DUBE
J:
This
case is concerns a sale and transfer of property carried out contrary
to a court order.
It
is trite law that a thing done contrary to the direct prohibition of
a court order is void and is of no legal effect. Such a thing is
regarded as never having been done. A disregard of a court order is
fatal to the validity of a contract that is concluded in violation of
a court order.
This
is an application for confirmation of a provisional order.
The
brief background to the application is as follows.
The
applicant and first respondent were married to each other and they
later separated. The first respondent passed away on 2 February 2013.
The applicant obtained a provisional order on 8 October 1997 under
HC8638/97 against the first respondent and the Registrar of Deeds in
the following terms;
“1.
That the 1st respondent be and is hereby interdicted from selling,
ceding, encumbering or otherwise disposing of his right, title and
interest in Stand No. 2395 Glen View Township of Glen View situate in
the District of Salisbury pending the finalization of the appeal
noted by the applicant in case No. CC1314/92: DC 1/93.
That
the 1st respondent be and is hereby interdicted from removing any of
the movable assets in the matrimonial home.
2.
That the 2nd respondent 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 1st respondent's right,
title and interest in Stand No. 2395 Glen View Township of Glen View
situate in the District of Salisbury.
3.
That the 1st respondent pays the costs of this application.”
The
first respondent did not oppose the provisional order which was
granted during his life time and was barred for the reason of not
opposing this application. He remains barred and this matter can
proceed without notice to him or his estate.
The
seventh respondent is cited in his official capacity and did not
oppose the application.
The
claims against the third to sixth respondents who are legal
practitioners that represented the respondents at different stages of
this dispute were withdrawn.
Only
the second respondent, who is the buyer of the property in dispute,
defends the application.
The
applicant followed the provisional order with a letter dated 24
October 1997 requesting that a caveat be registered over the
property. Unfortunately, the letter was erroneously directed to the
Registrar of the High Court instead of the Registrar of Deeds.
Unbeknown
to the applicant the first respondent had already sold the property
to the second defendant in September 1997 and transferred the
property to second respondent on 3 November 1997.
Sometime
in January 1998, the applicant was visited by people who claimed to
be the new owners of the property. She obtained another order against
the second respondent under HC1891/98 interdicting him from evicting
her from the property or interfering with her peaceful occupation of
the property on 2 March 1998.
In
the final, she sought an order against all respondents for the
setting aside of the sale and transfer of the property and
cancellation of the sale.
The
applicant remains in occupation of the property.
The
Magistrates Court gave judgment in the appeal case on 11 November
1998 granted 35% of the value of the rights, title and interest in
the property to applicant.
The
applicant has appealed against the decision to this court under
CIV(C) 27/29 and interestingly that appeal is still pending.
The
issue regarding the applicant's rights in the property is still
pending.
The
applicant submitted that the first respondent disregarded the interim
order and proceeded to sell and transfer the said property to the
second respondent. The sale and transfer to second respondent was
unlawful and illegal and ought to be set aside. The applicant seeks
confirmation of the provisional order granted under HC1891/98 with
the effect that the sale of the property to second respondent is set
aside and the property transferred into her name.
The
second respondent is opposed to confirmation of the provisional order
and he submitted as follows.
It
was not aware of the order interdicting the sale at the time it
bought the property. It later learnt of the controversy surrounding
the sale and transfers of the property and surrendered the title deed
to Hove Dzimba and Associates. The court order granted under
HC8638/97 has been overtaken by events as the issue pertaining to the
applicant's interests in the property was resolved by the
Magistrates Court. The respondent prays for dismissal of the
applicant's application and counter claims for an order compelling
the applicant to deliver the title deeds to it and for her to vacate
the property.
The
first respondent breached the court order interdicting him from
selling or disposing of the property by selling the property to
second respondent and went to transfer the property after the interim
order had been granted.
The
issues for determination are whether applicant is entitled to the
final interdict sought. Secondly whether the second respondent is
entitled to claim the title deeds of the property and eject the
applicant from the property.
The
applicant applies for a final order.
An
applicant who seeks a final order must satisfy the following
requirements;
(i)
that applicant has a clear right.
(ii)
that actual injury has been committed or is reasonably apprehended.
(iii)
the absence of similar protection of another remedy.
See
Setlogelo v Setlogelo 1914 AD 221.
In
Federation of Governing Bodies of South African Schools (Gauteng) v
MEC for Education, Gauteng, 2002 (1) SA 660 at 673 D-E, the court
remarked that when an order is disobeyed, the onus is on the party in
favour of which the order was granted to establish contempt and
persuade the court that a sanction is merited.
See
also Fakie NO v CCII Systems (Pty) Ltd 2006 (4) 326 (SCA) where the
court remarked that a party who has obtained an order requiring an
opponent to do or not to do something, may in the event of
non-compliance apply for contempt of court.
In
Schierhaut v Minister of Justice 1926 AD 99 @ 69, per INNES CJ said
the court said the following of things done contrary to a court
order;
“It
is a fundamental principle of our law that a thing done contrary to
the direct prohibition of the law is void and of no effect.
