, that the agreement has now
been cancelled. From then on events unfold quickly and the matter
completely goes off rail.
Phase
8
Late
Dzingayi does not accept the first applicant's purported
cancellation. A month later his lawyers send over a cheque for
$454,037-93 being, according to them, the balance outstanding, plus
accrued interest. Two days later, Mudambanuki reject it. They promise
to work out all the other previous payments made by Late Dzingayi in
order to refund him. They also advise that the first applicant is no
longer interested in the DOS and the subdivision and will now be
building on the property.
Five
months later, the Late Dzingayi applies for an order condoning his
non-compliance with the order of BARTLETT J on 9 May 2001. But he
does not pursue this application. It is dismissed for want of
prosecution. This is now February 2003.
Another
three months later, the Late Dzingai makes yet another application
for condonation. But he soon changes lawyers. The new lawyers, Kantor
& Immerman [“Kantor”]
withdraw this application. They file their own, to make it the third
application for condonation in a row.
To
this third application for condonation, the first applicant files
heads of argument. But they are out of time. So she has been barred.
Her new lawyers, Mutamangira & Associates [“Mutamangira”]
try to argue a technicality. It fails. HUNGWE J writes a judgment
stressing that she is barred. No determination is made on the
substantive relief of condonation.
The
first applicant appeals to the Supreme Court against the order of
HUNGWE J. Later on, in June 2006, the parties' lawyers negotiate.
Eventually both the Supreme Court appeal and the main application
before this court, i.e. the third application for condonation, are
withdrawn. Apparently by this time the Late Dzingayi has already
managed, not only to have the City of Harare extend the subdivision
permit, but also to get transfer of the twin subdivisions. So before
I proceed I have to dwell on the transfers to applicants 2 to 4 and
the subsequent ones to Late Dzingayi.
Phase
9
As
the Late Dzingayi's third application for condonation is pending,
and as her own appeal to the Supreme Court regarding the bar is
pending, the first applicant's ex-husband, the father to applicants
2 to 4, sells, or purports to sell, the original property to a third
party. The Late Dzingayi gets wind of it. He brings an urgent chamber
application to bar the sale. He fails. That is when GOWORA J says
there is nothing to bar if the subdivisions are non-existent in the
Deeds Office. But apparently this sale fizzles out anyway. Among
other things, the prospective buyer backs off.
It
seems it is in this phase that both parties now decide to take
matters in their own hands, aided and abetted by their lawyers. They
resort to naked guerrilla tactics.
The
judgment by HUNGWE J, confirming the first applicant's bar, is in
June 2005. A day after that judgment is handed down, the Late
Dzingayi submits a cheque for $773,445-72 which his lawyers, Kantor,
claim is the balance of the purchase price plus accrued interest. The
following day Mutamangira reject the cheque. In their covering letter
they say they have returned it. But at the hearing Mr Uriri
maintained that contrary to that claim the cheque had in fact been
banked and the Late Dzingayi's bank account debited. He drew
attention to a contemporaneous bank statement.
But
whilst the Late Dzingayi is making application after application for
condonation, it turns out that on 31 January 2003, i.e. two years
before the judgement of HUNGWE J, the first applicant has already
transferred the property to applicants 2 to 4. The causa
in the Deed of Transfer is stated as donation inter
vivos.
In their declaration for stamp duty purposes the applicants 2 to 4
say the donation had been made on 2 August 2002. None of this has
been disclosed to anyone.
In
the same month that HUNGWE J is confirming the first applicant's
bar, the Late Dzingayi is seeking an extension of the subdivision
permit from the City of Harare. He goes through a firm of land
surveyors. Amongst the reasons the land surveyors, in their letter
dated 22 June 2005, give to the City of Harare for the delay in
completing the subdivision is:
“…
because there was a legal battle
between the owner and the purchasers of the said Stands. However,
this has since been resolved through the courts. The courts have
directed that the said properties be transferred to the purchasers.”
The
land surveyors must be referring to the order of BARTLETT J on 9 May
2001, more than 4 years earlier. This, of course, is misleading. None
of the legal battles has been resolved. Among other things, the Late
Dzingayi is still to get condonation. Furthermore, the order of 9 May
2001 was conditional. His applications for condonation are
confirmation of that condition. Still further, at this stage the
original property has already changed hands. It is now owned by
applicants 2 to 4, not the first applicant in whose name the
subdivision permit had initially been granted.
The
withdrawal of both the Late Dzingayi's third application for
condonation and that of the first applicant's appeal to the Supreme
Court is made at the instance of Kantor. Their letter to Mutamangira,
containing the withdrawal proposal, is dated 2 June 2006. It reads:
“We
refer to the above matter and advise that our client is considering
withdrawing his opposition in this matter
as well as the High Court matter. What would be your client's
attitude towards costs in the event of withdrawal?”
