The plaintiff and the defendant were married in Harare in February 1982. There are no children to the marriage.

The parties have realized that they no longer have love and affection for each other and that their relationship has broken down and cannot be retrieved. They came to this joint conclusion at a pre-trial conference that was held after the plaintiff had issued summons for divorce in January 2006.

At the same pretrial conference, the parties also agreed on how to share the movable assets of their joint estate in the event that the court agreed with them that their marriage cannot be salvaged and granted a divorce in the matter.

The sole issue that remained for determination was how to distribute the immovable property of the marriage, namely, Stand 493 Houghton Park Township.

It was the plaintiff's contentions, that, she be awarded 50% of the net proceeds from the sale of the property. On the other hand, the defendant argued that the immovable property was his sole property and that it should be declared as such. He further argued, that, in the event that the court awarded a share to the plaintiff, the property should only be sold upon his death as to do so prior would be to render him homeless.

The facts of this matter, regarding the acquisition of the immovable property, are, to a large extent, common cause.

When the parties married, they were in rented accommodation; they then secured a vacant Stand in or about 1985. At that time, he was the one in gainful employment. She would then use her time to attend to all those tasks that required someone who had more time on their hands.

The property was registered in their joint names.

The parties developed the Stand to its current state from the proceeds of a loan secured by a bond over the property which loan he repaid from his earnings.

In 1997, she became gainfully employed and had the kitchen and the bathrooms tiled. She also had cupboards installed in the kitchen. This was from her earnings.

It is further common cause, that, the parties assisted his family to put up a residence at a farm that he considers as his family home. Her parents owned a property in Dube, Soweto, South Africa, and, upon their untimely demise, the property either passed on to her (which fact she denies) or she has the right to reside in the property.

The plaintiff is in her mid-fifties while he turns sixty-seven next September. He is on pension from a company that he worked for thirty four years. He is currently a contract worker with the same employer.

During the trial of the matter, both gave evidence.

As indicated above, their evidence is largely common cause. She admitted, that, whilst the property is registered in their joint names, he developed the Stand virtually on his own save for the tiling of the kitchen and of the bathrooms that she saw to after she obtained employment in 1995. He admitted, that, since the property was acquired during the subsistence of the marriage, she is entitled to a share but that she should only be able to realize that share upon his demise.

He further testified, that, the plaintiff is South African by origin, and, after divorce, she will return to South Africa where her family is. She has a son from a previous marriage, who, at one stage, lived at the family home in Soweto which has been left by her parents.

Although I found both to be generally good witnesses, it is in my view pertinent, that, at this stage, I mention that I have accepted the defendant's contention as more probable that the plaintiff is unlikely to remain in Zimbabwe after the divorce.

I did not believe her averments that she will stay in the country as she has developed a clientele for catering service.

With the economic downturn that the country is experiencing, resulting in the shortage of basic commodities, her line of business is not the most lucrative and would hardly entice her to stay where she has an option to leave.

I have also based my finding on the admitted fact that she has already taken to that country some of her clothes. She argues that these are now a wee bit loose as she has lost weight.

I do not believe her in that regard.

She has accommodation in South Africa even if she may not own that property. She has not sought to find and establish another home in Zimbabwe for herself - even after filing for divorce. She has sold some of the movable assets that the parties agreed could be retained by her as her sole and absolute property.

Two issues fall for determination in this matter:

(i) Firstly, I have to determine whether, from her 50% share in the property, I may deduct any percentage to award to the defendant in exercising the discretion vested in me by section 7 of the Matrimonial Causes Act [Chapter 5:13] (the Act)....,.

I return to the first issue.

It is common cause that the property in issue is registered in the parties joint names.

As has been held in the much cited case of Takafuma v Takafuma 1994 (2) ZLR 103 (SC), the plaintiff is a half owner in the immovable property. Such ownership is not derived from her status as a wife nor does it arise from the direct contributions that she made towards the acquisition of the property. She is an owner by virtue of the registration of her name against the Deed of Transfer in respect of the property. Her title to the property in this regard holds against the world at large, and, to an extent, against her husband unless he can show recognizing her right in the property will not achieve the objectives set out in the Matrimonial Causes Act, namely, of placing the spouses in the position they would have been in had a normal marriage relationship continued, as far as this is reasonable and practicable.

In the result, I will award 50% of the net value of the property to the plaintiff.

Section 7(1)(a) of the Matrimonial Causes Act [Chapter 5:13] states that:

“Subject to this section, in granting a decree of divorce, judicial separation, or nullity of marriage, or at any time thereafter, an appropriate court may make an order with regard to -

(a) The division, apportionment, or distribution of the assets of the spouses, including an order that any asset be transferred from one spouse to the other;”...,.

