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SC87-20 - CECK ENTERPRISES PL vs MARIA SITHOLE and MATHIAS SITHOLE (represented by TAKURA MUKWESHA as Executrix Dative) and REGISTRAR OF DEEDS and MASTER OF THE HIGH COURT

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Appealed


Procedural Law-viz citation re party acting in an official capacity.
Family Law-viz division of the assets of the spouses re prejudicial disposal of matrimonial property.
Law of Property-viz res litigiosa re the anti-dissipation interdict.
Law of Property-viz res litigiosa re judicial caveat.
Law of Property-viz res litigiosa re examiner's caveat.
Procedural Law-viz final orders re the principle of finality in litigation iro sitting on a provisional order.
Procedural Law-viz final orders re the principle of finality to litigation iro sitting on an interim interdict.
Procedural Law-viz final orders re sitting on a provisional order iro superannuation.
Procedural Law-viz final orders re sitting on an interim interdict iro super-annuation.
Law of Property-viz proof of title in immovable property re registered rights iro cancellation of registered rights.
Law of Property-viz passing of ownership re implied lawful right of ownership.
Law of Property-viz proof of title re immovable property iro registered rights.
Procedural Law-viz rules of evidence re evidence on behalf of a corporate entity iro institutional memory.
Legal Practitioners-viz professional ethics.
Procedural Law-viz nullity of acts.
Procedural Law-viz pleadings re non-pleaded issues iro matters raised for the first time on appeal.
Procedural Law-viz pleadings re matters not specifically pleaded iro new issues introduced for the first time on appeal.
Procedural Law-viz appeal re grounds of appeal iro fresh matters raised for the first time on appeal.
Procedural Law-viz appeal re grounds for appeal iro issues raised for the first time on appeal.
Procedural Law-viz appeal re the exercise of discretion by the trial court iro terminated proceedings.
Procedural Law-viz final orders re relief overriding an extant order of the court.
Law of Property-viz vindicatory action re claim of right.
Law of Property-viz rei vindicatio re claim of right.

Passing of Ownership, Proof of Title and Jus in re Propria re: Implied Lawful Right of Ownership


This is an appeal against the whole judgement of the High Court handed down on 14 March 2018 dismissing the appellant's counter claim against the first respondent.

FACTUAL BACKGROUND

The first and the second respondents were married and later on divorced. They owned a property, namely, Stand No.2395 Glen View (“the property”). Unbeknown to the first respondent, the appellant purchased the property from the second respondent in or about September 1997. In the court a quo, the first respondent averred that she only became aware of the sale when 'strangers came to view the house' pursuant to the offer they had received from the second respondent.

The first respondent accordingly, on 11 September 1997, successfully filed an urgent chamber application seeking a provisional order interdicting the second respondent from selling, ceding or otherwise disposing of his right, title and interest in the property pending the hearing of an appeal that she had noted in the divorce proceedings. The order, which was not opposed by the second respondent, who was then alive, also interdicted the third respondent from registering or giving effect to any sale or disposal of the second respondent's title in the said property. This was followed by a letter addressed to the Registrar of the High Court, on behalf of the first respondent, requesting that a caveat be registered over the Title Deed of the property (it is noted in this respect that this letter should properly have been addressed to the Registrar of Deeds).

The second respondent, nevertheless, proceeded to transfer the said property to the appellant on 3 November 1997, contrary to the terms of the order interdicting him from doing so. The transfer was executed through the same law firm that had failed, on his behalf, to oppose the application that culminated in the order interdicting him from effecting transfer of the property.

The appellant, thereafter, attempted to enforce its perceived rights in the property by seeking the eviction therefrom of the first respondent. The latter immediately filed an urgent chamber application and obtained a provisional order interdicting the appellant from evicting her from the property or interfering with her peaceful occupation thereof in any way.

In May 2002, the appellant filed a counter application seeking an order compelling the first respondent to deliver to it the title deeds of the property. The first respondent, in response, then filed an application a quo for confirmation of the provisional order granted in her favour in 1997. The appellant opposed the application and averred that it was not aware of the 1997 Order interdicting the second respondent from selling or otherwise disposing of the property.

The court a quo held that notwithstanding the fact that the appellant may have been an innocent purchaser, the sale and transfer were done in breach of a court order, and, therefore, of no legal force or effect. The court found the second respondent's non-compliance with the provisional order in question to have been wilful and mala fide. In the result, the counter claim was dismissed and the court confirmed the 1997 provisional order. The court also set aside the sale of the property to the appellant and ordered cancellation of the Title Deed issued in favour of the appellant pursuant to the sale to it of the property.

Aggrieved by this decision, the appellant filed this appeal on the following grounds:-

1. The court a quo erred in cancelling the title deeds in the name of the appellant notwithstanding the fact that the sale and subsequent transfer of the property to it was valid in the circumstances of the case.

2. The court a quo erred in failing to consider the position of the appellant as an innocent purchaser.

3. The court a quo grossly misdirected itself in making an order for costs against the appellant in view of the circumstances of this case.

I will consider these grounds in relation to the evidence before the court.

WHETHER OR NOT THE COURT A QUO ERRED IN CANCELLING THE TITLE DEED IN THE NAME OF THE APPELLANT

In its first ground of appeal, the appellant avers that the court a quo erred in cancelling the title deed in the name of the appellant notwithstanding the fact that the sale and subsequent transfer of the property to it was valid in the circumstances. This ground will be discussed together with the second ground of appeal which contends that the court a quo failed to consider the position of the appellant as an innocent purchaser.

It is not in dispute that the sale of the property was effected sometime in September 1997. The order in HC8638/97 interdicting the second respondent from selling or otherwise disposing of his right, title and interest in the property pending the finalisation of the appeal by the first respondent in the divorce proceedings, was only granted on 8 October 1997. That being the case, the sale, which was conducted prior to the granting of the provisional order in question, was lawful as it did not violate the terms of this or any other order of the court.

In this respect, the court a quo's finding that both the sale and transfer of the property to the appellant were null and void was, in part, misconceived, as it was only the transfer which was afflicted by this defect. Accordingly, paragraph 3 of the Order of the court a quo, purporting to set aside the sale of the property, was incompetent and must be vacated.

The same, however, cannot be said of the transfer of the property to the appellant. It is evident from the record that the property was transferred on 3 November 2017. This was well after the same order in HC8638/97 interdicted the third respondent in casu from registering or giving effect to any sale, cession or encumbrance of the first respondent's rights in the property in violation of the interdict issued against the first respondent.

The Order reads as follows:-

“That the second Respondent (third respondent in casu) be and is hereby interdicted and restrained from registering or in any way giving effect to any sale, cession, encumbrance or disposal by any means of first respondents' right, title and interest in Stand No.2395 Glen View Township of Glen View situate in the District of Salisbury.”...,.

While the sale of the property to the appellant was done before the provisional order interdicting him from so selling the property was issued, the second respondent subsequently knew of the provisional order and its terms. He ought not to have proceeded to have transfer of the property to the appellant effected.

This conduct was clearly mala fide.

Division of Assets of the Spouses re: Prejudicial Disposal, Alienation or Concealment of Assets & Marital Property Regime


This is an appeal against the whole judgement of the High Court handed down on 14 March 2018 dismissing the appellant's counter claim against the first respondent.

FACTUAL BACKGROUND

The first and the second respondents were married and later on divorced. They owned a property, namely, Stand No.2395 Glen View (“the property”). Unbeknown to the first respondent, the appellant purchased the property from the second respondent in or about September 1997. In the court a quo, the first respondent averred that she only became aware of the sale when 'strangers came to view the house' pursuant to the offer they had received from the second respondent.

The first respondent accordingly, on 11 September 1997, successfully filed an urgent chamber application seeking a provisional order interdicting the second respondent from selling, ceding or otherwise disposing of his right, title and interest in the property pending the hearing of an appeal that she had noted in the divorce proceedings. The order, which was not opposed by the second respondent, who was then alive, also interdicted the third respondent from registering or giving effect to any sale or disposal of the second respondent's title in the said property. This was followed by a letter addressed to the Registrar of the High Court, on behalf of the first respondent, requesting that a caveat be registered over the Title Deed of the property (it is noted in this respect that this letter should properly have been addressed to the Registrar of Deeds).

The second respondent, nevertheless, proceeded to transfer the said property to the appellant on 3 November 1997, contrary to the terms of the order interdicting him from doing so. The transfer was executed through the same law firm that had failed, on his behalf, to oppose the application that culminated in the order interdicting him from effecting transfer of the property.

The appellant, thereafter, attempted to enforce its perceived rights in the property by seeking the eviction therefrom of the first respondent. The latter immediately filed an urgent chamber application and obtained a provisional order interdicting the appellant from evicting her from the property or interfering with her peaceful occupation thereof in any way.

In May 2002, the appellant filed a counter application seeking an order compelling the first respondent to deliver to it the title deeds of the property. The first respondent, in response, then filed an application a quo for confirmation of the provisional order granted in her favour in 1997. The appellant opposed the application and averred that it was not aware of the 1997 Order interdicting the second respondent from selling or otherwise disposing of the property.

The court a quo held that notwithstanding the fact that the appellant may have been an innocent purchaser, the sale and transfer were done in breach of a court order, and, therefore, of no legal force or effect. The court found the second respondent's non-compliance with the provisional order in question to have been wilful and mala fide. In the result, the counter claim was dismissed and the court confirmed the 1997 provisional order. The court also set aside the sale of the property to the appellant and ordered cancellation of the Title Deed issued in favour of the appellant pursuant to the sale to it of the property.

Aggrieved by this decision, the appellant filed this appeal on the following grounds:-

1. The court a quo erred in cancelling the title deeds in the name of the appellant notwithstanding the fact that the sale and subsequent transfer of the property to it was valid in the circumstances of the case.

2. The court a quo erred in failing to consider the position of the appellant as an innocent purchaser.

3. The court a quo grossly misdirected itself in making an order for costs against the appellant in view of the circumstances of this case.

I will consider these grounds in relation to the evidence before the court.

WHETHER OR NOT THE COURT A QUO ERRED IN CANCELLING THE TITLE DEED IN THE NAME OF THE APPELLANT

In its first ground of appeal, the appellant avers that the court a quo erred in cancelling the title deed in the name of the appellant notwithstanding the fact that the sale and subsequent transfer of the property to it was valid in the circumstances. This ground will be discussed together with the second ground of appeal which contends that the court a quo failed to consider the position of the appellant as an innocent purchaser.

It is not in dispute that the sale of the property was effected sometime in September 1997. The order in HC8638/97 interdicting the second respondent from selling or otherwise disposing of his right, title and interest in the property pending the finalisation of the appeal by the first respondent in the divorce proceedings, was only granted on 8 October 1997. That being the case, the sale, which was conducted prior to the granting of the provisional order in question, was lawful as it did not violate the terms of this or any other order of the court.

In this respect, the court a quo's finding that both the sale and transfer of the property to the appellant were null and void was, in part, misconceived, as it was only the transfer which was afflicted by this defect. Accordingly, paragraph 3 of the Order of the court a quo, purporting to set aside the sale of the property, was incompetent and must be vacated.

The same, however, cannot be said of the transfer of the property to the appellant. It is evident from the record that the property was transferred on 3 November 2017. This was well after the same order in HC8638/97 interdicted the third respondent in casu from registering or giving effect to any sale, cession or encumbrance of the first respondent's rights in the property in violation of the interdict issued against the first respondent.

The Order reads as follows:-

“That the second Respondent (third respondent in casu) be and is hereby interdicted and restrained from registering or in any way giving effect to any sale, cession, encumbrance or disposal by any means of first respondents' right, title and interest in Stand No.2395 Glen View Township of Glen View situate in the District of Salisbury.”

The appellant, in a supporting affidavit deposed to by one of its directors, Charles Siziba, indicated that the appellant became aware, soon after the transfer of the property to it was effected, that the transaction had been done in violation of the court order in HC8638/97 interdicting the third respondent from transferring the property to a third party. Charles Siziba also averred that the second respondent's legal practitioners (Hove, Dzimba and Associates) were fully aware of the order interdicting the third respondent from effecting transfer of the said property, but, nevertheless, proceeded to have the transfer into the appellant's name, effected.

It is noted, in this respect, that, despite the Registrar of Deeds having been cited in HC8638/97, no caveat had been registered against the title deed of the property, to alert registry officers to the fact that an interdict against the registration of transfer of the property had been issued against the Registrar. As already noted, this was because the first respondent's legal practitioners misguidedly addressed the request for registration of the caveat to the Registrar of the High Court instead of the Registrar of Deeds. Be that as it may, the fact remained that the transfer of the property to the appellant was effected in direct violation of an extant order of the court.