The
letter is completely lacking in candour. It does not disclose that on
3 May 2006 the Late Dzingayi has already taken transfer of the
original property. It does not disclose that the Late Dzingayi had
applied for an extension of the subdivision permit in his own right
and had got it. It does not disclose that the subdivision creating
the two Stands 552 and 553 had already gone through. Thus, by now the
Late Dzingai has the twin subdivisions registered in his name under
Deeds 3030/2006 and 3031/2006. Those transfers had been registered by
Kantor. The power of attorney to pass transfer had been signed by the
Deputy Sheriff for Harare. His authority for doing so was allegedly
the Order of BARTLETT J, some five years ago.
Before
the registration of Stands 552 and 553 into Late Dzingayi's name,
Kantor apply to the Registrar of Deeds for a replacement Deed.
Someone from their firm submits an affidavit in support of that
application. The affidavit is misleading in material respects. Among
other things, it claims that the holding Deed for the twin
subdivisions has been brought forward for transfer in terms of inter
alia
High Court Order HC10065/2000. But the affidavit conceals the true
and obvious purport of that order. Quite apart from the problem of
Late Dzingayi not having paid within the 30 days, he manages to take
transfer from applicants 2 to 4 in whom the property is now
registered. Yet the order court referred to the first applicant.
So
obviously, with title to the original property tucked in his bag, the
Late Dzingayi can now afford to be magnanimous. He offers to withdraw
his application for condonation and nudges the first applicant to
withdraw her appeal from the Supreme Court.
Phase
10
This
is the phase in which the applicants institute these proceedings.
The
application is filed in September 2006. A month before, the
applicants write to the Registrar of Deeds complaining about the
wrongful manner the Late Dzingayi, assisted by Kantor, had taken
transfer. In that letter, Mutamangira request that an XN caveat be
placed on the property. The Registrar of Deeds obliges, but warns
that this kind of caveat is only temporary. He says a court order is
needed for a permanent interdict.
In
their request for an XN caveat, Mutamangira specifically cite Deed of
Transfer No. 3030/06. This of course, is for Stand 552. They do not
cite Deed of Transfer No. 3031/06, the one for Stand 553. It was a
loophole through which, it seems to me, the fourth respondent is
able, later on, to take transfer from the estate Late Dzingayi, now
represented by Ceciliah, the executrix.
Late
Dzingayi passes on in April 2007.
In
February 2011 Ceciliah sells Stand 553 to the fourth respondent. The
third respondent, the Master, approves the sale. On 17 February 2011
the fourth respondent takes transfer under Deed No.773/2011, the
second one the applicants want nullified.
Ceciliah
swears to an affidavit and says that there are no objections to the
proposed transfer. The applicants blast this apparent falsehood. They
say Ceciliah knew, not only as the executrix, but also as the wife of
the Late Dzingayi, of the raging battles over the property. They also
blast the Registrar of Deeds. He could not possibly have transferred
the property with so many impediments in place, in the form of not
only the caveats that he himself had registered, but also in the face
of the court documents that ought to have been filed in the registers
of the two Stands, given that he had been cited as a party right from
inception.
Even
though in their request for an XN caveat Mutamangira have only cited
Deed of Transfer No. 3030/06 for Stand 552, it transpires that on 21
September 2007, another law firm, V.S. Nyangulu & Associates, who
had registered the donation transfer from the first applicant to
applicants 2 to 4, had also written to the Registrar of Deeds,
separately from, and independently of, Mutamangira, expressly
requesting that XN caveats be placed on the two Deeds of Transfer
Nos. 3030/2006 and 3031/2006 and advising that the applicants wished
to take legal action to have them cancelled. However, there is no
indication whether or not the Registrar of Deeds has received these
letters, let alone, acted on them.
In
September and October 2007 there is some kind of dance-around between
Mutamangira and Kantor over yet some other cheque payment. It appears
Kantor are the first to forward the cheque to Mutamangira.
Mutamangira reject and return it. Kantor send it back saying they no
longer have the mandate to receive it back. They suggest that
Mutamangira may send it directly to their client. Mutamangira say
they will, but stress that the cheque stands rejected.
The
amount on, and the purpose for this latest cheque was not clarified.
The pleadings did not talk about it. The story about it emerged from
the consolidated bundle of documents filed just before the hearing.
The
fourth respondent said he was an innocent purchaser.
The
property had been advertised in the press. He had done a due
diligence. Among other things, he had checked with the Master. He had
been assured that Ceciliah had the requisite authority to sell. At
any rate, the first and final distribution account in the estate Late
Dzingayi had been published in the Government Gazette as a matter of
course. The property would have been listed. The applicants had
raised no objection.
The
fourth respondent also said that he had checked the deeds registry.
The property had been free from any encumbrances. He had gone through
a firm of legal practitioners for both the agreement of sale and the
registration of transfer.
The
applicants argued that the fourth respondent was far from being an
innocent buyer. They said he must have been aware of the raging
battles. Among other things, all the pleadings had been filed with
the Deeds Office. This office is a public office. If he had checked
he would have been alerted to the court cases.
