Opposed
Application
MAFUSIRE
J:
[1] The
property situate Stand 2468 Mkoba 7 Township in Gweru (“the
property”)
was at all relevant times owned by the fifth respondent, Gweru City
Council. However, one Honest Pepolo was apparently buying it from
Gweru City Council in terms of one of those standard term
lease-to-buy agreements. Apparently in June 2004 Pepolo sold his
rights and interest to one Claudio Chakanetsa, now deceased (“the
deceased”).
In these proceedings his estate was cited as the first respondent,
duly represented by the executor.
[2] I
say “apparently” because although none of these specific issues
were in contention by themselves, a great deal of the factual
background was seriously disputed. And the applicant's case, with
all due respect, was badly pleaded. I shall elaborate on this later
on. First, the facts that were common cause or uncontentious.
[3] At
all relevant times the deceased, or his estate, owed a sum of money
to the first respondent (“Chamisa”).
Chamisa sued, got judgment and executed through the fourth respondent
(“the
messenger of court”).
The property was duly advertised for a public auction. On 23
September 2016 it was sold. The buyer was the third respondent
(“Misheck”).
On 21 October 2016 the magistrate's court confirmed the sale.
[4] On
5 July 2017 Gweru City Council and Misheck executed what was on the
face of it an agreement of sale of the property. But in reality it
was a cession. Transfer was conditional upon, among other things,
Misheck erecting on the property a building, or buildings, of a
certain value within a stipulated time-frame. However, it was common
cause that at the time of the agreement there was already a fully
developed dwelling house which had a number of occupants.
[5] In
January 2018 Misheck sued for vacant possession and holding over
damages. He succeeded. In the application before me it was hotly
contested who occupied the property at the time. Misheck's summons
for eviction cited one Monica Maboke (“Monica”)
and all those claiming occupation through her. Monica was one of the
deceased's surviving spouses. But she did not stay at the property.
In these proceedings the applicant claimed it was his tenants
occupying the property at the time. Both Chamisa and Misheck disputed
that.
[6] In
November 2018 the applicant instituted these proceedings. Apart from
costs he sought an order declaring him the rightful owner of the
property. He also sought an order setting aside the auction sale and
a cancellation of the cession of the property from Gweru City Council
to Misheck. At the end of argument I dismissed the application for
lack of merit.
[7] The
applicant's cause of action, in paraphrase, was that prior to the
attachment of the property by the messenger of court at the instance
of the judgment creditor, Chamisa, he had since bought it from the
deceased during his lifetime in terms of a written agreement of sale
dated 6 January 2013. He attached the document. The applicant said he
had duly taken occupation of the property through his tenants. He
said efforts to get transfer had been frustrated by the second
respondent, the executor, who continued to duck and dive each time he
made a follow-up.
[8] The
one misconception about the applicant's case was in relation to the
true nature of the rights and obligations that are created by these
so-called lease-to-buy- agreements in respect of these types of
township houses. Terms such as 'sale/purchase
of rights, title and interest in' 'transfer' etc.
are manifestly misguided. Yet as long ago as 1992 the Supreme Court
voiced concern over such use of wrong terminology in such situations.
In Gomba
v Makwarimba
1992 (2) ZLR 26 (SC) McNALLY JA said, at pp 27 – 28:
“As
so often happens, the parties have used the word 'sale' to
describe what was in reality a cession of rights, since the house
actually belongs to the Chitungwiza Town Council.…. It is
unfortunate that legal practitioners persist in ignoring the
distinctions between sale and cession of rights in these cases, both
because there are many such cases and because there are many such
distinctions.
In
this case the respondent was not the owner of the disputed immovable
property but merely a 'lessee-to-buy'. The contract in terms of
which the respondent acquired and held her rights in the property,
and which defined her rights in the property, was not before the
Court. Nor was the owner cited as a party.”