There is cogent authority to the effect that where the transfer of property is done in defiance of an order of court, the transferee obtains defective title thereto. In Gong v Mayor Logistics (Pvt) Ltd SC02-17, the court stated as follows…,:-

“At this juncture, it does not seem to matter to me whether or not the appellant was the first purchaser as he alleges. What is material at this stage is that he obtained defective invalid title in defiance of a valid court order and caveat. It is an established principle of our law that anything done contrary to the law is a nullity.

For that reason, no fault can be ascribed to the learned judge's finding in the court a quo that the conduct of the appellant and his lawyer, in obtaining registration of the disputed property in the face of a court order and caveat to the contrary was reprehensible. On the basis of such finding the appeal can only fail.”…,.

These sentiments are eminently apposite in casu.

The second respondent, through his legal practitioners, reprehensibly transferred the property to the appellant in defiance of an extant court order. On the basis of the law, and the authority cited, no valid title could be transferred to the appellant by the second respondent. The court a quo, in my view, correctly opined that this result was not changed by the fact that the appeal pending before the Magistrates' Court at the time the provisional order was granted, had subsequently been determined. The court reasoned that the judgment of the Magistrates' Court did not make lawful the transfer of the property to the appellant, in circumstances where it was done contrary to an extant order of the court. While the sale of the property to the appellant was done before the provisional order interdicting him from so selling the property was issued, the second respondent subsequently knew of the provisional order and its terms. He ought not to have proceeded to have transfer of the property to the appellant effected.

This conduct was clearly mala fide.

In view of the foregoing, I find that the court a quo properly confirmed the provisional order in question. By the same token, the court's decision, dismissing the appellant's claim, is beyond fault. The appellant's title to the property was tainted with an illegality and therefore void. A nullity is like an event that never happened in the eyes of the law. The words of LORD DENNING in Macfoy v United Africa Co. Ltd [1961] 3 All ER 1169 (PC)…, are apposite;

“If an act is void, then it is, in law, a nullity. It is not only bad but incurably bad. There is no need for an order of the court for it to be set aside, it is automatically null and void without more ado, although it is sometimes convenient to have a court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

As stated in Gong v Mayor Logistics (Pvt) Ltd SC02-17 the appellant's predicament cannot be salvaged by the fact that he was an innocent purchaser of the property as of the date the sale was effected. The transfer into its name was a nullity.

I find, accordingly, that the appellant's first and second grounds of appeal are devoid of merit....,.

I have found that the transfer of the disputed property to the appellant was done contrary to an order of the court a quo. The transfer being a nullity, no legal right can flow from it....,.

The appeal accordingly ought to be dismissed. Costs will follow the cause.

It is in the premises ordered as follows:-

“The appeal be and is dismissed with costs.”

Passing of Ownership, Proof of Title, Personal Rights and Cancellation or Diminution of Real Rights re: Immovable Property


This is an appeal against the whole judgement of the High Court handed down on 14 March 2018 dismissing the appellant's counter claim against the first respondent.

FACTUAL BACKGROUND

The first and the second respondents were married and later on divorced. They owned a property, namely, Stand No.2395 Glen View (“the property”). Unbeknown to the first respondent, the appellant purchased the property from the second respondent in or about September 1997. In the court a quo, the first respondent averred that she only became aware of the sale when 'strangers came to view the house' pursuant to the offer they had received from the second respondent.

The first respondent accordingly, on 11 September 1997, successfully filed an urgent chamber application seeking a provisional order interdicting the second respondent from selling, ceding or otherwise disposing of his right, title and interest in the property pending the hearing of an appeal that she had noted in the divorce proceedings. The order, which was not opposed by the second respondent, who was then alive, also interdicted the third respondent from registering or giving effect to any sale or disposal of the second respondent's title in the said property. This was followed by a letter addressed to the Registrar of the High Court, on behalf of the first respondent, requesting that a caveat be registered over the Title Deed of the property (it is noted in this respect that this letter should properly have been addressed to the Registrar of Deeds).

The second respondent, nevertheless, proceeded to transfer the said property to the appellant on 3 November 1997, contrary to the terms of the order interdicting him from doing so. The transfer was executed through the same law firm that had failed, on his behalf, to oppose the application that culminated in the order interdicting him from effecting transfer of the property.

The appellant, thereafter, attempted to enforce its perceived rights in the property by seeking the eviction therefrom of the first respondent. The latter immediately filed an urgent chamber application and obtained a provisional order interdicting the appellant from evicting her from the property or interfering with her peaceful occupation thereof in any way.

In May 2002, the appellant filed a counter application seeking an order compelling the first respondent to deliver to it the title deeds of the property. The first respondent, in response, then filed an application a quo for confirmation of the provisional order granted in her favour in 1997. The appellant opposed the application and averred that it was not aware of the 1997 Order interdicting the second respondent from selling or otherwise disposing of the property.

The court a quo held that notwithstanding the fact that the appellant may have been an innocent purchaser, the sale and transfer were done in breach of a court order, and, therefore, of no legal force or effect. The court found the second respondent's non-compliance with the provisional order in question to have been wilful and mala fide. In the result, the counter claim was dismissed and the court confirmed the 1997 provisional order. The court also set aside the sale of the property to the appellant and ordered cancellation of the Title Deed issued in favour of the appellant pursuant to the sale to it of the property.

Aggrieved by this decision, the appellant filed this appeal on the following grounds:-

1. The court a quo erred in cancelling the title deeds in the name of the appellant notwithstanding the fact that the sale and subsequent transfer of the property to it was valid in the circumstances of the case.

2. The court a quo erred in failing to consider the position of the appellant as an innocent purchaser.

3. The court a quo grossly misdirected itself in making an order for costs against the appellant in view of the circumstances of this case.

I will consider these grounds in relation to the evidence before the court.

WHETHER OR NOT THE COURT A QUO ERRED IN CANCELLING THE TITLE DEED IN THE NAME OF THE APPELLANT

In its first ground of appeal, the appellant avers that the court a quo erred in cancelling the title deed in the name of the appellant notwithstanding the fact that the sale and subsequent transfer of the property to it was valid in the circumstances. This ground will be discussed together with the second ground of appeal which contends that the court a quo failed to consider the position of the appellant as an innocent purchaser.

It is not in dispute that the sale of the property was effected sometime in September 1997. The order in HC8638/97 interdicting the second respondent from selling or otherwise disposing of his right, title and interest in the property pending the finalisation of the appeal by the first respondent in the divorce proceedings, was only granted on 8 October 1997. That being the case, the sale, which was conducted prior to the granting of the provisional order in question, was lawful as it did not violate the terms of this or any other order of the court.

In this respect, the court a quo's finding that both the sale and transfer of the property to the appellant were null and void was, in part, misconceived, as it was only the transfer which was afflicted by this defect. Accordingly, paragraph 3 of the Order of the court a quo, purporting to set aside the sale of the property, was incompetent and must be vacated.

The same, however, cannot be said of the transfer of the property to the appellant. It is evident from the record that the property was transferred on 3 November 2017. This was well after the same order in HC8638/97 interdicted the third respondent in casu from registering or giving effect to any sale, cession or encumbrance of the first respondent's rights in the property in violation of the interdict issued against the first respondent.

The Order reads as follows:-

“That the second Respondent (third respondent in casu) be and is hereby interdicted and restrained from registering or in any way giving effect to any sale, cession, encumbrance or disposal by any means of first respondents' right, title and interest in Stand No.2395 Glen View Township of Glen View situate in the District of Salisbury.”

The appellant, in a supporting affidavit deposed to by one of its directors, Charles Siziba, indicated that the appellant became aware, soon after the transfer of the property to it was effected, that the transaction had been done in violation of the court order in HC8638/97 interdicting the third respondent from transferring the property to a third party. Charles Siziba also averred that the second respondent's legal practitioners (Hove, Dzimba and Associates) were fully aware of the order interdicting the third respondent from effecting transfer of the said property, but, nevertheless, proceeded to have the transfer into the appellant's name, effected.

It is noted, in this respect, that, despite the Registrar of Deeds having been cited in HC8638/97, no caveat had been registered against the title deed of the property, to alert registry officers to the fact that an interdict against the registration of transfer of the property had been issued against the Registrar. As already noted, this was because the first respondent's legal practitioners misguidedly addressed the request for registration of the caveat to the Registrar of the High Court instead of the Registrar of Deeds. Be that as it may, the fact remained that the transfer of the property to the appellant was effected in direct violation of an extant order of the court.

There is cogent authority to the effect that where the transfer of property is done in defiance of an order of court, the transferee obtains defective title thereto. In Gong v Mayor Logistics (Pvt) Ltd SC02-17, the court stated as follows…,:-

“At this juncture, it does not seem to matter to me whether or not the appellant was the first purchaser as he alleges. What is material at this stage is that he obtained defective invalid title in defiance of a valid court order and caveat. It is an established principle of our law that anything done contrary to the law is a nullity.

For that reason, no fault can be ascribed to the learned judge's finding in the court a quo that the conduct of the appellant and his lawyer, in obtaining registration of the disputed property in the face of a court order and caveat to the contrary was reprehensible. On the basis of such finding the appeal can only fail.”…,.

These sentiments are eminently apposite in casu.

The second respondent, through his legal practitioners, reprehensibly transferred the property to the appellant in defiance of an extant court order. On the basis of the law, and the authority cited, no valid title could be transferred to the appellant by the second respondent. The court a quo, in my view, correctly opined that this result was not changed by the fact that the appeal pending before the Magistrates' Court at the time the provisional order was granted, had subsequently been determined. The court reasoned that the judgment of the Magistrates' Court did not make lawful the transfer of the property to the appellant, in circumstances where it was done contrary to an extant order of the court. While the sale of the property to the appellant was done before the provisional order interdicting him from so selling the property was issued, the second respondent subsequently knew of the provisional order and its terms. He ought not to have proceeded to have transfer of the property to the appellant effected.

This conduct was clearly mala fide.

In view of the foregoing, I find that the court a quo properly confirmed the provisional order in question. By the same token, the court's decision, dismissing the appellant's claim, is beyond fault. The appellant's title to the property was tainted with an illegality and therefore void. A nullity is like an event that never happened in the eyes of the law. The words of LORD DENNING in Macfoy v United Africa Co. Ltd [1961] 3 All ER 1169 (PC)…, are apposite;

“If an act is void, then it is, in law, a nullity. It is not only bad but incurably bad. There is no need for an order of the court for it to be set aside, it is automatically null and void without more ado, although it is sometimes convenient to have a court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

As stated in Gong v Mayor Logistics (Pvt) Ltd SC02-17 the appellant's predicament cannot be salvaged by the fact that he was an innocent purchaser of the property as of the date the sale was effected. The transfer into its name was a nullity.

I find, accordingly, that the appellant's first and second grounds of appeal are devoid of merit....,.

I have found that the transfer of the disputed property to the appellant was done contrary to an order of the court a quo. The transfer being a nullity, no legal right can flow from it....,.

The appeal accordingly ought to be dismissed. Costs will follow the cause.

It is in the premises ordered as follows:-

“The appeal be and is dismissed with costs.”

Res Litigiosa, Caveats, the Anti-Dissipation Interdict and Liability for Disposal of Encumbered Property


This is an appeal against the whole judgement of the High Court handed down on 14 March 2018 dismissing the appellant's counter claim against the first respondent.

FACTUAL BACKGROUND

The first and the second respondents were married and later on divorced. They owned a property, namely, Stand No.2395 Glen View (“the property”). Unbeknown to the first respondent, the appellant purchased the property from the second respondent in or about September 1997. In the court a quo, the first respondent averred that she only became aware of the sale when 'strangers came to view the house' pursuant to the offer they had received from the second respondent.

The first respondent accordingly, on 11 September 1997, successfully filed an urgent chamber application seeking a provisional order interdicting the second respondent from selling, ceding or otherwise disposing of his right, title and interest in the property pending the hearing of an appeal that she had noted in the divorce proceedings. The order, which was not opposed by the second respondent, who was then alive, also interdicted the third respondent from registering or giving effect to any sale or disposal of the second respondent's title in the said property. This was followed by a letter addressed to the Registrar of the High Court, on behalf of the first respondent, requesting that a caveat be registered over the Title Deed of the property (it is noted in this respect that this letter should properly have been addressed to the Registrar of Deeds).

The second respondent, nevertheless, proceeded to transfer the said property to the appellant on 3 November 1997, contrary to the terms of the order interdicting him from doing so. The transfer was executed through the same law firm that had failed, on his behalf, to oppose the application that culminated in the order interdicting him from effecting transfer of the property.

The appellant, thereafter, attempted to enforce its perceived rights in the property by seeking the eviction therefrom of the first respondent. The latter immediately filed an urgent chamber application and obtained a provisional order interdicting the appellant from evicting her from the property or interfering with her peaceful occupation thereof in any way.