That
was the case before me. I now proceed to deal with such of the issues
as will, in my view, dispose of the matter.
[g]
Determination
of the issues
[i]
Whether
the DOS was ever cancelled
Mr
Mpofu
argued that after the order by BARTLETT J on 9 May 2001 that inter
alia
gave the Late Dzingayi 30 days within which to pay the balance of the
purchase price, the DOS stood cancelled since, as it subsequently
transpired, Late Dzingayi had in fact not paid within that period.
Not only that, Mr Mpofu
submitted, but on 17 May 2002 the arbitrator, having ruled that the
balance had not been paid in full, the first applicant had
unequivocally cancelled the DOS. Mr Mpofu
relied on the letter from Mutamangira to Wintertons on 4 June 2002.
It read:
“We
trust by now you are in receipt of the Arbitrator's award. The
award was in favour of our client and we now treat this matter as
finalised. The agreement of sale is therefore cancelled.”
Mr
Mpofu
said the need to give a notice of cancellation had been obviated by
the 30 day clause in the court order. I disagree. In my view, that
was the Achilles tendon in the applicants' case. The court order,
in giving the Late Dzingayi 30 days within which to pay the balance
of the purchase price, did not say that if he failed or neglected to
do so the DOS would stand cancelled.
Mr
Mpofu
said this was implied.
I
disagree for three reasons: one, the DOS required a positive act of
cancellation if the purchaser should fail or neglect to pay the
balance of the purchase price in accordance with its provisions. It
required 14 days' notice. The Contractual Penalties Act overrides
such short notices and provides for 30 days. It is not clear whether
or not before the fights started the first applicant had ever given
any period of notice. But this is immaterial. On 9 May 2001 this
court, in the very first paragraph of its order, declared the
purported cancellation null and void. So with that ruling the legal
position was that the DOS had never been cancelled.
Two,
the remedy proffered by the order of 9 May 2001 was, in my view,
inchoate. It was preliminary or intermediary. I construe it to mean
that if the Late Dzingayi failed or neglected to pay the balance of
the purchase price within the stipulated 30 days, then the first
applicant could cancel the DOS as required by its terms, as read with
the Contractual Penalties Act. The Act merely gives the period of
notice. It is not the notice itself. The court order was not the
notice itself. If Late Dzingayi paid within the 30 days, the first
applicant would be obliged to transfer to him within 10 days of the
payment, failing which the deputy sheriff would step into her shoes
and sign the transfer papers.
Courts
do not make contracts for the parties. They interpret and enforce
them. Whatever form of cancellation the first applicant had given
previously was blotted out by the court order. So by giving the Late
Dzingai 30 days within which to pay, the court was merely reading
into the DOS the period of cancellation as set out in the Contractual
Penalties Act, seeing that the first applicant had not complied with
it, and that, in any event, the period in the DOS was unenforceable.
Three,
the Late Dzingayi did in fact make payment within the 30 day period.
I resolve in his favour the controversy whether his cheque for
$337,187-77 was received by Munangati on 31 May 2001 [receipting it
on 4 June 2001] or on 5 July 2001. I do so for four reasons.
Firstly,
it seems when the parties came back to court for the second time on
that same issue the applicant's actual grievance was that the Late
Dzingayi's payment had been inadequate, not that it had been made
out of time. That, in my view, explains why in his second order on 11
December 2001 BARTLETT J phrased it thus:
“2.
The issue whether the purchase price was paid in full in terms of the
Court order of the 9th
of May, 2001, be and is hereby referred to arbitration … whose
decision shall be final.”
Secondly,
when the parties went for arbitration, it must have been common cause
that the cheque for $337,178-77 had been paid on 31 May 2001. That
should explain why in his award the arbitrator used the 31st
of May 2001 as the cut-off date for payments made by the Late
Dzingayi from the inception of the DOS. In the course of his award
the arbitrator said:
“The
amount tendered on 31st
May 2001 was $337,187-77 which is less than the amount then due by
$166,394-25.”
Thirdly,
at the hearing, Mr Mpofu
all but admitted that the cheque for $337,187-77 had been received by
Munangati on 31 May 2001 who had receipted it on 4 June 2001. His
argument was that owing to the required clearance period, the
proceeds of the cheque had become available to the first applicant
only on 5 July 2001. But that would not detract from the fact that it
had been paid within the 30 day period.
I
am conscious of the fact that the first applicant was subsequently
vindicated by the arbitrator. He ruled that the Late Dzingayi had, in
fact, not paid the balance of the purchase price in full by the
expiry of the 30 day deadline. However, in my view, this finding
merely entitled the first applicant to either cancel the DOS in
accordance with its provisions, as read with the Contractual
Penalties Act, or to pursue the outstanding amount. Apparently, the
first applicant chose to cancel. But as I have said already, and as
she had done before, she once again botched the procedure.
If
the DOS was never cancelled, what then was the effect?
