1.
ZHOU
J:
This is an action instituted by the plaintiff claiming the following
relief which is set out in the summons:
“1.
An order declaring that:
(i)
The purported sale between first and second defendants for the sale
of 100% shareholding in second plaintiff on or about 12th February
2009 and all actions flowing therefrom, including but not limited to
the removal of directors and appointment of new directors; and
(ii)
The sale and transfer of Stand 671 Mount Pleasant Township 20 of Lot
57 of Mount Pleasant, commonly known as 3 Justice McNally Close,
Mount Pleasant, Harare to 5th defendant represented by 4th defendant,
are null and void;
(b)
The minor children Panashe Ralph Rushesha
and Tivonge Sacha Rushesha
remain the sole shareholders in 2nd plaintiff; and
(c)
The directors of 2nd plaintiff as at 12 February 2009 remain
directors unless lawfully removed or through resignation (sic).
2.
An order that:
2.1
4th defendant, or failing it the Deputy Sheriff, takes all necessary
steps to transfer Stand 671 Mount Pleasant Township 20 of Lot 57 of
Mount Pleasant, commonly known as 3 Justice McNally Close, Mount
Pleasant, Harare, back into the name of the 2nd plaintiff;
2.2
4th defendant and all those claiming occupation through it vacate 3
Justice McNally Close, Mount Pleasant, Harare within fourteen (14)
days from the date of judgment; and
2.3
2nd to 5th defendants jointly and severally, the one paying the
others to be absolved: pay for an assessment and report within
fourteen (14) days of such report, by an independent property expert
appointed by the High Court, of 3 Justice McNally Close, Mount
Pleasant, Harare of any structural changes or damage other than fair
wear and tear caused to 3 Justice McNally Close, Mount Pleasant,
Harare since 12th February 2009 and the costs of repairs or
reconstruction; and
(ii)
pay 2nd plaintiff the amount recommended within thirty days of such
assessment.
3.
An order barring 6th defendant from transferring the property
referred to in 6 (sic) above to any third party until transfer to 2nd
plaintiff is concluded.
4.
In any event, costs of suit on an attorney and client scale to be
paid by 1st to 5th defendants, the one paying the others to be
absolved.”
2.
At the commencement of the trial Ms Masunda on behalf of the fourth
and fifth defendants moved an application for my recusation from
presiding over the case. Having heard argument I dismissed the
application with costs and gave brief reasons. I did indicate that my
reasons would be contained in the judgment. These are they.
3.
The grounds of the application were contained in a letter dated 30
July 2012 addressed to “The Office of the Honourable Justice Zhou”
and marked to the attention of “(the) Clerk to Justice Zhou”. The
full text of the letter is as follows:
“RE:
WEBSTER TONGOONA RUSHESHA
& ANOTHER v ALEXIOUS MASHINGAIDZE DERA & 5 OTHERS CASE NO.
HC6829/10
1.
We refer to the above matter and confirm that we act for the 4th and
5th Defendants.
2.
We have noticed that before his elevation to the bench, his Lordship
acted against our clients the 5th Respondent, in the matter of
Thirdline Trading Private Limited and Onclass Investments v Boka
Investments Private Limited and Tobacco Industry Marketing Board case
number HC7324/10. In that case, his Lordship in his capacity as the
erstwhile legal representative of Third Line Trading and Onclass
Investments, expressed a severe opinion on the manner in which our
client conducts its business during the course of his argument.
3.
Our clients are weary (sic) that his Lordship may still hold such
opinion about them and we request that his Lordship recuses himself
in the matter at hand and the matter be set (sic) for trial before
another Judge.
4.
Kindly place the matter before the Honourable Judge for
consideration.”
4.
For the record, I do not have a recollection of the case referred to
in the letter quoted above or the facts thereof.
5.
Where a judge or any other judicial officer is disqualified from
hearing a case, a party to that case is entitled to apply for the
recusation of the judge or judicial officer concerned. Such an
application which in our law is known by the Latin term as an
exception
recusationis
must
be founded upon reasonable cause – justa
causa recusationis
– which the applicant must prove. Trivial grounds cannot found a
recusation. See President
of the Republic of South Africa v South African Rugby Football Union
1999
(4) SA 147 (CC) at 172D-173C;
S v Radebe 1973
(1) SA 796 (A) at 812F-G.
6.