In May 2002, the appellant filed a counter application seeking an order compelling the first respondent to deliver to it the title deeds of the property. The first respondent, in response, then filed an application a quo for confirmation of the provisional order granted in her favour in 1997. The appellant opposed the application and averred that it was not aware of the 1997 Order interdicting the second respondent from selling or otherwise disposing of the property.

The court a quo held that notwithstanding the fact that the appellant may have been an innocent purchaser, the sale and transfer were done in breach of a court order, and, therefore, of no legal force or effect. The court found the second respondent's non-compliance with the provisional order in question to have been wilful and mala fide. In the result, the counter claim was dismissed and the court confirmed the 1997 provisional order. The court also set aside the sale of the property to the appellant and ordered cancellation of the Title Deed issued in favour of the appellant pursuant to the sale to it of the property.

Aggrieved by this decision, the appellant filed this appeal on the following grounds:-

1. The court a quo erred in cancelling the title deeds in the name of the appellant notwithstanding the fact that the sale and subsequent transfer of the property to it was valid in the circumstances of the case.

2. The court a quo erred in failing to consider the position of the appellant as an innocent purchaser.

3. The court a quo grossly misdirected itself in making an order for costs against the appellant in view of the circumstances of this case.

I will consider these grounds in relation to the evidence before the court.

WHETHER OR NOT THE COURT A QUO ERRED IN CANCELLING THE TITLE DEED IN THE NAME OF THE APPELLANT

In its first ground of appeal, the appellant avers that the court a quo erred in cancelling the title deed in the name of the appellant notwithstanding the fact that the sale and subsequent transfer of the property to it was valid in the circumstances. This ground will be discussed together with the second ground of appeal which contends that the court a quo failed to consider the position of the appellant as an innocent purchaser.

It is not in dispute that the sale of the property was effected sometime in September 1997. The order in HC8638/97 interdicting the second respondent from selling or otherwise disposing of his right, title and interest in the property pending the finalisation of the appeal by the first respondent in the divorce proceedings, was only granted on 8 October 1997. That being the case, the sale, which was conducted prior to the granting of the provisional order in question, was lawful as it did not violate the terms of this or any other order of the court.

In this respect, the court a quo's finding that both the sale and transfer of the property to the appellant were null and void was, in part, misconceived, as it was only the transfer which was afflicted by this defect. Accordingly, paragraph 3 of the Order of the court a quo, purporting to set aside the sale of the property, was incompetent and must be vacated.

The same, however, cannot be said of the transfer of the property to the appellant. It is evident from the record that the property was transferred on 3 November 2017. This was well after the same order in HC8638/97 interdicted the third respondent in casu from registering or giving effect to any sale, cession or encumbrance of the first respondent's rights in the property in violation of the interdict issued against the first respondent.

The Order reads as follows:-

“That the second Respondent (third respondent in casu) be and is hereby interdicted and restrained from registering or in any way giving effect to any sale, cession, encumbrance or disposal by any means of first respondents' right, title and interest in Stand No.2395 Glen View Township of Glen View situate in the District of Salisbury.”

The appellant, in a supporting affidavit deposed to by one of its directors, Charles Siziba, indicated that the appellant became aware, soon after the transfer of the property to it was effected, that the transaction had been done in violation of the court order in HC8638/97 interdicting the third respondent from transferring the property to a third party. Charles Siziba also averred that the second respondent's legal practitioners (Hove, Dzimba and Associates) were fully aware of the order interdicting the third respondent from effecting transfer of the said property, but, nevertheless, proceeded to have the transfer into the appellant's name, effected.

It is noted, in this respect, that, despite the Registrar of Deeds having been cited in HC8638/97, no caveat had been registered against the title deed of the property, to alert registry officers to the fact that an interdict against the registration of transfer of the property had been issued against the Registrar. As already noted, this was because the first respondent's legal practitioners misguidedly addressed the request for registration of the caveat to the Registrar of the High Court instead of the Registrar of Deeds. Be that as it may, the fact remained that the transfer of the property to the appellant was effected in direct violation of an extant order of the court.

There is cogent authority to the effect that where the transfer of property is done in defiance of an order of court, the transferee obtains defective title thereto. In Gong v Mayor Logistics (Pvt) Ltd SC02-17, the court stated as follows…,:-

“At this juncture, it does not seem to matter to me whether or not the appellant was the first purchaser as he alleges. What is material at this stage is that he obtained defective invalid title in defiance of a valid court order and caveat. It is an established principle of our law that anything done contrary to the law is a nullity.

For that reason, no fault can be ascribed to the learned judge's finding in the court a quo that the conduct of the appellant and his lawyer, in obtaining registration of the disputed property in the face of a court order and caveat to the contrary was reprehensible. On the basis of such finding the appeal can only fail.”…,.

These sentiments are eminently apposite in casu.

The second respondent, through his legal practitioners, reprehensibly transferred the property to the appellant in defiance of an extant court order. On the basis of the law, and the authority cited, no valid title could be transferred to the appellant by the second respondent. The court a quo, in my view, correctly opined that this result was not changed by the fact that the appeal pending before the Magistrates' Court at the time the provisional order was granted, had subsequently been determined. The court reasoned that the judgment of the Magistrates' Court did not make lawful the transfer of the property to the appellant, in circumstances where it was done contrary to an extant order of the court. While the sale of the property to the appellant was done before the provisional order interdicting him from so selling the property was issued, the second respondent subsequently knew of the provisional order and its terms. He ought not to have proceeded to have transfer of the property to the appellant effected.

This conduct was clearly mala fide.

In view of the foregoing, I find that the court a quo properly confirmed the provisional order in question. By the same token, the court's decision, dismissing the appellant's claim, is beyond fault. The appellant's title to the property was tainted with an illegality and therefore void. A nullity is like an event that never happened in the eyes of the law. The words of LORD DENNING in Macfoy v United Africa Co. Ltd [1961] 3 All ER 1169 (PC)…, are apposite;

“If an act is void, then it is, in law, a nullity. It is not only bad but incurably bad. There is no need for an order of the court for it to be set aside, it is automatically null and void without more ado, although it is sometimes convenient to have a court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

As stated in Gong v Mayor Logistics (Pvt) Ltd SC02-17 the appellant's predicament cannot be salvaged by the fact that he was an innocent purchaser of the property as of the date the sale was effected. The transfer into its name was a nullity.

I find, accordingly, that the appellant's first and second grounds of appeal are devoid of merit....,.

I have found that the transfer of the disputed property to the appellant was done contrary to an order of the court a quo. The transfer being a nullity, no legal right can flow from it....,.

The appeal accordingly ought to be dismissed. Costs will follow the cause.

It is in the premises ordered as follows:-

“The appeal be and is dismissed with costs.”

Vindicatory Action or Rei Vindicatio re: Approach, Ownership Rights, Claim of Right, Estoppel and Lien


This is an appeal against the whole judgement of the High Court handed down on 14 March 2018 dismissing the appellant's counter claim against the first respondent.

FACTUAL BACKGROUND

The first and the second respondents were married and later on divorced. They owned a property, namely, Stand No.2395 Glen View (“the property”). Unbeknown to the first respondent, the appellant purchased the property from the second respondent in or about September 1997. In the court a quo, the first respondent averred that she only became aware of the sale when 'strangers came to view the house' pursuant to the offer they had received from the second respondent.

The first respondent accordingly, on 11 September 1997, successfully filed an urgent chamber application seeking a provisional order interdicting the second respondent from selling, ceding or otherwise disposing of his right, title and interest in the property pending the hearing of an appeal that she had noted in the divorce proceedings. The order, which was not opposed by the second respondent, who was then alive, also interdicted the third respondent from registering or giving effect to any sale or disposal of the second respondent's title in the said property. This was followed by a letter addressed to the Registrar of the High Court, on behalf of the first respondent, requesting that a caveat be registered over the Title Deed of the property (it is noted in this respect that this letter should properly have been addressed to the Registrar of Deeds).

The second respondent, nevertheless, proceeded to transfer the said property to the appellant on 3 November 1997, contrary to the terms of the order interdicting him from doing so. The transfer was executed through the same law firm that had failed, on his behalf, to oppose the application that culminated in the order interdicting him from effecting transfer of the property.

The appellant, thereafter, attempted to enforce its perceived rights in the property by seeking the eviction therefrom of the first respondent. The latter immediately filed an urgent chamber application and obtained a provisional order interdicting the appellant from evicting her from the property or interfering with her peaceful occupation thereof in any way.

In May 2002, the appellant filed a counter application seeking an order compelling the first respondent to deliver to it the title deeds of the property. The first respondent, in response, then filed an application a quo for confirmation of the provisional order granted in her favour in 1997. The appellant opposed the application and averred that it was not aware of the 1997 Order interdicting the second respondent from selling or otherwise disposing of the property.

The court a quo held that notwithstanding the fact that the appellant may have been an innocent purchaser, the sale and transfer were done in breach of a court order, and, therefore, of no legal force or effect. The court found the second respondent's non-compliance with the provisional order in question to have been wilful and mala fide. In the result, the counter claim was dismissed and the court confirmed the 1997 provisional order. The court also set aside the sale of the property to the appellant and ordered cancellation of the Title Deed issued in favour of the appellant pursuant to the sale to it of the property.

Aggrieved by this decision, the appellant filed this appeal on the following grounds:-

1. The court a quo erred in cancelling the title deeds in the name of the appellant notwithstanding the fact that the sale and subsequent transfer of the property to it was valid in the circumstances of the case.

2. The court a quo erred in failing to consider the position of the appellant as an innocent purchaser.

3. The court a quo grossly misdirected itself in making an order for costs against the appellant in view of the circumstances of this case.

I will consider these grounds in relation to the evidence before the court.

WHETHER OR NOT THE COURT A QUO ERRED IN CANCELLING THE TITLE DEED IN THE NAME OF THE APPELLANT

In its first ground of appeal, the appellant avers that the court a quo erred in cancelling the title deed in the name of the appellant notwithstanding the fact that the sale and subsequent transfer of the property to it was valid in the circumstances. This ground will be discussed together with the second ground of appeal which contends that the court a quo failed to consider the position of the appellant as an innocent purchaser.

It is not in dispute that the sale of the property was effected sometime in September 1997. The order in HC8638/97 interdicting the second respondent from selling or otherwise disposing of his right, title and interest in the property pending the finalisation of the appeal by the first respondent in the divorce proceedings, was only granted on 8 October 1997. That being the case, the sale, which was conducted prior to the granting of the provisional order in question, was lawful as it did not violate the terms of this or any other order of the court.

In this respect, the court a quo's finding that both the sale and transfer of the property to the appellant were null and void was, in part, misconceived, as it was only the transfer which was afflicted by this defect. Accordingly, paragraph 3 of the Order of the court a quo, purporting to set aside the sale of the property, was incompetent and must be vacated.

The same, however, cannot be said of the transfer of the property to the appellant. It is evident from the record that the property was transferred on 3 November 2017. This was well after the same order in HC8638/97 interdicted the third respondent in casu from registering or giving effect to any sale, cession or encumbrance of the first respondent's rights in the property in violation of the interdict issued against the first respondent.

The Order reads as follows:-

“That the second Respondent (third respondent in casu) be and is hereby interdicted and restrained from registering or in any way giving effect to any sale, cession, encumbrance or disposal by any means of first respondents' right, title and interest in Stand No.2395 Glen View Township of Glen View situate in the District of Salisbury.”

The appellant, in a supporting affidavit deposed to by one of its directors, Charles Siziba, indicated that the appellant became aware, soon after the transfer of the property to it was effected, that the transaction had been done in violation of the court order in HC8638/97 interdicting the third respondent from transferring the property to a third party. Charles Siziba also averred that the second respondent's legal practitioners (Hove, Dzimba and Associates) were fully aware of the order interdicting the third respondent from effecting transfer of the said property, but, nevertheless, proceeded to have the transfer into the appellant's name, effected.

It is noted, in this respect, that, despite the Registrar of Deeds having been cited in HC8638/97, no caveat had been registered against the title deed of the property, to alert registry officers to the fact that an interdict against the registration of transfer of the property had been issued against the Registrar. As already noted, this was because the first respondent's legal practitioners misguidedly addressed the request for registration of the caveat to the Registrar of the High Court instead of the Registrar of Deeds. Be that as it may, the fact remained that the transfer of the property to the appellant was effected in direct violation of an extant order of the court.

There is cogent authority to the effect that where the transfer of property is done in defiance of an order of court, the transferee obtains defective title thereto. In Gong v Mayor Logistics (Pvt) Ltd SC02-17, the court stated as follows…,:-

“At this juncture, it does not seem to matter to me whether or not the appellant was the first purchaser as he alleges. What is material at this stage is that he obtained defective invalid title in defiance of a valid court order and caveat. It is an established principle of our law that anything done contrary to the law is a nullity.

For that reason, no fault can be ascribed to the learned judge's finding in the court a quo that the conduct of the appellant and his lawyer, in obtaining registration of the disputed property in the face of a court order and caveat to the contrary was reprehensible. On the basis of such finding the appeal can only fail.”…,.