[9] Consistent
with such misconception, the agreement of sale between the deceased
and the applicant referred to the deceased as the owner of the
property. But he was not. It was Gweru City Council that was. The
agreement went on to allege that the Seller (the deceased) was
selling and the purchaser (the applicant) was buying the property.
But there could have been no such sale of such property. All that the
deceased was purporting to do was to cede his rights and interest in
the property. And conversely, all that the applicant wished to do was
to accept the cession. Of course, it is perfectly normal for the
cession price to equate to the market value of the property.
[10] Significantly,
the agreement said nothing about transfer. Obviously there could be
no transfer of real rights in such circumstances. Only personal
rights were involved. The agreement simply said:
“The
parties have been advised at the Ministry of Housing and Local
Government that the house will be registered upon inspection and
being given a certificate of occupation (sic).”
[11] If
the above misconception was more technical, the next one was not. It
was more profound and fatal. It was the bedrock of the applicant's
purported cause of action. His suit was a rei
vindicatio.
He boldly stated he was already the owner of the property by the time
the messenger of court attached and sold it in execution. So all he
now wanted was for the court to confirm by way of a declaratory order
that he was the owner and that Misheck's agreement with Gweru City
Council was void.
[12] But
unfortunately for the applicant, he could not vindicate. He was not,
and had never been the owner of the property. The rei
vindicatio
is only available to an owner of a thing whose possession of it was
taken away against his or her will. He or she is entitled to claim
the thing wherever he or she finds it, and from whomsoever has got
it: Chetty
v Naidoo
1974 (3) 13 (A), 20B. All that the owner has to prove is that he or
she is the owner; that his or her thing is in the defendant's
possession; and that it is still in existence and clearly
identifiable: see SILBERBERG AND SCHOEMAN'S The
Law of Property,
5th
ed., pp243–244, and the cases cited thereon. Rei
vindicatio
is a common law remedy.
[13] The
applicant pleaded in the alternative a double sale situation. That
was another misconception. He said even if the circumstances
portrayed a double sale situation in respect of the property (i.e.
his and the deceased as the first one, and Misheck's at the auction
as the second one), he was entitled to regain the property on the
basis that his purchase was the first in time.
[14] The
applicant further alleged that Misheck was not an innocent purchaser.
He alleged that when Misheck had come to view the house in
preparation of the auction, he had been advised by one of his
(applicant's) sisters, allegedly one of his tenants at the
property, that the house was not on sale and that it belonged to the
applicant. Misheck had allegedly been advised to go to the City
Council for verification. At the City Council Misheck had been
informed that he could not buy the property as the deceased had sold
it off to multiple buyers. But Misheck had allegedly ignored all
that.
[15] The
law on double sales, as per McNally JA in Guga
v Moyo & Ors
2000
(2) ZLR 458 (SC), at p459 is as follows:
“The
basic rule in double sales where transfer has not been passed to
either party is that the first purchaser should succeed. The first in
time is the stronger in law. The second purchaser is left with a
claim for damages against the seller, which is usually small comfort.
But that rule applies only 'in the absence of special circumstances
affecting the balance of equities'. See McKerron (1935) 4 SA
Law Times 178, Burchell (1974) 91 SALJ 40.……………… And in
BP Southern Africa (Pty) Ltd v Desden Properties (Pvt) Ltd 1964 RLR 7
(G), Macdonald J (as he then was) said:
'In
my view, the policy of the law will best be served in the ordinary
run of cases by giving effect to the first contract and leaving the
second purchaser to pursue his claim for damages for breach of
contract. I do not suggest that this should be the invariable rule,
but I agree with the view expressed by Professor McKerron that save
in 'exceptional circumstances' the first purchaser is to be
preferred.'
…………….The
broad principle as set out above was acknowledged to be our law in
Barros
& Anor v Chimphonda
1999 (1) ZLR 58 (S)………… Similarly in Charuma
Blasting & Earthmoving Services (Pvt) Ltd v Njainjai & Ors
2000
(1) ZLR 85 (S).”