The
rule is thus stated: Ea quae lege fiery prohibentux, si fuerint
facta, non solum inutilia, sed pro nfectis habeantur:licet legislator
fiery prohibuent tantum, nec speccialiter dixerit inutile esse debere
quod factum est: Code 1.14.5.
So
that what is done contrary to the prohibition of the law is not only
of no effect but must be regarded as never having been done and that
whether the lawgiver has expressly so decreed or not: the mere
prohibition operates to nullify the act… and the disregard of
peremptory provisions in a statute is fatal to the validity of the
proceeding affected….”.
Similar
sentiments were echoed in Munyikwa v Mapenzauswa & Anor SC 91/05.
In this case, a party sold property contrary to a court order. The
court said the following:
“Accordingly,
the sale, having been done contrary to the provisions of the High
Court order, was certainly not proper. It was therefore not proper to
order that the house be transferred to the first respondent, as the
sale was a nullity. Court orders are made so that they are complied
with. The order of the High Court made on 16th May 2002 had neither
been set aside nor appealed against. The High Court cannot be used to
enforce a sale that was carried out contrary to the provisions of a
lawful order.
In
view of the above, the sale of the property to the first respondent
cannot be allowed to stand.”
In
the Munyikwa case, the consideration that the purchaser of the
property was an innocent purchaser did not carry the day.
A
thing that is done in breach of a court order is void ab initio. It
is of no legal effect.
The
failure to comply with a court order has the effect of injuring the
rights of the other party. When a party is granted a provisional
court order, those proceedings are complete notwithstanding that they
may well be subject to an appeal or confirmation. The order ensuing
is required to be complied with as any other order. A subsequent
breach or wilful disobedience of the order entitles the person in
whose favour the order was granted to enforce it.
A
deliberate disregard of a court order constitutes contempt of court.
It has the effect of violating the court's dignity, repute and
authority. It is the duty of the court to regulate its own orders.
Courts cannot sit back and watch whilst its orders are being
disobeyed. As a result, the courts regard anything that is done
contrary to a court order to be of no force and effect and is
regarded as not having been done at all.
The
facts of this case are on all fours with the Munyikwa case where the
court refused to recognise a sale of a property made in defiance of a
court order.
The
order interdicting the sale and transfer of this property was granted
on 8 October 1997 under HC8638/97. The applicant proceeded with the
sale and transferred the property into the second respondent's name
in November 1997 well after the provisional order had been granted.
First
respondent breached the order when he sold the property to second
respondent and transferred it to him in the face of the court order.
First respondent acted contrary to a prohibition of a court order.
The sale entered into between the first and second respondents is
unlawful. It is a nullity and ought to be set aside. The
non-compliance with the court order was both wilful and mala fide.
The court order has not been appealed against or discharged and is
still extant. The applicant is entitled to enforce the order.
The
sale and transfer went ahead despite of the fact that the dispute
over ownership of the property was still pending.
The
fact that the Magistrates Court subsequently dealt with the appeal is
of no consequence when regard is had to the fact that the first
respondent acted contrary to a court order. The judgment does not
make lawful the sale and transfer which was made contrary to an
extant order of the court and remains unlawful.
The
fact that the purchaser may not have known of the existence of the
court order does not clothe the sale with legality.
The
first respondent disobeyed the authority of the court.
This
court cannot be used to endorse and enforce a sale and transfer of
property that was done contrary to its own order. The court will not
be encouraged to be a party to defiance of its own orders.
The
applicant has established a clear right to redress. She is not at law
required to prove that she is likely to suffer any irreparable harm;
see Charisma Blasting and Earthmoving Services (Pvt) Ltd v Njainjai
and Ors 2000 (1) ZLR 85 at p 90. There clearly is no other
appropriate remedy available to the applicant to address the harm
caused. The sale of the property to the second respondent cannot
stand. The applicant has shown an entitlement to the order sought.
The
main application succeeds.
Consequently,
the second defendant's counterclaim for eviction of the applicant
from the property and surrender of title deeds of the property fails.
The
provisional order granted under HC1891/98 is hereby confirmed with
amendments. The applicant was initially justified in seeking an order
for contempt of court against the first defendant. She has now
abandoned that claim following the first respondent's death.
It
is accordingly ordered as follows:
1.
The respondent's counterclaim fails.
2.
The applicant's claim succeeds.
3.
The sale of Stand No. 2395 Glen View Township of Glen View situate in
the District of Salisbury previously held under Deed of Transfer No.
D.T No. 4347/90 by the 1st respondent to the 2nd respondent be and is
hereby set aside.
4.
The transfer of Stand No. 2395 Glen View Township of Glen View
situate in the District of Salisbury from the 1st respondent to the
2nd respondent registered as DT 9235/97 be and is hereby set aside.
5.
The 7th respondent be and is hereby ordered and directed to cancel
the transfer of Stand No. 2395 Glen View Township of Glen View
situate in the District of Salisbury effected on the 3rd of November
1997 and registered as D.T 9235/97.
6.
The costs of this application shall be paid by 2nd respondent.
Matsikidze
Mucheche and Partners, applicant's legal practitioners
Moyo
and Jera, respondent's legal practitioners