These sentiments are eminently apposite in casu.

The second respondent, through his legal practitioners, reprehensibly transferred the property to the appellant in defiance of an extant court order. On the basis of the law, and the authority cited, no valid title could be transferred to the appellant by the second respondent. The court a quo, in my view, correctly opined that this result was not changed by the fact that the appeal pending before the Magistrates' Court at the time the provisional order was granted, had subsequently been determined. The court reasoned that the judgment of the Magistrates' Court did not make lawful the transfer of the property to the appellant, in circumstances where it was done contrary to an extant order of the court. While the sale of the property to the appellant was done before the provisional order interdicting him from so selling the property was issued, the second respondent subsequently knew of the provisional order and its terms. He ought not to have proceeded to have transfer of the property to the appellant effected.

This conduct was clearly mala fide.

In view of the foregoing, I find that the court a quo properly confirmed the provisional order in question. By the same token, the court's decision, dismissing the appellant's claim, is beyond fault. The appellant's title to the property was tainted with an illegality and therefore void. A nullity is like an event that never happened in the eyes of the law. The words of LORD DENNING in Macfoy v United Africa Co. Ltd [1961] 3 All ER 1169 (PC)…, are apposite;

“If an act is void, then it is, in law, a nullity. It is not only bad but incurably bad. There is no need for an order of the court for it to be set aside, it is automatically null and void without more ado, although it is sometimes convenient to have a court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

As stated in Gong v Mayor Logistics (Pvt) Ltd SC02-17 the appellant's predicament cannot be salvaged by the fact that he was an innocent purchaser of the property as of the date the sale was effected. The transfer into its name was a nullity.

I find, accordingly, that the appellant's first and second grounds of appeal are devoid of merit....,.

I have found that the transfer of the disputed property to the appellant was done contrary to an order of the court a quo. The transfer being a nullity, no legal right can flow from it....,.

The appeal accordingly ought to be dismissed. Costs will follow the cause.

It is in the premises ordered as follows:-

“The appeal be and is dismissed with costs.”

Interim Interdict or Final Order re: Relief Conflicting with Statutes, Extant Court Orders & Prima Facie Lawful Conduct


This is an appeal against the whole judgement of the High Court handed down on 14 March 2018 dismissing the appellant's counter claim against the first respondent.

FACTUAL BACKGROUND

The first and the second respondents were married and later on divorced. They owned a property, namely, Stand No.2395 Glen View (“the property”). Unbeknown to the first respondent, the appellant purchased the property from the second respondent in or about September 1997. In the court a quo, the first respondent averred that she only became aware of the sale when 'strangers came to view the house' pursuant to the offer they had received from the second respondent.

The first respondent accordingly, on 11 September 1997, successfully filed an urgent chamber application seeking a provisional order interdicting the second respondent from selling, ceding or otherwise disposing of his right, title and interest in the property pending the hearing of an appeal that she had noted in the divorce proceedings. The order, which was not opposed by the second respondent, who was then alive, also interdicted the third respondent from registering or giving effect to any sale or disposal of the second respondent's title in the said property. This was followed by a letter addressed to the Registrar of the High Court, on behalf of the first respondent, requesting that a caveat be registered over the Title Deed of the property (it is noted in this respect that this letter should properly have been addressed to the Registrar of Deeds).

The second respondent, nevertheless, proceeded to transfer the said property to the appellant on 3 November 1997, contrary to the terms of the order interdicting him from doing so. The transfer was executed through the same law firm that had failed, on his behalf, to oppose the application that culminated in the order interdicting him from effecting transfer of the property.

The appellant, thereafter, attempted to enforce its perceived rights in the property by seeking the eviction therefrom of the first respondent. The latter immediately filed an urgent chamber application and obtained a provisional order interdicting the appellant from evicting her from the property or interfering with her peaceful occupation thereof in any way.

In May 2002, the appellant filed a counter application seeking an order compelling the first respondent to deliver to it the title deeds of the property. The first respondent, in response, then filed an application a quo for confirmation of the provisional order granted in her favour in 1997. The appellant opposed the application and averred that it was not aware of the 1997 Order interdicting the second respondent from selling or otherwise disposing of the property.

The court a quo held that notwithstanding the fact that the appellant may have been an innocent purchaser, the sale and transfer were done in breach of a court order, and, therefore, of no legal force or effect. The court found the second respondent's non-compliance with the provisional order in question to have been wilful and mala fide. In the result, the counter claim was dismissed and the court confirmed the 1997 provisional order. The court also set aside the sale of the property to the appellant and ordered cancellation of the Title Deed issued in favour of the appellant pursuant to the sale to it of the property.

Aggrieved by this decision, the appellant filed this appeal on the following grounds:-

1. The court a quo erred in cancelling the title deeds in the name of the appellant notwithstanding the fact that the sale and subsequent transfer of the property to it was valid in the circumstances of the case.

2. The court a quo erred in failing to consider the position of the appellant as an innocent purchaser.

3. The court a quo grossly misdirected itself in making an order for costs against the appellant in view of the circumstances of this case.

I will consider these grounds in relation to the evidence before the court.

WHETHER OR NOT THE COURT A QUO ERRED IN CANCELLING THE TITLE DEED IN THE NAME OF THE APPELLANT

In its first ground of appeal, the appellant avers that the court a quo erred in cancelling the title deed in the name of the appellant notwithstanding the fact that the sale and subsequent transfer of the property to it was valid in the circumstances. This ground will be discussed together with the second ground of appeal which contends that the court a quo failed to consider the position of the appellant as an innocent purchaser.

It is not in dispute that the sale of the property was effected sometime in September 1997. The order in HC8638/97 interdicting the second respondent from selling or otherwise disposing of his right, title and interest in the property pending the finalisation of the appeal by the first respondent in the divorce proceedings, was only granted on 8 October 1997. That being the case, the sale, which was conducted prior to the granting of the provisional order in question, was lawful as it did not violate the terms of this or any other order of the court.

In this respect, the court a quo's finding that both the sale and transfer of the property to the appellant were null and void was, in part, misconceived, as it was only the transfer which was afflicted by this defect. Accordingly, paragraph 3 of the Order of the court a quo, purporting to set aside the sale of the property, was incompetent and must be vacated.

The same, however, cannot be said of the transfer of the property to the appellant. It is evident from the record that the property was transferred on 3 November 2017. This was well after the same order in HC8638/97 interdicted the third respondent in casu from registering or giving effect to any sale, cession or encumbrance of the first respondent's rights in the property in violation of the interdict issued against the first respondent.

The Order reads as follows:-

“That the second Respondent (third respondent in casu) be and is hereby interdicted and restrained from registering or in any way giving effect to any sale, cession, encumbrance or disposal by any means of first respondents' right, title and interest in Stand No.2395 Glen View Township of Glen View situate in the District of Salisbury.”

The appellant, in a supporting affidavit deposed to by one of its directors, Charles Siziba, indicated that the appellant became aware, soon after the transfer of the property to it was effected, that the transaction had been done in violation of the court order in HC8638/97 interdicting the third respondent from transferring the property to a third party. Charles Siziba also averred that the second respondent's legal practitioners (Hove, Dzimba and Associates) were fully aware of the order interdicting the third respondent from effecting transfer of the said property, but, nevertheless, proceeded to have the transfer into the appellant's name, effected.

It is noted, in this respect, that, despite the Registrar of Deeds having been cited in HC8638/97, no caveat had been registered against the title deed of the property, to alert registry officers to the fact that an interdict against the registration of transfer of the property had been issued against the Registrar. As already noted, this was because the first respondent's legal practitioners misguidedly addressed the request for registration of the caveat to the Registrar of the High Court instead of the Registrar of Deeds. Be that as it may, the fact remained that the transfer of the property to the appellant was effected in direct violation of an extant order of the court.

There is cogent authority to the effect that where the transfer of property is done in defiance of an order of court, the transferee obtains defective title thereto. In Gong v Mayor Logistics (Pvt) Ltd SC02-17, the court stated as follows…,:-

“At this juncture, it does not seem to matter to me whether or not the appellant was the first purchaser as he alleges. What is material at this stage is that he obtained defective invalid title in defiance of a valid court order and caveat. It is an established principle of our law that anything done contrary to the law is a nullity.

For that reason, no fault can be ascribed to the learned judge's finding in the court a quo that the conduct of the appellant and his lawyer, in obtaining registration of the disputed property in the face of a court order and caveat to the contrary was reprehensible. On the basis of such finding the appeal can only fail.”…,.

These sentiments are eminently apposite in casu.

The second respondent, through his legal practitioners, reprehensibly transferred the property to the appellant in defiance of an extant court order. On the basis of the law, and the authority cited, no valid title could be transferred to the appellant by the second respondent. The court a quo, in my view, correctly opined that this result was not changed by the fact that the appeal pending before the Magistrates' Court at the time the provisional order was granted, had subsequently been determined. The court reasoned that the judgment of the Magistrates' Court did not make lawful the transfer of the property to the appellant, in circumstances where it was done contrary to an extant order of the court. While the sale of the property to the appellant was done before the provisional order interdicting him from so selling the property was issued, the second respondent subsequently knew of the provisional order and its terms. He ought not to have proceeded to have transfer of the property to the appellant effected.

This conduct was clearly mala fide.

In view of the foregoing, I find that the court a quo properly confirmed the provisional order in question. By the same token, the court's decision, dismissing the appellant's claim, is beyond fault. The appellant's title to the property was tainted with an illegality and therefore void. A nullity is like an event that never happened in the eyes of the law. The words of LORD DENNING in Macfoy v United Africa Co. Ltd [1961] 3 All ER 1169 (PC)…, are apposite;

“If an act is void, then it is, in law, a nullity. It is not only bad but incurably bad. There is no need for an order of the court for it to be set aside, it is automatically null and void without more ado, although it is sometimes convenient to have a court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

As stated in Gong v Mayor Logistics (Pvt) Ltd SC02-17 the appellant's predicament cannot be salvaged by the fact that he was an innocent purchaser of the property as of the date the sale was effected. The transfer into its name was a nullity.

I find, accordingly, that the appellant's first and second grounds of appeal are devoid of merit....,.

I have found that the transfer of the disputed property to the appellant was done contrary to an order of the court a quo. The transfer being a nullity, no legal right can flow from it....,.

The appeal accordingly ought to be dismissed. Costs will follow the cause.

It is in the premises ordered as follows:-

“The appeal be and is dismissed with costs.”

Pleadings re: Nullity of Proceedings or Acts, Peremptory Provisions & the Doctrines of Strict and Substantial Compliance


This is an appeal against the whole judgement of the High Court handed down on 14 March 2018 dismissing the appellant's counter claim against the first respondent.

FACTUAL BACKGROUND

The first and the second respondents were married and later on divorced. They owned a property, namely, Stand No.2395 Glen View (“the property”). Unbeknown to the first respondent, the appellant purchased the property from the second respondent in or about September 1997. In the court a quo, the first respondent averred that she only became aware of the sale when 'strangers came to view the house' pursuant to the offer they had received from the second respondent.

The first respondent accordingly, on 11 September 1997, successfully filed an urgent chamber application seeking a provisional order interdicting the second respondent from selling, ceding or otherwise disposing of his right, title and interest in the property pending the hearing of an appeal that she had noted in the divorce proceedings. The order, which was not opposed by the second respondent, who was then alive, also interdicted the third respondent from registering or giving effect to any sale or disposal of the second respondent's title in the said property. This was followed by a letter addressed to the Registrar of the High Court, on behalf of the first respondent, requesting that a caveat be registered over the Title Deed of the property (it is noted in this respect that this letter should properly have been addressed to the Registrar of Deeds).

The second respondent, nevertheless, proceeded to transfer the said property to the appellant on 3 November 1997, contrary to the terms of the order interdicting him from doing so. The transfer was executed through the same law firm that had failed, on his behalf, to oppose the application that culminated in the order interdicting him from effecting transfer of the property.

The appellant, thereafter, attempted to enforce its perceived rights in the property by seeking the eviction therefrom of the first respondent. The latter immediately filed an urgent chamber application and obtained a provisional order interdicting the appellant from evicting her from the property or interfering with her peaceful occupation thereof in any way.

In May 2002, the appellant filed a counter application seeking an order compelling the first respondent to deliver to it the title deeds of the property. The first respondent, in response, then filed an application a quo for confirmation of the provisional order granted in her favour in 1997. The appellant opposed the application and averred that it was not aware of the 1997 Order interdicting the second respondent from selling or otherwise disposing of the property.

The court a quo held that notwithstanding the fact that the appellant may have been an innocent purchaser, the sale and transfer were done in breach of a court order, and, therefore, of no legal force or effect. The court found the second respondent's non-compliance with the provisional order in question to have been wilful and mala fide. In the result, the counter claim was dismissed and the court confirmed the 1997 provisional order. The court also set aside the sale of the property to the appellant and ordered cancellation of the Title Deed issued in favour of the appellant pursuant to the sale to it of the property.

