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.

As regards Number 3 Selmont Gardens...,. It is in fact registered in the defendant's name...,. 

The plaintiff claims a share of the property on the basis of his contribution towards its maintenance. This was basically in the form of rates, levies, and telephone bills.....,. 

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

“(1) Subject to this section, in granting a decree of divorce, judicial separation, or nullity of marriage, or at anytime 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;

(b)…,.”

Therefore, although the flat belongs to the defendant, it can be subject to division by virtue of the above provision. However, in making such a decision the court must take into account the provisions of section 7(4) of the Matrimonial Causes Act which provides that -

“In making an order in terms of subsection (1) an appropriate court shall have regard to all the circumstances of the case, including the following —

(a) The income-earning 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;

(g) The duration of the marriage;

and, in so doing, the court shall 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 in had a normal marriage relationship continued between the spouses.”

Section 7(1) of the Matrimonial Causes Act [Chapter 5:13]  provides 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;

(b)…,.”

However, in making an order in terms of the above provision, the court is enjoined to also take into consideration subsection (4) which states that -

“(4) In making an order in terms of subsection (1) an appropriate court shall have regard to all the circumstances of the case, including the following —

(a) The income-earning 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;

(g) The duration of the marriage;

and, in so doing, the court shall 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 in had a normal marriage relationship continued between the spouses.”

That property was registered in the plaintiff's name.

It was because of his apparent belief that the defendant was not entitled to any share of the matrimonial house as of right that the plaintiff said he was initially offering the defendant 10% share as a token of appreciation of the time they shared as husband and wife. When he upped the offer to 20% he said this was to cushion the defendant and to meet halfway.

In his submissions counsel for the plaintiff pointed out that by virtue of registered title the house belongs to the plaintiff. In support of this he cited the case of Takafuma v Takafuma 1994 (2) ZLR 103 (SC).

Applying the approach in Takafuma v Takafuma 1994 (2) ZLR 103 (SC) the house in issue is that of the plaintiff. That is so notwithstanding that the plaintiff sought to suggest that he does not own it. The evidence available is that the house is registered in his name. Regarding registration of title this is what McNALLY JA had to say in Takafuma v Takafuma 1994 (2) ZLR 103 (SC)…, -

“The registration of rights in immovable property in terms of the Deeds Registries Act [Chapter 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. See the definition of "real right" in s2 of the Act. The real right of ownership, or jus in re propria, is "the sum total of all the possible rights in a thing" - see WILLE's Principles of South African Law 8ed p255.”

Notwithstanding the above, that is not the end of the matter because section 7 of the Matrimonial Causes Act [Chapter 5:13]..., provides that -

“(1) 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;

(b) The payment of maintenance, whether by way of a lump sum or by way of periodical payments, in favour of one or other of the spouses or of any child of the marriage.

(2) An order made in terms of subsection (1) may contain such consequential and supplementary provisions as the appropriate court thinks necessary or expedient for the purpose of giving effect to the order or for the purpose of securing that the order operates fairly as between the spouses and may, in particular, but without prejudice to the generality of this subsection—

(a) Order any person who holds any property which forms part of the property of one or other of the spouses to make such payment or transfer of such property as may be specified in the order;

(b) Confer on any trustees of any property which is the subject of the order such powers as appear to the appropriate court to be necessary or expedient.

(3) The power of an appropriate court to make an order in terms of paragraph (a) of subsection (1) shall not extend to any assets which are proved, to the satisfaction of the court, to have been acquired by a spouse, whether before or during the marriage—

(a) By way of an inheritance; or

(b) In terms of any custom, and which, in accordance with such custom, are intended to be held by the spouse personally; or

(c) In any manner, and which have particular sentimental value to the spouse concerned.

(4) In making an order in terms of subsection (1) an appropriate court shall have regard to all the circumstances of the case, including the following—

(a) The income-earning 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;

(g) The duration of the marriage;

The plaintiff issued summons out of this court seeking the setting aside of an Agreement of Sale relating to Stand Number 32 Manga Street, New Mabvuku entered into between the first and second defendants, nullification of the cession of the property from the estate of the Late Vito Bhero to the first defendant and costs….,.

Several facts in this matter are common cause and I will set them out hereunder.

The plaintiff was married, at customary law, by the late Vito Bhero (the deceased) who died intestate on 15 January 2004. She had five children with the deceased who are now all majors. Prior to the deceased's marriage to the plaintiff he was married to the first defendant in terms of the African Marriages Act.

After the death of the deceased, the first defendant registered the estate and was appointed executor of the estate. She proceeded to transfer the only immovable property, which was Stand 32 Manga Street, New Mabvuku into her name and subsequently sold it to the second defendant. The second defendant, after acquiring title to the property, sought to evict the plaintiff and her children from the property. The plaintiff sought and obtained interim protection from this court stopping her eviction. She then instituted a court application seeking an order setting aside the first defendant as executor of the estate and the relief already alluded to above. At the hearing before MAKARAU J the court found that the issue of the first defendant's removal as executor was res judicata and referred the other issues to trial.

The issues which were thus referred to trial are as follows:

(a) Whether or not the marriage between the first defendant and the late Vito Bhero was dissolved and the two separated in 1976?

(b) Whether or not the second defendant was an innocent and bona fide purchaser for value of the property called Stand 32 Manga Street, New Mabvuku, Harare?