The Marlborough house is registered in the joint names of the parties whilst the Mt Pleasant house is not.

Registration in joint names is prima facie proof of a 50:50 ownership in the property.

The question to be answered is whether the justice of the case requires that a spouse's share be awarded to the other, if so, how much of that share?

After a careful assessment of the parties contributions, needs, and other factors, as detailed in section 7(4) of the Matrimonial Causes Act, I am of the view this is a case where a part of the plaintiff's share should be transferred to the defendant to achieve a just and equitable distribution of the assets of the spouses. A deduction of 15% would, in my view, be appropriate in the circumstances. I thus conclude, that, the defendant deserves a 65% share in the Marlborough house and the plaintiff a 35% share.

Registrations of title in land are made in terms of the Deeds Registries Act [Chapter 20:05] (the Act), specifically section 14 thereof which provides as follows:

“Subject to this Act, or any other law -

(a) The ownership of land may be conveyed from one person to another only by means of a deed of transfer executed or attested by a registrar;

(b) Other real rights in land may be conveyed from one person to another only by means of a deed of cession attested by a notary public and registered by a registrar;

Provided that attestation by a notary public shall not be necessary in respect of the conveyance of real rights acquired under a mortgage bond.”

The registration of title in one's name constitutes the registration of a real right in the name of that person. A real right is a right in a thing which entitles the holder to vindicate his right, i.e. to enforce his right in the thing for his own benefit as against the world; that is against all persons whatsoever. See WILLE's Principles of South African Law…,.

Another definition of a real right is that it is a right in a thing which confers on the holder of the right an exclusive benefit in the thing which benefit is indefeasible by any other person.

What, then, are the consequences attendant upon the acquisition of a real right of this nature?

The effect of registration of a person's name as owner of a piece of land is that he is the owner of the land including the permanent buildings on it, in the absence of fraud, error or other exceptional cases. Thus, it is a principle of our law that the dominium in immovable property remains in the seller until the same is registered in the name of the purchaser. It follows therefore that an owner of property cannot be deprived of his property against his will. Consequently, no person, who is not the owner, can transfer ownership in anything whether or not such transferor was acting in good faith or mala fide. Since an owner cannot be deprived of his property against his will, conversely, such owner is entitled to recover his property from anyone who possesses the property without his consent.

I am fortified in this view by the comments of JANSEN JA in Chetty v Naidoo 1974 (3) SA 13…, to the following effect:

“…,. It may be difficult to define dominium comprehensively (c.f. Johannesburg Municipal Council v Rand Townships Registrar and Others 1910 TS 1314 at pa 1319); but, there can be little doubt (despite some reservations expressed in Munsamy v Gen-gemma 1954 (4) SA 468 (N) at pp 470H-471E) that one of incidents is the right of exclusive possession of the res, with the necessary corollary that the owner may claim his property wherever found, from whomsoever holding it. It is inherent in the nature of ownership that possession of the res should normally be with the owner and it follows that no other person may withhold it from the owner unless he is vested with some enforceable right against the owner (e.g. a right of retention or contractual right). The owner, in instituting a rei vindicatio, need, therefore, do no more than allege and prove that he is the owner, and that the defendant is holding the res - the onus being on the defendant to allege and establish any right to continue to hold against the owner (c.f. Jeena v Minister of Lands 1955 (2) SA 380 (AD) at pp 382E-383). It appears to be immaterial whether, in stating his claim, the owner dubs the defendant's holding 'unlawful' or 'against his will' or leaves it unqualified (Krugersdorp Town Council v Fortuin 1965 (2) SA 335 (T)). But, if he goes beyond alleging merely his ownership and the defendant being in possession (whether unqualified or described as 'unlawful' or 'against his will', other considerations come into play.”

With the exception of certain instances where title may have been through fraud, the transfer of ownership in a piece of land transfers dominium in such land from the holder to the purchaser and thus bestows on the transferee rights, control, and possession of the land - which rights are completely unfettered except as may be subject to conditions in the Deed of Transfer.

In Willoughby's Consolidated Co. Ltd v Copthall Stores Ltd 1913 AD 267…, LORD DE VILLIERS stated:

“…,. There is no principle more clearly established in our law than that a clean transfer of land coram lege loci, which is in the nature of a semi judicial act, passes the dominium to the transferee, and that, except perhaps in the case of ownership acquired by prescription, the title appearing on the title deed is conclusive in favour of a bona fide purchaser to whom such transfer has been effected. Even when land has been acquired by prescription the practice is for the party who has so acquired it to institute an action for duly registering his acquired rights in the Deeds Office.”