The grounds upon which the recusation of a judge may be sought
include the following:
(i)
Interest in the cause, whether that interest is direct or indirect;
(ii)
Close relationship or friendship to one of the parties;
(iii)
Where the case involves a colleague attached to the same Bench;
(iv)
Enmity or hostility towards a party;
(v)
Prior professional interest of the judge;
(vi)
Expression of opinions indicative of bias.
See
Erasmus 'Superior
Court Practice'
pp.A1-14B to A1-14C.
7.
In the instant case recusal was sought on the basis of an alleged
opinion expressed in a matter in which the fourth respondent was a
party and represented the other parties therein as an advocate then.
The so-called opinion could only have been a submission made in Court
based on the facts before it, as counsel is expected to make
submissions and not expressions of opinion.
The
content of the submission was not disclosed.
Even
after being challenged by counsel for the plaintiff to state its
content, Ms Masunda could only say that the “opinion” was
expressed in an urgent chamber application which was being argued
before Uchena J.
The
relevance of that opinion to the instant matter was neither alleged
nor disclosed.
The
opinion was not made in connection with the instant matter.
Above
all, it was not made by me as a judge; but even if that were the
case, the law is clear that it is no ground for recusation that a
judicial officer expressed an opinion at a previous stage in another
case.
In
the case of R
v Heilbron 1922 TPD 99
at 100 the court said:
“It
would be perfectly impossible to conduct the administration of
justice in the proper way if judges and magistrates were to be
recused because at some prior time they had expressed unfavourable
opinions as regards persons who subsequently come before them; that
cannot be a ground of recusation, and in my belief it is not one of
the proper grounds on which a person should be recused.”
8.
The law recognises that sometimes lay persons do entertain the mere
possibility of bias on the part of a judicial officer. But that is
insufficient to ground an application for recusation in the absence
of an extrajudicial expression of opinion in relation to the case or
in the absence of the other recognised grounds. See R
v T 1953
(2) SA 479 (A) at 483C.
I
am therefore satisfied that the application was without merit.
9.
Mr Mpofu submitted that the Court should order Miss Masunda to pay
the costs of the application for recusation de
bonis propriis,
on the ground that the application scandalised the Court. The
application was indubitably vexatious and in the ordinary course
would have readily attracted a punitive order of costs. However, an
application for recusation necessarily places a legal practitioner
who is making it in an unenviable position and, in my view, should
not be looked at as any other application.
10.
A bona
fide
application for recusation presented in proper language should not
readily trigger an enquiry into the motives or propriety of the legal
practitioner's conduct. Authorities show that a Court should not
exhibit unnecessary sensitivity in dealing with an application for
recusal. Erusmus, Superior
Court Practice,
pA1-14C.
11.
In the instant case the application was misconceived as it was not
based on any facts which were presented to the Court other than a
mere reference to an opinion. But it was made respectfully without
scandalising the Court.
I
am accordingly persuaded that the lawyer should not be penalised for
making the application.
12.
Turning to the merits of the claim, the background to the dispute may
be summarised as follows:
The
first plaintiff is a medical practitioner of Zimbabwean origin. He is
presently resident in the United Kingdom together with his wife and
children. He is married to the second witness, Aquilina Rudo
Rushesha.
They had two sons together before they moved to the United Kingdom,
namely, Panashe Ralph Rushesha
(hereinafter
referred to as “Panashe”) and Tivonge Sacha Rushesha
(hereinafter referred to as “Tivonge”). The first defendant,
Alexious Mashingaidze Dera, is his brother-in-law, being a brother to
his wife. When the trial commenced Panashe Ralph Rushesha
had attained majority age, and was by consent substituted as the
third plaintiff.
13.
The first plaintiff's evidence was that before he went to the
United Kingdom he acquired an immovable property known as Stand 671
Mount Pleasant Township 20 of Lot 57 of Mount Pleasant, also known as
3 Justice McNally Close, Mount Pleasant, Harare (hereinafter referred
to as “the property”).
He
asked the first defendant who is an accountant by profession to help
him form a company in which the shareholders would be the two
children mentioned above.
The
second plaintiff is the company which was then established for the
benefit of the children.
The
reason for incorporating the company, according to the first
plaintiff, was to have the immovable property registered in the name
of the company.
The
directors of the company were to be Acquilina Rudo Rushesha
and the first defendant.
14.
The property was duly registered in the name of the second plaintiff
and was its only asset.