(c) Whether or not the sale of the property to the second defendant should be set aside?

The plaintiff gave evidence.

She told the court that she married the deceased in 1983. She stated that at the time that she married the deceased he had divorced the first defendant. She stated that although she saw the order for divorce it was burnt when their house was burnt down in 2001. When the deceased passed away she met the first defendant, for the first time, at the funeral. After the funeral, the first defendant took the burial order and made all the necessary arrangements for the registration of the estate. She continued to reside on the property with her children and was unaware of the sale of the property until the first defendant's children came and attacked her. They demanded that she vacate the property. She stated that at the time that the deceased died she was staying in the property with him and the first defendant was staying at her communal home.

In cross examination, the witness reiterated that the first defendant was divorced in 1976 and the first defendant was now living with another man. She denied that the first defendant would ever visit the deceased during his lifetime nor that they had stayed together in the same house. The plaintiff admitted that the first defendant's name was on the Municipal cards belonging to the City of Harare.

When it was put to her that if it is found that they were both the wives of the deceased would she not be entitled to a share of the house; she conceded that the first defendant would be so entitled.

The plaintiff denied that the first defendant had to process the estate on her own because the plaintiff was being hostile. She also denied that the first defendant had to sell the property because of the hostility between them which made it impossible for them to stay together and stated that she was never consulted. She denied that they had ever stayed together at the house though the first defendant's children would come to visit.

She further denied that she was offered $10 million out of the sale price of $40 million. She also stated that she had tried to obtain the Divorce Order but had failed as she did not have the case reference number.

In my view, the plaintiff gave her evidence well. She was not shaken in cross examination. Her story was both credible and believable and I had no difficulty in believing her evidence.

I, however, did not accept her evidence as it related to the divorce between the first defendant and the deceased. It seems to me that her evidence may have been influenced by the fact that the deceased had married her, and, in her eyes, had divorced his first wife. She was no longer living with them but she may not have appreciated that the marriage was not dissolved by a court order and thus remained in existence. Had the Divorce Order been granted the plaintiff's legal practitioners would have been able to obtain it from the court records.

The second witness was Raiva Bhero. The plaintiff is his mother and the deceased was his father.

He told the court that he came to know the first defendant at his father's funeral. He testified that he never lived with the first defendant during his father's lifetime. After his father died, his half-brother, by the name of Chaparira Mutasa, who is the first defendant's son, came and asked for a room to stay at the house. When he got the room the first defendant came and stayed in that room for about a week. He came to know that the property had been sold when they were served with an eviction order by the second defendant. He denied that he or his mother had been consulted at any stage about the appointment of an executor or the sale of the house.

During cross-examination, he claimed that he had seen the Divorce Order between his father and the first defendant when he was eight (8) years old. He was adamant that he had never met the first defendant before his father died but had been advised by his half brother and sister that she lived in Mazoe. He further stated that the Divorce Order had been burnt during a fire which took place at their home in 2001. He insisted that, after the fire, the plaintiff rebuilt the house with the assistance of her employer, and, at the time they were evicted, only the window panes were yet to be replaced. He also denied that they had received a letter from Messers Marimba and Partners asking his mother to come and collect $10 million as her share from the proceeds of the sale of the property.

The witness gave his evidence well. He was clear in his answers and was not evasive in cross examination. He accepted that relations between the two families were not good. He also conceded that in the event that the court was to find that the first defendant was still married to the deceased she would be entitled to a share in the estate. I however did not believe him when he stated that he had seen the Divorce Order between his father and the first defendant when he was still a child.

The third witness for the plaintiff was Agushita Sinati. She told the court that she resides at 30 Tende Street in Mabvuku. She knows the plaintiff as a sister-in-law as the late Vito Bhero was her brother. She testified that she did not know the first defendant and further stated that the deceased was not married prior to his marriage to the plaintiff. She stated that at the time that the deceased lived at Number 32 Manga Road they did not live with any one else other than their children. In cross examination, she stated that she had come to tell the court that the junior wife was suffering with the children as they were staying in the open as they had been evicted from their home.

This witness did not give her evidence well. The evidence was very disjointed and unclear. In one breath she would say the deceased was not married to the first defendant and in the next breath she would refer to the plaintiff as the junior wife. In my view, she was not a credible witness and did not advance the plaintiff's case in any way.

With this evidence the plaintiff closed her case.

The first defendant testified that she was married to the deceased in terms of the Customary Marriages Act on 4 December 1972. She knows the plaintiff as her husband's junior wife. She stated that her original marriage certificate was burnt when their house in Mabvuku burnt down in 2001. She thus produced a duplicate original marriage certificate before the court which she obtained after the death of the deceased. She stated that she had three children with the deceased who are now all majors. She indicated that when Number 32 Manga Street, Mabvuku was purchased from the municipality her name was endorsed on the municipal cards as the wife of the deceased. She stated that from the time she married the deceased up until he died she was living with him at that address. The deceased married the plaintiff in 1983 and they all lived at the same house. She denied that she divorced the deceased in 1976 and left the home. She also disputed that she married another man by the name Kareto and had five children with him.

She testified that after the deceased died she was appointed as executor of his estate. She produced the Letters of Administration granted to her by the Master of the High Court. She however stated that the plaintiff and her children from a previous marriage would continuously harass her, and, at some stage, she had to seek a peace order from the Magistrates Court. Following the registration of the deceased's estate the first defendant had the property transferred into her name. She subsequently sold it to the second defendant.

