In
this opposed matter before me, I find the African proverb that “the
best way to eat an elephant in your path is to cut him into little
pieces,” metaphorically apt in this instance (I assume, of course,
that the proverb relates to a dead elephant). I say this because in
order to decide on the matter, at whose nub is the transfer of
certain property to the applicant, I must first unpack and deal, bit
by bit, with the story within a story that stands in the path of
transfer.
An
equally rich African proverb that gives context to the dispute, also
inspired by the elephant, is one that says “one sees all sorts of
knives the day an elephant dies.”
The
property at the heart of the dispute is described as Stand Number
1006, Remainder of Hilton Subdivision of Waterfalls of Salisbury
measuring 1,987 square metres held under Deed of Transfer No.
7666/2001. The first applicant, Eunice Dzangare (hereinafter referred
to as “Dzangare”), bought this property as an undeveloped piece
of land through a company called Wish Properties (hereinafter be
referred to as “Wish”), then represented by its Director Biriam
Wabatagore who is since deceased. This sale is not disputed by Wish
Properties. It is confirmed by the late Mr Wabatagore's widow,
Audrey Wabatagore, who is now the director of Wish Properties.
At
the time of the agreement of sale, and upon payment of the purchase
price, Eunice
Dzangare
was given vacant possession by Wish Properties in 2003. She has
remained in undisturbed possession of the immovable property from
that time and has since developed the property by constructing a
dwelling house.
The
problem arises from the fact that the property was not transferred.
She
has tried to obtain transfer but it became necessary to join Wish
Properties to this application because the agreement with Champion
Constructors was not with her but with Wish Properties.
Wish
Properties says it had bought the immovable property from the first
respondent, Champion Constructors (Private) Limited (hereinafter
referred to as “Champion”) under a written agreement of sale.
Champion Constructors held a Parent Deed to a property which it was
in the process of subdividing into various Stands which included the
one that Wish Properties had purchased and subsequently sold to
Eunice
Dzangare.
The
late Mr Wabatagore was also a legal practitioner. Mrs Wabatagore says
that the agreement of sale between Wish Properties and Champion
Constructors unfortunately cannot be found as the document was
misplaced in the takeover of her late husband's law firm. However,
she draws on various annexures in support of her claim of the
existence of an agreement. The annexures consist largely, though not
exclusively, of various correspondence between Wish Properties
and
Champion Constructor's
then legal practitioners, Messrs Mandizha and Partners who were
handling the issue of the subdivision of the principal property into
Stands.
What
Wish Properties seeks is that the sale to it by Champion Constructors
be recognised so that it, in turn, can transfer the Stand in question
to Eunice
Dzangare
to whom it has since ceded the property. Wish Properties
has ceded its rights to transfer to Eunice
Dzangare.
At
the core of Wish Properties legal argument is that it has proven its
case on a balance of probabilities, this being the standard required
in civil proceedings. It regards the denial of the sale by Champion
Constructors as an afterthought, spurred by a quest to capitalise on
the fact that the agreement cannot be found. Wish Properties points
to the improbability that there was no agreement of sale, to Eunice
Dzangare's
occupation of the property for over nine years, at the very minimum,
without any challenge.
Champion
Constructor's director is Elizabeth Chidavaenzi and is the second
respondent in the matter. She is opposed to the transfer on the basis
of Wish Properties failure to produce the agreement of sale.
She
says that Wish Properties should be put to the strictest proof of the
alleged agreement of sale and that the documents that Mr Wabatagore's
widow relies on do not prove the existence of an agreement of sale.
The cases of H
& Dwitkopipen Agencies & Fourways v De Sousa
1971
(3) SA 941 TPD;
and
U-Freight
Euromar (Private) Limited v Emmanuel Mutebuka HH05-03
were
cited in support of the contention that the authenticity of documents
must be proven.
She
also argues that, at the very least, the first applicant would have
had copies of the agreement of sale.
The
undisturbed occupation by Eunice
Dzangare
is denied on the basis that it has been subject to litigation since
2012 when, instead, of considering an offer to purchase, she
instituted legal proceedings. It is also said that Wish Properties
failed to prove critical elements of an agreement of sale such as the
purchase price and whether it was paid.
At
the heart of her legal argument is that the order sought against
Champion Constructors, as the respondent, is not competent.
