CHEDA J: This is a court
application for a transfer of property whose relief is couched as
follows:
“It is ordered that:-
The Respondent be and is hereby
ordered, directed, authorized and compelled to proceed with the
transfer of Stand No. 7204, Nketa 9 Township, Bulawayo from 1st
Respondent to Applicant's names notwithstanding any pending cases
under HC113/03, HC1549/03, HC131/03 and HC176/07 and any other form
of objections by 2nd
Respondent”.
The genesis as well as the facts and background to the application is
briefly as follows:-
Applicant entered into an
agreement of sale with first respondent over Stand No.7204 Bulawayo
Township. On the 19th
day of October 2006 applicant lodged a proposed Title Deed with third
Respondent who started processing the transfer.
During the said processing, third Respondent noted that there were
second respondent's papers together with a court application
seeking to interdict third respondent from transferring the said
property before the finalization of a divorce action pending before
this court.
Applicant's argument is that she is an innocent third party who was
not informed by first respondent that the property he was selling to
her was subject of a matrimonial dispute.
Second respondent on the other hand, argues that applicant is not an
innocent purchaser as she ought to have known that there had been a
court application served on third respondent regarding the property
in question.
The divorce papers together with
the court application being Case No. HC131/03 was served on third
respondent on the 7th
day of February 2003, the then second respondent under Case No.
HC131/03. There was therefore, a restriction on this property. The
effect of the restriction was to warn all would-be purchasers to be
on their guard. Applicant continued to process the transfer until she
was stopped as is evidenced by the Registrar of Deeds' report of
the 31st
January 2007.
It should also be pointed out that first respondent could not be
served with the said court application as he was always avoiding
service upon himself by the Deputy Sheriff.
Applicant in support of her assertion of her innocence filed an
affidavit by Hlonipho Zondo who is in the conveyancing department of
her legal practitioners. The affidavit is to the effect that, after
the agreement of sale had been signed by the parties, he initiated
the transfer process, only to be advised by third respondent that the
property had a restriction which he had not seen upon lodgment of
applicant's documents at the Deeds Registrar's office.
The question then, is, was there a restriction at the time of the
lodging of documents by Applicant's conveyancers.
In my view, there was.
Had Hlonipho Zondo carried out a diligent search at the Deeds
Registrar's Office he would not have failed to see it.
In view of the above observations, applicant does not qualify to be
regarded as an innocent third party to this transaction.
Second respondent has claimed
certain rights in the property which is subject of this application.
That right has not been determined. This court is empowered by
section 7 of the Matrimonial Causes Act [Chapter 5:13] to stop any
transfer or right to a property held by a third party in its
distribution of matrimonial property.
Applicant's commencement of the
transfer proceedings was not bona
fide
as she did so after the restriction had been placed on the property
at the third Respondent's office.
For the above reasons, the application is dismissed with costs.
Mesrrs Marondedze, Mukuku, Ndove and partners, applicant's
legal practitioners
Messrs Coghlan and Welsh 2nd respondent's legal
practitioner