The property is now registered in the name of the second defendant.

She produced the Agreement of Sale dated 18 February 2005 and the Memorandum of Assignment from the City Council. She stated that she sold the property for $40 million and instructed her legal practitioner to give $10 million to the plaintiff as her share of the proceeds. She further testified that if the plaintiff and her children had not been harassing her she would not have sold the house. The witness stated that she came to know the second defendant after she told members of her church that she was looking for a buyer for her house. The second defendant then came and viewed the house and they agreed on the purchase price. When he came to view the house the plaintiff and her children were not present.

In cross examination she insisted that she had lived with the plaintiff and the deceased at the house in Mabvuku until she sold it.

It was however apparent that the witness did not know the names of the plaintiff's children though she stated that they had lived together for more than 20 years. She failed to explain the reason why she would not know their names if they had all lived together. It was also apparent that she did not know the second defendant until the sale of the house although he lived just down the road and had lived there all his life. However, she conceded that at the time she sold the property the second defendant knew that the plaintiff was objecting to the sale. She stated that she knew nothing about the administration of estates. She sold the house after an application by the plaintiff for her removal as executor had been dismissed.

I was not impressed with the witness's evidence. I did not believe her when she stated that she had been living at Number 32 Manga Street until the death of the deceased. She did not know things which one would expect a person living in the area to know. For instance, she did not know the names of the plaintiff's children nor did she know the second defendant who lived just a few houses from them on the same street. I however accepted her testimony that at the time of the deceased's death she was still married to him.

The next witness for the defence was Chaparira Bhero. He stated that the first defendant is his mother and the deceased was his father. He has an elder brother and a sister. He knows the plaintiff as his step mother. He came to know her in 1983 when she married his father and moved in at 32 Manga Street in Mabvuku. At the time, he was living elsewhere as a tenant and his brother was staying at their rural home. His sister was married and living with her husband. When their father died the estate was registered at the Assistant Master of the High Court's office. The plaintiff was invited to attend the edict meeting but she declined to do so. The first defendant was appointed executor of the estate and transferred the property into her name. She subsequently sold the property to the second defendant. He stated that he did not know the second defendant until he came and saw the house. After the second defendant purchased the house his brother, Itayi, was asked to deliver a letter to the plaintiff advising her to collect her share of the money. He was attacked by the plaintiff's children and made a report to the police. He confirmed the first defendant's testimony that she remained married to the deceased until his death.

In cross examination he confirmed that his mother remained married to his father until he died. He denied that his mother ever left the matrimonial home and stated that she lived there with the plaintiff. He confirmed that the relationship between his mother and the plaintiff was acrimonious. He confirmed that his mother was living with his elder brother at their rural home in Madziva.

This witnesses evidence, in my view, reinforced the fact that they did not know the second defendant prior to the sale of the property because they were no longer living in Mabvuku.

The next witness was Regis Muverengi, the second defendant.

He testified that he has lived at 17 Manga Street since 1973 when he was 10 years old. The property belongs to his parents. He knows the plaintiff as a neighbour as she started living there in 1984. He knew the first defendant facially and had known her since 1974. He confirmed that the late Vito Bhero had two wives who both resided with him at Number 32 Manga Street, Mabvuku. In 2005 he was advised by his uncle that the house was being sold. He went and viewed the house and agreed to buy it for $40 million. In his opinion it was a fair price as it had been burnt at some stage and needed considerable rebuilding. He conducted negotiations with the first defendant because when he went to the Council offices he found that the property was registered in her name. He paid the purchase price to Marimba and Partners, a firm of legal practitioners who were involved in drafting the sale agreement. After he obtained cession to the property he then instituted proceedings to evict the plaintiff from the house. She was evicted in March 2008 and he then moved into the property.

He further stated that when he signed the Agreement of Sale his attention was drawn to clause 6.1 which stated that the sale was subject to a resolution of a dispute on the property. It was explained to him that the clause meant that there were people staying in the property and he could not get immediate occupation.

In cross-examination, the witness conceded that he was aware that the plaintiff and her children lived on the property but he was of the opinion that her problem with the first defendant was a family dispute which did not involve him. He stood firm on his evidence that he knew the first defendant from 1974.

When questioned about the provisions in the Agreement of Sale that he signed he explained that clause 6.1 was explained to him and he understood it to mean that although there was a pending dispute on the property the persons living thereon would be evicted.

In assessing the evidence that was led before me it is clear that the late Vito Bareto was married to the plaintiff and the first defendant during his lifetime. The first defendant was his first wife and he registered their marriage in terms of the then African Marriages Act. This was quite apparent from the evidence of all the witnesses. The deceased married the plaintiff in terms of customary law in 1983. The plaintiff testified that the deceased had divorced the first defendant in 1976 before he married her. In support of this assertion the plaintiff called her son, Raiva Bhero, who told the court that he saw the divorce papers when he was 8 years old.

How an 8 year old would be able to identify and remember a Divorce Order he had seen many years ago was, in my view, totally incredible.

The evidence by Agushita Sinati was not reliable as she denied that the deceased had been married to the first defendant; a point which was common cause.

