UCHENA
JA:
This
is an appeal against part of the judgment of the High Court Harare.
The
first appellant, Shorai Nzara, (Shorai) is the mother of the second
to fourth appellants to whom she donated the property that forms the
subject of this dispute. The first respondent Cecilia Kashumba N.O.
was the wife of the late Dzingai Kashumba and is the executrix dative
of his estate.
Dzingai
Kashumba (Dzingai) entered into an agreement of sale with Shorai
Nzara the original owner of the property at the heart of this
seventeen-year-old dispute. The second respondent is the Registrar of
Deeds who was cited in his official capacity as the official who
registers title of immovable properties. The third respondent is the
Master of the High Court, cited in his official capacity as the
official who exercises oversight over deceased estates. The fourth
respondent Tafirenyika Kambarami bought a sub-division of the land in
question from Cecilia Kashumba in her capacity as the late Dzingai's
estate's executrix dative.
The
detailed facts of the case are as follows;
On
12 May 1999, the first appellant, Shorai entered into an agreement of
sale with the now late Dzingai for the sale of two proposed Stands,
being Stand number 552 and 553 Quinington Township of Subdivision “A”
of Subdivision “F” of Quinington of Borrowdale Estate. At the
time the parties entered into the agreement the two Stands
constituted one property for which a subdivision permit had been
granted by the City of Harare.
Shorai
instituted application proceedings for the cancellation of the
agreement of sale, under case number HC10065/00. She claimed that
Dzingai had breached the agreement of sale, as he had not paid the
full purchase price. The court (per BARTLETT J) accepted that Dzingai
had not paid the full purchase price but held that the first
appellant had not lawfully cancelled the agreement as she had not
given Dzingai the mandatory 30 days' notice in terms of section
8(2)(c)(ii) of the Contractual Penalties Act [Chapter
8:04].
In
terms of section 8(2)(c)(ii) a purchaser is entitled to a notice
period of 30 days within which to pay the purchase price before the
contract can be cancelled.
BARTLETT
J ordered Dzingai to pay the outstanding amount within 30 days
failing which the contract could be lawfully cancelled. That judgment
was handed down on 9 May 2001.
Shorai
alleges that Dzingai thereafter attempted to pay the outstanding
purchase price through her legal practitioners but over fifty days
later on 5 July 2001. Apart from the payment having been made out of
time, she claimed that he did not tender the outstanding balance in
full. She contended that the amount paid was ZW$166 403.25 less than
was due and her legal practitioners therefore refused to accept the
payment.
In
view of the above mentioned breaches by the late Dzingai, Shorai
again cancelled the agreement and made another application seeking
confirmation of the subsequent cancellation. The first respondent
argued that payment had been made by cheque to Shorai's legal
practitioners who presented it to his bank for payment. She alleged
that his account was debited to the value of that cheque, indicating
acceptance of the payment. The first appellant disputed this alleging
that the cheque through which the late payment was attempted, was
returned to Dzingai's legal practitioners.
The
dispute over the outstanding balance was referred to arbitration
where an award was made confirming that the purchase price had not
been settled and that there remained an outstanding balance. By
letter dated 4 June 2002 the appellant's legal practitioners again
advised Dzingai's legal practitioners that the contract had been
cancelled. The first respondent conceded that this position was made
clear to Dzingai but contented that the cheque he presented to
Shorai's legal practitioners was presented to his bank and debited
from his account. She did not however dispute that the amount held by
the Arbitrator to have been outstanding had not been paid.
Shorai
alleged that there was no response to her letter of 4 June 2002 till
10 July 2002 when Dzingai purported to pay the outstanding balance.
On 12 July 2002 her legal practitioners wrote another letter to
Dzingai's legal practitioners stressing that the contract had been
cancelled and enclosing a cheque for ZW$454,037.93, being the money
the respondent had tendered in his attempt to pay part of the
outstanding balance.
Shorai
alleges that notwithstanding the cancellation of the contract Dzingai
made an application in November 2002 for condonation of his
non-compliance with the order of 9 May 2001 but did not pursue it. It
was dismissed for want of prosecution in February 2003.