Aggrieved by this decision, the appellant filed this appeal on the following grounds:-

1. The court a quo erred in cancelling the title deeds in the name of the appellant notwithstanding the fact that the sale and subsequent transfer of the property to it was valid in the circumstances of the case.

2. The court a quo erred in failing to consider the position of the appellant as an innocent purchaser.

3. The court a quo grossly misdirected itself in making an order for costs against the appellant in view of the circumstances of this case.

I will consider these grounds in relation to the evidence before the court.

WHETHER OR NOT THE COURT A QUO ERRED IN CANCELLING THE TITLE DEED IN THE NAME OF THE APPELLANT

In its first ground of appeal, the appellant avers that the court a quo erred in cancelling the title deed in the name of the appellant notwithstanding the fact that the sale and subsequent transfer of the property to it was valid in the circumstances. This ground will be discussed together with the second ground of appeal which contends that the court a quo failed to consider the position of the appellant as an innocent purchaser.

It is not in dispute that the sale of the property was effected sometime in September 1997. The order in HC8638/97 interdicting the second respondent from selling or otherwise disposing of his right, title and interest in the property pending the finalisation of the appeal by the first respondent in the divorce proceedings, was only granted on 8 October 1997. That being the case, the sale, which was conducted prior to the granting of the provisional order in question, was lawful as it did not violate the terms of this or any other order of the court.

In this respect, the court a quo's finding that both the sale and transfer of the property to the appellant were null and void was, in part, misconceived, as it was only the transfer which was afflicted by this defect. Accordingly, paragraph 3 of the Order of the court a quo, purporting to set aside the sale of the property, was incompetent and must be vacated.

The same, however, cannot be said of the transfer of the property to the appellant. It is evident from the record that the property was transferred on 3 November 2017. This was well after the same order in HC8638/97 interdicted the third respondent in casu from registering or giving effect to any sale, cession or encumbrance of the first respondent's rights in the property in violation of the interdict issued against the first respondent.

The Order reads as follows:-

“That the second Respondent (third respondent in casu) be and is hereby interdicted and restrained from registering or in any way giving effect to any sale, cession, encumbrance or disposal by any means of first respondents' right, title and interest in Stand No.2395 Glen View Township of Glen View situate in the District of Salisbury.”

The appellant, in a supporting affidavit deposed to by one of its directors, Charles Siziba, indicated that the appellant became aware, soon after the transfer of the property to it was effected, that the transaction had been done in violation of the court order in HC8638/97 interdicting the third respondent from transferring the property to a third party. Charles Siziba also averred that the second respondent's legal practitioners (Hove, Dzimba and Associates) were fully aware of the order interdicting the third respondent from effecting transfer of the said property, but, nevertheless, proceeded to have the transfer into the appellant's name, effected.

It is noted, in this respect, that, despite the Registrar of Deeds having been cited in HC8638/97, no caveat had been registered against the title deed of the property, to alert registry officers to the fact that an interdict against the registration of transfer of the property had been issued against the Registrar. As already noted, this was because the first respondent's legal practitioners misguidedly addressed the request for registration of the caveat to the Registrar of the High Court instead of the Registrar of Deeds. Be that as it may, the fact remained that the transfer of the property to the appellant was effected in direct violation of an extant order of the court.

There is cogent authority to the effect that where the transfer of property is done in defiance of an order of court, the transferee obtains defective title thereto. In Gong v Mayor Logistics (Pvt) Ltd SC02-17, the court stated as follows…,:-

“At this juncture, it does not seem to matter to me whether or not the appellant was the first purchaser as he alleges. What is material at this stage is that he obtained defective invalid title in defiance of a valid court order and caveat. It is an established principle of our law that anything done contrary to the law is a nullity.

For that reason, no fault can be ascribed to the learned judge's finding in the court a quo that the conduct of the appellant and his lawyer, in obtaining registration of the disputed property in the face of a court order and caveat to the contrary was reprehensible. On the basis of such finding the appeal can only fail.”…,.

These sentiments are eminently apposite in casu.

The second respondent, through his legal practitioners, reprehensibly transferred the property to the appellant in defiance of an extant court order. On the basis of the law, and the authority cited, no valid title could be transferred to the appellant by the second respondent. The court a quo, in my view, correctly opined that this result was not changed by the fact that the appeal pending before the Magistrates' Court at the time the provisional order was granted, had subsequently been determined. The court reasoned that the judgment of the Magistrates' Court did not make lawful the transfer of the property to the appellant, in circumstances where it was done contrary to an extant order of the court. While the sale of the property to the appellant was done before the provisional order interdicting him from so selling the property was issued, the second respondent subsequently knew of the provisional order and its terms. He ought not to have proceeded to have transfer of the property to the appellant effected.

This conduct was clearly mala fide.

In view of the foregoing, I find that the court a quo properly confirmed the provisional order in question. By the same token, the court's decision, dismissing the appellant's claim, is beyond fault. The appellant's title to the property was tainted with an illegality and therefore void. A nullity is like an event that never happened in the eyes of the law. The words of LORD DENNING in Macfoy v United Africa Co. Ltd [1961] 3 All ER 1169 (PC)…, are apposite;

“If an act is void, then it is, in law, a nullity. It is not only bad but incurably bad. There is no need for an order of the court for it to be set aside, it is automatically null and void without more ado, although it is sometimes convenient to have a court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

As stated in Gong v Mayor Logistics (Pvt) Ltd SC02-17 the appellant's predicament cannot be salvaged by the fact that he was an innocent purchaser of the property as of the date the sale was effected. The transfer into its name was a nullity.

I find, accordingly, that the appellant's first and second grounds of appeal are devoid of merit....,.

I have found that the transfer of the disputed property to the appellant was done contrary to an order of the court a quo. The transfer being a nullity, no legal right can flow from it....,.

The appeal accordingly ought to be dismissed. Costs will follow the cause.

It is in the premises ordered as follows:-

“The appeal be and is dismissed with costs.”

Professional Ethics, Legal Duty to the Court and Clients, Dominus Litis and Correspondence with the Court


This is an appeal against the whole judgement of the High Court handed down on 14 March 2018 dismissing the appellant's counter claim against the first respondent.

FACTUAL BACKGROUND

The first and the second respondents were married and later on divorced. They owned a property, namely, Stand No.2395 Glen View (“the property”). Unbeknown to the first respondent, the appellant purchased the property from the second respondent in or about September 1997. In the court a quo, the first respondent averred that she only became aware of the sale when 'strangers came to view the house' pursuant to the offer they had received from the second respondent.

The first respondent accordingly, on 11 September 1997, successfully filed an urgent chamber application seeking a provisional order interdicting the second respondent from selling, ceding or otherwise disposing of his right, title and interest in the property pending the hearing of an appeal that she had noted in the divorce proceedings. The order, which was not opposed by the second respondent, who was then alive, also interdicted the third respondent from registering or giving effect to any sale or disposal of the second respondent's title in the said property. This was followed by a letter addressed to the Registrar of the High Court, on behalf of the first respondent, requesting that a caveat be registered over the Title Deed of the property (it is noted in this respect that this letter should properly have been addressed to the Registrar of Deeds).

The second respondent, nevertheless, proceeded to transfer the said property to the appellant on 3 November 1997, contrary to the terms of the order interdicting him from doing so. The transfer was executed through the same law firm that had failed, on his behalf, to oppose the application that culminated in the order interdicting him from effecting transfer of the property.

The appellant, thereafter, attempted to enforce its perceived rights in the property by seeking the eviction therefrom of the first respondent. The latter immediately filed an urgent chamber application and obtained a provisional order interdicting the appellant from evicting her from the property or interfering with her peaceful occupation thereof in any way.

In May 2002, the appellant filed a counter application seeking an order compelling the first respondent to deliver to it the title deeds of the property. The first respondent, in response, then filed an application a quo for confirmation of the provisional order granted in her favour in 1997. The appellant opposed the application and averred that it was not aware of the 1997 Order interdicting the second respondent from selling or otherwise disposing of the property.

The court a quo held that notwithstanding the fact that the appellant may have been an innocent purchaser, the sale and transfer were done in breach of a court order, and, therefore, of no legal force or effect. The court found the second respondent's non-compliance with the provisional order in question to have been wilful and mala fide. In the result, the counter claim was dismissed and the court confirmed the 1997 provisional order. The court also set aside the sale of the property to the appellant and ordered cancellation of the Title Deed issued in favour of the appellant pursuant to the sale to it of the property.

Aggrieved by this decision, the appellant filed this appeal on the following grounds:-

1. The court a quo erred in cancelling the title deeds in the name of the appellant notwithstanding the fact that the sale and subsequent transfer of the property to it was valid in the circumstances of the case.

2. The court a quo erred in failing to consider the position of the appellant as an innocent purchaser.

3. The court a quo grossly misdirected itself in making an order for costs against the appellant in view of the circumstances of this case.

I will consider these grounds in relation to the evidence before the court.

WHETHER OR NOT THE COURT A QUO ERRED IN CANCELLING THE TITLE DEED IN THE NAME OF THE APPELLANT

In its first ground of appeal, the appellant avers that the court a quo erred in cancelling the title deed in the name of the appellant notwithstanding the fact that the sale and subsequent transfer of the property to it was valid in the circumstances. This ground will be discussed together with the second ground of appeal which contends that the court a quo failed to consider the position of the appellant as an innocent purchaser.

It is not in dispute that the sale of the property was effected sometime in September 1997. The order in HC8638/97 interdicting the second respondent from selling or otherwise disposing of his right, title and interest in the property pending the finalisation of the appeal by the first respondent in the divorce proceedings, was only granted on 8 October 1997. That being the case, the sale, which was conducted prior to the granting of the provisional order in question, was lawful as it did not violate the terms of this or any other order of the court.

In this respect, the court a quo's finding that both the sale and transfer of the property to the appellant were null and void was, in part, misconceived, as it was only the transfer which was afflicted by this defect. Accordingly, paragraph 3 of the Order of the court a quo, purporting to set aside the sale of the property, was incompetent and must be vacated.

The same, however, cannot be said of the transfer of the property to the appellant. It is evident from the record that the property was transferred on 3 November 2017. This was well after the same order in HC8638/97 interdicted the third respondent in casu from registering or giving effect to any sale, cession or encumbrance of the first respondent's rights in the property in violation of the interdict issued against the first respondent.

The Order reads as follows:-

“That the second Respondent (third respondent in casu) be and is hereby interdicted and restrained from registering or in any way giving effect to any sale, cession, encumbrance or disposal by any means of first respondents' right, title and interest in Stand No.2395 Glen View Township of Glen View situate in the District of Salisbury.”

The appellant, in a supporting affidavit deposed to by one of its directors, Charles Siziba, indicated that the appellant became aware, soon after the transfer of the property to it was effected, that the transaction had been done in violation of the court order in HC8638/97 interdicting the third respondent from transferring the property to a third party. Charles Siziba also averred that the second respondent's legal practitioners (Hove, Dzimba and Associates) were fully aware of the order interdicting the third respondent from effecting transfer of the said property, but, nevertheless, proceeded to have the transfer into the appellant's name, effected.

It is noted, in this respect, that, despite the Registrar of Deeds having been cited in HC8638/97, no caveat had been registered against the title deed of the property, to alert registry officers to the fact that an interdict against the registration of transfer of the property had been issued against the Registrar. As already noted, this was because the first respondent's legal practitioners misguidedly addressed the request for registration of the caveat to the Registrar of the High Court instead of the Registrar of Deeds. Be that as it may, the fact remained that the transfer of the property to the appellant was effected in direct violation of an extant order of the court.

There is cogent authority to the effect that where the transfer of property is done in defiance of an order of court, the transferee obtains defective title thereto. In Gong v Mayor Logistics (Pvt) Ltd SC02-17, the court stated as follows…,:-

“At this juncture, it does not seem to matter to me whether or not the appellant was the first purchaser as he alleges. What is material at this stage is that he obtained defective invalid title in defiance of a valid court order and caveat. It is an established principle of our law that anything done contrary to the law is a nullity.

For that reason, no fault can be ascribed to the learned judge's finding in the court a quo that the conduct of the appellant and his lawyer, in obtaining registration of the disputed property in the face of a court order and caveat to the contrary was reprehensible. On the basis of such finding the appeal can only fail.”…,.

These sentiments are eminently apposite in casu.