When an owner of property delivers the property sold and has the capacity of alienation, or if he is not the owner but has the consent of the owner to alienate, the effect of delivery is to transfer to the person of the purchaser the property in the thing sold, provided the purchaser has paid for the property or has been granted credit by the seller. On delivery, the purchaser obtains a ius in re, a real right in the thing sold. With respect to immovable property, delivery is achieved through registration in the Deeds Office, as was decided in Harris v Buissine's Trustee, 2M. The pertinent passage from the judgment is as follows:

“By the law of Holland, the dominium or ius in re of immovable property can only be conveyed by transfer made coram lege loci, and this species of transfer is essential to divest the seller of, and invest the buyer with, the dominium or ius in re of the immovable property, as actual tradition is to convey the dominium of movables and that the delivery of the actual possession of immovable property has no force or legal effect whatever in transferring its dominium.”

A passage to the same effect is found from C.I. BELCHER in his book Norman's Purchase and Sale in South Africa, 4ed quoting from Pothier, Vente, 319 et seq had this to say:

“When the vendor is the owner of the thing sold and has a capacity of alienation, or, if he is not, when he has the consent of the owner, the effect is to transfer to the person of the purchaser the property in the thing sold provided the purchaser has paid the price or the vendor has given him credit for it. The contract of sale, by itself, cannot produce this effect. Contracts can only make personal engagements between the parties. It is only delivery made in pursuance of the contract which can transfer the property in the thing sold according to the rule traditionibus et usucapionibus domina rerum non nudis pactis transferantur.”

In his heads of argument, counsel for the second respondent (City of Harare) took issue with the date on the Power of Attorney that was prepared in respect of the transfer to Agro Chem….,.

The agreement was concluded on 29 March 1995….,. Transfer to Agro Chem was effected on 20 November 1995…,.

I will not dwell on the suggestion by counsel for the second respondent that in view of the date of the power of attorney the transfer must have been fraudulent.

I take judicial notice of the fact that other than a power of attorney other documents are submitted for purposes of transfer, and, if indeed it was felt that the transfer had been irregular something would have been done by now to set it aside on the basis of such irregularity.

The applicant seeks an order for specific performance of a contract of sale of an immovable property called Lot 1 of Subdivision 2 of Lot 382A Highlands Estate measuring 4,043 square metres held under Title Deed No.13635/2001, registered in the names of the first and second respondents, husband and wife respectively….,.

The second respondent is opposed to the order sought by the applicant.

She counter-applies for an order declaring the agreement of sale relied upon by the applicant null and void ab initio. She avers that, as joint owner of the property in question, she never consented to the sale of the property. She states that the signature appended to the Power of Attorney executed in favour of the first respondent granting him power to transfer her half-share is a forgery.

The applicant makes the following averments regarding the circumstances leading to this application:

On 15 February 2005, the first and second respondents sold the property to one Wonderful Chizema. On 1 July 2005, the first and second respondents sold the same property to the applicant. At the time of the sale the applicant was unaware of the prior sale to Wonderful Chizema.

On 20 July 2005, the first and second respondents sought to cancel the sale of the property to Wonderful Chizema. Chizema did not accept the cancellation. He obtained a provisional order, on 23 August 2005, in this court, interdicting the first and second respondents from alienating the property in any way. The provisional order was never confirmed. The applicant states that Wonderful Chizema has since fallen out of the picture.

On 2 August 2005, the first respondent sought to cancel the sale of the property to the applicant. The applicant did not accept the cancellation. It obtained a provisional order in this court on 2 September 2005 interdicting the first and second respondents from alienating the property in any way pending the determination of an application compelling transfer of the property to it.

On 5 October 2005, the applicant obtained default judgment against the respondents in terms of the order in the present application. Consequently, the property was transferred to it.

On 10 October 2005, a writ of eviction was issued out in favour of the applicant for the eviction of both the first and second respondents from the property. The first and second respondents obtained an order staying eviction pending the filing of an application for rescission of judgment.

On 20 December 2006, the second respondent applied for and obtained rescission of the judgment granted on 5 October 2005.

This application deals with the merits of the main application.

The issue is whether the applicant is entitled to the order sought in the application for specific performance.

The first respondent has not opposed the order sought.

The second respondent states that her marriage to the first respondent, around 24 February 2004, the date the power of attorney in favour of the first respondent was signed, was on the rocks due to the first respondent's association with one Ivy Kombo. As such, she could not possibly have executed the power of attorney as alleged. In any event, she had already executed such power of attorney in favour of her sister.