It
was contended on behalf of the late Dzingai's estate that the
application was not an application for condonation per
se,
but an application for reversal of the donation made by Shorai to her
children who are the second to fourth appellants, which it is alleged
was in clear violation of the order of the High Court granted by
HLATSHWAYO J (as he then was) against the alienation of the property.
That
order was to remain in force “pending the finalization of the
Arbitration proceedings” which were finalised on 28 February 2002.
Shorai's
donation to the second to fourth appellants was effected on 31
January 2003 long after the arbitration proceedings had been
finalized. The transfer was registered in the Deeds Registry and
reflected on the title deeds in the second, third and fourth
appellants' names.
On
9
May
2003 Dzingai, through his legal practitioners, filed an application
for condonation of his failure to comply with the judgment of
BARTLETT J, which Shorai opposed. He subsequently withdrew it when he
changed legal practitioners. The new legal practitioners filed
another application for condonation for non-compliance with the order
of 9 May 2001 in which Dzingai argued that Shorai had no locus
standi
in the matter as she had donated her interest in the property to the
second to fourth appellants.
In
that application Dzingai argued that the full purchase price except
the interest had been paid by August 2000. He therefore admitted that
he had not paid the accrued interest. He maintained that the
purported cancellation was a nullity at law. He disputed Shorai's
right to cancel the agreement.
Dzingai
argued that the matter only went for arbitration to clarify the issue
of the outstanding interest. On 3 May 2006, while the dispute was
still raging, the property was unlawfully transferred from the second
to fourth appellants to Dzingai Kashumba.
Dzingai
died on 30 April 2007. Cecilia Kashumba, his surviving spouse was
appointed executrix dative of his estate, substituting him as the
first respondent. She entered into an agreement of sale with the
fourth respondent, Tafirenyika Kambarami, for the sale of one of the
contentious properties which the court a
quo
held to be unlawful.
Shorai
contested this development as an act of fraud, theft and
misrepresentation to the office of the Registrar of Deeds. She
claimed that she was unaware of the change of ownership from her
children to the late Dzingai.
In
response to the unlawful transfers the appellants registered caveats
against the properties. Shorai pursued her application in the High
Court for the confirmation of the subsequent cancellation of the
agreement between her and Dzingai, which would in turn cancel deeds
of transfer number 3030/06 and 3031/06 which Dzingai unlawfully
obtained from Shorai at a time when the property had already been
transferred to her children the second to fourth appellants. The
transfer was therefore purportedly from the first appellant, who no
longer had title, without the involvement of the second to the fourth
appellants who now had title.
In
her evidence to the court a
quo
Cecilia Kashumba alleged that, contrary to the repeated promises of a
refund, the money debited from Dzingai's bank account was never
returned. In heads of argument prepared on behalf of Shorai in the
court a
quo it
was suggested
that
Dzingai took ownership of the property sometime in 2006, without her
knowledge. The court a
quo
correctly found that the judgment of 9 May 2001 had not been complied
with, when it was relied on to get transfer from the second to fourth
appellants, who were not parties to that judgment, to Dzingai.
Dzingai failed to pay the balance of the purchase price within the
time ordered by BARTLETT J, leading to the cancellation of the
agreement by the first appellant.
In
spite of the caveats registered by Shorai and subsequently by the
second to fourth appellants against the Title Deeds of Stand 553,
title was passed to Kambarami by Cecilia in her capacity as the
executrix dative of Dzingai's estate.
These
are the facts on which the court a
quo
made the following decisions.
1.
That the transfer of the two stands to the late Dzingai was unlawful.
2.
That the late Dzingai and his estate did not pay the full purchase
price.
3.
That the donation of the two Stands by the first appellant to the
second, third, and fourth appellants was lawful.
4.
That the sale of Stand 553 to the fourth respondent was unlawful.
After
making these findings the court a
quo surprisingly
gave
Cecilia Kashumba a grace period of thirty days within which to settle
the outstanding debt. Dzingai's estate and Kambarami, the fourth
respondent were allowed to remain in possession of the two properties
during the grace period. The order further provided that if Cecilia
Kashumba failed to pay by the deadline the property would be returned
to the appellants and all monies paid to date would be forfeited by
the deceased estate.
The
appellants appealed to this court against the decision of the court
a quo. The
appeal is based on the following grounds of appeal.
