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:
(a) 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;
(i) 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:
(a) 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;
(b) 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
(c) 2nd
to 5th
defendants jointly and severally, the one paying the others to be
absolved:
(i) 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.”
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. 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.”
For the record, I do not have a
recollection of the case referred to in the letter quoted above or
the facts thereof. 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. The
grounds upon which the recusation of a judge may be sought include
the following:
(a) Interest in the cause,
whether that interest is direct or indirect;
(b) Close relationship or
friendship to one of the parties;
(c) Where the case involves a
colleague attached to the same Bench;
(d) Enmity or hostility towards a
party;
(e) Prior professional interest
of the judge;
(f) Expression of opinions
indicative of bias.
See Erasmus, Superior Court
Practice, pp. A1-14B to A1-14C.
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 I 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.”
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. 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. 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, p. A1-14C. 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.
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. 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. 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.
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.
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. 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. 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.
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.
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. 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.
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. 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. 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. 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.
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.
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 CR
14 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.
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.
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.
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. 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.
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. 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”.
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.
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. 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.
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. 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. 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'.”
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.
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.
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.pp 345-9. They need no further discussion.
In casu, 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. 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.”
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.
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. 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.
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.
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.
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:
1. 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.
2. The Form No. CR 14 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
Dube Manikai & Hwacha, plaintiffs legal practitioners
Costa & Madzonga, second defendants legal practitioners
Scanlen & Holderness, fourth and fifth defendants legal
practitioners
