The
plaintiff, who is employed as a painter in South Africa, told the court that,
during the year 2000, he approached a company known as Zimbabwe-Australia (Pvt)
Ltd..., seeking to buy a Stand. Some official there told him that he had to pay
what was termed “construction money” in the sum of $280,000= in addition to the
$1,000= for the Stand.
He
paid those amounts to Zimbabwe-Australia (Pvt) Ltd.
The
plaintiff did not sign any Agreement of Sale of the Stand. Neither was he shown
any proof that the Stand the he was paying for belonged to that company.
Due
to the economic meltdown, the plaintiff said Zimbabwe-Australia (Pvt) Ltd told
him to buy building materials because they were unable to so themselves.
He
obliged.
He
filed of record receipts for the materials bought from some of the
suppliers...,. Also filed of record were receipts reflecting various amounts of
money paid to Zimbabwe-Australia (Pvt) Ltd for the purchase of a Stand and
construction.
The
deposit of $25,000= for a Stand was paid on 28 December 2000. He also paid a
sum of $1,000= administration fee on that same day.
The
court observes that there is no information indicating which Stand the
plaintiff was paying for.
It
was the plaintiff's evidence that no-one claimed ownership of the Stand during
the entire period that the house was being built on it. When the house was
complete and habitable, he took occupation. He put his relatives in the house
since he himself lived, and worked, in South Africa. To his surprise, it was
only then that the first defendant pitched up and claimed ownership of the
Stand, and the house on it.
The
first defendant evicted the plaintiff's relatives and removed the plaintiff's
property from the house.
It
was only then that the plaintiff went to the City Council to ascertain who the
Stand belonged to. He then established that the Stand belonged to the first
defendant, and was registered in his name. It dawned to him that Zimbabwe-Australia
(Pvt) Ltd purported to sell him a Stand which did not belong to them.
The
plaintiff approached Zimbabwe-Australia (Pvt) Ltd, whose General Manager swore
to an affidavit on 27 April 2004. The affidavit does not seem to assist the
plaintiff at all as it seems to suggest that the purported takeover of the
Stand by the plaintiff was only done after management had resolved at a meeting
sometime in 2003. Management made the resolution after the first defendant had
allegedly stopped making payment for a long time – i.e. more than eighteen
months.
Under
cross-examination, the plaintiff accepted the simple truism that a person
cannot lawfully sell what does not belong to them, and that it was, therefore,
wrong for Zimbabwe-Australia (Pvt) Ltd to purport to sell to him the Stand
which did not belong to them.
He
accepted that he was the author of his own misfortune, although he tried to
attribute that to ignorance.
The
plaintiff would also not dispute the fact that the first defendant had, in fact,
paid Zimbabwe-Australia (Pvt) Ltd to construct a house on his Stand. He further
would not dispute that the first defendant had, in fact, paid in full for the
construction of the house on his Stand, but said he only did so after he
himself had taken occupation of the house.
He
accepted that if he had been careful, and did not want to cut corners, he would
not have been in the position he now finds himself in.
The
first defendant's case is simple.
He
owns the Stand in dispute and has title to it.
He
approached Zimbabwe-Australia (Pvt) Ltd to construct a house for him on his
Stand. He was asked to pay for the construction – which he did. He was later
told that what he had paid that far was no longer sufficient, as it had been
eroded by hyperinflation. He alleged that he had paid the full amount for the
construction of a five-roomed house.
The
parties entered into a written agreement.
Instead
of constructing a five-roomed house as agreed, Zimbabwe-Australia (Pvt) Ltd
built a four-roomed house. When queried about why they did that, they said that
was what was permitted by the City of Bulawayo...,. After the house had been
completed, the first defendant went to take occupation but found that the house
had been occupied by the plaintiff's relatives.
When
Themba Sibanda, the director, was asked about what was happening, he said Zimbabwe-Australia
(Pvt) Ltd had temporarily put somebody in the house for security reasons...,.
What
emerges from the evidence of the parties is that each of them paid Zimbabwe-Australia
(Pvt) Ltd some money for construction of a house. But the difficulty that has
not been is what did Zimbabwe-Australia (Pvt) Ltd do with the money, and
building materials received from the plaintiff?
The
plaintiff has not proved that his building materials were used on that
particular house. Zimbabwe-Australia (Pvt) Ltd could have used the materials to
build on any other Stand. There was no evidence from Zimbabwe-Australia (Pvt)
Ltd to the effect that the plaintiff's materials were used on that particular
house.
Zimbabwe-Australia
(Pvt) Ltd was a company which seems to have been run by crooks. People
purported to sell what was not theirs. That is why they could receive money
from two different people for the alleged construction of the same house. The
carelessness of the plaintiff exacerbated the problem.
In
the light of the foregoing, the answers to the issues referred for the trial
determination of this court are these -
1.
The rightful owner of Stand 3722 Emganwini is the first defendant, who paid for
the Stand and holds title to it.
2. Both parties paid Zimbabwe-Australia (Pvt)
Ltd for the construction of a house. But it was not established which house the
plaintiff paid for. Neither was it established where the building materials
that he bought was used. What admits of no doubt is the fact that both the
plaintiff and the first defendant paid Zimbabwe-Australia (Pvt) Ltd some money
for the construction of a house. The first defendant paid for the construction
of a house on his Stand. But it is not known what Zimbabwe-Australia (Pvt) Ltd
did with the money, and building materials that it got from the plaintiff.
Accordingly,
the plaintiff should look to Zimbabwe-Australia (Pvt) Ltd for his money and
building materials.
The claim against the first defendant must,
accordingly be dismissed with costs.