This
leads me to the next issue, namely the conduct of the Late Dzingayi
in unilaterally and, in his own name, seeking an extension of the
subdivision permit and thereafter taking transfer on the basis of the
order of 9 May 2001.
[ii]
Whether
the extension of the subdivision permit and the subsequent
registration of transfer in the name of Late Dzingayi were lawful.
I
have already indicated that the letter by the land surveyors to the
City of Harare seeking an extension of the subdivision permit was
misleading. Furthermore, it carefully avoided mentioning whose agent
they had been when they made that application.
The
issue whether or not, apart from the seller or owner of a piece of
land, any other interested party, such as a purchaser, can
legitimately apply for a subdivision permit, or an extension thereof,
in respect of the land that he might be interested in, was not
properly argued before me.
The
applicants accused the Late Dzingayi of fraud, and the City of Harare
of collusion.
I
understand that it was largely on account of these accusations that
the matter had initially been referred to trial. However, before me
the parties were agreed that this issue was really immaterial.
I
agree.
Therefore
I express no view. It was water under the bridge. The subdivision had
become a fait
accompli.
At any rate, the main aspect relating to the extension of the
subdivision permit was whether or not the DOS had become illegal in
terms of the Regional, Town and Country Planning Act if that permit
had expired. That aspect was expressly withdrawn before BARTLETT J in
December 2001.
That
leaves the question of the legality of the transfers of the original
property to the Late Dzingayi on 3 May 2006.
I
have no doubt that they were fraught with illegality. Firstly, the
order of this court on 9 May 2001 did not grant the Late Dzingayi,
carte
blanche,
the right to transfer. The right had been conditional upon him paying
the balance of the purchase price. Not only that, but that payment
had to be made within 30 days of the date of that order. Even though
he might have made some payment within the 30 day period, as it later
turned out, that payment had been inadequate. So when Kantor made the
representation before the Registrar of Deeds, they knew very well
that the Late Dzingayi had not paid the balance of the purchase price
within the 30 day period. Among other things, they were still seeking
condonation for their client to pay outside the 30 days. That is the
one aspect.
The
second aspect is that Kantor, in the face of uncompleted litigation,
could not just abandon that, retrieve from their drawers the old
order of 9 May 2001 and, five years later, present it before the
Registrar of Deeds as the authority for their client to take transfer
of the property without warning the applicants. To their knowledge,
that order referred to the first applicant. To their knowledge, she
no longer had title. At the very least, and in my view, they would
have had to seek rectification of that order.
But
they could not.
They
did not want to let the applicants know. They then ended up filing an
affidavit with the Registrar of Deeds that was misleading for its
lack of candour. In the end, transfer of the original property was
taken from persons other than the first applicant to whom the order
of 9 May 2001 related.
The
third aspect was not canvassed. It is that by the time the Late
Dzingayi purported to take transfer, the original property had become
res
litigiosa.
An object that is res
litigiosa
may not be disposed of after litis
contestatio:
see Ex
parte Deputy Sheriff, Salisbury: In re Doyle v
Salgo;
Zimbabwe
Banking Corporation Ltd & Anor v
Shiku Distributors [Pvt] Ltd & Ors
and Chenga
v
Chikadaya & Ors.
Quite
apart from the fact that transfer was taken, purportedly from the
first applicant who by that time had already lost dominion by reason
of her own donation transfer to applicants 2 to 4, the mere fact that
the property had become res
litigiosa,
even if such donation transfer had not occurred, would have militated
against the transfer to Late Dzingayi because the first applicant's
rights in the property had become diminished or qualified: see Doyle,
(supra),
at p 742. The Registrar of Deeds should not have passed transfer,
especially where he had been cited as a party in all the cases that
had been brought to court, or were still pending.
The
fourth aspect was whether on 3 May 2006, when the Late Dzingayi
purported to take transfer, the order of BARTLETT J on 9 May 2001 had
become superannuated. To Mr Mpofu's
argument that an order of court becomes superannuated after 3 years,
Mr Mhlanga,
for the fourth respondent, submitted in his heads of argument that in
terms of Order 49 Rule 448 of the Rules of this court judgments
become superannuated only after 6 years.
Obviously,
he was unaware that Rule 448 had been repealed in 1992 by Statutory
Instrument 80/2000.
Mr
Uriri
argued that the order had not become superannuated and that the
repeal of Rule 448 could not have taken away pre-existing rights.
With
all due respect, the arguments by all counsel on the question of
superannuation of judgments were not very illuminating. Apart from
citing a repealed rule, I failed to appreciate how on 3 May 2006 the
Late Dzingayi could still cling to a right the source of which had
been repealed in March 2000. With that repeal the right had been
extinguished. On the other hand, the argument that a judgment becomes
superannuated after 3 years was just a bald statement which was not
backed up by any authority.