1.
Having come to the conclusion that first and fourth respondents had
obtained title irregularly and without lawful cause the court a
quo
erred in not finding that the requisites for an action rei
vindication
had been met.
2.
Having come to the conclusion that first appellant had been entitled
to donate the property to second to fourth appellants and had in fact
done so, the court a
quo
erred in granting consequential relief which completely ignored the
rights of the true owners of the property.
3.
The court a
quo
erred in granting relief which had not been sought from it and which
the parties had not addressed their argument to and so erred in
adopting a course which is incapable of resolving the dispute between
the parties.
4.
The court a
quo
erred in coming to the conclusion that the agreement between first
appellant and the late Dzingai Kashumba had not been validly
cancelled and erred in ignoring an ex
nunc
cancellation of 4 June 2002.
This
appeal raises two issues:
1.
Whether or not a court can grant an order not sought by the parties.
2.
Whether or not the law calls for the strict application of the rei
vindicatio?
I
will address each issue in turn.
1.
Whether or not a court can grant an order not sought by the parties?
Mr
Mpofu,
for the appellants, citing authorities, which will be analysed below,
submitted that the court a
quo
erred and misdirected itself when it granted relief which had not
been sought by either party.
Mr
Uriri
for the first respondent and Mr Mapuranga
for the fourth respondent supported the court a
quo's
decision without legally establishing the court
a
quo's
authority to grant orders not sought by the parties.
The
fact that the court a
quo granted
orders not sought by the parties can be demonstrated by comparing the
orders sought by the parties and the orders granted by the court a
quo.
In
terms of their application and the subsequent notice of amendment the
appellants who were the applicants in the court a
quo sought
the following relief:
1.
“Deed of Transfer No.3030/06 held in the name of Dzingai Kashumba
be and is hereby cancelled and title in respect of the remainder of
Subdivision 'A' of Subdivision 'F' of Quinington of
Borrowdale Estate should revert back to the second, third, and fourth
Applicants.
2.
Deed of Transfer No.773/2011 in the name of Tafirenyika Kambarami be
and is hereby cancelled and title in respect of Stand 553 Quinington
Township of Subdivision A of Subdivision F of Quinington of
Borrowdale Estate reverts back to second, third, and fourth
Applicants.”
Through
her opposing affidavit Cecilia Kashumba merely sought the dismissal
of the applicants' application.
The
fourth respondent in his opposing affidavit also merely sought that
the applicants' application be dismissed with costs.
In
the determination of the application before it the court a
quo
made the following orders:
“1.
It is hereby declared as follows:
1.1
That the Deed of Sale between the first applicant and the Late
Dzingai Kashumba (hereinafter referred to as “the deceased” on 11
and 12 May 1999 in respect of the property described as Stands 552
and 553 Quinington Township of Subdivision A of Subdivision F of
Borrowdale Estate, measuring 3,999 square metres and 4,002 square
metres respectively (hereinafter 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 of 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 called Stands 552 and 553, Quinington
Township of Subdivision A of Subdivision F of Quinington of
Borrowdale Estate, respectively on Deeds of Transfer Nos.3030/2006
and 3031/2006 (hereinafter referred to as “Stands 552 and 553
Quinington Township”) was unlawful and therefore invalid.
1.4
That the subsequent transfer of Stand 553 Quinington 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 1st
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 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 of
Zimbabwe, or his lawful deputy or assistant deputies, or such of his
agents as might be duly authorized by him, shall be empowered,
authorized 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”. (emphasis added)
It
is clear from the court
a quo's orders
that some of the orders it granted had not been sought by either
party. It is also clear that parties had not made submissions for or
against those orders. They were granted mero
motu by
the court a
quo.
It did so without seeking the parties' views on those orders. There
is no doubt that the court a
quo exceeded
its mandate which was to determine the issues placed before it by the
parties through pleadings and proved by the evidence led.
The
function of a court is to determine disputes placed before it by the
parties. It cannot go on a frolic of its own. Where a point of law or
a factual issue exercises the court's mind but has not been raised
by the parties or addressed by them either in their pleadings in
evidence or in submissions from the bar, the court is at liberty to
put the question to the parties and ask them to make submissions on
the matter.