Counsel for the applicant urged this court to find for the applicant on the following grounds:

(a) Firstly, he contended that as the second respondent was fully aware of the sale of the joint matrimonial property to the applicant, she must be ordered to pass transfer to the applicant.

(b) Secondly, if this court held that she was unaware of the sale to the applicant, and, therefore, found that her signature consenting to the sale is a forgery, the court must still order specific performance as she will not suffer any prejudice since she can still call upon the first respondent to account for the sale of the proceeds of the sale of the matrimonial assets in the pending divorce action.

(c) Thirdly, since, at common law, the second respondent is regarded as co-owner of the asset in issue, she will be entitled to a share on the property proportionate to her shareholding. See Runciman v Schultz 1923 TPD 45 where…, the following appears;

“The principle of our law on this point seems to me to be contained in the first paragraph of Digest (10.3.6.2), where Ulpton says;

'A joint owner (socius) will be bound by the actio communi dividundo to account for whatever he has acquired from the common property, whether by letting the common property or by cultivating it himself.”

The applicant argues that the first respondent need not have obtained the second respondent's consent before disposing of his half-share. As such, the sale of the first respondent's half share to the applicant cannot be impugned. If the applicant does not obtain transfer, the result will be that the applicant, a company, and the second respondent, will become co-owners of a residential property which, for strangers, is absurd. The applicant urged the court to exercise its wide discretion to make such an order as the justice of the case may require. Estate Rother v Estate Sandig 1943 AD 47.

In Bennett N.O. v Le Roux 1983 ZLR 301 (H) the relevant authorities are discussed and set out as follows;

“The task of the court is to decide how the property should be sold, and, in doing that, it is being guided by the following passage in Oosthuizen's The Law of Property on p63:

“If the joint owners are unable to agree upon the manner in which the property is to be divided, any one of them may approach the court for relief by instituting the actio communi dividundo. The court has a wide discretion in regard to the partition and may make such order as appears to be fair and equitable in the circumstances. It may, for example, order one joint owner to pay a certain sum to each of the others in order to equalise the division; the court may award it to one of the joint owners subject to the payment of compensation to the other; or it may order that the property be sold by public auction and the proceeds to be divided among the joint owners in accordance with their shares.”

The second respondent is vehemently opposed to the grant of the order sought, and, as I said, makes a counter-application for an order declaring the agreement of sale null and void ab initio.

She raised a point in limine that as there is a dispute of fact incapable of resolution on the papers, the matter must be referred to trial.

It seems to me that there are sufficient facts which are common cause on the papers upon which this court can, adopting a robust approach to the whole matter, rely upon to resolve the dispute.

As I understood it, the contention by counsel for the second respondent is that despite the fact that a divorce is pending, at law, she is still married to the first respondent. By virtue of her marriage she is a joint owner of equal and undivided share in the property. She was never party to the agreement of sale which the applicant seeks to enforce. The power of attorney used to effect the agreement of sale was forged in favour of the first respondent. As such, she is not bound by the agreement.

It is true that a co-owner may not purport to alienate the property which is jointly co-owned without the consent of the other owners; and that alienation of jointly owned property can only be effected by the joint action of all the owners. Masubey v Masubey 1993 (2) ZLR 36.

There may, however, be circumstances in which a court may be called upon to consider whether or not to recognise an alienation which violates this principle of our law.

A common occurrence of such a circumstance occurs in matrimonial property. In Ncube v Ncube 1993 (1) ZLR 39 (S) the court was called upon to do exactly that. At p46 the Supreme Court expressed itself thus:

“It is true that joint owners of property own each and every part of the property equally, and, therefore, own equal shares in the value of the property. But when property comes to be apportioned or divided under section 7 of the Act, even though the spouses may be joint owners of the property, the Act confers on a court of law, in the interest of justice and fair play, power to take part of a spouse's share in property jointly owned to give it to the other spouse, if, by doing so, it could place the spouses in the position they would have been had a normal marriage relationship continued between them.”

In the present case, it is my finding that the first respondent misrepresented to the applicant that he had the power of attorney to enter into the agreement of sale in respect of the second respondent's half share in the immovable property. I also find that the applicant had no reason to suspect that there was a misrepresentation of fact in respect of the authority to pass transfer by the first respondent. The papers do not suggest that it was in the public domain that the first and second respondent's marriage was on the verge of collapse in 2005. It therefore cannot be argued that the applicant was not an innocent purchaser for value when it bought the property. Indeed, that is not the second respondent's contention. She relies on her lack of knowledge and consent to the sale of her half-share by her husband only.