No other evidence was called to show that the first defendant had been divorced at customary law nor did she produce the Divorce Order or a copy of the document. The explanation was that it had been destroyed in a fire in 2001. The first defendant, on the other hand, produced to the court a duplicate original marriage certificate issued by the Registrar of Marriages and she denied that their marriage was ever dissolved. In my view, that piece of evidence was conclusive in determining the first defendant's status at the time of the deceased's death.

The first defendant and the deceased may very well have been living separately - especially after the marriage of the plaintiff to the deceased.

The evidence led showed that the relationship between the plaintiff and the first defendant was acrimonious. I believed the plaintiff's testimony that she was living with the deceased whilst the first defendant lived elsewhere. This evidence was, in my view, corroborated by the fact that the second defendant knew the plaintiff as a neighbor and only knew the first defendant when they entered into the Agreement of Sale. This was further confirmed by Chaparira Bhero who told the court that they only got to know the second defendant because of the sale of the property, yet he lived just a few houses down the road. This, in my view, confirms the evidence that the person who was resident at 32 Manga Street was the plaintiff. This position was further supported by the fact that, when questioned in cross examination, the first defendant did not know the names of the plaintiff's children and yet she claimed that they had lived together under the same roof for close to 20 years.

However, what is quite clear is that the marriage which was registered between the deceased and the first defendant, on 4 December 1972, had not been terminated. In my view, therefore, the late Vito Bhero was survived by two wives who were both married in terms of customary law.

The law relating to the distribution of deceased's estates is regulated by the Administration of Estates Act [Chapter 6:01] (“the Act”).

The first defendant was properly appointed as executor of the deceased's estate on 4 August 2004. Following her appointment as executor she was obliged, in terms of the law, to draw up an inheritance plan, after due consultation with the beneficiaries, for consideration and approval by the Master of the High Court in terms of section 68D and 68E of the Administration of Estates Act.

The specific provisions provide as follows:

“68D Inheritance Plan

(1) As soon as possible after the death of a person referred to in subsection (1) of section sixty-eight A and the discharge or settlement of any legitimate claims against his estate, his executor shall draw up a plan providing for such of the following matters as may be appropriate -

(a) The conservation and application of the net estate for the benefit of the beneficiaries;

(b) The distribution of all or any part of the net estate to the beneficiaries;

(c) The sale or disposal of any property of the net estate for the benefit of the beneficiaries;

(d) The maintenance of any beneficiary.

(2) When drawing up a plan in terms of subsection (1), an executor shall -

(a) Pay due regard to the principles set out in subsection (2) of section sixty-eight F, to the extent that they are applicable; and

(b) So far as is practicable, consult the deceased person's family and the beneficiaries and endeavour to obtain the beneficiaries agreement to it.

68E Consideration and approval of inheritance plan

(1) As soon as possible after drawing up a plan in terms of section sixty-eight, an executor shall submit it to the Master for approval.

(2) On receipt of a plan drawn up in terms of sixty-eight D, the Master shall take such steps as he considers necessary or appropriate to satisfy himself that -

(a) The executor has consulted all the members of the deceased's family and beneficiaries whom he could, with reasonable diligence, have consulted, and has obtained the beneficiaries' agreement to the plan; and

(b) The beneficiaries who have agreed to the plan have done so with full knowledge and understanding of their rights.

(3) If the Master -

(a) Is satisfied that a plan submitted to him in terms of subsection (1) has been agreed to by all the beneficiaries concerned or by such of them as the executor could, with reasonable diligence, have consulted, the Master shall approve the plan and authorize the executor to distribute or administer the estate in accordance with it;

(b) Has reason to believe that the executor has failed to consult a member of the deceased's family or a beneficiary whom he could, with reasonable diligence, have consulted, the Master shall refuse to approve the plan until that family member or beneficiary has been consulted, and, in the case of a beneficiary, his agreement to the plan has been obtained;

(c) Has reason to believe that one or more of the beneficiaries concerned have not agreed to a plan submitted to him in terms of subsection (1), the Master shall proceed to determine, in accordance with section sixty-eight F, any issues in dispute between the executor and the beneficiary or beneficiaries, and shall direct the executor to distribute or administer the estate in accordance with his determination.”

It seems to me that the wording of section 68D of the Administration of Estates Act [Chapter 6:01] is mandatory in that it requires the executor to act in a specified manner.

The first defendant submitted that she had substantially complied with the requirements, regard being had to the "bad blood" between the plaintiff and her. It was further submitted that for an un-educated old woman she had acted rationally and above board.

In my view, the application of the provisions is not discretionary on the part of the executor. The legislature crafted the legislation in this manner in order to ensure that all the beneficiaries of the estate of the deceased would be catered for.

The first defendant's failure to comply with the Administration of Estates Act cannot be absolved by the mere fact that she was an old and illiterate woman who thought she was acting in the best interest of the parties. Having accepted the position of executor she was obliged to act in the best interest of the estate and the beneficiaries and in accordance with the law.

The legal position of an executor has been set out in various judgments of this court. D. MEYEROWITZ, in, “The Law and Practice of Administration of Estates"…, describes the position of an executor succinctly as follows:

"The executor acts on his own responsibility, but he is not free to deal with assets of the estate in any manner he pleases. His position is a fiduciary one, and, therefore, he must act not only in good faith but also legally. He must act in terms of the Will and in terms of the law, which prescribes his duties and the method of administration, and makes him subject to the supervision of the Master in regard to a number of matters."