Champion
Constructors also premises its argument on the rei
vindicatio
doctrine,
aimed at protecting ownership and based on the principle that an
owner cannot be deprived of his property without his consent. Alspite
Investments (Private) Limited v Tendai Westerhoff HH99-09;
Hwange
Colliery Co. v Savanhu
2013
(1) ZLR 555 (H); Hamtex Investments (Private) Limited v King
2012
(2) ZLR 334 (H)
were
cited
in support of the operation of this principle.
She
also argued that the cession by Wish Properties of personal rights to
the property in question was irregular as it was effected after
pleadings had closed and without the approval of the court.
Wish
Properties, on the other hand, argue that Champion Constructors's
consent was not necessary to effect a valid cession. On its behalf,
counsel drew on section 11(1)(v) of the Deeds Registries Act which
provides an exception in that the court may validly effect transfer
direct to a third person although section 11(2) provides that
liability for any duties still remains. He also emphasised that in
terms of section 11(1)(a) and (b) departures of transfers of land and
cessions from following the sequence of the successive transactions
is permitted in exceptional circumstances.
In
view of the above, the first issue to be dispensed with in order to
decide whether such transfer should be effected against this backdrop
of its legal permissibility is whether the explanation for the
absence of the agreement is acceptable.
The
widow's explanation is that the document was most probably lost in
the process involving the take over of her husband's law firm. The
circumstances that led to the misplacement of the document are
believable and highly probable. Papers and documents may indeed have
been moved or became inadvertently destroyed in the takeover of his
practice following the death of Mr Wabatagore. Documents do sometimes
get lost in lawyers' offices - even without the spectre of
re-arrangements necessitated by death. The explanation is therefore
not one that stretches the imagination.
As
such, secondary evidence can, in my view, be examined to establish
whether there was an agreement.
In
the case of Absa
Bank v Zalvest Twenty (Pty) Limited & Anor
2014
(2) SA 119 (WCC)
it
was accepted that secondary evidence can be produced of the existence
of a contract where the contract had been destroyed or lost. This was
explained as follows…,.:
“In
regard to the substantive law of evidence, the original signed
contract is the best evidence that a valid contract was concluded and
the general rule is thus that the original must be adduced. But there
are exceptions to this rule, one of which is where the original has
been destroyed or cannot be found despite a diligent search. In such
a case, the litigant who relies on the contract can adduce secondary
evidence of its conclusion and terms (see Singh
v Govender Brothers Construction
1986
(3) SA 613 (N) at 616J-617D). There are, in modern law, no degrees of
secondary evidence (ie one does not have to adduce the 'best'
secondary evidence). While a photocopy of the lost original might be
better evidence than oral evidence regarding the conclusion and terms
of the contract, both forms of evidence are admissible once the
litigant is excused from producing the original.”
Placing
the burden on Mrs Wabatagore, as the second applicant's director in
this case, to prove that there was an agreement and to recount its
terms, aims at reducing the dangers of fraud. I am, however,
cognisant of the fact that her late husband was the actual party to
the contract and that the only other party who would have the
contract is the defendant who denies the existence of the contract.
I
examine the evidence chronologically in terms of how it builds up the
story or otherwise of the existence of an agreement.
On
7 August 2003 the deceased's law firm, Wabatagore and Company,
wrote to Messrs Mandizha & Partners, Champion Constructor's
conveyancers, enquiring about the transfer of three Stands from
Champion Constructors
to Wish Properties. One of these Stands was the Stand in dispute.
The
letter indicated therein that the Stands had since been sold and
sought to find out whether the Stands had been fully paid for. It
must be remembered that this was at the height of the
hyper-inflationary environment and it was not unusual for parties to
seek clarifying on top ups of what had been paid particular where
payment had been in instalments and where transfers were still
outstanding. It was also clearly indicated in the letter of 7 August
that one of the purchasers desperately needed to start construction.
This
letter of 7 August was followed up with another one on 7 November
2003 expressing concern at the non-response to its enquiries and
reiterating, again, that the Stands, identified as 1021, 1006 and
1046 had been sold. The letter, like the previous one, was copied to
Eunice Dzangare, one Diana Mapingure and one Mercy Moyo. Another
letter written on 3 March 2004 again lamented that no response had
been received to any of the above-mentioned letters. Again, it
demanded to know the transfer requirements for the three Stands.
Notably,
Champion Constructors key reaction to this correspondence is not a
denial that Messrs Mandizha & Partners were its lawyers. Instead,
the denial is premised on whether the letters were ever received at
Mandizha and Partners.