Having come to that conclusion I must decide whether or not I should order specific performance.

Our law is clear that a plaintiff is always entitled to specific performance, and, if he or she makes out a case, his or her claim will be granted - only subject to the court's discretion. The locus classicus for this view is the judgment of INNES J in Farmers Co-operative Society (Reg) v Beny 1912 AD 343 where…, he says:

“Prima facie, every party to binding agreement who is prepared to carry out his own obligation under it has a right to demand from the other party, so far as it is possible, a performance of his undertaking in terms of the contract. As remarked by KOTZE CJ in Thompson v Pullinger (1894) 1 OR at p301;

'The right of a plaintiff to the specific performance of a contract where the defendant is in a position to do so is beyond doubt.'

It is true that Courts will exercise a discretion in determining whether or not decrees of specific performance will be made. They will not, of course, be issued where it is impossible for the defendant to comply with them. And there are many cases in which justice between the parties can be fully and conveniently done by an award of damages. But that is a different thing from saying that a defendant who has broken his undertaking has an option to purge his default by the payment of money. For, in the words of Storey (Equity in Jurisprudence, sec 717(a));

'It is against conscience that a party should have a right of election whether he would perform his contract or only pay damages for the breach of it.'

The election is rather with the injured party, subject to the discretion of the court.”

In exercising the court's discretion I am aware that “…, (t)he discretion which a court enjoys, although it must be exercised judicially, is not confined to specific types of cases, nor is it circumscribed by rigid rules. Each case must be judged in the light of its own circumstances.” per DE VILLIERS AJA in Heynes v Kingwilliamstown Municipality 1951 (2) SA 371…,.

In this case, what I find to weigh heavily in favour of the granting of the order sought is;

(a) The fact that the applicant entered into the agreement of sale without any suspicion that the first defendant may have forged his wife's signature to the agreement.

(b) Secondly, the applicant has made full payment for value to the first respondent. It is for the first respondent to disgorge his ill-gotten gains in favour of his estranged wife.

(c) Thirdly, in view of the pending divorce proceedings, the second respondent will not suffer any prejudice by making a claim for her share in those proceedings taking into account the findings against her husband made in this judgment.

(d) Further, a balance of convenience favour the making of an order in favour of the applicant in the terms sought.

In the premises, therefore, the second respondent's counter-claim is dismissed with costs. In the premises I make the following order:

1. The third respondent be and is hereby ordered to transfer a certain piece of land situate in the district of Salisbury known as Lot 1 of Subdivision 2 of Lot 382 A Highlands Estate measuring 4,043 square metres held under Deed of Transfer No.13635/2001 to the applicant.

2. The Sheriff of the High Court of Zimbabwe or his lawful Deputy be and is hereby authorised to sign all papers necessary to transfer title in favour of the applicant in terms of paragraph 1 above.

3. The fourth respondent be and is hereby ordered to issue a duplicate Capital Gains Tax Clearance Certificate to Matipano and Musimwa legal practitioners of the Certificate he issued to Musunga and Associates upon application and in fulfilment of his requirements for him to issue such certificate.

4. Matipano and Musimwa legal practitioners be and are hereby authorized to process the conveyancing of the property referred to in paragraph 1 above to the applicant.

5. The Deputy Sheriff be and are hereby ordered to evict the first and second respondents and all those claiming through them from a certain piece of land situate in the district of Salisbury known as Lot 1 of Subdivision 2 of Lot 382 A Highlands Estate measuring 4,043 square metres held under Deed of Transfer No.13635/2001 otherwise known as 4 Knightsbridge Crescent, Highlands, Harare with the assistance of the members of the Zimbabwe Republic Police, if necessary, upon giving five days notice.

6. The first and second respondents, jointly and severally, the one paying the other to be absolved, be and are hereby ordered to pay costs of suit.

In Takapfuma v Takapfuma 1994 (2) ZLR 103, McNALLY JA said –

Where a spouse has been awarded a share in the matrimonial estate by a court order, until that share is transferred to them, no rights of ownership are created in favour of that spouse by the mere issuance of the divorce order. At best, the court order serves as a declarator of the respective rights that the former spouses have in the property.

A copy of the title deed for the property, which was produced by the plaintiff, reflects that the plaintiff and the defendant are registered as joint owners of the Mainway Meadows property....,.

In Takafuma v Takafuma 1994 (2) ZLR 103…, McNALLY JA stated:

“The registration of rights in immovable property, in terms of the Deeds Registries Act [Cap 139,] is not a mere matter of form. Nor is it simply a device to confound creditors or the tax authorities. It is a matter of substance. It conveys real rights upon those in whose name the property is registered…,.”...,.