He
stated that the name of the second plaintiff derives from the middle
names of his two children. “Ra” is from the name 'Ralph; “Sa”
is from the name 'Sacha'; while the “R” comes from their
surname, Rushesha.
At the time that the property was acquired Panashe was ten years old
while Tivonge was about a year old.
The
witness paid the purchase price for the property using his own
resources.
15.
When the first plaintiff and his family moved to the United Kingdom
in 2003 they leased the property to the South African Embassy. The
first defendant was their contact person on some matters relating to
the property but the rentals were paid directly into his account.
Thus the first defendant did not receive any rentals in respect of
the property; neither did he spend any money on the property.
16.
In or about June 2010 the first plaintiff and his family discovered
that the first defendant had sold shares in the second plaintiff to
the second defendant represented by the third defendant. That
discovery was only made when the first plaintiff's wife came to
Zimbabwe from the United Kingdom.
They
discovered that the shares had been sold for a sum of US$36,350.00.
Subsequent
to the sale of the shares in the second plaintiff the immovable
property was then sold to the fourth defendant represented by the
fifth defendant.
The
first plaintiff spoke to the fifth defendant by telephone. The fifth
defendant advised him that he had purchased the property from the
first defendant.
17.
In that conversation the fifth defendant admitted that he had known
that the property belonged to the first plaintiff's wife.
First
plaintiff stated that different amounts were given as to the price at
which the immovable property had been sold. Initially a sum of
US$90,000 was mentioned. Later on a figure of US$125,000 was stated
as having been paid for the immovable property.
The
first plaintiff denied that he authorised the sale of the shares in
the second plaintiff or the sale of the immovable property. He, in
fact, still holds the original deed of transfer for the property.
18.
The first plaintiff described the improvements on the property.
There
is a house with three bedrooms. All three bedrooms have bathrooms and
toilets. It has three lounges, a kitchen and a garage on top of which
is a tiled entertainment area. There are two rooms next to the garage
which the witness stated that he intended to use as offices. The
house is fully alarmed. There is a borehole on the property. The
other amenities at the property include a gazebo, a swimming pool, a
75 metre drive-way with lights, and car shades which can accommodate
three motor vehicles.
19.
The second witness for the plaintiff was Aquilina Rudo Rushesha,
wife of the first plaintiff.
She
is the mother of the two children, Panashe and Tivonge. She was one
of the directors of the second plaintiff company at the time that it
was incorporated. She never resigned her directorship. She came to
Zimbabwe from the United Kingdom in June 2010. That was when she
discovered that the immovable property had been alienated by her
brother, the first defendant.
She
approached the police to help her access the property. She also
approached Gerald Mlotshwa, a legal practitioner. A meeting was held
which culminated in an affidavit being prepared and sworn to by the
first defendant.
20.
Plaintiffs also called Fortune Tapiwa Chasi who is a relative of the
first plaintiff's family.
He
testified that he knew both the third and fifth defendants at a
personal level. The witness was notified of the sale of the property
to the Boka company by the first plaintiff. He spoke to the fifth
respondent about the matter. From his conversation with the fifth
defendant the latter knew that the first defendant had borrowed money
from the second plaintiff and used the immovable property as security
for the loan.
21.
The fifth defendant also stated to him that he was aware that the
property did not belong to the first defendant but to the first
plaintiff.
He
also communicated to the third defendant by telephone and e-mail
about the transactions relating to the immovable property. The third
defendant stated to him that matters related to that were to be
directed to his legal practitioners, and that his affairs should be
separated from those of the second defendant.
22.
The last witness called to testify for the plaintiffs was the first
defendant, Alexious Mashingaidze Dera.
He
was at all material times a director of the second plaintiff. As
stated above, he is a brother to Aquilina Rudo Rushesha
and a brother-in-law to the first plaintiff. Although he was cited as
the first defendant he did not enter appearance to defend the matter.
He only came as a witness at the instance of the plaintiffs after
being subpoenaed to attend.
His
testimony was that in February 2009 he obtained a loan in the sum of
US$36,350.00 from the third defendant in order to finance his
business of purchasing sugar from Triangle for resale.
23.
As security for the loan the witness then entered into an agreement
for the sale of the shares in the first plaintiff to the second
respondent, a company in which the third defendant has an interest.
The
agreement of sale was reduced to writing.
His
name is recorded as the seller and beneficial owner of “the 2
issued shares in the company” the second plaintiff.