Champion
Constructors also points out that the threat to report to the Law
Society was not carried out.
Further,
Champion Constructors says that confirmatory affidavits should have
been sought from Mr Mandizha to prove service of these letters.
Champion
Constructors also queries why Wish Properties was still asking if it
owed anything if it had paid.
I
have already stated there was nothing unusual about this enquiry in a
hyperinflationary environment of the time. To bolster this view, on
11 May 2004, Champion Constructors itself wrote to Mr Wabatagore
advising him that the long-awaited capital gains tax, presumably the
cause of the long delay, had now been received from ZIMRA. The letter
also outlined the amount that was outstanding, which Champion
Constructors explained as owing to the accumulation of administrative
costs as a result of inflationary costs for service maintenance. It
asked every client on the Uplands Scheme to pay a stipulated
additional amount to defray unforeseen costs.
In
my view, this further proves that the enquiries to Messrs Mandizha
and Partners had been on point.
Looked
at in totality, the correspondence is convincing and the letters
corroborate each other. They indicate that a sale had indeed taken
place between Champion Constructors and Wish Properties and that
there was every effort to follow up on transfer. Champion
Constructors attack of the letter of May 11, 2004 on the grounds that
it was a general circular and that it should, in any event, have been
addressed to Wish Properties, and not to Mr Wabatagore, makes little
sense since Mr Wabatagore was the Director of Wish Properties who had
represented the latter in the agreement.
Furthermore,
I agree with counsel for Wish Properties argument that once Mr
Wabatagore had received assurances from Champion Constructors
concerning the capital gains tax and outstanding sums to be paid,
there was no reason to believe that the property would not now be
transferred. The letter sufficiently affirms that impediments to
transfer had been addressed. The allegation that the letter is
possibly fabricated is not supported by any evidence.
Champion
Constructors also disputes the Certificate of Development as having
been issued on misrepresentation, but, again, nothing tangible is
said in support of that contention.
Champion
Constructors averments and challenges of these annexures are no more
than vague objections.
The
nature and content of the letters speak far more loudly and
convincingly in support of a sale to Wish Properties than Champion
Constructors bare denials of the existence of an agreement.
The
inherent improbability of the sale not having taken place to Wish
Properties is also supported by the fact that no evidence was placed
before this court which shows that Champion Constructors has ever
made any effort to vindicate its rights. Instead, at every turn, it
has been Eunice Dzangare who has persistently taken action to enforce
her rights.
The
more recent letter, of August 2013, by Champion Constructors to the
Sherriff, in which it indicated that it had long since subdivided the
whole property and sold all Stands to individual owners, most who
have already developed the Stands, is pertinent.
Champion
Constructors cannot now simply wish this letter away because it suits
it on the basis that was it written in respect of its Stands which do
not form part of this litigation. It is a self-serving denial. Given
its position that there was no agreement with Wish Properties
regarding the Stand in question, it could just as easily have
produced cogent evidence relating to whom it sold the Stand in
question to and when.
Champion
Constructors would however have had to explain how and why Eunice
Dzangare has been on the property since 2003 with no disturbance.
To
my mind, Champion Constructors is clearly taking advantage of the
lost agreement.
Cases
of developers failing to pass transfer have become an increasing
headache before the courts. Where evidence supports, on a balance of
probabilities, that the property in question was sold to a party, and
the sale concluded, the court's primary concern is to ensure that
justice is done between the parties.
Rather
than lie about what she does not know, Mrs Wabatagore stuck to
attesting to facts known to her and to producing what secondary
evidence was in her possession.
On
a balance of probabilities, the evidence averred points to an
agreement between Wish Properties and Champion Constructors. In the
circumstances, I conclude that the property should be transferred to
Eunice Dzangare.
I
grant the order as follows:
1.
The application be and is hereby granted.
2.
The first respondent shall sign transfer papers and take all
necessary steps to pass transfer of the property called Stand 1006 of
Certain Piece of Land Situate in the District of Salisbury, called
remainder of Hilton of Subdivision A of Waterfall measuring 1,987
square metres, held under Deed of Transfer No. 7666/2001, into the
first applicant's name, within 7 days of the service of this court
order upon them, failing which the Sheriff for Zimbabwe or his lawful
Deputy be and is hereby authorised to sign all transfer papers on the
first respondent's behalf.
3.
The second respondent shall pay costs of this application on a legal
practitioner and client scale.