The evidence led in this trial clearly shows that the executor did not act in the manner expected of an executor. She did not comply with the provisions of the Administration of Estates Act and acted in her own interest. Had the first defendant complied with the requirements of the Administration of Estates Act this would not have happened.

The evidence led in this court disclosed that the deceased had not divorced the first defendant. Thus, the estate had to be distributed between the two surviving spouses.

The evidence led did not disclose how the property was transferred into the first defendants name from the name of the deceased. The Letters of Administration granted to the first defendant did not give her the right to make such a transfer. As an executor she could only have sold the property after being given authority by the Master of the High Court in accordance with section 120 of the Administration of Estates Act [Chapter 6:01].

It seems to me that the act of transferring the property from the deceased to the first defendant could only have been accomplished through fraud as mere appointment of a person as executor does not grant them the right to transfer estate property into their name. The property, being estate property, could only have been transferred into the name of an individual once the Master of the High Court had, in terms of section 68E of the Administration of Estates Act, considered and approved the proposed distribution plan. The evidence led showed that, to date, the estate has not been finalized with the Master of the High Court. No distribution plan has been lodged.

In my view, therefore, the failure by the first defendant to comply with the provisions of the Administration of Estates Act [Chapter 6:01] renders her actions in selling the property a nullity, and, as such, the sale must be set aside.

Having determined that her actions are a nullity it is unnecessary for this court determine whether or not the second defendant was an innocent bona fide purchaser. The transaction being illegal makes the sale a nullity. In the case of Katirawu v Katirawu & Anor HH58-07 MAKARAU JP…, stated as follows:

“In conclusion, the 'rights' that the second respondent believes to have purchased and acquired from the first respondent are tainted by the same illegality and amount to nought by token of the same reasoning. It is as if there was never a sale between her and the first respondent, and, consequently, no rights flow from a non-sale in her favour. The sale and the consequent cession of rights in her favour amount to nothing at law - for nothing can flow from a fraud.”

It is also on that basis that I will not award costs against the second defendant.

The plaintiff has been successful in her claim and should be awarded the costs. Whilst it is the practice in cases of deceased's estates to award costs against the estate it would, in my view, cause an undue hardship on this estate. The first defendant abused her position as executor to unjustly enrich herself at the expense of the plaintiff and should be punished with costs.

Accordingly, I make the following order:

1. The cession of Number 32 Manga Street, New Mabvuku from the name of the late Vito Bero to the first defendant is hereby set aside.

2. It is declared that the Agreement of Sale entered into by the first and second defendants is null and void.

In his address, counsel for the plaintiff submitted that since the house is registered in the plaintiff's name it is legally his. In support of this submission he cited the case of Takafuma v Takafuma 1994 (2) ZLR 94 (SC).

The starting point to note is that in determining a division of assets following a divorce the court has a wide discretion by virtue of section 7(1) of the Matrimonial Causes Act [Chapter 5:13] which provides 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 second respondent is a land developer who was allocated vacant Stands in the high density suburb of Cowdray Park by the fourth respondent for purposes of constructing houses for home seekers in Bulawayo. The terms of the agreement between the second and fourth respondents are not the subject of this application.

The second respondent entered into an agreement with the first respondent sometime in 1999 in terms of which the second respondent allocated Stand 6711, Cowdray Park, Bulawayo to the first respondent and agreed to construct a two roomed house on the Stand subject to certain terms and conditions. The relevant terms of that agreement, as set out in the fourth respondent's pleadings in case number HC2367/05, were that the first respondent would pay a deposit towards the purchase of the Stand. He would pay the balance of the purchase price and the costs of construction of the house in due course. In return, the second respondent would construct the house for the first respondent. In order to facilitate the funding of the construction project, the second respondent arranged to transfer the Stand to the first respondent to pave the way for the registration of a mortgage bond in favour of Founders Building Society, the financier which had agreed to fund the construction work.

This was done by Deed of Transfer number 4570/99 in favour of the first respondent and mortgage bond number 5210/99 for $60,725= in Zimbabwean currency.

The second respondent has alleged that the first respondent failed to honour his part of the bargain and did not pay anything towards the purchase price of the Stand and the cost of construction. He did not even take up the loan facility which had been made available to him by Founders Building Society resulting in the mortgage bond being cancelled on 5 October 2006.

The second respondent withdrew the Stand from the first respondent and offered it to the applicant who immediately paid for it and secured funding from Beverley Building Society in the sum of $184,000= for the cost of construction. To facilitate registration of the mortgage bond, the Stand was transferred to the applicant by Deed of Transfer number 1272/2002 on which mortgage bond number 6969/2004 was registered in favour of Beverley Building Society. At that time, the first respondent had disappeared.

It would appear that there was an error at the Deeds Registry in that Deed of Transfer number 1272/2002 was registered without cancellation of Deed of Transfer number 4570/99 in the first respondent's favour. Be that as it may, the applicant obtained funds from the bank which were used to construct a three roomed house by the second respondent as opposed to the two roomed house which the first respondent had negotiated.

Attempts to cancel the first transfer to the first respondent did not succeed. Instead, the third respondent purported to cancel the second transfer in favour of the applicant by letter dated 13 December 2004 addressed to second respondent, which reads, in part, as follows:

“RE: STAND 6711 COWDRAY PARK TOWNSHIP OF COWDRAY PARK OF THE HELENVALE BLOCK.