The
memorandum acknowledges that the second plaintiff is the registered
owner of the immovable property in dispute.
He
stated that he repaid to the second and third defendants an amount of
money between US$7,000 and US$10,000 in an attempt to liquidate the
debt, but could not catch up with the increasing interest which was
being charged on the amount loaned. He stated that he had known the
fifth respondent as a friend prior to meeting the third defendant. He
was introduced to the third defendant by the fifth defendant. He then
approached the third respondent for a loan which he was duly given as
stated above.
24.
When he was having problems in repaying the loan the third defendant
approached the fifth defendant to inquire as to whether the witness
had property which could be sold to raise money to repay the balance
outstanding on the loan which had gone up to US$70,000.
Interest
was being charged on the outstanding amount every month.
In
his evidence the fifth respondent then went and paid to the third
respondent the amount outstanding. At the time that the fifth
respondent paid off the amount it had gone up to about US$90,000. The
witness stated that the fifth defendant wanted to be paid US$100,000
for having settled the debt owed to the second and third defendants.
He
deposed to an affidavit prepared by Mr Mlotshwa, a legal practitioner
who had been instructed by the first plaintiff's wife, on 24 June
2010. The affidavit was produced as part of the plaintiff's
documents.
25.
The second defendant led evidence through one Simon Charehwa who is
its Public Officer.
His
evidence was that the second defendant, represented by Frank Buyanga,
the third defendant, purchased shares in the second plaintiff from
Alexious Mashingaidze Dera, the first defendant.
The
witness stated that the person who dealt directly with the plaintiff
was the third defendant.
He,
the witness, was responsible for compilation of the information in
the files of the second defendant.
He
stated that Dera handed over to Frank Buyanga share certificates
relating to the shares as well as resolutions authorising the sale.
The share certificate, according to the witness, was taken to the
United Kingdom. The rest of the documents were kept in the file at
the local office. The witness identified a document at page 7 of
Exhibit 2 as the resolution which was given by Alexious Dera to the
third defendant.
26.
At the time that the transactions were conducted he was a clerk.
In
cross-examination he readily admitted that he was not involved when
the agreement between the first defendant and the second defendant
acting through the third defendant was concluded.
He
stated that the shares in the first plaintiff were purchased for
US$36,350.
He
stated that the house in dispute which was the only asset of the
first plaintiff was sold by the second defendant to the fourth
defendant for a sum of US$110,000 in September 2009.
He
stated that he knew the first defendant prior to the transaction
relating to the shares of the first plaintiff as he used to render
accounting services to the third defendant on a part-time basis.
27.
The fifth defendant gave evidence on his behalf as well as on behalf
of the fourth defendant.
He
is a director of the fourth defendant which is a family company. He
stated that he purchased the immovable property in dispute on 15
September 2009. At the time of the agreement he was shown a Form CR14
and a Form CR6 and a resolution by one James Nqindi.
According
to him James Nqindi and Frank Buyanga were the directors of the
second plaintiff at the time that he purchased the property.
He
stated that he first knew the first defendant in 2007. He denied that
they were friends, but that he was just someone he knew.
28.
The witness stated that he had known the third defendant since 2004.
He stated that the property was vacant at the time that he purchased
it. He indicated to the Court that the fourth defendant was prepared
to relinquish the property if it was paid back the money it had paid
for the property. He stated that he purchased the property from the
second plaintiff.
The
fourth defendant took transfer of the property in 2010.
He
described the main structure on the property as a four-bedroomed
house, with four bathrooms, a kitchen, lounge, dining room and an
additional lounge or office. There is an outbuilding for employees,
as well as a swimming pool and a gazebo. At the time of the purchase
there was, according to him, a derelict tennis court. He removed the
tennis court with the intention of resurfacing it. The property,
which is about an acre, is walled and gated. The main house is partly
a double storey, with a room upstairs. The main bedroom has a
dressing area. There is a borehole.
29.
The issues which were referred to trial are set out in the joint
pre-trial conference minute as follows:
1.
Whether or not a valid agreement of sale of shares allegedly
belonging to the minor children (herein represented by the first
plaintiff) was entered into between first and second and third
defendants.
2.
Whether or not the changes relating to second plaintiff's directors
and shareholders effected as a result of any such agreement is valid.
If not, whether or not such directors and shareholders should revert
back (sic) to the period before the 12th February 2009.
3.
