Civil
Appeal
MAFUSIRE
J:
[1] The
dispute between the parties centred on a property described as Stand
238 Phase 1 Checheche (“the
property”).
It is one of those council-owned township properties that local
authorities sell on a rent-to-buy basis. It is under the Chipinge
Rural District Council. In the court a
quo
the respondent (“Chengetai”)
sued the appellant (“Mbozvi”)
for eviction and holding over damages. The court granted the orders.
Mbozvi appealed. We heard argument on 27 March 2019 and reserved
judgment. This now is the appeal judgment.
[2] In
her claim, Chengetai alleged that Mbozvi “… unilaterally
entered
…” her property in January 2017 without her authority. She
alleged she had acquired the property in November 2007; that she had
partially developed it to window level but that the defendant was
staying there illegally and without paying rentals.
[3] The
claim was poorly presented. The drafting was sloppy. For example,
there was no reason why Mbozvi's name was not cited in full when
all his particulars were available. But that is besides the point.
[4] In
his defence, Mbozvi took an objection in
limine.
He said Chengetai had no locus
standi in judicio
to evict him or to seek holding over damages because the property was
his. But it seems this objection went nowhere. It seemed abandoned or
forgotten somewhere along the way. It was not even on the list of
issues at the pre-trial conference. The objection was ill-conceived
anyway, especially if regard is had to the nature of the claim and
the nature of the defence.
[5] On
the merits, Mbozvi denied that he had “… unilaterally
entered
…” the property. He alleged he had lawfully acquired it from one
Tafirenyika Maturo (“Tafirenyika”),
to whom Chengetai had transferred her right, title and interest.
[6] In
its judgment the court a
quo
ruled that there had never been a transfer from Chengetai to
Tafirenyika but that what had happened had all been a fraudulent
scheme to strip Chengetai of her ownership. As such, since no thief
or fraudster can in law transfer rights in a thing, Mbozvi's claim
to the property was held to be defective. The court also ruled that
Chengetai was entitled to holding over damages.
[7] The
case went like this. Chengetai opened and shut her case with only the
evidence from herself. She said the property was allocated to her by
the Chipinge Rural District Council in 2007. She produced the offer
letter from Council dated 29 November 2007. All this was common
cause. But there was a subtle detail on the letter that was at war
with her case. The letter had two parallel lines drawn in long hand
running diagonally across it and between which the words “Stand
No. 238 PHASE 1”
were inscribed, also in long hand. Mbozvi said that was the evidence
of the cession of the property from Chengetai, or of the original
allocation to her having been cancelled. She denied it. But she
proffered no other explanation for that endorsement. In a boxing
match that would be a point for Mbozvi.
[8] Chengetai
said she had submitted some developmental plans to the Council for
the construction of a 3-roomed cottage on the property. As proof, she
produced some drawings endorsed with a date stamp from the Chipinge
Rural District Council in 2012. But again a subtle detail on the
drawings contradicted the flow of her evidence. Mbozvi said the plans
were for a different property, not Stand 238. Indeed the drawings
cited a different property. They were titled “PROPOSED
COTTAGE ON STAND No.120 INFILL CHECHECHE GROWTH POINT”.
Chengetai said the reference to Stand 120 was a mistake which the
Council had promised to rectify but had never done. But again in a
boxing match, this would be another point for Mbozvi.
[9] Beyond
this evidence and these two documents, Chengetai's evidence proved
nothing further. Everything else she said was a bare denial of the
cogent and overwhelming evidence by Mbozvi through himself and his
very relevant witnesses, namely, Tafirenyika, his wife Leona or Loren
Chiona (“Leona”)
and Mbozvi's friend, Collen Gapara (“Collen”)
who had facilitated the sale deal between Tafirenyika and Mbozvi.
[10] Mbozvi's
case was this. He heard the property was on sale. He went to inspect
it. He liked it. Together with a sister and his wife they went to
inspect Council records. These reflected Tafirenyika as the “owner”.
Tafirenyika worked and stayed in South Africa. Mbozvi called him.
They agreed on a purchase price of fifty thousand Rand (R50,000).