In
terms of Part IV of the Prescription Act [Chapter
8: 11],
a judgment debt becomes extinct by prescription after the lapse of 30
years. But prescription is irrelevant here. In the context of court
judgments, prescription and superannuation may be cognates. But they
are different concepts. Once it has run its course, prescription
constitutes an absolute bar to claim. On the other hand,
superannuation refers to something that may just be too old to be
used. It still can be revived and be used.
The
Roman-Dutch law provided for the superannuation of judgments.
In
South Africa, when the case of Segal
& Anor v
Segil
was determined, the Rules of Court still provided for the
superannuation of judgments. The period was 3 years. The court noted
that the superannuation rule, as incorporated in the Uniform Rules,
was a restatement of the common-law. The rule had been received in
South Africa and had consistently been applied.
However,
in that case, one judge differed sharply with the other two. She held
that the superannuation rule, a mere provision of the Rules Board,
was ultra
vires
their Prescription Act. Her argument was that the Prescription Act is
superior legislation, it being one made by the Legislature. In South
Africa the period of prescription of judgments in terms of their
Prescription Act is also 30 years. So to the dissenting judge, the
Rule providing for superannuation should be unenforceable.
In
the course of their judgments, the judges noted that in Holland, in
the 16th
century, there had developed, alongside prescription, a rule of
practice whereby the executability of a judgment debt would lapse
after a certain period.
According
to that rule, the judgment became superannuated and execution could
not be carried into effect unless the judgment was revived.
The
ratio
of the superannuation rule was to prevent a judgment debtor being
taken by surprise when the plaintiff suddenly executed some years
later. Thus, the rule was introduced for the benefit of a debtor,
who, however, could waive it.
In
Segal
all the three judges urged the scrapping off of the superannuation
rule. Their reason was that it no longer served any useful purpose.
It was felt that the instances in which revival of judgments would be
refused would be rare. It was argued that there was no justification
for putting a judgment creditor to the expense and trouble of an
application for revival. Among other things, a debtor who had been
served with a summons and was aware of the outstanding judgment and
who, probably because of his absence or impecuniosity execution had
been omitted within the 3 years, could hardly complain that the
timing of the execution had not met his financial convenience.
Before
its repeal, and some inconsequential amendment in 1992, rule 448 read
as follows:
“Superannuation
of judgment and revival
448.
A judgment shall become superannuated after six years from the date
thereof but may be revived by the court on notice of motion to the
debtor issued for the purpose but in such case no new proof of debt
shall be required. In the case of a judgment for specific payments
the six years shall run in respect of any payment from the due date
thereof.”
In
Segal
the court said the South African rule was a re-statement of the
Roman-Dutch common-law position. By virtue of section 192 of the new
Zimbabwean Constitution,
as read with section 89 of the old Constitution,
Roman-Dutch is also our common law. The period of superannuation was
3 years. Therefore, when Rule 448 was repealed, it means the common
law position revived. That should explain the continued existence in
our Rules of court of another rule on superannuation. This is Rule
324 in Order 40. It provides that no writ of execution shall be
issued after the judgment has become superannuated, unless that
judgment has first been revived.
Therefore,
in my view, despite the repeal of Rule 448, the superannuation rule
is still part of our law.
However,
that the superannuation rule may still be part of our law does not
completely conclude the particular problem in this matter. It was not
argued whether the reference to superannuation applied carte
blanche
to all judgments, or only to those judgments sounding in money the
enforcement of which is by means of a writ of execution, or judgments
for the delivery up of goods or premises, or judgments for ejectment.
In terms of Rule 324 a writ of execution is issued for the purpose of
execution of any judgment for the payment of money, the delivery up
of goods or premises, or for ejectment.
In
my view, the superannuation rule may not apply to all judgments carte
blanche.
For example, in matrimonial proceedings, once an order of annulment,
or decree of divorce, is granted, the result is that the putative or
pre-subsisting marriage immediately terminates. Even if the
ex-spouses do not immediately uplift the certificate of annulment, or
order of divorce, there can be no question of the marriage registrar
considering the annulment or divorce superannuated should the
ex-spouses visit him 3 or more years later to have their former
marriage deleted from his register.
However,
I conceive of no reason why the superannuation rule should not apply
to a judgment for the transfer of an immovable property which
involves the delivery up or transmission of real rights from one
person to another. In my view, a judgment directing the transfer of
an immovable property becomes superannuated after the lapse of 3
years in accordance with the common law.
That
being the case, in
casu,
the transfer of the original property to the Late Dzingayi, on 3 May
2006, on the basis of the order of this court on 9 May 2001, was
incompetent because that order had become superannuated.
[iii]
Whether
the transfer to fourth respondent was valid
The
fourth respondent took transfer of Stand 553 on 17 February 2011.
That transfer was invalid for the same reasons that the transfer to
the Late Dzingayi on 3 May 2006 was invalid.
In
addition, the transfer to the fourth respondent was invalid on the
ground that Ceciliah, even in her capacity as the executrix to the
estate Late Dzingayi, had no title to pass. Furthermore, Stand 553
was res
litigiosa.
This case had already been instituted and was now pending
determination.