[16] In
the present case, my major reason for dismissing the applicant's
case was that apart from the above misconceptions no attempt was made
at all to show any special circumstances as would warrant favouring
him ahead of Misheck. Not only had Misheck openly purchased the
property at a public auction, but also he had gone on to obtain
transfer of rights through a cession from the real owner, Gweru City
Council. If the applicant's purchase was first in time the onus was
on him to explain why so many years after the alleged purchase, his
right to title had remained hidden from the world leaving the
property exposed to attachment at the instance of the creditors of
the deceased or his estate.
[17] There
is a long line of cases that have dealt with the situation where a
party buys a property but makes no effort to obtain title or to
protect their rights and interest, invariably losing it to the second
time buyer: see for example De
Villiers v Cohn 1906 TH 12; Van Niekerk v Fortuin 1913 CPD 457;
Maphosa & Anor v Cook & Ors 1997 (2) ZLR 314 (H) and Sheriff
for Zimbabwe v Hersel (Pvt) Ltd & Ors HH856-15.
[18] The
legal position is that a judgment creditor is entitled to attach and
sell in execution the property of his debtor notwithstanding that a
third party has a personal right against such debtor to the ownership
or possession of such property which right may have arisen prior to
the attachment or even to the judgment creditor's cause of action
and of which the judgment creditor had notice when the attachment was
made: see HERBSTEIN & VAN WINSEN: Civil
Practice of the High Courts of South Africa,
5th
ed. Vol. 2 at p1020.
[19] If
the third parry had bought that property but was still to take
transfer, his rights were merely personal as against the judgment
debtor. They were subservient to those of the judgment creditor after
the attachment.
[20] In
Maphosa's
case
above, the applicants had bought the half share in the property prior
to its attachment by the deputy sheriff in pursuance of a judgment
and a writ in favour of a third party, a bank, which was owed a sum
of money by one of the respondents, the owner and seller of the half
share. The applicants sought the upliftment of the caveat that had
been registered on the property on attachment so that they could take
transfer. The application was dismissed. MALABA J, as he then was,
held that even though the applicants had paid the purchase price,
they did not become the owners until transfer had been registered.
All they had obtained had been personal rights claimable against the
landowner. The judgment creditor was held entitled to have the
property sold even in the face of the third party's personal rights
against the judgment debtor.
[21] The
right of a judgment creditor to insist on the property being attached
and sold in execution is of course, not an absolute one. The
existence of special circumstances in any given situation may
persuade the court to set aside the attachment to enable transfer to
be registered in favour of the third party claimant. At pp458–459
of his judgment in Van
Niekerk's
case above, KOTZE J said:
“It
seems to me that the plaintiff being a judgment creditor, and the
property being still registered in the name of the defendant, prima
facie
the plaintiff has the right to ask that the property shall be seized
in execution, unless
the party interested can show that there are special circumstances
why such an order should not be granted”
(underlining by myself).
[22] In
casu
the applicant said he “bought” the property way back in January
2013. But it was not until September 2016, almost three years later,
that Misheck bought it at the auction. The applicant said his efforts
to get transfer from the deceased's estate were frustrated by the
executor who was non-committal. That was hardly a special
circumstance. The courts were always there. There was nothing
stopping the applicant from enforcing his rights.
[23] Furthermore,
and at any rate, the auction had been duly advertised in the press.
That was notice to the whole world. The applicant took no action. The
law says property sold at a properly conducted and valid judicial
sale cannot, after delivery in the case of movables, or registration
in the case of immovables, be vindicated from a bona
fide
purchaser: see SILBERBERG & SCHOEMAN'S, supra,
at p 261.
[24] It
was for the above reasons that I dismissed the application with
costs. As for such hotly contested issues like whose tenants occupied
the property at the relevant time, or whether Misheck had knowledge
of the alleged prior sale to the applicant before his own successful
bid at the auction, were immaterial. They did not decide the case.
6
May 2019
Garikayi
& Company,
applicant's legal practitioners
Danziger
& Partners,
first and third respondents legal practitioners