Tafirenyika referred them to his wife, Leona, whom he said had all
the authority to represent him. The sale deal was concluded. The
purchase price was paid. They went to Council offices for the usual
cession. This was done. He took occupation in 2015 and started
building the partially constructed house. He completed the structure;
tiled the floors; installed water and electricity; planted some trees
and flowers around the yard; put up a security wall along the
perimeter and started staying there from January 2016. Until he
received her summons in March 2018, he had never heard of Chengetai
and her claim to the property.
[11] To
all that Chengetai denied ever selling the property to anyone. She
denied ever dealing with Tafirenyika or his wife, Leona. She was
adamant none of them was known to her. Mbozvi set to demolish her
case. He called Collen. Collen's evidence corroborated Mbozvi's
in relation to the sale by Tafirenyika. One important aspect of that
corroboration was that it was his advice to Mbozvi to clear the
property first with the Council before committing himself to
Tafirenyika. He was present at the Council offices when the records
were pulled out and inspected. They all reflected Tafirenyika as the
“owner”. Another important aspect of the corroboration was that
when Mbozvi took occupation there was a partially built structure
which Mbozvi completed in 2016. Even the court a
quo
accepted
Collen gave his evidence very well and that he remained unshaken
under cross-examination.
[12] But
the sale and transfer from Tafirenyika to Mbozvi was less
contentious. Fireworks were in respect of the sale and transfer from
Chengetai to Tafirenyika. Chengetai swore she knew nothing about it
or that Tafirenyika and his wife, Leona, were ever known to her. So
Mbozvi called Leona. She stayed at Checheche Growth Point. She said
it was Chengetai herself that had come to her house personally on 4
February 2015 to inform her that she had sold the property to her
husband Tafirenyika. Tafirenyika had already telephoned her (Leona)
about the deal. Before coming to Leona's house, Chengetai had first
telephoned her for directions. The purpose of Chengetai's visit was
to arrange transfer of cession at the Council offices. They agreed on
a date, 6 February, i.e. two days later.
[13] Leona's
evidence on the cession transfer at the Council's office was quite
elaborate. In brief it was this. She had her husband's national
registration particulars. Chengetai had hers. Together they were
moving from office to office signing documents. Chengetai would sign
first. She would sign in place of Tafirenyika. After completion of
the sale and transfer she and Chengetai actually became friends.
[14] Next,
Mbozvi called Tafirenyika. His formal evidence was that he worked and
lived in South Africa. He was married to Leona under customary law.
They had three children together. He was the one who sold the
property to Mbozvi. Everything was done through Leona, his wife whom
he had granted all the authority.
[15] Critical
aspects of Tafirenyika's evidence were these. He met Chengetai for
the first time in South Africa. He did not know her before. She had
been in the company of two people, one of them Zviedzo Chipfunde
(“Zviedzo”),
an old school mate of his. Zviedzo was then married to Chengetai. He
told him Chengetai was selling a stand for thirty thousand Rand
(R30,000). He reached an agreement with her. He paid her a deposit of
twenty thousand Rand (R20,000). The balance of ten thousand Rand
(R10,000) would be paid on the transfer of cession.
[16] Tafirenyika's
critical evidence continued. Towards December, Chengetai was
demanding the balance of the purchase price. He told her they needed
to change ownership first. They agreed that since he was busy he
would give her his wife's contact details through whom the
transactions would be carried out. Back in Zimbabwe, Chengetai did
contact Leona and went to see her at home. Together they arranged and
facilitated the change of ownership. Chengetai subsequently returned
to South Africa and collected the balance of R10,000 after both she
and Leona had confirmed the cession at Council offices.
[17] To
all that testimony Chengetai's position was just a bare denial. She
denied she knew Tafirenyika or his wife, Leona. She denied she had
sold her property to them. She denied she had been to South Africa
during the period mentioned by Tafirenyika. She denied she had
received that kind of money from Tafirenyika or anyone else in
connection with the property. She denied the cession at the Council
offices and alleged that all the documents suggesting a cession of
rights by her were forgeries or fraudulent.
[18] Mbozvi's
witnesses were forthright, straightforward and unshaken.