In
Welkom
Municipality v Masureik
and
Herman T/A Lotus Corp
1997 (3) SA 363 at 371 G-H Marais JA commenting on what the court
should base its decision on said:
“I
should add that whether or not South Africa did or did not fail to do
so is a question of fact upon which there was no evidence before the
court a
quo,
and for reasons too obvious to require enumeration, the learned Judge
was
not entitled to enquire into this issue of fact after reserving
judgment and without any reference to the parties, and then to decide
it. Compare
Kauesa
v Minister
of Home Affairs and Others 1996 (4) SA 965 (NmS) at 973H – 974C.”
(emphasis added)
In
the Namibian case of Kauesa
v Minister
of
Home Affairs and Others
1996 (4) 965 (NmS) DUMBUTSHENA AJA at pages 973H to 974C said:
“The
above matters are not crucial to the determination of this appeal.
They are however, important because a frequent departure from
counsel's, more correctly the litigant's case, may be wrongly
interpreted by those who seek justice in our courts of law. It
is the litigants who must be heard and not a judicial officer.
It
would be wrong for judicial officers to rely for their decisions on
matters not put before them by litigants either in evidence or in
oral or written submissions. Now and again a Judge comes across a
point not argued before him by counsel but which he thinks material
to the resolution of the case. It is his duty in such a circumstance
to inform counsel on both sides and invite them to submit arguments
either for or against the Judge's point. It is undesirable for a
court to deliver a judgment with a substantial portion containing
issues never canvassed or relied on by counsel.
To
produce a wide–ranging judgment dealing with matters not only
extraneous and unnecessary to the decision but which have not been
argued is an exercise full of potential pitfalls and the judgment of
the court a
quo
has placed this court in a difficult position. Are we to consider
every opinion expressed in the judgment, however unnecessary it was
to the decision and say whether it accords with our own? Or can we
leave such matters well alone until such time as they become
necessary to decide and are fully argued? In our view, the latter
course is the proper one to take and in doing so we emphasize that it
must not be thought that this Court in any way approves or endorses
the many obiter opinions expressed in the judgment of the court a
quo.”
Before
leaving this aspect of the appeal I consider it appropriate to refer
to what was said by BHAGWATI J (as he then was) in M.
M. Pathak v Union
(1978) 3 SCR 334 in relation to the practice of the Supreme Court of
India:
“It
is the settled practice of this Court to decide no more than what is
absolutely necessary for the decision of a case”. (emphasis
added)
In
Groenewald
NO and Anor v Swanepoel
2002 (6) SA 724 at 726 I to 727 A, PICKERING J commenting on what a
judicial officer should do if he wants to take into consideration
issues not covered in pleadings, evidence and submissions of the
parties said:
“It
was therefore the
duty of the learned Judge to have informed plaintiff's counsel of
the relevant point, more especially where that point was, in her
view, conclusive of the matter, and to have invited him to submit
argument to her. Had
she done so counsel would no doubt have been in a position to address
her concerns and the necessity for this appeal may well have been
obviated.
Secondly,
the
remark made by the learned Judge concerning the alleged arrest of the
defendants was not based on any averment made in either the pleadings
or the evidence adduced before her at the hearing or in the course of
argument by Mr Pretorius.
It would appear that she must have gleaned this information from some
outside source. It hardly needs stating that a judge may only have
regard to the evidence placed before him or her during the course of
the hearing and that a reliance on facts not averred in the pleadings
or raised in court constitutes a serious misdirection.” (emphasis
added)
I
respectfully agree with the views expressed in the authorities
referred to above.
The
function of a court is to determine the dispute placed before it by
the parties through their pleadings, evidence and submissions. The
pleadings include the prayers of the parties through which they seek
specified orders from the court.
This
position has become settled in our law.
Each
party places before the court a prayer he or she wants the court to
grant in its favour. The Rules of court require that such an order be
specified in the prayer and the draft order. These requirements of
procedural law seek to ensure that the court is merely determining
issues placed before it by the parties and not going on a frolic of
its own. The court must always be seen to be impartial and applying
the law to facts presented to it by the parties in determining the
parties' issues. It is only when the issues or the facts are not
clear that the court can seek their clarification to enable it to
correctly apply the law to those facts in determining the issues
placed before it by the parties.