This serves to confirm that the above Stand was first titled on 15 September 1999 under Deed of Transfer number 4570/1999. On 23^rd May 2002, in error, Deed of Transfer number 1272/2002 was registered in the name of Sehlukene Sibanda. This Deed should be cancelled as its registration was done in error. Such an error is sincerely regretted.

The true registered owner of the above Stand therefore Sifiso Somfula Thebe.

Yours sincerely

(Signed)

F. Maphosa (Mrs)

REGISTRAR OF DEEDS, BULAWAYO.”

Section 8(1) of the Deeds Registries Act [Chapter 20:05] provides:

“Save as is otherwise provided in this Act or in any other enactment, no registered deed of grant, deed of transfer, certificate of title or other deed conferring or conveying title to land, or any real right in land other than a mortgage bond, and no cession of any registered bond not made as security shall be cancelled by a registrar except upon an order of court.”

In my view, while there was an error in the registration of the Deed of Transfer in favour of the applicant, regard being had to the fact that the same property had already been registered in the name of the first respondent, the third respondent, however, did not have authority to cancel that Deed which could only be cancelled upon an order of court.

The purported cancellation is therefore a nullity.

The situation obtaining at the moment therefore is that there are two Deeds in respect of the same property with the second one, in favour of the applicant, having been registered in error.

The documents also reveal that the said Stand belonged to Mfakazi Dennis Ndlovu and was not jointly owned with the defendant. 

That being the case, the late Mfakazi Dennis Ndlovu was at liberty to sell the property if he had so wished without having to seek the consent of the defendant.

The crux of the dispute in casu is whether or not the late Mfakazi Dennis Ndlovu, in the presence of the defendant, sold the said vacant Stand to the plaintiff and her husband.

Although the second to fourteenth defendants may have already taken title, I am satisfied that they took defective tittles.

According to the Deed of Transfer signed and sealed at Bulawayo on 19 January 2009, Nkosana Ncube transferred to Vision Sithole – the applicant - an undivided 4.23% share being Share Number 17, in a piece of land situate in the district of Bulawayo being Stand 13921 Bulawayo Township measuring 2082 square metres. The piece of land had been held under Deed of Transfer number 2497/03 dated 28 October 2003 made in favour of Nkosana Ncube. It was held subject, inter alia, to the provisions of Notorial Deed M.A.519/89 relating to an undivided share in it with the exclusive right of occupation.

According to Notorial Deed M.A.519/89 registered at the Deeds Registry in Bulawayo on 13 March 1989 Nkosana Ncube owned an undivided 4.23% share being Share Number 17 which comprised one bed-roomed flat situate above a section of the garages designated as Flat 17 on the plan and known as Flat 7 Napier House. Leslie Khumalo, on the other hand, owned an undivided 6.17% share being Share Number 14 comprising of a two bed-roomed flat with private balcony on the first floor designated as Flat 14 and a garage designated as G6 on the plan and known as Flat 8 Montrose Mansions.

It is clear from all official documents in the Deeds Registry that the garage has always belonged to Leslie Khumalo. Nkosana Ncube never owned it. His Agreement of Sale with the applicant does not include the sale of the said garage. It is not true that the Deed of Transfer shows that the flat and garage were transferred to the applicant as they both formed part of 4.32% being Share Number 17 in Stand 13921 Bulawayo Township, Bulawayo.

It is unlikely that the “Sibandas” in question exist.

Even if they did, in light of the fact that whatever the first respondent purported to sell to them, he did not possess lawfully, he could therefore not pass a right he did not have.

According to the learned author HARRY SILBERBERG, The Law of Property, 1975, Butterworths…., -

“Once a real right has been registered it becomes enforceable against the world at large provided only that it has been obtained in good faith.”

The first respondent did not obtain a real right at all because the property has no title, and, in any event, whatever he acquired, it was ill-gotten and unenforceable.

I am satisfied that the applicant has made out a good case for the relief sought and for the confirmation of the provisional order which is confirmed on the following terms, namely that:

(a) ….,.

(b) The transfer of the right, title and interest in Stand 20027 Pumula South, Bulawayo to the first respondent be and he is hereby set aside.

(c) The Deputy Sheriff be and is hereby ordered and directed to sign all documents necessary to transfer the said Stand back to the applicant.

In his closing address, the defendant's counsel contended that the plaintiff was not entitled to a 50% share as she had no clear right of ownership. He went on to refer to the case of Muswere v Makanza 2004 (2) ZLR 264 wherein MAKARAU JP…, dealt with the legal relation of a wife to property registered in the sole name of her husband.

I am of the view that counsel missed the issue.

The plaintiff's claim was not based on a right of ownership to the property but on her entitlement to a share of the matrimonial estate as provided for in terms of section 7 of the Matrimonial Causes Act. Not only did she live with the defendant as husband and wife but she made both direct and indirect contributions. In any case, section 7(1) of the Matrimonial Causes Act provides 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;”

I am of the view that taking into account all the circumstances of this case, as enjoined by section 7(4) of the Matrimonial Causes Act, this is an appropriate case to award the plaintiff a 50% share of the immovable property….,.

(1) …,.