As the parties are the joint registered owners of the Mainway Meadows property, they must be taken to be the owners or holders of equal and undivided shares in the property....,.

In terms of section 7(1) of the Matrimonial Causes Act [Chapter 5:13], in granting a divorce, the court may make an order with regard to the division, apportionment, or distribution of the assets of the spouses, including an order that any asset be transferred from one spouse to the other.

In terms of section 7(4) of the Matrimonial Causes Act, in making the said order, the court shall have regard to all the circumstances of the case, including the following:-

(a) The income generating capacity, assets, and other financial resources which each spouse and child has or is likely to have in the foreseeable future;

(b) The financial needs, obligations, and responsibilities which each spouse and child has or is likely to have in the foreseeable future;

(c) The standard of living of the family, including the manner in which any child was being educated or trained or expected to be educated or trained;

(d) The age and physical and mental condition of each spouse and child;

(e) The direct or indirect contribution made by each spouse to the family, including contributions made by looking after the home and caring for the family and any other domestic duties;

(f) The value to either of the spouses, or to any child, of any benefit, including a pension or gratuity, which such spouse or child will lose as a result of the dissolution of the marriage; and

(g) The duration of the marriage.

It is in having regard to the above the court is enjoined to “endeavour, as far as is reasonable and practicable, and, having regard to their conduct, is just to do so, to place the spouses and children in the position they would have been had a normal marriage relationship continued between the spouses.”

Section 14(a) of the Deeds Registries Act [Chapter 20:05] states that “the ownership of land may be conveyed from one person to another only by means of a deed of transfer executed or attested by a Registrar.”

In the case of Chapeyama v Chapeyama 2000 (2) ZLR 175 (S) the court awarded a 50% share to the parties on the basis that the property was registered in both their names and they had pooled their resources to run the family.

In this case, the parties have done exactly the same.

In any event, the disputed house is jointly owned by the parties. The registration of rights in terms of the Deeds Registries Act [Chapter 20:05] is not just a formality. It is a matter of substance as it conveys real rights to the person in whose name the property is registered. See Takafuma v Takafuma 1994 (2) ZLR 103 and Lafotant v Kennedy 2000 (2) ZLR 280.

I can find no justification, in this case, to take away part of the defendant's half share and give it to the plaintiff....,.

1....,. 

2....,. 

3....,. 

4....,. 

5....,. 

6....,. 

7....,. 

8. The plaintiff and the defendant are hereby declared to be the owners of an undivided half share in Stand 2209 Prospect Township of Stand 2899 Prospect Township measuring 860 square meters also known as Stand 2209 Mainway Meadows, Waterfalls, Harare.

On 15 November 1996 the applicant and the first respondent entered into an Agreement of Sale in terms of which the applicant purchased from the first respondent an immovable property known as Stand No.6670 Chikanga 3, Mutare. The purchase price was agreed at $18,000=. Of this amount, $10,000= was paid on the date of the signing of the agreement, being 15 November 1996, as recorded in clause 1 of the agreement.

In terms of clause 2 of the agreement, commencement of payment of the balance of the purchase price, in the sum of $8,000=, was to be paid after a grace period which extended from the date of signature up to 30 June 1997. A monthly payment of $750= was to be made with effect from 1 July 1997, and, thereafter, the same amount was to be paid by the first day of each succeeding month until full payment was made.

In terms of clause 3, the seller, being the first respondent, was to deliver vacant possession of the property to the buyer, that is the applicant, within 7 (seven) days from the date of payment of the final instalment. Transfer of the property to the purchaser was to be effected at the same time.

In terms of clause 4, the purchaser was to pay all charges in respect of the property with effect from the month of December, presumably of the year 1997, onwards. The purchaser was also required to develop the property to the level or stage at which the third respondent would approve transfer (cession) of the property, in terms of its by-laws.

In terms of clause 5 of the agreement, the purchaser would pay the monthly instalments into the seller's POSB account, the details of which account would be furnished to the purchaser by the seller. The clause then further provides as follows:

“This is the only agreement the parties will go by and no other whatsoever unless this agreement is expressly and in writing otherwise amended or replaced.”

The concluding paragraph is to the effect that the meaning and import of the agreement has been explained to the parties in the Shona language and they have understood the same.