The
judgment of the court
a quo unfortunately
fell short of these guiding principles. In seeking to find middle
ground, the court a
quo
granted orders which had not been sought by either party. It granted
the first and fourth respondents a further grace period and a
referral to arbitration. The first and fourth respondents had not
sought such orders.
Such
orders cannot be sustained at law.
They
seem to have been motivated by equity and sentiments of justice
rather than the law and the facts, as demonstrated by the court a
quo's
narration of the exploits of the legendry “judge jackal” in
setting free a man who was about to be eaten by a leopard he had
rescued from a trap. Where a court is of the view that an order not
sought by the parties may meet the justice of the case, it must put
that possible relief to the parties and allow them an opportunity to
address it on such an order.
In
Proton
Bakery (Pvt) Ltd v Takaendesa
2005 (1) ZLR 60 (S) at page 62E-F GWAUNZA JA said:
“The
appellant argues, in the light of all this, that the action of the
court a
quo
in reaching a material decision on its own, amounted to gross
irregularity justifying interference by this court on the principles
that have now become trite.
I
am, for the reasons outlined below, persuaded by this argument …
The
misdirection on the part of the court a
quo
is left in no doubt. It is my view, so serious as to leave this Court
with no option but to interfere with the determination of the lower
court.”
The
determination by the court a
quo,
of matters not placed before it, goes against a litigant's right to
be heard and this view is supported in the fourth edition of Judicial
Review of Administrative Action by J. M. Evans at pages 157-158 where
it was highlighted that the principle that “no man is to be judged
unheard” is an age-old view adopted from the ancient Greeks. This
principle has been adopted in our system under the audi
alteram partem Rule.
Therefore, the fact that the respondents are not taking issue with
the court's mero
motu
decision is, neither here nor there. This irregularity militates
against the validity of parts of the judgment of the court a
quo.
The
“grace period” of thirty days granted to the first respondent by
the court a
quo
has no founding at law and cannot be legally justified. The initial
thirty days awarded by BARTLETT J were in terms of the Contractual
Penalties Act. The purchaser, having already been granted this
thirty-day period in terms of the law, cannot be granted a further
thirty-day period not provided for in terms of the law, to the
prejudice of the seller on no legal basis. Judicial discretion should
at all times remain guided by the dictates of the law.
A
court is not entitled to determine a dispute placed before it, wholly
based on its own discretion, which is not supported by the issues and
facts of the case. It is required to apply the law to the facts and
issues placed before it by the parties.
2.
Whether or not the law calls for the strict application of the rei
vindicatio?
Mr
Mpofu
for the appellants submitted that in view of the court a
quo's
findings, the appellants' ownership of the property 'should have
been vindicated by the court a
quo regardless
of the court a
quo's
considerations of equity and justice, on the basis of the strict
application of the
rei vindicatio.
Mr
Uriri
for the first respondent and Mr Mapuranga
for the fourth respondent without laying a clear legal basis for
their submissions supported the court a
quo's
decision.
The
court a
quo
came to the conclusion that the contract was never properly cancelled
at the instance of Shorai Nzara. However, by the time Dzingai
attempted to claim title based on the judgment of 9 May 2001 which
had superannuated and the time within which payment should have been
made had long passed. Therefore, the late Dzingai failed to perform
his obligations in terms of the contract. He therefore could not
lawfully claim title to the property. This means transfer to him was
unlawful and the subsequent sale and transfer to Kambarami was a
nullity. R.H. Christie in his book “Business Law in Zimbabwe”
states as follows:
“An
owner whose property has been sold and delivered without his consent
remains the owner, as the seller cannot pass ownership that was not
his. The true owner can bring vindicatory action to recover his
property from anyone including a bona
fide
buyer.”
These
are precisely the circumstances the first respondent and fourth
respondent found themselves in and as a result the appellants contend
that the court a
quo,
having found that ownership never lawfully passed to the first
respondent that should have been the end of the matter and the
principles of the rei
vindicatio
ought to have been applied with full force and effect. The land
should have been returned to its rightful owners.