Cross-examination was lame. For example, Mr
Chirima,
for Chengetai, put it to Tafirenyika that Leona was a mere concubine
of his since there was no registered marriage between them. He
pestered Tafirenyika why he did not apply to be joined to the
proceedings if ever he wanted to defend his sale of the property to
Mbozvi and protect him! This was absolutely ironic. It was the
process issued by Mr Chirima
himself, on behalf of Chengetai, and his presentation of the case
that were patently incompetent. For example, the summons excluded
very relevant parties like Tafirenyika and the Chipinge Rural
District Council, the true owner of the property, and the records for
which reflected Tafirenyika as the owner. Not only that, but
Chengetai's case was closed with no evidence from any of the
Council officials testifying on what had really transpired regarding
the property and whether there had really been a fraud.
[19] There
was an aspect of Mbozvi's evidence and that of his witnesses that
left Chengetai rather exposed. They asked how on earth they could
have ever guessed Chengetai's national registration particulars
which were inserted on the cession documents. At first she denied
they were hers. But she subsequently admitted them. She gave no
explanation how Mbozvi and his witnesses could have got them.
[20] Mbozvi's
documentary evidence should have won him the case. In a boxing match
it would be the technical knock-out punch. It was completely in
consonant with his testimony and that of his witnesses. Firstly, he
relied on Chengetai's own original offer letter from Council and
highlighted the cancellation endorsed on it. Next he discredited the
drawings or building plans as belonging to a different property
altogether. The critical cession document from Chengetai to
Tafirenyika was produced through Leona. It was one of those standard
cession forms used by rural district councils which are printed on
council stationery. Blank spaces were completed in long hand. It had
four sections: the first for completion and signing by the cedent;
the second for completion and signing by the cessionary; the third
for official use, and the fourth and last for approval by the
Minister of Local Government.
[21] Completed,
the relevant portions of the cession document read as follows:
“The
undersigned … ___CHENGETAI
SIDHUNA___,
National Reg. No: ___13
– 174976 A 13___
do hereby cede, assign and transfer to … ___MATORO
(sic)
TAFIRENYIKA___
Nat Reg No: ___13
– 200661 T 13___
All my rights and title to and interest in lease number ___238___
at ___CHECHECHE___
Business centre in Chipinge Rural District from ___6___
day of ___FEBRUARY
2015___”
Above
the word “CEDENT” was a signature, in very clear print: “C
h e n g e t a i”
with the letter “e”
quite distinct and somewhat stylish. There were also signatures by
two witnesses.
[22] The
section for the cessionary read as follows:
“I
… ___MATORO
(sic) TAFIRENYIKA___
Nat Reg No ___13–200661
T 13___
Address ___1107
Phase 2 CHECHECHE___
Do hereby accept transfer of the Agreement of number _____(blank)____
Business Centre in Chipinge Rural District, as from the ___6___
day of ___February
2015___”
As
with the cedent, the cessionary's signature was a distinct name in
print “LOREEN
CHIONA”.
There were also signatures by two witnesses.
[23] The
last two sections of the cession document, which were for official
use and approval, were left blank. Mr Chirima
latched onto this. He said the alleged cession was incomplete and
unapproved. He said it was defective and fraudulent because Leona
purported to be Tafirenyika and to sign as him. He said she had no
power of attorney. The court a
quo
accepted the argument. It fell into error.
[24] There
is nothing magical about a cession of rights. In Chauke
& Anor v Mangena
HMA9-19 in which a similar argument arose, I said there is wise Shona
saying: “kupedzera
miseve pamakunguwo idzo hanga dziripo!”
meaning, wasting all the arrows on worthless crows when more
treasured guinea fowls abound: in other words, to major in minors.
Simply put, a cession is the transfer or giving up of rights and
interest by one party which the other party accepts or receives. The
cession is pivoted on an agreement that is legitimate. The transferor
or giver of the right is the cedent. The receiver is the cessionary.
No formalities are required for a valid cession: see R.H.
Christie:
Business
Law in Zimbabwe,
Juta & Co Ltd, 1998, at p110.
[25] In
Mberi
v Mbewe & Anor
HH420-15, after reviewing a number of cases on the point such as
Gomba
v Makwarimba
1992 (2) ZLR 26 (SC); Hundah
v Murauro
1993 (2) ZLR 401 (SC); Pedzisa
v Chikonyora
1992 (2) ZLR 445 (SC) and Magwenzi
v Chamunorwa & Anor
1995 (2) ZLR 332 (S), I said in a great number of cases of this
nature the local authority, which is the true owner of the property,
is little concerned with what the tenant-to-buy does with his rights
and interest in the property.