(2) Plaintiff is awarded a fifty percent (50%) share in the matrimonial property being a piece of land situate in the district of Salisbury called Stand 1093 Marlborough Township 18 of Stand 307A Marlborough Township measuring 2002 square metres also known as No. 16 Exton Close, Marlborough, Harare.

(3) The defendant is awarded the remaining fifty percent (50%) share of the said immovable property.

(4) The parties shall agree on the value of the property within seven (7) days of the date of this order. If the parties fail to agree on the value they shall, within 14 days of this order, appoint a mutually agreed evaluator to evaluate the property. If the parties fail to agree on an evaluator, the Registrar of the High Court shall be and is hereby directed to appoint an independent evaluator from his panel of evaluators to evaluate the property. The parties shall share the costs of such evaluation in equal proportions.

(5) The plaintiff shall be granted the first option to buy off the defendant by paying him his fifty percent (50%) share of the value of the property within 120 days of the date of receipt of the evaluation report unless the parties agree otherwise. If the plaintiff fails to pay off the defendant as above, the defendant shall be given 60 days within which to buy off the plaintiff unless the parties agree otherwise.

(6) Should the parties fail to buy off each other in terms of the above clause (5) in full within the stipulated periods, the property shall be sold to best advantage by a mutually agreed estate agent or one appointed by the Registrar of the High Court and the net proceeds therefrom shall be shared in the ratio 50:50.

Is the first defendant entitled to cancellation of the Title Deed?

It seems to me that the answer to the last question must be in the affirmative. In Mvududu v Mvududu NO & Ors 1981 ZLR 397…, McNALLY AJ…, held that:

“A registered deed may be cancelled by order of court, on the authority of s8 of the Deeds Registries Act [Cap 139]. Such action cannot be lightly taken, but it seems to me that where there has been justus error, as here, and the rights of Rhoda have been entirely overlooked, and those of Mwashinga and Enoch misconceived, so that a false certificate was issued by the District Commissioner, the court must intervene.”

I am thus empowered by section 8(1) of the Deeds Registries Act [Chapter 20:05] to cancel a registered deed. In the Mvududu v Mvududu NO & Ors 1981 ZLR 397 case…, it was cancelled because there had been a justus error. In the present case, there has been fraudulent intent on the part of the registered holder. Failure to cancel would be, in the words of KORSAH JA in Hattingh & Ors v Van Kleek 1997 (2) ZLR 240 (SC)…, to “deprive the innocent person of his rights…, benefit the guilty and put a premium on deceit.”…,.

Accordingly, it is ordered that:

1. The plaintiff's claim be and is hereby dismissed with costs.

Once the property was registered in the Deeds Registry, the applicant acquired real and absolute rights over the property. The applicant now has the sole right and exclusive beneficial ownership of the property, See Kassim v Kassim 1989 (3) ZLR 234 (H) for that proposition. Similar sentiments were echoed in Takafuma v Takafuma 1994 (2) ZLR 103 (S).., where McNALLY JA had this to say:

"The registration of rights in immovable property in terms of the Deeds Registries Act [Cap 139] now [Cap 20:05] 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. See the definition of 'real right' in s2 of the Act. The real right of ownership, or jus in re propria, is 'the sum total of all the possible rights in a thing' - see WILLES's Principles of South African Law 8ed p255."

The property is registered in the applicant's name. That registration is an announcement to the whole world that he now owns the property. Having acquired real rights over the property there is nothing to stop her exercising rights over the property. The respondent's rights over the property have ceased. He has no justification to remain on the property.

I am not persuaded that the respondent has shown good cause why he should not be evicted from the premises.

In the result, it is ordered as follows:-

1. The respondent and all those claiming occupation through him from the property known as 8141 Salisbury Township of Salisbury Township Lands, otherwise known as Number 17 St Dominics Road, Milton Park, Harare, vacate the property within 7 days.

The applicants seek an order cancelling the first to seventh respondents' title in immovable properties mentioned hereunder and the reinstatement of the second applicant's title in the properties.  The properties in issue are:

(a) Stand Number 90 Glen Lorne Township 8 of Lot 40A Glen Lorne.

(b) Stand Number 91 Glen Lorne Township 8 of Lot 40A Glen Lorne.

(c) Stand Number 92 Glen Lorne Township 8 of Lot 40A Glen Lorne. 

The background to the matter is that prior to May 2007 the properties were owned by the second applicant. Ownership of the second applicant was vested in the first applicant (The Trust) administered by Trustees Michael Robert McNaught, John Pybus and Gona Burmeister on behalf of its beneficiaries.  The Directors of the first applicant are Sandra Jean Humpreys and John D. Histin Humphreys. On 24 May 2007, the Trustees and the beneficiaries of the Trust, on one side, and the third respondent, on the other side, entered into and signed a Cession and Assignment Agreement (Cession Agreement).  The Trustees ceded the Trust to the third respondent for a consideration of two hundred and forty thousand United States dollars ($240,000=) (consideration).  In terms of clauses 3, 4 and 6 of the Cession Agreement the full consideration should have been paid by the 15^th September 2007 on which date all the benefits arising from the Trust's assets, the second applicant and the properties, inclusive, would accrue to the third respondent. In turn, delivery of all Trust documents inclusive of –

(i) Company documents relating to the second applicant;

(ii) All the title deeds in respect of the properties;

(iii) Trustees' resolution approving the cession and assignment of all interest and obligation in and to the Trust;

(iv) Resolution appointing the third respondent or his nominee as a Trustee or Trustees to the Trust;

(v) Letters of resignation by all Directors, Secretaries and Public Officers of the second applicant and Trustees of the Trust would be delivered to the third respondent upon payment of the full consideration.