The
late Dzingai failed to pay and finalize the sale agreement in terms
of the judgment of 9 May 2001. He could not therefore rely on a
judgment he had not complied with to enforce the agreement of sale.
He could not seek transfer of the property to himself without
complying with the legal requirements of a contract of sale. He in
fact admitted that, he did not pay the full purchase price after
BARTLETT J's judgment. That entitled the first appellant to an
immediate cancellation of the agreement as she did on 4 June 2002. In
its own order giving a further grace period as BARLETT J had
previously done the court a
quo
had in para 5 of its order ordered that if payment was not made as
per its order the appellants would be entitled to “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”.
This
is an admission that a party who has been given notice through a
court order as required by the Contractual Penalties Act, need not be
given a further such notice in terms of the Contractual Penalties
Act. The seller can cancel immediately as was submitted by Mr Mpofu
for the appellants.
As
the late Dzingai never lawfully owned and held title to the property,
his estate could not alienate the said property. Cecilia his
executrix dative could not sell property which did not belong to her
late husband's estate. The purported sale was also tainted by
Cecilia's misrepresentation in an affidavit that the property was
not subject to any disputes. This lie was intended to mislead the
purchaser into the agreement of sale, and facilitate its transfer.
The
first respondent therefore sold the subdivision to the fourth
respondent through deceit. That cannot justify transfer of the
appellants' property to the fourth respondent.
After
title was transferred, and a subdivision was sold, developments were
allegedly made to the land in dispute. It must be noted that the
respondents' counsel only raised the issue of vast and substantial
improvements on the property from the bar on appeal. The alleged
improvements were vaguely referred to, but were not quantified. No
evidence was led to establish their existence and their value.
Therefore,
the claim for improvements, not having been properly raised or
quantified, cannot be taken into consideration by this court.
Nevertheless, even if these issues had been properly raised and
quantified in the court a
quo,
the title of an owner is so respected that the rei
vindicatio
operates against a third party who innocently purchases the property
even where improvements or developments were made. The owner remains
entitled to his property. This was made clear in the case of Alspite
Investments (Pvt) Ltd v Westerhoff 2009
(2) ZLR 236 where MAKARAU JP, as she then was, said:
“There
are no equities in the application of the rei
vindicatio.
Thus, in applying the principle, the
court may not accept and grant pleas of mercy or for extension of
possession of the property
by the defendant against an owner for the convenience or comfort of
the possessor once it is accepted that the plaintiff is the owner of
the property and does not consent to the defendant holding it. It is
a rule or principle of law that admits no discretion on the part of
the court. It
is a legal principle heavily weighted in favour of property owners
against the world at large and is used to ruthlessly protect
ownership.
The application of the principle conjures up in my mind the most
uncomfortable image of a stern mother standing over two children
fighting over a lollipop. If the child holding and licking the
lollipop is not the rightful owner of the prized possession and the
rightful owner cries to the mother for intervention, the mother must
pluck the lollipop from the holder and restore it forthwith to the
other child notwithstanding the age and size of the owner-child or
the number of lollipops that the owner child may be clutching at the
time. It
matters not that the possessor child may not have had a lollipop in a
long time or is unlikely to have one in the foreseeable future. If
the lollipop is not his or hers, he or she cannot have it.”
[My emphasis]
This
case therefore sanctions ruthless vindication of the owners'
rights.
Ownership
is a well-guarded title in property law. For this reason, after
finding the second, third and fourth appellants to be the true
owners, the court a
quo
was bound by law to vindicate their title to the land.
One
of the critical maxims of property law is nemo
plus iuris transfer e protest quam ips habet
– translated as meaning that an owner cannot, as a general rule, be
deprived of his property against his will. Therefore, where an
owner's property is sold and delivered without his consent his
right to ownership can be vindicated from any person.
Silberberg
and Schoeman in their Second Edition of “The Law of Property” at
page 268 make it clear that the maxim stands firm even where the
third party acquires the property in good faith, having paid a fair
market value and acted in all innocence. Our law calls for ruthless
vindication and protection of the right of ownership. Counsel for the
appellants cited the words of Holmes JA in the case of Oakland
Nominees Ltd v Gelria Mining & Investment Ltd
1976 (1) SA 441 (A) at page 452 where he said:
“Our
law jealously protects the right of ownership and the correlative
right of the owner in regard to his property… if the law did not
jealously guard and protect the right of ownership and the
correlative right of the owner to his/her property, then ownership
would be meaningless and the jungle law would prevail to the
detriment of legality and good order.”