[26] The
local authority normally consents in advance of the alienation or
disposal of such rights, or it subsequently ratifies. The consent can
be tacit or express. In the present case it was both. That when
Mbozvi and his team went to inspect the Council records before he
committed himself to Tafirenyika they found the property reflecting
Tafirenyika as the owner was not challenged. Thus, unless the Council
had given tacit approval to the sale from Chengetai to Tafirenyika,
there could be no explanation why the records were in Tafirenyika's
name. But there was more. Produced in evidence was a very detailed
rent-to-buy agreement between the Chipinge Rural District Council and
Tafirenyika in respect of the property. It was signed by Leona as
lessee and by Chengetai as a witness. Nothing could be better
evidence of the express consent by the local authority and of the
transfer of rights from Chengetai to Tafirenyika.
[27] The
court a
quo
said all these documents were a fraud to strip Chengetai of her
ownership of the property. It said Leona had no power of attorney to
sign the documents as Tafirenyika. It went on to quote from some
authority defining a power of attorney as generally being a physical
document under seal, and concluding that the purported power of
attorney relied upon by Leona not having been a document under a
seal, all that she had done in the name of Tafirenyika had been a
“farce”.
[28] With
all due respect, the court seriously misdirected itself on this
aspect. Mbozvi and his witnesses never said Leona had a power of
attorney. The term 'power of attorney' was introduced into the
matrix by Mr Chirima
in cross-examination. All Mbozvi and his witnesses said was that
Leona had authority
from her husband to transact on his behalf, and that that authority
had been given over the telephone. Whilst a power of attorney gives
authority, not all authority is given by a power of attorney.
[29] All
that the court a
quo
had to be satisfied with was whether Leona had her husband's
authority to transact on his behalf. These were unsophisticated
people. The court had to be satisfied by the
substance
of the arrangements, and not be concerned with fancy legal niceties,
or with form over substance. But whatever might have been lacking in
form was given substance by the Chipinge Rural District Council
itself. It gave its badge of authority to the two cessions: the first
and crucial one from Chengetai to Tafirenyika, and the second and
uncontentious one from Tafirenyika to Mbozvi. The triangle was
complete. That Council itself and the Ministry of Local Government
might not have signed their sections on the cession document seemed
to be mere carelessness or plain inadvertence that did not in the
least detract from the fact that the parties had agreed and that the
Council had granted both tacit and express approval. Everything else
was subterfuge.
[30] Mr
Chirima
successfully persuaded the court a
quo
to find meaning and substance in a letter from the Chipinge Rural
District Council written to himself by the Growth Point Manager on 10
April 2018 and which he had solicited for. Relevant portions of that
letter read as follows:
“Your
letter dated 25 March, 2018 refers. Ms Chengetai's Sidhuna's
letter on same subject dated 18 September, 2017 also refers.
Please
note that the stand cession process is a long and arduous process
which takes place at five different levels, namely, the sub-office at
Checheche, then Heads of Departments have to consent to it before
submitting to ZIMRA. After ZIMRA's concurrence, the matter will
finally come back to the Lands and Assets Office at the Main Office
before being finally presented to the Chief Executive Officer to
complete the signing of a lease agreement thereto.
As
you observed, there is no complete cession yet and there is no lease
agreement yet between Council and the incumbent Tawanda Mbozvi. The
forms are still at the Checheche sub-office, held back because of an
incomplete process. Implicitly, the first level has therefore not yet
been satisfied by the parties to warrant it to move up to the second
stage where the Heads of Departments will peruse the documents before
they can be passed on to ZIMRA.
The
stand is therefore not yet formally
(emphasis
added)
in the buyer's or cessionary's ownership, albeit the nominated
cessionary already having been clearly cited for practical functional
purposes – and
this we always do as instructed and agreed between the seller and the
buyer.
In
the case of any objection by the parties, we always delay or defer
process until we are granted a green light by the parties
(emphasis
added).
In
the matter at hand, there is agreement between the incumbent Tawanda
Mbozvi and Tafirenyika Matoro who claims to have bought the property
from Chengetai Sidhuna
(emphasis
added).
The dispute, therefore, lies between Chengetai Sidhuna and
Tafirenyika Matoro who passed ownership of Sidhuna's property to
Mbozvi.