Whether or not second plaintiff validly entered into an agreement for
the sale of the immovable property being Stand Number 671 Mount
Pleasant Township 20 of Lot 57 of Mount Pleasant with fourth and
fifth defendants. If not, whether the registration of title into
fourth defendant (sic) must be set aside and the original deed
reinstated.
4.
Whether or not plaintiffs have any claim for damages against second
to fifth defendants arising out of the structural alterations to the
immovable property. If they have a claim, what the quantum of damages
recoverable is.
5.
Whether or not if plaintiffs succeed, fourth defendant should remain
in possession of the immovable property on the basis of a lien and
until any such claim as it may have (has) been realised.
30.
The question of the validity of the sale of shares to the second
defendant must be considered in the context of the nature of the
agreement between the first defendant, Alexious Dera, on the one hand
and, on the other hand, the second and third defendants.
If
a finding is made that there was no sale then the legal consequences
of that finding will ensue.
31.
On the other hand, if the conclusion is that there was a sale the
Court will then consider whether such sale can be impeached on the
grounds submitted by the plaintiffs.
The
plaintiffs case is that the agreement was one of a loan in terms of
which money was advanced to first defendant by the second and third
defendants. The shares were, according to the plaintiffs, surrendered
to the second and third defendants as security for the repayment of
the loan.
32.
In determining the above issues, the Court must look at the evidence
in its totality or as a whole and not piecemeal.
All
the parties agree that the second plaintiff's sole asset was the
immovable property at 3 Justice MacNally Close, Mount Pleasant,
Harare.
They
are also agreed that the immovable property is just over an acre in
extent.
The
developments on the property were described in evidence by both
parties albeit with minor variations. There is a main house and an
outbuilding as described above. There is a borehole. The property is
walled and has a gate. At the time of the sale there was a tennis
court the condition of which was contested by the fifth defendant.
33.
The defendants relied on an agreement of sale of shares signed on 12
February 2009 as proof that the second defendant purchased the entire
shareholding in the second plaintiff from the first defendant. In
terms of that agreement the entire shareholding was sold for a sum of
US$36,350.
A
document was also produced signed by the first defendant to
acknowledge receipt of a sum of US$36,350 “being the purchase price
for the entire shareholding in Rasar Enterprises (sic) (Pvt) Ltd”.
34.
The first defendant's testimony was that the agreement of sale was
a disguised loan transaction.
The
third defendant who was the person who was involved in the
transactions on behalf of the first defendant did not testify. That
leaves the testimony of the first defendant unchallenged. No
explanation was given regarding the last minute default of the third
defendant.
The
witness who testified for the second defendant, Simon Charehwa, was
not privy to the discussions leading to the agreement. He was only a
clerk at the material time.
35.
In any event, the second and third defendants version does not accord
with the probabilities in this case. A purchase price of US$36,350
for the entire shareholding in the second plaintiff does not stand
scrutiny, it being common cause that the transaction would in essence
be a purchase of the immovable property which was the only asset of
the company.
Matthew
Boka stated that a vacant piece of land within the area of Mount
Pleasant would cost between US$30,000–US$50,000. Simon Charehwa
stated that the immovable property was “sold” to the fourth and
fifth respondents for a sum of US$110,000 some seven months after the
second defendant acquired it for US$36,350.
There
is no conceivable explanation as to how the value would have trebled
within such a short time.
36.
The only reasonable explanation is that the payment was meant to
cover the debt owed by the first defendant to the second and third
defendants which escalated rapidly because of interest charged.
The
time that the multi-currency regime was introduced in the country
would not, in my view, explain payment of a sum of US$36,350 for that
property.
No
evidence was tendered in support of that assertion.
The
first defendant stated in his evidence that by the time the shares
were appropriated by the second defendant he had paid about US$7,000
towards reduction of the debt.
That
assertion was not contested.
Simon
Charehwa did not know about that payment.
37.
I have considered, too, that the parties involved were not strangers
to one another.
Frank
Buyanga was known to the first defendant after being introduced by
the fifth defendant. Simon Charehwa stated that he used to see the
first defendant “a lot” at the offices of the second defendant
where he used to render accounting services to the third defendant on
a part-time basis. Matthew Boka was also known to the first defendant
prior to that transaction. When he proceeded with the registration of
the immovable property in the name of the fourth defendant in July
2010 he had already become aware that the transactions were being
disputed.
38.