In
view of the arguments put forward on behalf of the fourth respondent
two things are clear. Firstly, that his right to title is directly
and inextricably linked to whether or not the late Dzingai's estate
owned the property. As it did not,
the
case of Mashave
v Standard Bank of South Africa
1998 (1) ZLR 436 (S),
is
instructive. In that case
Mc
NALLY JA at page 438 C said:
“…Roman-Dutch
law protects the right of an owner to vindicate his property, and as
a matter of policy favours
him as against an innocent purchaser.
See for instance Chetty
v Naidoo
1974 (3) SA 13 (A) at 20A-C. The innocent purchaser's only defence
is estoppel. Estoppel depends upon an allegation that a
representation was made by the owner or claimant.”
Therefore,
having found that Dzingai was not entitled to transfer, the sale to
the fourth respondent was rendered void
ab initio.
The
court a
quo
ordered that should Dzingai's estate fail to pay the balance in
terms of its order the payments Dzingai made to Shorai would be kept
by her as rouwkoop. Cecilia Kashumba did not cross appeal against
that order.
In
my view that order is fair and just as Dzingai and subsequently his
estate occupied the property in dispute for 17 years during which he
fraudulently transferred it to himself and his estate sold the
subdivision to Kambarami.
Section
9(3)(c) and (d) of the Contractual Penalties Act allows the court to
take such factors into consideration. It reads:
“(3)
In assessing any relief that may be given in terms of this section,
the court shall have regard to all the circumstances of the case and
in particular to -
(a)----
(b)----
(c)
the
nature of any breach of contract on the part of the purchaser and the
circumstances in which it was committed; and
(d)
the extent to which the purchaser has complied with his obligations
during the currency of the instalment sale of land concerned;
and
shall
balance those amounts against the value of any use or occupation of
the land concerned which was enjoyed by the purchaser,
together with any commission or costs which the seller has been
required to pay in connection with the instalment sale of land
concerned.” (emphasis added)
After
balancing the manner in which Dzingai conducted himself during the
time he enjoyed occupation while deliberately defrauding the
appellants and avoiding paying the full purchase price, I am
satisfied that the court a quo's order that Shorai keep the
payments he had made is fair and just.
Accordingly,
having
considered argument from both parties, and the findings of the court
a
quo
we order as follows:
1.
The appeal succeeds with costs.
2.
The judgment of the court
a quo be
and is hereby set aside and substituted by the following:
(a)
The transfers effected in favour of Tafirenyika Kambarami and Dzingai
Kashumba under Deed of Transfer number 773/2011 for the former and
Deed of Transfer numbers 3030/2006 and 3031/2006 for the latter
having been found invalid, the Registrar of Deeds is ordered to
cancel them.
(b)
In terms of General Condition 6 of the Deed of Sale the first
applicant is entitled to keep as rouwkoop payments she received from
the late Dzingai.
(c)
First and fourth respondents be and are hereby ordered to vacate
Stands 552 and 553 Quinnington Township of Subdivision A of
Subdivision F of Quinnington Borrowdale Estate within 30 days of this
order, failing which the Sheriff of Zimbabwe, or his lawful deputy or
assistant deputies, be and are hereby, authorized and directed to
evict the aforesaid respondents and all those claiming occupation
through them.
(d)
The donation made in favour of the second, third and fourth
applicants having been found to have been validly and legally made is
upheld. The Registrar of Deeds is ordered to reinstate title to the
second, third and
fourth
applicants
as the owners of Stand 552 and 553 Quinnington Township of
Subdivision A of Subdivision F of Quinnington Borrowdale Estate.
GARWE
JA: I
agree
GUVAVA
JA: I
agree
P.
Chiutsi Legal Practitioners, appellant's
legal practitioners
Kantor
& Immerman, 1st
respondent's legal practitioners
Chihambakwe,
Mutizwa & Partners,
4th
respondent's legal practitioners