To
facilitate the transfer, Ceciliah filed an affidavit with the
Registrar of Deeds in terms of section 73 of the Deeds Registries
Act, [Chapter
20: 05].
The affidavit is required in a transfer of an immovable property by
an executor. It must state, among other things, that no objection to
such transfer exists. Ceciliah was aware, or ought to have been
aware, of such objection. The court pleadings in this and the other
matters had been filed with the Deeds Office.
Although
an XN caveat is an administrative encumbrance noted on the title of
an immovable property and is therefore not a legal impediment to the
registration of transfer, in practice, the Registrar of Deeds does
not register transfer of a property that is encumbered with such a
caveat without reference to the party at whose instance it would have
been noted.
In
this case, V.S. Nyangulu & Associates had requested the noting of
XN caveats on both Stand 552 and 553. In registering transfer in
favour of the fourth respondent in spite of those caveats, and in
spite of the numerous pleadings filed with him, the Registrar of
Deeds was either wilfully complicit or culpably negligent.
The
applicants argued that the fourth respondent was not an innocent
buyer and that he must have been aware of the legal fights concerning
the properties when he bought Stand 553. However, there has been no
evidence of such knowledge. On the contrary, the fourth respondent
made the point that the first and final distribution account of the
estate Late Dzingayi had been published in the Government Gazette.
The properties had been listed. The applicants had filed no
objections with the Master or anybody else. So it is probable that
the fourth respondent had not been aware.
However,
despite his innocence, the transfer to the fourth respondent cannot
stand for the reason that Ceciliah had had no capacity to transfer.
[iv]
Whether
the Late Dzingayi paid the balance of the purchase price
The
applicants said the Late Dzingayi never paid the balance of the
purchase price. They said all the payments that he tried to make
after the order of 9 May 2001, including that cheque for $337,178-77,
had been rejected and returned to him. On the other hand, Ceciliah
maintained that none of the cheques was returned.
Thus
there appeared to exist a dispute of fact. But I will take a robust
approach to resolve it. I believe there is sufficient information on
the record to enable me to do so.
The
approach on apparent disputes of facts has been set out in a number
of cases. In Zimbabwe
Bonded Fibreglass [Pvt] Ltd v
Peech
GUBBAY JA, as he then was, stated as follows:
“It
is, I think, well established that in motion proceedings a court
should endeavour to resolve the dispute raised in affidavits without
the hearing of evidence. It must take a robust and common sense
approach and not an over fastidious one; always provided that it is
convinced that there is no real possibility of any resolution doing
an injustice to the other party concerned.”
See
also Room
Hire Co [Pty] Ltd v
Jeppe Street Mansions [Pty] Ltd;
Masukusa
v
National Foods Ltd & Anor
and Van
Niekerk
v
Van Niekerk & Ors.
In
the present case, the evidence tendered on this point was in the form
of contemporaneous correspondence between the parties' respective
legal practitioners. It showed that each time the Late Dzingayi sent
a cheque, it would be returned. The first applicant was steadfast in
her view that she had cancelled the DOS. Whether, this view was right
or wrong is not the point. The point is that on a balance of
probabilities, all the cheques were returned.
A
trial in a civil case involves making findings or inferences of facts
by balancing probabilities and selecting a conclusion which seems to
be the more natural or plausible one from several other conceivable
ones, even though that conclusion may not be the only reasonable one:
see Joel
Melamed and Hurwitz v
Cleverland Estates (Pty) Ltd;
Joel
Melamed and Hurwitz v
Vorner Investments (Pty) Ltd
The
first of the first applicant's cheques was for $337,178-17 in May
or June 2001 which was the Late Dzingayi's attempt to comply with
the 30 day deadline in the court order of 9 May 2001. Munangati
returned it. The next cheque was for $454,037-93 in July 2002, after
the arbitrator had ruled that there had still been a balance
outstanding. Mudambanuki returned it. The next one was for
$773,443-72 in June 2005 soon after the judgment of Hungwe J
confirming the bar against the first applicant's notice of
opposition to Late Dzingayi's third application for condonation.
Mutamangira returned it. In paragraph 14 of his opposing affidavit
the Late Dzingayi acknowledged that Mutamangira rejected this cheque
but claimed that it had not been returned. He said he later learnt
that his bank account had been debited with the amount of the cheque.
The
amounts on all these cheques represented the Late Dzingayi's
unilateral calculation of the balance of the purchase price and the
interest accrued. But in spite of his assertion regarding the last
cheque for $773,443-72, I still consider that the probabilities
favour a finding that that the cheque had also been rejected and
returned.
I
do not believe that having been so resolute in her belief all along
that the DOS had been cancelled the first applicant would then
suddenly veer so late in the day and accept such payment.
Secondly,
Late Dzingayi's evidence that the cheque had not been returned was
his lawyer's letter and his own bank account showing a debit of the
amount when it was withdrawn. That was hardly proof that the cheque
had not been returned subsequently.