Essentially,
therefore, Council fully recognises Sidhuna's objection to
processes that were transacted in our offices. She is the holder of
the more critical Council stand documents and her consent to the
process is therefore paramount.
To
that effect, Council has deferred the cession process of stand 238,
given the apparent validity of Chengetai Sidhuna's formal complaint
since September, 2017.
By
copy of this letter, we advise the three parties on our records
(being Mbozvi, Matoro and Sidhuna) to convene or otherwise resolve
matters and instruct us accordingly. …”
[31] The
letter is an example of double-speak. But the highlighted portions
are a fabulous give-away. There is an acknowledgement of the double
cession. The cession from Chengetai to Tafirenyika was complete as
signified by the lease-to-buy agreement between the Council and
Tafirenyika. The cession between Tafirenyika and Mbozvi was complete
as signified by firstly, a handwritten agreement between Tafirenyika
and Mbozvi, and secondly the cession addendum from Tafirenyika to
Mbozvi, both in December 2015. All these documents were part of the
Council records. And yet neither Mr Chirima
nor the court saw it fit to have Council officials called to give
evidence.
[32] Chengetai
proved no fraud or any form of unlawful misrepresentation. On the
contrary, the evidence established that she had sold her rights and
interest in the property to Tafirenyika who in turn had sold his
rights and interest to Mbozvi. The court a
quo
failed to appreciate that the conclusion in Council's letter above
to the effect that the rights, title and interest in the property
still lay with Chengetai was the very aspect it was being asked to
adjudicate upon.
[33] Apart
from the foregoing, the court a
quo
failed to appreciate that there was also evidence that was not only
common cause, but also aliunde
to
that given viva
voce.
That evidence supported Mbozvi's case and contradicted Chengetai's
claim. It was this. Not only had Mbozvi been in occupation of the
property for more than two years before Chengetai's summons, but
also he had openly completed the partially built house on it from
window level right up to completion and to a habitable state with not
a whimper of protest from Chengetai. Chengetai conceded she saw the
building going up but failed to confront Mbozvi or his builders. She
claimed she feared violence. She said she went to complain to
Council. That is implausible. It is unbelievable. Mbozvi took
effective occupation in December 2015. Council's letter above
suggests she only complained in September 2017, thus almost two years
later. Her summons was in March 2018, more than two years later. At
the very least, she should have sought an interdict to bar Mbozvi
from carrying out any construction.
[34] Justice
is often depicted as a lady blindfolded, holding a sword in one hand
and a set of balancing scales in another. The scales are said to be
for measuring the strength of a case. They represent the weighing of
evidence. Before the case starts, the scales are evenly balanced.
They are in a state of equilibrium. The weight of the evidence as the
case progresses upsets the balance. As the case concludes the court
checks the way the scales are tilted. Judgment is granted for the
party in whose favour the scales are tilted.
[35] Thus,
a trial in a civil case involves the making of findings or inferences
of facts by balancing probabilities and selecting a conclusion which
seems to be the more natural or plausible one from several other
conceivable ones, even though that conclusion may not be the only
reasonable one: see Joel
Melamed and Hurwitz v Cleverland Estates (Pty) Ltd; Joel Melamed and
Hurwitz v Vorner Investments (Pty) Ltd
1984 (3) SA 155.
[36] In
this case, the scales of justice were undoubtedly tilted in favour of
Mbozvi. Chengetai proved nothing. Mbozvi proved everything, even
though the onus had not been on him. The judgment in the court a
quo
was a travesty of justice. Regarding holding over damages, if
Chengetai had no case for eviction, concomitantly she had no case for
holding over damages. Yet the court granted it. And demonstrably,
even the amounts were plucked from the air. There was no basis for
the rate of damages or for the quantum.
[37] In
the result, the appeal is allowed with costs. The following order is
issued:
(i)
The judgment of the court a
quo
is hereby set aside in its entirety and substituted with the
following:
“The
plaintiff's claim be and is hereby dismissed with costs.”
(ii)
The costs of this appeal shall be borne by the respondent.
June
2019
MAWADZE
J agrees:________________________
Mhungu
& Associates,
appellant's legal practitioners
Chirima
& Associates,
respondent's legal practitioners