The second respondent, through his legal practitioners, reprehensibly transferred the property to the appellant in defiance of an extant court order. On the basis of the law, and the authority cited, no valid title could be transferred to the appellant by the second respondent. The court a quo, in my view, correctly opined that this result was not changed by the fact that the appeal pending before the Magistrates' Court at the time the provisional order was granted, had subsequently been determined. The court reasoned that the judgment of the Magistrates' Court did not make lawful the transfer of the property to the appellant, in circumstances where it was done contrary to an extant order of the court. While the sale of the property to the appellant was done before the provisional order interdicting him from so selling the property was issued, the second respondent subsequently knew of the provisional order and its terms. He ought not to have proceeded to have transfer of the property to the appellant effected.

This conduct was clearly mala fide.

In view of the foregoing, I find that the court a quo properly confirmed the provisional order in question. By the same token, the court's decision, dismissing the appellant's claim, is beyond fault. The appellant's title to the property was tainted with an illegality and therefore void. A nullity is like an event that never happened in the eyes of the law. The words of LORD DENNING in Macfoy v United Africa Co. Ltd [1961] 3 All ER 1169 (PC)…, are apposite;

“If an act is void, then it is, in law, a nullity. It is not only bad but incurably bad. There is no need for an order of the court for it to be set aside, it is automatically null and void without more ado, although it is sometimes convenient to have a court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

As stated in Gong v Mayor Logistics (Pvt) Ltd SC02-17 the appellant's predicament cannot be salvaged by the fact that he was an innocent purchaser of the property as of the date the sale was effected. The transfer into its name was a nullity.

I find, accordingly, that the appellant's first and second grounds of appeal are devoid of merit.

Final Orders re: Principle of Finality in Litigation, Decree of Perpetual Silence, Sitting on Judgments & Superannuation


This is an appeal against the whole judgement of the High Court handed down on 14 March 2018 dismissing the appellant's counter claim against the first respondent.

FACTUAL BACKGROUND

The first and the second respondents were married and later on divorced. They owned a property, namely, Stand No.2395 Glen View (“the property”). Unbeknown to the first respondent, the appellant purchased the property from the second respondent in or about September 1997. In the court a quo, the first respondent averred that she only became aware of the sale when 'strangers came to view the house' pursuant to the offer they had received from the second respondent.

The first respondent accordingly, on 11 September 1997, successfully filed an urgent chamber application seeking a provisional order interdicting the second respondent from selling, ceding or otherwise disposing of his right, title and interest in the property pending the hearing of an appeal that she had noted in the divorce proceedings. The order, which was not opposed by the second respondent, who was then alive, also interdicted the third respondent from registering or giving effect to any sale or disposal of the second respondent's title in the said property. This was followed by a letter addressed to the Registrar of the High Court, on behalf of the first respondent, requesting that a caveat be registered over the Title Deed of the property (it is noted in this respect that this letter should properly have been addressed to the Registrar of Deeds).

The second respondent, nevertheless, proceeded to transfer the said property to the appellant on 3 November 1997, contrary to the terms of the order interdicting him from doing so. The transfer was executed through the same law firm that had failed, on his behalf, to oppose the application that culminated in the order interdicting him from effecting transfer of the property.

The appellant, thereafter, attempted to enforce its perceived rights in the property by seeking the eviction therefrom of the first respondent. The latter immediately filed an urgent chamber application and obtained a provisional order interdicting the appellant from evicting her from the property or interfering with her peaceful occupation thereof in any way.

In May 2002, the appellant filed a counter application seeking an order compelling the first respondent to deliver to it the title deeds of the property. The first respondent, in response, then filed an application a quo for confirmation of the provisional order granted in her favour in 1997. The appellant opposed the application and averred that it was not aware of the 1997 Order interdicting the second respondent from selling or otherwise disposing of the property.

The court a quo held that notwithstanding the fact that the appellant may have been an innocent purchaser, the sale and transfer were done in breach of a court order, and, therefore, of no legal force or effect. The court found the second respondent's non-compliance with the provisional order in question to have been wilful and mala fide. In the result, the counter claim was dismissed and the court confirmed the 1997 provisional order. The court also set aside the sale of the property to the appellant and ordered cancellation of the Title Deed issued in favour of the appellant pursuant to the sale to it of the property.

Aggrieved by this decision, the appellant filed this appeal on the following grounds:-

1. The court a quo erred in cancelling the title deeds in the name of the appellant notwithstanding the fact that the sale and subsequent transfer of the property to it was valid in the circumstances of the case.

2. The court a quo erred in failing to consider the position of the appellant as an innocent purchaser.

3. The court a quo grossly misdirected itself in making an order for costs against the appellant in view of the circumstances of this case.

I will consider these grounds in relation to the evidence before the court.

WHETHER OR NOT THE COURT A QUO ERRED IN CANCELLING THE TITLE DEED IN THE NAME OF THE APPELLANT

In its first ground of appeal, the appellant avers that the court a quo erred in cancelling the title deed in the name of the appellant notwithstanding the fact that the sale and subsequent transfer of the property to it was valid in the circumstances. This ground will be discussed together with the second ground of appeal which contends that the court a quo failed to consider the position of the appellant as an innocent purchaser.

It is not in dispute that the sale of the property was effected sometime in September 1997. The order in HC8638/97 interdicting the second respondent from selling or otherwise disposing of his right, title and interest in the property pending the finalisation of the appeal by the first respondent in the divorce proceedings, was only granted on 8 October 1997. That being the case, the sale, which was conducted prior to the granting of the provisional order in question, was lawful as it did not violate the terms of this or any other order of the court.

In this respect, the court a quo's finding that both the sale and transfer of the property to the appellant were null and void was, in part, misconceived, as it was only the transfer which was afflicted by this defect. Accordingly, paragraph 3 of the Order of the court a quo, purporting to set aside the sale of the property, was incompetent and must be vacated.

The same, however, cannot be said of the transfer of the property to the appellant. It is evident from the record that the property was transferred on 3 November 2017. This was well after the same order in HC8638/97 interdicted the third respondent in casu from registering or giving effect to any sale, cession or encumbrance of the first respondent's rights in the property in violation of the interdict issued against the first respondent.

The Order reads as follows:-

“That the second Respondent (third respondent in casu) be and is hereby interdicted and restrained from registering or in any way giving effect to any sale, cession, encumbrance or disposal by any means of first respondents' right, title and interest in Stand No.2395 Glen View Township of Glen View situate in the District of Salisbury.”

The appellant, in a supporting affidavit deposed to by one of its directors, Charles Siziba, indicated that the appellant became aware, soon after the transfer of the property to it was effected, that the transaction had been done in violation of the court order in HC8638/97 interdicting the third respondent from transferring the property to a third party. Charles Siziba also averred that the second respondent's legal practitioners (Hove, Dzimba and Associates) were fully aware of the order interdicting the third respondent from effecting transfer of the said property, but, nevertheless, proceeded to have the transfer into the appellant's name, effected.

It is noted, in this respect, that, despite the Registrar of Deeds having been cited in HC8638/97, no caveat had been registered against the title deed of the property, to alert registry officers to the fact that an interdict against the registration of transfer of the property had been issued against the Registrar. As already noted, this was because the first respondent's legal practitioners misguidedly addressed the request for registration of the caveat to the Registrar of the High Court instead of the Registrar of Deeds. Be that as it may, the fact remained that the transfer of the property to the appellant was effected in direct violation of an extant order of the court.

There is cogent authority to the effect that where the transfer of property is done in defiance of an order of court, the transferee obtains defective title thereto. In Gong v Mayor Logistics (Pvt) Ltd SC02-17, the court stated as follows…,:-

“At this juncture, it does not seem to matter to me whether or not the appellant was the first purchaser as he alleges. What is material at this stage is that he obtained defective invalid title in defiance of a valid court order and caveat. It is an established principle of our law that anything done contrary to the law is a nullity.

For that reason, no fault can be ascribed to the learned judge's finding in the court a quo that the conduct of the appellant and his lawyer, in obtaining registration of the disputed property in the face of a court order and caveat to the contrary was reprehensible. On the basis of such finding the appeal can only fail.”…,.

These sentiments are eminently apposite in casu.

The second respondent, through his legal practitioners, reprehensibly transferred the property to the appellant in defiance of an extant court order. On the basis of the law, and the authority cited, no valid title could be transferred to the appellant by the second respondent. The court a quo, in my view, correctly opined that this result was not changed by the fact that the appeal pending before the Magistrates' Court at the time the provisional order was granted, had subsequently been determined. The court reasoned that the judgment of the Magistrates' Court did not make lawful the transfer of the property to the appellant, in circumstances where it was done contrary to an extant order of the court. While the sale of the property to the appellant was done before the provisional order interdicting him from so selling the property was issued, the second respondent subsequently knew of the provisional order and its terms. He ought not to have proceeded to have transfer of the property to the appellant effected.

This conduct was clearly mala fide.

In view of the foregoing, I find that the court a quo properly confirmed the provisional order in question. By the same token, the court's decision, dismissing the appellant's claim, is beyond fault. The appellant's title to the property was tainted with an illegality and therefore void. A nullity is like an event that never happened in the eyes of the law. The words of LORD DENNING in Macfoy v United Africa Co. Ltd [1961] 3 All ER 1169 (PC)…, are apposite;

“If an act is void, then it is, in law, a nullity. It is not only bad but incurably bad. There is no need for an order of the court for it to be set aside, it is automatically null and void without more ado, although it is sometimes convenient to have a court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

As stated in Gong v Mayor Logistics (Pvt) Ltd SC02-17 the appellant's predicament cannot be salvaged by the fact that he was an innocent purchaser of the property as of the date the sale was effected. The transfer into its name was a nullity.

I find, accordingly, that the appellant's first and second grounds of appeal are devoid of merit....,.

I have found that the transfer of the disputed property to the appellant was done contrary to an order of the court a quo. The transfer being a nullity, no legal right can flow from it....,.

The appeal accordingly ought to be dismissed. Costs will follow the cause.

It is in the premises ordered as follows:-

“The appeal be and is dismissed with costs.”

Appeal re: Findings of Fact or Exercise of Discretion Made by Lower Court iro Terminated or Complete Proceedings


This is an appeal against the whole judgement of the High Court handed down on 14 March 2018 dismissing the appellant's counter claim against the first respondent.

FACTUAL BACKGROUND

The first and the second respondents were married and later on divorced. They owned a property, namely, Stand No.2395 Glen View (“the property”). Unbeknown to the first respondent, the appellant purchased the property from the second respondent in or about September 1997. In the court a quo, the first respondent averred that she only became aware of the sale when 'strangers came to view the house' pursuant to the offer they had received from the second respondent.

The first respondent accordingly, on 11 September 1997, successfully filed an urgent chamber application seeking a provisional order interdicting the second respondent from selling, ceding or otherwise disposing of his right, title and interest in the property pending the hearing of an appeal that she had noted in the divorce proceedings. The order, which was not opposed by the second respondent, who was then alive, also interdicted the third respondent from registering or giving effect to any sale or disposal of the second respondent's title in the said property. This was followed by a letter addressed to the Registrar of the High Court, on behalf of the first respondent, requesting that a caveat be registered over the Title Deed of the property (it is noted in this respect that this letter should properly have been addressed to the Registrar of Deeds).

The second respondent, nevertheless, proceeded to transfer the said property to the appellant on 3 November 1997, contrary to the terms of the order interdicting him from doing so. The transfer was executed through the same law firm that had failed, on his behalf, to oppose the application that culminated in the order interdicting him from effecting transfer of the property.

The appellant, thereafter, attempted to enforce its perceived rights in the property by seeking the eviction therefrom of the first respondent. The latter immediately filed an urgent chamber application and obtained a provisional order interdicting the appellant from evicting her from the property or interfering with her peaceful occupation thereof in any way.

In May 2002, the appellant filed a counter application seeking an order compelling the first respondent to deliver to it the title deeds of the property. The first respondent, in response, then filed an application a quo for confirmation of the provisional order granted in her favour in 1997. The appellant opposed the application and averred that it was not aware of the 1997 Order interdicting the second respondent from selling or otherwise disposing of the property.

The court a quo held that notwithstanding the fact that the appellant may have been an innocent purchaser, the sale and transfer were done in breach of a court order, and, therefore, of no legal force or effect. The court found the second respondent's non-compliance with the provisional order in question to have been wilful and mala fide. In the result, the counter claim was dismissed and the court confirmed the 1997 provisional order. The court also set aside the sale of the property to the appellant and ordered cancellation of the Title Deed issued in favour of the appellant pursuant to the sale to it of the property.

Aggrieved by this decision, the appellant filed this appeal on the following grounds:-

1. The court a quo erred in cancelling the title deeds in the name of the appellant notwithstanding the fact that the sale and subsequent transfer of the property to it was valid in the circumstances of the case.

2. The court a quo erred in failing to consider the position of the appellant as an innocent purchaser.

3. The court a quo grossly misdirected itself in making an order for costs against the appellant in view of the circumstances of this case.

I will consider these grounds in relation to the evidence before the court....,.