Thirdly,
and as explained previously, as late as September and October 2007
the parties were still haggling over some other cheque payment the
amount of which was not disclosed. Mutamangira, on Kantor's
suggestion, finally returned it directly to the Late Dzingayi. Thus,
if the cheque for $773,443-72 had been tendered as being the full
balance of the purchase price, as had been the case with the previous
cheques that had been returned, there would have been no reason why
in September or October 2007, more than two years after his account
had been debited, the Late Dzingayi would still be sending yet
another cheque. But even then, this last cheque was still returned.
Therefore,
it is my finding that apart from the payments that he made prior to
his cheque for $337,178-17, the Late Dzingai did not pay the final
balance of the purchase price and the interest accrued.
[h]
Synthesis
It
is nearly an impossible situation now. It has been sixteen years of
protracted wrangling. In my disposal of the matter, I have to avoid a
half-baked solution that will leave the parties thirsting for more
answers. Except perhaps, for the third respondent, the Master, and to
an extent the fourth respondent, none of the other parties are free
from blame.
I
have to defer to the proverbial wisdom of Judge Jackal in African
folklore. One day as he is wandering about, he chances upon Leopard
and Man in mortal argument. Leopard wants to eat Man. Man cannot
understand Leopard's morbid ingratitude, insatiable greed and
profound selfishness. Both Leopard and Man implore Judge Jackal to be
judge over their cause. Judge Jackal agrees. He soon establishes the
facts. Man had been on about his duties in the forest. He had come
across Leopard languishing in a trap or snare. Leopard had been seven
days and seven nights trapped like that. He had been seven days and
seven nights without food or drink. Feeling sorry for him Man had
freed Leopard. Thereupon Leopard had jumped upon Man wanting to eat
him.
That
is the case before Judge Jackal. But he pretends not to have fully
comprehended the circumstances. He orders an inspection in
loco
and a return to the status quo
ante.
Leopard is impatient. He is hungry. He wants to have his meal but
grumpy Judge Jackal is dragging the case. Judge Jackal will not be
hurried. The status quo
ante
has to be restored. To expedite the proceedings Leopard leaps back
into the trap. Judge Jackal quickly snaps it shut. He then turns to
Man and asks him what exactly he had been doing when he had chanced
upon Leopard in the trap. “I was walking along this footpath here”,
Man replies. “Then do carry on walking along this footpath here and
do never come back!” The case ends.
My
findings in this judgment throw the parties back to the position that
they were in on 9 May 2001 when BARTLETT J issued his first order.
This means that the DOS had not been cancelled; the Late Dzingayi had
not paid the balance of the purchase price, and no transfer of the
original property to the Late Dzingayi had yet taken place, let alone
the subsequent transfer of Stand 533 to the fourth respondent.
In
my view, the donation transfer from the first applicant to applicants
2 to 4 was of no real consequence, even though at that stage the
property had become res
litigiosa.
Among other things, the property had remained with the applicants. It
had remained in the family.
I
have to dispose of this matter in a manner that brings closure to the
endless disputes, or failing that, a manner that considerably narrows
down any further argument. It is time litigation comes to an end.
In
a nutshell, in my judgment, the applicants must, in principle, get
back their properties. The first respondent must be given the chance
to pay off what her husband, or the estate that she represents, ought
to have paid, but failed, or neglected to pay, or was prevented from
paying. If the first respondent pays, she keeps “her” property.
The transfers stand. In this regard, the fourth respondent's fate
is tied up with that of the first respondent. However, if after being
given the chance to pay, the first respondent fails or neglects to do
so, then the DOS, by a mere declaration by the applicants,
irrevocably and finally gets cancelled. The current title deeds get
set aside. The first and fourth respondents must surrender the
properties. The issues of compensation for improvements, if any,
would have to be the subject of debate or judgment another day.
So
here is how I dispose of the matter, my order of costs reflecting the
attitude that I have taken of the conduct of the parties:
[i]
DISPOSITION
1.
It is hereby declared as follows:
1.1
That the Deed of Sale between the first applicant and the Late
Dzingayi Kashumba [hereafter referred to as “the
deceased”]
on 11 and 12 May 1999 in respect of the property described as Stands
552 and 553 Quinnington Township of Subdivision A of Subdivision F of
Borrowdale Estate, measuring 3 999 square metres and 4002 square
metres respectively [hereafter referred to as “the
original property”],
was never cancelled.
1.2
That the balance of the purchase price due and owing by the deceased
to the first applicant as at 9 May 2001, in respect of the Deed of
Sale aforesaid, was never paid.
1.3
That the transfer on 3 May 2006 in favour of the deceased of the two
properties known as certain pieces of land situate in the District of
Salisbury, respectively measuring 4,001 and 4,002 square metres, and
respectively called Stands 552 and 553, Quinnington Township of
Subdivision A of Subdivision F of Quinnington of Borrowdale Estate,
respectively on Deeds of Transfer Nos.3030/2006 and 3031/2006
[hereafter referred to as “Stands
552 and 533 Quinnington Township”],
was unlawful and therefore invalid.