The applicant avers that he paid the full purchase price of the property as evidenced, firstly, by clause 1 of the agreement which acknowledges payment of the initial $10,000=, and, secondly, by receipts, copies of which he attached to his founding affidavit. He also avers that he prepared plans which were approved by the third respondent. In this regard, Annexure C1 to his founding affidavit is a document dated 2 January 2003 addressed to the applicant by the third respondent's City Engineer's department and in respect of the Stand in issue. It informs the applicant that his plans, which were submitted in respect of the Stand in question, have been approved subject to the relevant Municipal Bye-laws and certain conditions stated therein.

Annexure C2, dated 21 June 2005, is also addressed to the applicant by the third respondent's City Engineer's department in respect of the same Stand. It also informs the applicant that one copy of his plan has been “pre-approved” on condition that he adheres to certain conditions also stated therein. It further states that the “pre-approval” is valid for one year from the date stamped on the plans.

Annexure D to the founding affidavit reflects copies of two inspection logs. One is dated 27 July 1999 showing approval by the City Engineer's Department of the stage referred to as “Brickfooting.” The other is dated 27 August 1999 showing approval of the stage referred to as “Hardcore.”

The applicant also avers that he commenced to build on the undeveloped and vacant Stand and has erected a house which is at window level. Then, sometime in June 2005, the first respondent began to interfere with the applicant's access to the premises. This led to the applicant's legal practitioners writing a letter, on 7 July 2005, to the first respondent, and, amongst other things, giving her fifteen days' notice to effect cession of the property into the applicant's name as well as two (2) months' notice to vacate the property.

The first respondent did not cede the property to the applicant. However, the applicant then received a water bill dated 17 July 2006 addressed in the name of the second respondent. This prompted him to make inquiries with the third respondent and he then ascertained that the first respondent had ceded the property into the name of the second respondent. The second respondent was un-cooperative when he approached her. The first respondent became evasive.

The applicant contends that the second respondent ought to have known that the applicant was the new owner of the property as his builders were on site and the plans for the house that was being erected on the property were in the applicant's name. He also contends that the second respondent was reckless and was not diligent in not making inquiries as she would not have purchased the property which he had already purchased. He contends that the cession to the second respondent was done maliciously by both the first and the second respondents.

The applicant prays for an order in the following terms:-

“That:

1. The first and second respondents be and are hereby order and directed to attend at third respondent and cede their rights and title in House No. 6670 Chikanga Phase 3 (St Joseph) Mutare within fourteen (14) days from the date of service of this court order.

2. In the event of the first and second respondents failing to comply with paragraph 1 above the Deputy Sheriff be and is hereby ordered to sign all relevant cession papers for and on behalf of the first and second respondents and the cession papers with the third respondent who is obliged to accept them and effect the cession into applicant's name.

3. Alternatively, the first respondent pays he applicant ten million (10,000,000,000=) or the current market value of the house as approved by two evaluators which ever figure is higher.

4. The first respondent pays the applicant's costs of suit.” (sic)

The first respondent opposes the application and avers that the applicant failed to pay the balance of the purchase price, in the sum of $8,000=, claiming that the payments reflected in the receipts attached as annexures B1, B2, B3, and B4 to the applicant's founding affidavit were meant for supplementary charges and not for instalments towards the liquidation of the balance as alleged.

The applicant claims that if these were instalments meant to go towards the liquidation of the balance of the purchase price, as claimed by the applicant, the applicant would not have paid the higher amount of $1,000= per month instead of the agreed $750= per month. She further alleges that the building plans could not have been in the applicant's name as the Stand was registered in her name and cession had not yet been effected.

The first respondent also alleges that although the applicant built a house to window level, when she started to demand payment of the balance and of water bills and supplementary charges which he had stopped paying, the applicant then ceased building. Then, in February 2005, the applicant stated that he had purchased another Stand in Harare and was no longer interested in developing the Stand in question. She alleges that the applicant then said that all that he wanted from her was $15,000,000= “for the Stand at its state” so that she could have the Stand back from him. She claims that they reached an agreement, and, in pursuance thereof, she raised the $15,000,000=. However, when she tried to contact the applicant so that she could make the payment to him, he could not be found. On two occasions she went to his rural home but failed to find him. When she finally made contact with him, in August 2005, he promised to come and collect the money but never did.

The first respondent contends that the applicant breached their agreement by failing to pay the balance of the purchase price and the supplementary charges and that the property thereby reverted to her. She disputes that the applicant had any building material at the Stand and further disputes that she used such material to construct an outbuilding as alleged by the applicant. As the property reverted to being hers she then sold it to the second respondent in November 2005 and ceded it to her. She further states on her opposing affidavit that as the applicant failed to collect his money, as detailed above, she was thus tendering it.