It is not uncommon for parties to enter into disguised transactions
where, as happened in the instant case, property which is given as
security is disguised as the subject of a sale.
In
the case of Hoffmeyer
v Gous (1893) 10
SC 115
at 117
the court remarked as follows:
“There
is not a more common device than that by which a pledge is disguised
as a sale”.
In
such transactions the approach of the Court is settled.
The
court looks at the substance and not the form of a transaction. See
Zandberg
v van Zyl 1910 AD 302
at 309; MacAdams
v Fiandies Trustees 1919 AD 207.
The
rationale for that approach is easy to fathom.
39.
Court proceedings are not a game of chess. They are a serious inquiry
into and determination of the rights of the participants in the
proceedings.
On
the facts of this case I have no difficulty in concluding that the
agreement between the first defendant and the second and third
defendants was not a sale of shares. Instead, the shares were given
to secure a loan given to the first defendant by the second and third
defendants.
The
taking of ownership of the shares by the second defendant makes the
transaction a pactum
commissorium.
See Vasco
Dry Cleaners v Twycross 1979
(1) SA 603 (A).
In
the case of Chimutanda
Motor Spares (Pvt) Ltd v Musare & Anor 1994
(1) ZLR 310 (H) at 314B-C
this Court, citing with approval a passage from the case of
Van
Rensberg v Weiblen 1916 OPD 247 at 252,
embraced the following definition:
“A
pactum commissorium is defined as 'a pact by which the parties
agree that if the debtor does not within a certain time release the
thing given in pledge by paying the entire debt, after the lapse of
the time fixed, the full property in the thing will irrevocably pass
to the creditor in payment of the debt'.”
40.
See also Kufandirori
v Chipuriro & Ors 2004
(1) ZLR 74 (H) at 75G-76A;
Upper Class Enterprises (Pvt) Ltd v Oceaner (Pvt) Ltd & Ors 2002
(2) ZLR 599 (S) at 605A-B.
41.
The simple position of the law is that a pactum
commissorium
is illegal and unenforceable.
Upper
Class Enterprises (Pvt) Ltd v Oceaner (Pvt) Ltd (supra) at 605B-C;
Kufandirori v Chipuriro & Ors (supra) at 76F-G; Chimutanda Motor
Spares (Pvt) Ltd v Musare & Anor (supra) at 315B; Sun Life
Assurance Co of Canada v Kuranda 1924 AD 20 at 24.
42.
The jurisprudential principles which underpin the unenforceability of
a pactum
commissorium
and the circumstances in which exceptions may be accepted have been
the subject of academic and judicial discourse. See Mapenduka
v Ashington 1919 AD 343 at 351; Chimutanda Motor Spares (supra) at
314C-F; Oceaner (Pvt) Ltd & Anor v Upperclass Enterprises (Pvt)
Ltd & Anor 2001
(2) ZLR 130 (H) at 132B-E;
Silberberg & Schoemann The Law of Property 3rd Ed. by Kleyn &
Boraine; Wille's Principles of South African Law 8th Ed.pp345-9.
They
need no further discussion in
casu.
43.
In the light of the settled position of the law, the sale and
transfer of shares in the second plaintiff by the first defendant to
the second defendant was therefore illegal and, consequently, null
and void ab
initio.
The
illegality necessarily invalidates the Form No. CR14 in terms of
which Frank Buyanga, the third defendant, and one James Nqindi were
appointed as directors of the second plaintiff.
44.
The fate of the sale and transfer of the immovable property to the
fourth respondent in terms of a memorandum of agreement of sale dated
15 September 2009 is decidedly sealed in the words of Lord Denning MR
in the celebrated case of
MacFoy
v United Africa Co Ltd [1961] 3 All ER 1169 at 1172:
“If
an act is void, then it is in law a nullity. It is not only bad, but
incurably bad. . . And every proceeding which is founded upon it is
also bad and incurably bad. You cannot put something on nothing and
expect it to stay there. It will collapse.”
45.
Accepting the above exposition of the law, the Supreme Court in
Muchakata
v Netherburn Mine 1996
(1) ZLR 153 (S)
held that an act which is void ab
initio
is “void at all times and for all purposes. It does not matter when
and by whom the issue of its (in) validity is raised; nothing can
depend on it.”
In
short, the sale of the immovable property to the fourth respondent is
a legal nullity.
The
effect of my conclusion is to dispose of issues 1, 2 and 3 as set out
in the joint pre-trial conference minute in favour of the plaintiffs
and against the defendants.