WHETHER OR NOT THE COURT A QUO ERRED IN AWARDING COSTS AGAINST THE APPELLANT

In its third ground of appeal, the appellant contends that the court a quo grossly misdirected itself in making an award of costs against the appellant 'in view of the circumstances' of the case. In particular, the appellant argues that it was an innocent purchaser of the property, as the court a quo itself found. Further, that the first respondent had exhibited lack of diligence in protecting her rights, given that she had only sought to have the 1998 provisional order confirmed after the appellant had instituted vindicatory action against her in the court a quo.

The general rule is that costs follow the cause.

In view of this, it cannot, in my view, be said that the court a quo ought not to have made an award of costs against the appellant who was the unsuccessful party in the proceedings. The cancellation of the Title Deed that was in the appellant's name was not ordered on the basis of whether or not the appellant was an innocent purchaser. There simply was no basis for the issuance of the Title Deed, since the transfer that it purported to perfect was, at law, a nullity.

There is also no evidence that the timing of the application for confirmation of the 1998 provisional order brought by the first respondent was an issue before the court a quo.

It is settled law that costs are at the discretion of the presiding officer. In Barros and Wasserman v Ruskin 1918 AD 63…, the court stated as follows:-

“The rule of our law is that all costs, unless expressly enacted, are in the discretion of the judge. His discretion must be judiciously exercised, but, it cannot be challenged taken alone and apart from the main order without his permission.”…,.

It is also a settled position of the law that a court of appeal will not lightly interfere with the exercise of discretion by a lower court unless it is shown that it was not judiciously exercised. See Barros and Anor v Champonda 1999 (1) ZLR 58 (S) where it was stated as follows…,:-

“…,. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account some relevant consideration, then, its determination should be reviewed and the Appellate Court may exercise its discretion in substitution, provided always (that it) has the materials for so doing.”

I do not find, in view of the above, that there is anything to show that the discretion of the court a quo, to award costs on an ordinary scale, was not exercised judiciously. The appellant has therefore not proved a case for interference, by this Court, with the order of costs made against it.

In the result, the appellant's third ground of appeal is dismissed for lack of merit.

Costs re: Approach


This is an appeal against the whole judgement of the High Court handed down on 14 March 2018 dismissing the appellant's counter claim against the first respondent.

FACTUAL BACKGROUND

The first and the second respondents were married and later on divorced. They owned a property, namely, Stand No.2395 Glen View (“the property”). Unbeknown to the first respondent, the appellant purchased the property from the second respondent in or about September 1997. In the court a quo, the first respondent averred that she only became aware of the sale when 'strangers came to view the house' pursuant to the offer they had received from the second respondent.

The first respondent accordingly, on 11 September 1997, successfully filed an urgent chamber application seeking a provisional order interdicting the second respondent from selling, ceding or otherwise disposing of his right, title and interest in the property pending the hearing of an appeal that she had noted in the divorce proceedings. The order, which was not opposed by the second respondent, who was then alive, also interdicted the third respondent from registering or giving effect to any sale or disposal of the second respondent's title in the said property. This was followed by a letter addressed to the Registrar of the High Court, on behalf of the first respondent, requesting that a caveat be registered over the Title Deed of the property (it is noted in this respect that this letter should properly have been addressed to the Registrar of Deeds).

The second respondent, nevertheless, proceeded to transfer the said property to the appellant on 3 November 1997, contrary to the terms of the order interdicting him from doing so. The transfer was executed through the same law firm that had failed, on his behalf, to oppose the application that culminated in the order interdicting him from effecting transfer of the property.

The appellant, thereafter, attempted to enforce its perceived rights in the property by seeking the eviction therefrom of the first respondent. The latter immediately filed an urgent chamber application and obtained a provisional order interdicting the appellant from evicting her from the property or interfering with her peaceful occupation thereof in any way.

In May 2002, the appellant filed a counter application seeking an order compelling the first respondent to deliver to it the title deeds of the property. The first respondent, in response, then filed an application a quo for confirmation of the provisional order granted in her favour in 1997. The appellant opposed the application and averred that it was not aware of the 1997 Order interdicting the second respondent from selling or otherwise disposing of the property.

The court a quo held that notwithstanding the fact that the appellant may have been an innocent purchaser, the sale and transfer were done in breach of a court order, and, therefore, of no legal force or effect. The court found the second respondent's non-compliance with the provisional order in question to have been wilful and mala fide. In the result, the counter claim was dismissed and the court confirmed the 1997 provisional order. The court also set aside the sale of the property to the appellant and ordered cancellation of the Title Deed issued in favour of the appellant pursuant to the sale to it of the property.

Aggrieved by this decision, the appellant filed this appeal on the following grounds:-

1. The court a quo erred in cancelling the title deeds in the name of the appellant notwithstanding the fact that the sale and subsequent transfer of the property to it was valid in the circumstances of the case.

2. The court a quo erred in failing to consider the position of the appellant as an innocent purchaser.

3. The court a quo grossly misdirected itself in making an order for costs against the appellant in view of the circumstances of this case.

I will consider these grounds in relation to the evidence before the court....,.

WHETHER OR NOT THE COURT A QUO ERRED IN AWARDING COSTS AGAINST THE APPELLANT

In its third ground of appeal, the appellant contends that the court a quo grossly misdirected itself in making an award of costs against the appellant 'in view of the circumstances' of the case. In particular, the appellant argues that it was an innocent purchaser of the property, as the court a quo itself found. Further, that the first respondent had exhibited lack of diligence in protecting her rights, given that she had only sought to have the 1998 provisional order confirmed after the appellant had instituted vindicatory action against her in the court a quo.

The general rule is that costs follow the cause.

In view of this, it cannot, in my view, be said that the court a quo ought not to have made an award of costs against the appellant who was the unsuccessful party in the proceedings. The cancellation of the Title Deed that was in the appellant's name was not ordered on the basis of whether or not the appellant was an innocent purchaser. There simply was no basis for the issuance of the Title Deed, since the transfer that it purported to perfect was, at law, a nullity.

There is also no evidence that the timing of the application for confirmation of the 1998 provisional order brought by the first respondent was an issue before the court a quo.

It is settled law that costs are at the discretion of the presiding officer. In Barros and Wasserman v Ruskin 1918 AD 63…, the court stated as follows:-

“The rule of our law is that all costs, unless expressly enacted, are in the discretion of the judge. His discretion must be judiciously exercised, but, it cannot be challenged taken alone and apart from the main order without his permission.”…,.

It is also a settled position of the law that a court of appeal will not lightly interfere with the exercise of discretion by a lower court unless it is shown that it was not judiciously exercised. See Barros and Anor v Champonda 1999 (1) ZLR 58 (S) where it was stated as follows…,:-

“…,. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account some relevant consideration, then, its determination should be reviewed and the Appellate Court may exercise its discretion in substitution, provided always (that it) has the materials for so doing.”

I do not find, in view of the above, that there is anything to show that the discretion of the court a quo, to award costs on an ordinary scale, was not exercised judiciously. The appellant has therefore not proved a case for interference, by this Court, with the order of costs made against it.

In the result, the appellant's third ground of appeal is dismissed for lack of merit.

Pleadings re: Belated Pleadings, Matters Raised Mero Motu by the Court and the Doctrine of Notice iro Approach


This is an appeal against the whole judgement of the High Court handed down on 14 March 2018 dismissing the appellant's counter claim against the first respondent.

FACTUAL BACKGROUND

The first and the second respondents were married and later on divorced. They owned a property, namely, Stand No.2395 Glen View (“the property”). Unbeknown to the first respondent, the appellant purchased the property from the second respondent in or about September 1997. In the court a quo, the first respondent averred that she only became aware of the sale when 'strangers came to view the house' pursuant to the offer they had received from the second respondent.

The first respondent accordingly, on 11 September 1997, successfully filed an urgent chamber application seeking a provisional order interdicting the second respondent from selling, ceding or otherwise disposing of his right, title and interest in the property pending the hearing of an appeal that she had noted in the divorce proceedings. The order, which was not opposed by the second respondent, who was then alive, also interdicted the third respondent from registering or giving effect to any sale or disposal of the second respondent's title in the said property. This was followed by a letter addressed to the Registrar of the High Court, on behalf of the first respondent, requesting that a caveat be registered over the Title Deed of the property (it is noted in this respect that this letter should properly have been addressed to the Registrar of Deeds).

The second respondent, nevertheless, proceeded to transfer the said property to the appellant on 3 November 1997, contrary to the terms of the order interdicting him from doing so. The transfer was executed through the same law firm that had failed, on his behalf, to oppose the application that culminated in the order interdicting him from effecting transfer of the property.

The appellant, thereafter, attempted to enforce its perceived rights in the property by seeking the eviction therefrom of the first respondent. The latter immediately filed an urgent chamber application and obtained a provisional order interdicting the appellant from evicting her from the property or interfering with her peaceful occupation thereof in any way.

In May 2002, the appellant filed a counter application seeking an order compelling the first respondent to deliver to it the title deeds of the property. The first respondent, in response, then filed an application a quo for confirmation of the provisional order granted in her favour in 1997. The appellant opposed the application and averred that it was not aware of the 1997 Order interdicting the second respondent from selling or otherwise disposing of the property....,.

In its third ground of appeal, the appellant contends that the court a quo grossly misdirected itself in making an award of costs against the appellant 'in view of the circumstances' of the case....,. Further, that the first respondent had exhibited lack of diligence in protecting her rights, given that she had only sought to have the 1998 provisional order confirmed after the appellant had instituted vindicatory action against her in the court a quo....,.

There is..., no evidence that the timing of the application for confirmation of the 1998 provisional order brought by the first respondent was an issue before the court a quo.

Appeal, Leave to Appeal, Leave to Execute Pending Appeal re: Grounds of Appeal and Notice of Appeal iro Approach


This is an appeal against the whole judgement of the High Court handed down on 14 March 2018 dismissing the appellant's counter claim against the first respondent.

FACTUAL BACKGROUND

The first and the second respondents were married and later on divorced. They owned a property, namely, Stand No.2395 Glen View (“the property”). Unbeknown to the first respondent, the appellant purchased the property from the second respondent in or about September 1997. In the court a quo, the first respondent averred that she only became aware of the sale when 'strangers came to view the house' pursuant to the offer they had received from the second respondent.

The first respondent accordingly, on 11 September 1997, successfully filed an urgent chamber application seeking a provisional order interdicting the second respondent from selling, ceding or otherwise disposing of his right, title and interest in the property pending the hearing of an appeal that she had noted in the divorce proceedings. The order, which was not opposed by the second respondent, who was then alive, also interdicted the third respondent from registering or giving effect to any sale or disposal of the second respondent's title in the said property. This was followed by a letter addressed to the Registrar of the High Court, on behalf of the first respondent, requesting that a caveat be registered over the Title Deed of the property (it is noted in this respect that this letter should properly have been addressed to the Registrar of Deeds).

The second respondent, nevertheless, proceeded to transfer the said property to the appellant on 3 November 1997, contrary to the terms of the order interdicting him from doing so. The transfer was executed through the same law firm that had failed, on his behalf, to oppose the application that culminated in the order interdicting him from effecting transfer of the property.

The appellant, thereafter, attempted to enforce its perceived rights in the property by seeking the eviction therefrom of the first respondent. The latter immediately filed an urgent chamber application and obtained a provisional order interdicting the appellant from evicting her from the property or interfering with her peaceful occupation thereof in any way.

In May 2002, the appellant filed a counter application seeking an order compelling the first respondent to deliver to it the title deeds of the property. The first respondent, in response, then filed an application a quo for confirmation of the provisional order granted in her favour in 1997. The appellant opposed the application and averred that it was not aware of the 1997 Order interdicting the second respondent from selling or otherwise disposing of the property....,.

In its third ground of appeal, the appellant contends that the court a quo grossly misdirected itself in making an award of costs against the appellant 'in view of the circumstances' of the case....,. Further, that the first respondent had exhibited lack of diligence in protecting her rights, given that she had only sought to have the 1998 provisional order confirmed after the appellant had instituted vindicatory action against her in the court a quo....,.

There is..., no evidence that the timing of the application for confirmation of the 1998 provisional order brought by the first respondent was an issue before the court a quo.

Appeal, Leave to Appeal, Leave to Execute Pending Appeal re: Grounds of Appeal iro Belated Pleadings & Judicial Mero Motu


This is an appeal against the whole judgement of the High Court handed down on 14 March 2018 dismissing the appellant's counter claim against the first respondent.

FACTUAL BACKGROUND

The first and the second respondents were married and later on divorced. They owned a property, namely, Stand No.2395 Glen View (“the property”). Unbeknown to the first respondent, the appellant purchased the property from the second respondent in or about September 1997. In the court a quo, the first respondent averred that she only became aware of the sale when 'strangers came to view the house' pursuant to the offer they had received from the second respondent.