The first respondent agrees that the applicant was the first purchaser. She however claims that they later agreed that she retain her property, which she did “after having managed to raise the agreed purchase price”. She then thereafter sold the property to the second respondent who was a bona fide purchaser. She claims that she was, at that stage, at liberty to sell the property to anyone.

In supplementary heads of argument filed on behalf of the first respondent, the point is raised, in limine, that the applicant's cause of action is prescribed in terms of section 15(d) of the Prescription Act [Chapter 8:11].

She submitted therein that the agreement between the applicant and the first respondent having been entered into on 15 November 1996, when this court application was filed on 10 October 2006, it was long after the expiry of three years and as there had been no judicial interruption during the interceding period, the claim had since prescribed. On the merits, it is submitted that there are irreconcilable disputes of fact which no matter how robust the court is, it cannot possibly resolve without hearing viva voce evidence.

The first respondent thus prays for the dismissal of the application with costs.

The second respondent, despite being served with the court application, has filed no opposing papers….,.

THE MERITS

It is true that there is a dispute of fact regarding whether or not the applicant paid the purchase price in full. The payments reflected on the receipts annexures B1, B2, B3, and B4 were made into the first respondent's POSB account, and, in terms of the agreement were meant to be payments of instalments for the balance outstanding in the sum of $8,000=, the initial payment or deposit of $10,000= having been made at the time of the signing of the agreement.

The fact that the applicant paid instalments in the amount of $1,000 per instalment and not $750 as per agreement cannot possibly be a cause for complaint by the seller. Rather, the payment of the outstanding balance was completed in a shorter period than would have been the case had the instalments been paid in the agreed amount. In any event, it cannot be by coincidence that the payments reflected in the said receipts amount to a total of $8,000 which is also the amount of the balance of the purchase price after the initial payment of $10,000.

It is highly improbable that the applicant would give priority to the payment of supplementary charges and water bills whilst neglecting payment of the balance thereby placing himself in breach of a material term of the agreement. Furthermore, the payments having been made into the first respondent's POSB account were also, barring the quantum of each instalment paid, made in accordance with the provisions of the agreement regarding payment of the balance. The payments reflected in the receipts referred to above commenced on 1 July 1997 which date is also stipulated in the agreement as the date of the payment of the first instalment which was to be made after a grace period of about nine and half months that is from 15 November 1996 to 1 July 1997. Other charges in respect of the property were to be paid by the applicant as from December.

For the above reasons, the first respondent's version and claim that the payments in question were not payments towards the liquidation of the balance of the purchase price but rather were for water and supplementary charges is highly improbable in the circumstances. Thus, the dispute of fact is not one that is incapable of resolution on the papers.

On a balance of probabilities the applicant has proved that he paid the purchase price in full. He did not breach the agreement as alleged by the first respondent. The subsequent sale of the property by the first respondent to the second respondent was therefore improper and unlawful. She had no authority to sell it nor title to pass.

I wish to comment briefly on the alleged oral agreement between the applicant and the first respondent as claimed by the first respondent; she alleged that the applicant effectively sold the property back to her for $15,000,000 but that he frustrated her efforts to pay him the said amount. The applicant disputes that such an agreement was ever entered into. The second sentence in clause 5 of the agreement of 15 November 1996 reads:

“This is the only agreement the parties will go by and no other whatsoever unless this agreement is expressly and in writing otherwise amended or replaced.”

The first respondent cannot thus purport to rely on an alleged agreement that is expressly excluded on account of it not being in writing by the agreement of 15 November 1996.

The second respondent has chosen not to contest or oppose the application. There is thus no dispute to the applicant's contention that the second respondent is not a bona fide purchaser.

There is also no evidence before this court showing that the second respondent made any payments towards the purchase of the property. There appears therefore to be no impediment to the court making an order that the property be ceded from the second respondent to the applicant.

Having taken a robust approach to the dispute of fact in this matter, this court finds that the applicant has proved his case and must therefore succeed in this application. The balance of equities favours the applicant in this matter. Costs must follows the cause. In the event, it becomes unnecessary for this court to consider paragraph 3 of the draft order which is thus rendered irrelevant.

In the result the following order is made:

1. The second defendant is ordered to cede her rights, title and interest to the applicant within ten (10) days of the service of this order upon both or either of the first and second defendants failing which the Deputy Sheriff be and is hereby authorised and directed to sign all documents as are necessary to effect the said cession.

2. The third defendant is ordered to register such cession effected in terms of paragraph 1 above.

3. The first defendant shall pay the plaintiff's costs of suit.

The plaintiff gave evidence in support of his case.