Opposed
Application
MAFUSIRE
J:
In
his application the applicant said his claim was for “specific
performance”
against the second respondent. This was in respect of an immovable
property, a house in one of the high density suburbs administered by
the second respondent.
At
the end of the hearing I dismissed the application with costs and
promised to deliver the reasons later. These are they.
The
applicant said he had “bought”
the house from the first respondent. The first respondent was the son
to his late father (“the
deceased”)
and the heir to the estate.
The
deceased had been buying the property from the second respondent
under the usual rent-to-buy agreement common among the local
authorities.
The
applicant's case was that the respondent was refusing to “transfer”
the property to him for the most unreasonable of reasons.
The
second respondent was saying it could not consent to the “transfer”
because it was aware that the deceased's widow, one Mlingo Mbewe,
had certain rights over the house which the son, the first
respondent, was trying to override or trample upon by surreptitiously
“selling”
it to a third party, the applicant.
The
second respondent did not exactly use such words. But that was
clearly the import of its opposition.
It
said until the widow was joined to the application, and until it was
satisfied that the dispute between her and the son had been resolved,
it was not going to consent.
It
seems that previously the son had instituted an action to evict the
widow from the house. However, the action had not been proceeded
with. The matter had been resolved on the basis that the son would
have entitlement to one of the rooms at the house and another room in
the outbuilding, with both of them sharing the rentals from the
remainder of the rooms.
To
that the applicant said the second respondent was not raising any
defence valid at law but was merely trying to protect the widow out
of sympathy for her. That was corruption and an abuse of office, he
said.
The
first respondent, the son, supported the applicant's case. He filed
a “Consent
to Judgment”
in terms of which he was consenting to be ordered by this court to “…
take all the necessary steps to transfer [the] right, title and
interest in [the] property…),
failing which the Sheriff should be authorised to do that on his
behalf.
What
was remarkable in this case was the misconception exhibited by all
the parties in relation to the true nature of their rights and
obligations.
Terms
such as “sale/purchase
of rights, title and interest in” 'transfer'
etc. were manifestly misguided.
Only
somewhere in the second respondent's heads of argument was there a
fleeting reference to the true legal position. In paragraph 21 it was
said:
“21
The record must be correctly set. Ownership of the property in
dispute vests in the 2nd
Respondent. The 1st
respondent, on his own, as asserted by Application (sic) or jointly
with Mlingo Mbewe, in 2nd
Respondent's view, only hold personal rights in the property.”
As
long ago as 1992 the Supreme Court voiced concern over the use of
such wrong terminology in such situations. That was in the case of
Gomba v Makwarimba.
At pp27-28 McNALLY JA said:
“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.”
In
the present case, although the owner, the second respondent, was
cited as a party (undoubtedly because it was the one refusing to
consent), the rent-to-buy agreement was not produced by any of the
parties.
But
it was common cause that any rights in the property had devolved to
the deceased, and subsequently to the first respondent, in terms of
that agreement.
None
of the parties gave any coherent answer why that agreement was not
produced.
The
applicant was content to start and end with his own agreement with
the first respondent. But that agreement was irrelevant, particularly
given that the first respondent was actually supporting his cause.
The
applicant's true grievance lay with the second respondent.
If
he claimed that the second respondent's refusal to consent to the
cession (not transfer) was unreasonable, then he ought to have
produced that agreement and pointed out those terms that showed that
such refusal was unreasonable.
That
was so because, among other things, the usual rent-to-buy agreement
contains clauses expressly prohibiting the cession or assignment of
rights under them, or the parting of rights of occupation of the
property, or the alienation or disposal of the property without the
prior written consent of the local authority.
In
the case of Hundah
v Murauro
McNALLY JA said:
“It
is surely a matter of general common knowledge, at least among
lawyers, that land in the high density suburbs belonged to the local
authority or, occasionally, to central government. Occupants of the
houses built in these suburbs fall into three categories (ignoring
the fourth category of lodgers or dependants). They were:
1.
simple tenants under a lease agreement with the local authority or
central government;
2.
tenants-to-buy, under an agreement which permitted them to take title
once the property was surveyed and the full price paid;
3.
owners, who graduated from category two, in the fullness of time.
It
is astonishing that no one thought to ask [the appellant] into which
of these categories he fell. Even more astonishing when one remembers
that he actually alleged 'it is still property of the City of
Harare'.
[The
appellant] was not the owner of the property. [He] is not now the
owner of the property. At the time the estate agent drew up the
agreement …… he was not even a tenant-to-buy. He was just a
simple tenant.…. …
In
this situation we regularly hear the submission –'But Roman-Dutch
law does not require a seller to own the property he sells. He can
enter into a valid agreement of sale as long as he realises he may
face an action for damages if he is unable to give good title to the
purchaser when the time comes to hand over vacant possession and, in
the case of immovable property, give transfer'.
This
answer may score well in an examination, but it overlooks the fact,
which should be common knowledge among practitioners, that the
standard agreement of lease or lease to buy used by the Harare and
Chitungwiza Municipalities (and many others) contains a clause
designed to prevent such agreements.”