The first respondent accordingly, on 11 September 1997, successfully filed an urgent chamber application seeking a provisional order interdicting the second respondent from selling, ceding or otherwise disposing of his right, title and interest in the property pending the hearing of an appeal that she had noted in the divorce proceedings. The order, which was not opposed by the second respondent, who was then alive, also interdicted the third respondent from registering or giving effect to any sale or disposal of the second respondent's title in the said property. This was followed by a letter addressed to the Registrar of the High Court, on behalf of the first respondent, requesting that a caveat be registered over the Title Deed of the property (it is noted in this respect that this letter should properly have been addressed to the Registrar of Deeds).

The second respondent, nevertheless, proceeded to transfer the said property to the appellant on 3 November 1997, contrary to the terms of the order interdicting him from doing so. The transfer was executed through the same law firm that had failed, on his behalf, to oppose the application that culminated in the order interdicting him from effecting transfer of the property.

The appellant, thereafter, attempted to enforce its perceived rights in the property by seeking the eviction therefrom of the first respondent. The latter immediately filed an urgent chamber application and obtained a provisional order interdicting the appellant from evicting her from the property or interfering with her peaceful occupation thereof in any way.

In May 2002, the appellant filed a counter application seeking an order compelling the first respondent to deliver to it the title deeds of the property. The first respondent, in response, then filed an application a quo for confirmation of the provisional order granted in her favour in 1997. The appellant opposed the application and averred that it was not aware of the 1997 Order interdicting the second respondent from selling or otherwise disposing of the property....,.

In its third ground of appeal, the appellant contends that the court a quo grossly misdirected itself in making an award of costs against the appellant 'in view of the circumstances' of the case....,. Further, that the first respondent had exhibited lack of diligence in protecting her rights, given that she had only sought to have the 1998 provisional order confirmed after the appellant had instituted vindicatory action against her in the court a quo....,.

There is..., no evidence that the timing of the application for confirmation of the 1998 provisional order brought by the first respondent was an issue before the court a quo.

GWAUNZA DCJ:

[1] This is an appeal against the whole judgement of the High Court handed down on 14 March 2018, dismissing the appellant's counter claim against the first respondent.

FACTUAL BACKGROUND

[2] The first and the second respondents were married and later on divorced. They owned a property, namely, Stand No. 2395 Glen View (“the property”). Unbeknown to the first respondent, the appellant purchased the property from the second respondent in or about September 1997. In the court a quo, the first respondent averred that she only became aware of the sale when 'strangers came to view the house' pursuant to the offer they had received from the second respondent.

[3] The first respondent accordingly, on 11 September 1997, successfully filed an urgent chamber application seeking a provisional order interdicting the second respondent from selling, ceding or otherwise disposing of his right, title and interest in the property pending the hearing of an appeal that she had noted in the divorce proceedings. The order, which was not opposed by the second respondent who was then alive, also interdicted the third respondent from registering or giving effect to any sale or disposal of the second respondent's title in the said property. This was followed by a letter addressed to the Registrar of the High Court, on behalf of the first respondent, requesting that a caveat be registered over the Title Deed of the property.1

[4] The second respondent, nevertheless, proceeded to transfer the said property to the appellant on 3 November 1997, contrary to the terms of the order interdicting him from doing so. The transfer was executed through the same law firm that had failed, on his behalf, to oppose the application that culminated in the order interdicting him from effecting transfer of the property. The appellant thereafter attempted to enforce its perceived rights in the property by seeking the eviction therefrom of the first respondent. The latter immediately filled an urgent chamber application and obtained a provisional order interdicting the appellant from evicting her from the property or interfering with her peaceful occupation thereof in any way.

[5] In May 2002, the appellant filed a counter application seeking an order compelling the first respondent to deliver to it the title deeds of the property. The first respondent in response then filed an application a quo for confirmation of the provisional order granted in her favour in 1997. The appellant opposed the application and averred that it was not aware of the 1997 order interdicting the second respondent from selling or otherwise disposing of the property.

The court a quo held that notwithstanding the fact that the appellant may have been an innocent purchaser, the sale and transfer were done in breach of a court order and therefore of no legal force or effect. The court found the second respondent's non-compliance with the provisional order in question to have been wilful and mala fide. In the result, the counter claim was dismissed and the court confirmed the 1997 provisional order. The court also set aside the sale of the property to the appellant and ordered cancellation of the Title Deed issued in favour of the appellant pursuant to the sale to it, of the property.

[6] Aggrieved by this decision, the appellant filed this appeal on the following grounds:-

1. The court a quo erred in cancelling the title deeds in the name of the appellant notwithstanding the fact that the sale and subsequent transfer of the property to it was valid in the circumstances of the case.

2. The court a quo erred in failing to consider the position of the appellant as an innocent purchaser.

3. The court a quo grossly misdirected itself in making an order for costs against the appellant in view of the circumstances of this case.


I will consider these grounds in relation to the evidence before the court.

WHETHER OR NOT THE COURT A QUO ERRED IN CANCELLING THE TITLE DEED IN THE NAME OF THE APPELLANT


[7] In its first ground of appeal the appellant avers that the court a quo erred in cancelling the title deed in the name of the appellant notwithstanding the fact that the sale and subsequent transfer of the property to it was valid in the circumstances. This ground will be discussed together with the second ground of appeal which contends that the court a quo failed to consider the position of the appellant as an innocent purchaser.

[8] It is not in dispute that the sale of the property was effected sometime in September 1997. The order in HC8638/97 interdicting the second respondent from selling or otherwise disposing of his right, title and interest in the property pending the finalisation of the appeal by the first respondent in the divorce proceedings, was only granted on 8 October 1997. That being the case the sale, which was conducted prior to the granting of the provisional order in question, was lawful as it did not violate the terms of this or any other order of the court. In this respect, the court a quo's finding that both the sale and transfer of the property to the appellant were null and void was in part, misconceived, as it was only the transfer which was afflicted by this defect. Accordingly, para 3 of the order of the court a quo purporting to set aside the sale of the property, was incompetent and must be vacated.

[9] The same however cannot be said of the transfer of the property to the appellant. It is evident from the record that the property was transferred on 3 November 2017. This was well after the same order in HC8638/97, interdicted the third respondent in casu from registering or giving effect to any sale, cession or encumbrance of the first respondent's rights in the property in violation of the interdict issued against the first respondent. The order reads as follows:-

“That the second Respondent (third respondent in casu) be and is hereby interdicted and restrained from registering or in any way giving effect to any sale, cession, encumbrance or disposal by any means of first respondents' right, title and interest in Stand No. 2395 Glen View Township of Glen View situate in the District of Salisbury.”

[10] The appellant, in a supporting affidavit deposed to by one of its directors, Charles Siziba, indicated that the appellant became aware, soon after the transfer of the property to it was effected, that the transaction had been done in violation of the court order in HC8638/97 interdicting the third respondent from transferring the property to a third party. Charles Siziba also averred that the second respondent's legal practitioners (Hove, Dzimba and Associates) were fully aware of the order interdicting the third respondent from effecting transfer of the said property but nevertheless, proceeded to have the transfer into the appellant's name, effected. It is noted in this respect that despite the Registrar of Deeds having been cited in HC8638/97, no caveat had been registered against the title deed of the property, to alert registry officers to the fact that an interdict against the registration of transfer of the property had been issued against the Registrar. As already noted, this was because the first respondent's legal practitioners misguidedly addressed the request for registration of the caveat to the Registrar of the High Court instead of the Registrar of Deeds. Be that as it may, the fact remained that the transfer of the property to the appellant was effected in direct violation of an extant order of the court.

[11] There is cogent authority to the effect that where the transfer of property is done in defiance of an order of court, the transferee obtains defective title thereto. In Gong v Mayor Logistics (Pvt) Ltd SC2/17, the court stated as follows at pp 6-7:-

“At this juncture, it does not seem to matter to me whether or not the appellant was the first purchaser as he alleges. What is material at this stage is that he obtained defective invalid title in defiance of a valid court order and caveat. It is an established principle of our law that anything done contrary to the law is a nullity. For that reason, no fault can be ascribed to the learned judge's finding in the court a quo that the conduct of the appellant and his lawyer in obtaining registration of the disputed property in the face of a court order and caveat to the contrary was reprehensible. On the basis of such finding the appeal can only fail.” (my emphasis)

[12] These sentiments are eminently apposite in casu. The second respondent through his legal practitioners reprehensibly transferred the property to the appellant in defiance of an extant court order. On the basis of the law, and the authority cited, no valid title could be transferred to the appellant by the second respondent. The court a quo in my view correctly opined that this result was not changed by the fact that the appeal pending before the magistrates' court at the time the provisional order was granted, had subsequently been determined. The court reasoned that the judgment of the magistrates' court did not make lawful the transfer of the property to the appellant, in circumstances where it was done contrary to an extant order of the court. While the sale of the property to the appellant was done before the provisional order interdicting him from so selling the property was issued, the second respondent subsequently knew of the provisional order and its terms. He ought not to have proceeded to have transfer of the property to the appellant effected. This conduct was clearly mala fide.

[13] In view of the foregoing, I find that the court a quo properly confirmed the provisional order in question. By the same token, the court's decision dismissing the appellant's claim is beyond fault. The appellant's title to the property was tainted with an illegality and therefore void. A nullity is like an event that never happened in the eyes of the law. The words of Lord Denning in Macfoy v United Africa Co. Ltd [1961] 3 All ER 1169 (PC) at 1172 are apposite.2 As stated in Gong v Mayor Logistics (Pvt) Ltd (supra) the appellant's predicament cannot be salvaged by the fact that he was an innocent purchaser of the property as of the date the sale was effected. The transfer into its name was a nullity.

I find, accordingly, that the appellant's first and second grounds of appeal are devoid of merit.

WHETHER OR NOT THE COURT A QUO ERRED IN AWARDING COSTS AGAINST THE APPELLANT


[14] In its third ground of appeal, the appellant contends that the court a quo grossly misdirected itself in making an award of costs against the appellant 'in view of the circumstances' of the case. In particular, the appellant argues that it was an innocent purchaser of the property, as the court a quo itself found. Further, that the first respondent had exhibited lack of diligence in protecting her rights, given that she had only sought to have the 1998 provisional order confirmed, after the appellant had instituted vindicatory action against her in the court a quo.

[15] The general rule is that costs follow the cause. In view of this, it cannot in my view be said that the court a quo ought not to have made an award of costs against the appellant who was the unsuccessful party in the proceedings. The cancellation of the Title Deed that was in the appellant's name was not ordered on the basis of whether or not the appellant was an innocent purchaser. There simply was no basis for the issuance of the Title Deed, since the transfer that it purported to perfect was, at law, a nullity. There is also no evidence that the timing of the application for confirmation of the 1998 provisional order brought by the 1st respondent, was an issue before the court a quo.

[16] It is settled law that costs are at the discretion of the presiding officer. In Barros and Wasserman v Ruskin 1918 AD 63 at 66, the court stated as follows:-

“The rule of our law is that all costs unless expressly enacted are in the discretion of the judge. His discretion must be judiciously exercised but it cannot be challenged taken alone and apart from the main order without his permission.” (my emphasis)


It is also a settled position of the law that a court of appeal will not lightly interfere with the exercise of discretion by a lower court, unless it is shown that it was not judiciously exercised. See Barros and Anor v Champonda 1999 (1) ZLR 58 (S) where it was stated as follows at 62G – 63A:-

“…. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account some relevant consideration, then its determination should be reviewed and the appellate court may exercise its discretion in substitution, provided always (that it) has the materials for so doing.”


I do not find, in view of the above, that there is anything to show that the discretion of the court a quo to award costs on an ordinary scale was not exercised judiciously. The appellant has therefore not proved a case for interference, by this Court, with the order of costs made against it.

In the result, the appellant's third ground of appeal is dismissed for lack of merit.

DISPOSITION

[17] I have found that the transfer of the disputed property to the appellant was done contrary to an order of the court a quo. The transfer being a nullity, no legal right can flow from it. In this regard, the appellant's three grounds of appeal are devoid of any merit. The appeal accordingly ought to be dismissed. Costs will follow the cause.

It is in the premises ordered as follows:-

“The appeal be and is dismissed with costs.”


HLATSHWAYO JA: I agree

BHUNU JA: I agree





Moyo & Bera, appellant's legal practitioners

Matsikidze & Mucheche, 1st respondent's legal practitioners

Dube-Banda Nzarayapenga,2nd respondent's legal practitioners


1. It is noted in this respect that this letter should properly have been addressed to the Registrar of Deeds

2. “If an act is void, then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of the court, for it to be set aside. it is automatically null and void without more ado, although it is sometimes convenient to have a court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

1It is noted in this respect that this letter should properly have been addressed to the Registrar of Deeds

2 “If an act is void, then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of the court, for it to be set aside. it is automatically null and void without more ado, although it is sometimes convenient to have a court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

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