1.4
That the subsequent transfer of Stand 553 Quinnington Township on
Deed of Transfer No.773/2011 on 17 February 2011 in favour of
Tafirenyika Kambarami, was unlawful and therefore invalid.
1.5
That the balance of the purchase price outstanding, due and owing by
the deceased to the first applicant as at 9 May 2001 in respect of
the sale and purchase of the original property was in the sum of
ZW$503,573-02, being the total of ZW$337,178-77, reflected on the
deceased's cheque subsequently rejected by the first applicant, and
ZW$166,394-25 subsequently found by the arbitrator to have been the
shortfall on the cheque amount aforesaid.
2.
Notwithstanding the declaration of invalidity of the transfers
referred to in paragraph 1 above, but subject to paragraphs 3, 4, 5
and 6 below, if the first respondent pays, or causes to be paid, to
the applicants, or one or other of them, the one receiving payment,
the others to be bound, the equivalent of the balance of the purchase
price referred to in paragraph 1.5 above in the functional currency
current at the time of payment, together with interest thereon as
envisaged herein, then the title deeds in respect to which the
transfers aforesaid have been declared unlawful and invalid shall not
be set aside, and the declarations of invalidity herein shall
automatically lapse.
3.
Unless the equivalent amount of the balance of the purchase price
referred to in paragraph 1.5 above is otherwise agreed to in writing
within thirty [30] calendar days of the date of this order, or such
other extended period not exceeding a further thirty [30] calendar
days as they may agree to in writing, the parties shall engage the
Commercial Arbitration Centre in Harare solely to determine the
equivalent amount of that balance, in any of the functional
currencies, and the decision of the arbitrator shall be final and
binding.
4.
The first respondent shall pay the equivalent amount of the balance
of the purchase price referred to above within thirty [30] days of
the date the amount is ascertained, either by agreement between the
parties, or through determination by arbitration as contemplated by
paragraph 3 above, together with interest thereon at the prescribed
rate from the date of such agreement or determination, whatever the
case might be, to the date of payment.
5.
In the event that the first respondent fails or neglects to pay as
envisaged in this order, then the applicants, or one or other of
them, shall ipso
facto,
forthwith have the right to declare in writing, the immediate and
automatic cancellation of the Deed of Sale aforesaid and, without
prejudice to any other rights they might have at law, shall be
entitled to keep as rouwkoop
all such monies as they might have received as purchase price for the
original property.
6.
Subject to any rights to compensation for improvements that they
might have, in the event that the title deeds mentioned herein have
been cancelled as aforesaid, the first and fourth respondents, and
all those claiming occupation through them, shall, within thirty [30]
calendar days of the date of such cancellation, vacate the respective
properties occupied by them, failing which the Sheriff for Zimbabwe,
or his lawful deputy or assistant deputies, or such of his agents as
might be duly authorised by him, shall be empowered, authorised and
directed to evict the aforesaid respondents and all those claiming
occupation through them.
7.
Save and except for the fourth respondent whose costs of suit shall
be borne by the first and second respondents, jointly and severally,
the one paying the other to be absolved, each party shall bear its
own costs.
24
February 2016
Mutamangira
& Associates,
applicants' legal practitioners
Kantor
& Immerman,
first respondent's legal practitioners
Chihambakwe,
Mutizwa & Partners,
fourth respondent's legal practitioners
1.
1990 (2) ZLR 48 (HC); also Deary
NO v Acting President & Ors
1979 RLR 200 (G) and Molotlegi
& Anor v President of Bophuthatswana & Ors
1989 (3) SA 119 (B)
2.
That is, opposition to the Supreme Court appeal by the first
applicant under SC173/05
3.
1957 [3] SA 740 [SR]
4.
2000 [2] ZLR 11 [H], at p 18F
5.
SC 7/13
6.
S 11[b] of the High Court [Amendment] Rules, 2000 [No.35] published
on 24 March 2000
7.
1992 [3] SA 136 [C]
8.
At p 141
9.
Section 192 of the new Constitution says: “Law
to be administered:
The law to be administered by the courts of Zimbabwe is the law that
was in force on the effective date, as subsequently modified.”
10.
Section 89 of the old Constitution said: “Law
to be administered:
Subject to the provisions of any law for the time being in force in
Zimbabwe relating to the application of African customary law, the
law to be administered by the Supreme Court, the High Court and by
any courts in Zimbabwe subordinate to the High Court shall be the law
in force in the Colony of the Cape of Good Hope on 10th
June, 1891, as modified by subsequent legislation having in Zimbabwe
the force of law.”
11.
1987
[2] ZLR 338 [SC]
12.
At p 339
13.
1949 [3] SA 1155 [T], at p 1165
14.
1983 [1] ZLR 232 [HC]
15.
1999 [1] ZLR 421 [SC]
16.
1984 (3) SA 155