46.
As regards issue number 4, no evidence was placed before the Court of
the full extent of the damage to the property arising out of
structural alterations to the property or the quantum of the loss
occasioned by such damage. Apart from the mention by the first
plaintiff that the tennis court had been dug out, nothing more was
said.
47.
In the premises, the second to fifth defendants are absolved from the
instance on that claim.
I
do not believe, too, that this Court should order assessment of
damage caused by any structural alterations to the property and/or
payment of the amount assessed by such assessor as claimed in the
plaintiffs' summons.
What
would happen if his assessment is contested by any of the other
parties?
The
onus was on the plaintiffs to prove any loss occasioned by such
alterations.
They
failed to discharge that onus. It cannot be left to a third party to
determine the loss.
48.
The last issue to be determined is whether the fourth defendant has a
lien
over the immovable property pending compensation.
A
lien
is a right of retention –
ius
retentionis -
which a party has over the property of another person in respect of
which he or she or it has incurred expenditure on. See Nexbak
Investments (Pvt) Ltd & Anor v Global Electrical Manufacturers
(Pvt) Ltd & Anor 2009
(2) ZLR 270 (S) at 273F-274C.
49.
Such ius
retentionis
is pleaded in paragraph 13 of the plea filed on behalf of the fourth
and fifth defendants.
However,
no evidence was led of any improvements which were effected on the
property by the fourth respondent. Indeed, neither the fourth nor
fifth defendants indicated an intention to make any claim based on
improvements during the course of the trial. There was also no
mention of a claim to retain possession of the property in order to
secure payment of compensation by the fifth defendant when he gave
his evidence.
Even
in the closing submissions the fourth defendant did not make any
reference to the lien.
In
the circumstances, there is nothing to sustain ius
retentionis
over the property by the fourth defendant.
50.
The plaintiffs asked for costs on an attorney-client scale against
all the defendants.
I
do not believe that there are any special grounds justifying a
punitive order of costs against all the defendants.
I
am persuaded, though, that such a special award of costs is warranted
against the first defendant.
This
whole dispute arose from his desire to make money using property
which he knew did not belong to him. His conduct clearly, on his own
admission, amounts to fraud. He was not the holder of the shares in
the second plaintiff. He went on to forge the signature of his sister
who was one of the directors of the second plaintiff in order to sell
the shares.
In
any event, by not opposing the claim he must be taken to have
admitted liability to pay the plaintiffs costs on the higher scale.
In
the circumstances, judgment is given in favour of the plaintiffs
against the defendants.
It
is accordingly ordered as follows:
(i)
The purported sale and transfer of shares in Rasar Investments
(Private) Limited by the first defendant to the second defendant is
hereby declared to be illegal and null and void ab initio.
(ii)
The Form No. CR14 presented for filing with the Registrar of
Companies by Mutamangira & Associates on 11 February 2009 in
terms of which the third defendant and James Nqindi were appointed as
directors of the second plaintiff is hereby declared to be null and
void ab initio and the directors of the second defendant prior to the
filing of that Form are hereby declared to be in office.
(iii)
The sale and transfer to the fourth defendant of the immovable
property known as Stand 671 Mount Pleasant Township 20 of Lot 57 of
Mount Pleasant, otherwise known as 3 Justice McNally Close, Mount
Pleasant, Harare, is hereby declared to be null and void, and is set
aside.
(iv)
The Deed of Transfer in terms of which Stand 671 Mount Pleasant
Township 20 of Lot 57 of Mount Pleasant is registered in the name of
the second plaintiff is hereby declared to be valid.
(v)
The Sheriff is hereby directed to sign all documents necessary to
reinstate ownership of the immovable property described in paragraph
4 hereof to the second plaintiff.
(vi)
The fourth and fifth defendants and all persons claiming occupation
through them be and are hereby ordered to vacate Stand 671 Mount
Pleasant Township 20 of Lot 57 of Mount Pleasant, otherwise known as
3 Justice McNally Close, Mount Pleasant, Harare, within fourteen days
from the date of service of this order, failing which the Sheriff be
and is hereby directed to take all steps necessary to eject them from
the property.
(vii)
The first, second, third, fourth and fifth respondent shall pay the
costs of suit jointly and severally the one paying the others to be
absolved, provided that the first defendant's liability is to pay
the costs of suit on an attorney-client scale.