The
pronouncement by the Supreme Court in the Hundah
case above all but sums up the applicant's insurmountable problems
in this case.
In
a great number of cases of this nature the local authority is little
concerned with what the tenant-to-buy does with his rights and
interest in the property. The local authorities normally consent in
advance of the alienation or disposal of such rights, or they
subsequently ratify. When litigation ensues, often against the
double-dealing or recalcitrant lessee-to-buy, the local authorities
simply indicate their willingness to abide by the order of the court.
Unfortunately for the applicant in this matter, this was not the
case.
In
the present matter, not only had the local authority not given its
consent to the intended cession, but it was expressly refusing to
grant it.
The
applicant's situation was actually worse off than any of those in
similar situations, for example, in the Hundah
and Gomba
cases above.
There
were others.
In
Pedzisa v Chikonyora
GUBBAY CJ had this to say:
“It
is trite that where a contract of lease contains prohibitions against
sub-letting, cession or assignment, either absolutely or without the
lessor's consent, a sub-lease, cession or assignment, entered into
without title to do so, is valueless and confers no rights on the
third party; for he can acquire no greater rights in the property
than the lessee has.….. A further obvious consequence of the
prohibition is that the court will refuse to enforce the sub-lease,
cession or assignment, at the instance of the lessee. To do otherwise
would be to confer a right upon the lessee not given by the
lessor.………………….
Plainly
enough in the present case the content of the lease-to-buy agreement
was… invalid because of a failure of the parties to it to request
and obtain the written consent of the Council – a failure that
related to a contractual formality. ……”
In
Magwenzi
v Chamunorwa & Anor
a case only marginally different from the present one in that the
tenant-to-buy had since obtained title to the property even though at
the time that he had purported to sell it to the third party he had
not, EBRAHIM JA said this:
“Once
the first defendant had taken transfer of the property, he was
entitled to sell it. The first defendant had agreed to sell at a time
when he was not the registered owner. All the time that the City of
Harare remained the owner, the agreement to sell was unenforceable,
because the first defendant could not transfer ownership without the
consent of the Municipality. Once the Municipality's consent was
not required, however, the contract became enforceable. ……………
The
agreement in Pedzisa's
case supra
was described as 'invalid' because it had failed to comply with a
contractual formality. ………”
In
Jangara
v Nyakuyamba & Ors
GILLESPIE J reviewed a number of decisions of both this court and the
Supreme Court on the issue of “township
houses”
administered by local authorities under the lease-to-buy agreements
and which are disposed of in breach of the terms of such agreements.
Some
of those cases that the learned judge reviewed included Pedzisa;
Hundah; Magwenzi, supra; Guta v Chimbunde & Anor
and Nkomo v Mujuru.
At
p481 the learned judge said:
“I
am therefore of the respectful view that the following statement of
principle is to be gleaned from the Supreme Court decisions.
A
cession of a right, originally acquired subject to a pactum
de non cedendo,
but in breach of that reservation, creates rights as between the
parties to that subsequent cession, which
rights, however, cannot bind the original holder of those rights.
The
court may, at the instance of the third party, enforce that contract
as against the lessee-purchaser; no
order, however, may be given which can bind the original holder of
those rights.
Thus
no order of transfer can be given against that original holder.
An
order of specific performance of transfer may, at the court's
discretion, be given against the lessee-purchaser; such an order has
the effect of obliging that party to effect transfer if
he is in a position to do so,
or to take transfer of the property in order to give it, if such be
necessary.
Depending
on the circumstances, however, the court may confine a third party to
an alternative claim against the lessee-purchaser in damages.
This
statement of principle explains completely the results in all the
other judgments, and was the principle expressly applied by SMITH J
and ROBINSON J in Guta
and Magwenzi.”
(my emphasis)
In
the present case, whether the second respondent withheld its consent
to the cession because the widow had not been cited, and whether or
not such a reason was unreasonable under the circumstances, are
issues that are immaterial, especially in the absence of the
rent-to-buy agreement.
If
the first respondent required the prior written consent of the second
respondent before he could in any way alienate or dispose of his
rights in the property to somebody else, and if the first respondent
had not obtained that consent prior to selling his rights to the
applicant, then that was the end of the road for the applicant in his
claim against the second respondent. Whether or not the applicant
does have a remedy against the first respondent is an issue of no
concern in the present application. As stated in Pedzisa,
the agreement between him and the first respondent was invalid or
unenforceable against the second respondent for want of compliance
with a contractual formality.
It
was for that reason that at the end of the hearing I dismissed the
application with costs.
30
April 2015
J.
Mambara & Associates,
applicant's legal practitioners
Tamuka
Moyo Attorneys,
first
respondent's legal practitioners
Mbidzo
Muchadehama & Makoni,
second respondent's legal practitioners
1.
1992 (2) ZLR 26 (SC)
2.
1993 (2) ZLR 401 (SC)
3.
At p403-404
4.
1992 (2) ZLR 445 (SC)
5.
At pp453-454
6.
1995 (2) ZLR 332 (S)
7.
At pp335-336
8.
1998 (2) ZLR 475 (HC)
9.
HH194-94
10.
1997 (1) ZLR 155 (H)