The third respondent breached the Cession Agreement by failing to make payments in terms of clause 3 of the Agreement. He also refused to sign a re-negotiated Agreement revising the payment conditions. In the result, the Trust documents were not delivered to the third respondent. Consequently, no formalities were made transferring ownership of the Trust and its assets to the third respondent.

Sometime in May 2008, the second applicant instructed its accountants and secretaries, Combined Accounting Services, to perform a routine inspection of the second applicant's company documents at the offices of the ninth respondent. They discovered that the third respondent had, on 25 June 2007, filed a fraudulent CR14 in respect of the second applicant, in terms of which him together with the third, fourth and fifth respondents were listed as Directors of the company replacing Sandra Jean Humpreys and John D. Histin Humphreys. The CR2 was not changed.  The third respondent was listed as the Company Secretary replacing Sandra Jean Humpreys. 

The appointments were done without the knowledge and or consent of the second applicant.

Further investigations revealed that the third respondent had pledged the properties to the first respondent to secure a personal debt, and, using the fraudulent CR14 and fraudulent company resolutions, had purportedly represented the second applicant in the transfer of the properties from the second applicant to the first respondent. One of the properties, Stand Number 90 Glen Lorne was further transferred from the first respondent to the seventh respondent. To facilitate the transfers, the third respondent fraudulently uplifted caveats registered against the properties.

The applicants then instituted these proceedings seeking the cancellation of title in respect of the properties in the first and seventh respondents' names and restoring such title to the second applicant.

The application was opposed by the first and second respondents and the seventh respondent….,.

It was further contended on behalf of the applicants that the transfer to the first respondent was void as the cause was a pledge….,.

The seventh respondent, in his opposing affidavit, opposes the application on the basis of two main grounds. He avers that he has no knowledge of the fraudulent transfers and denies any participation in any fraud. He is a bona fide purchaser.

It was contended on behalf of the applicants that the transfers from the second applicant to the third respondent were fraudulently done and are therefore void ab initio. The second applicant was entitled to vindicate its properties from wherever they were (innocent purchasers)….,.

It appears the seventh respondent, in his argument, abandoned the issue of a bona fide purchaser. This might have been for two reasons. The first one is that the seventh respondent would have conceded that the third respondent fraudulently effected the transfers. This would have been in contradiction to his argument regarding the authority of the third respondent. Secondly, it might have been the fact that the law is settled. Vindication of immovable property is allowed where the transferer would have no power to pass transfer. Authority for this can be found in Mngadi N.O. v Ntuli and Ors 1981 (3) SA 478.

In that case, an executor whose appointment was held to be void had passed transfer to immovable properties belonging to the estate. It was held that the ownership of the properties remained vested in the estate of the deceased. It held, further, that, therefore, as a bona fide possessor could not by virtue of that fact alone withhold the possession of the property from the owner thereof, and as no additional factors such as a right of retention, a contractual right to possession or an estoppel which would entitle the second and third respondents to retain possession of the property had been raised, that, no valid transfer having taken place, the applicant's right of ownership had to prevail and that she was entitled to the relief sought by her despite the manifest hardships which would probably result to the second and third respondents. See also Glatthear v Hussan 1912 TPD 322…,.

The author SILBERBERG and SCHOEMANS The Law of Property 3^rd edition…., makes the same point in the following words:-

“A thief cannot acquire ownership or any other real right (except a jus possessions) in the things which he had stolen and since nobody can acquire ownership in stolen goods, a third party can never acquire ownership/or other real right in property that has been obtained by fraud.”…,. 

What LORD DENING said in Macfoy v United Africa Co. Limited (1961) 3 A/D ER 1169…., as quoted with approval in Minister of Lands v Mkushi 1988 (1) ZLR 209, sums it all up:

“If an act is void, then it is, in law, a nullity. It is not only bad but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

The seventh respondent finds himself in the same position as the respondents in the Mngadi N.O. v Ntuli and Ors 1981 (3) SA 478 case. The second applicant's right of vindication must succeed despite the hardships that the seventh respondent will face. SILBERBERG and SCHOEMANS The Law of Property 3^rd edition…., puts it…,:

“An owner who has been deprived of his property against his will is (unless he is estopped) entitled to vindicate it from any person who is in possession of it.”

I will therefore make the following order. It is ordered that:

1. Deed of Transfer (Reg No.1555/2009) dated the 12^th of March, registered in the name of Zimcor Trustees (Private) Limited, 1^st Respondent, in respect of Stand No. Stand 91 Glen Lorne, Township 8 of Lot 40A Glen Lorne measuring 1,3464 hectares be and is hereby cancelled in terms of section 8(1) of the Deeds Registry Act [Cap 20:05].

2. Deed of Transfer (Re No.1556/2009) dated the 12^th of March 2009, registered in  the name of Zimcor Trustees (Private) Limited, 1^st Respondent, in respect of Stand No. Stand 92 Glen Lorne, Township 8 of Lot 40A Glen Lorne measuring 1,6363 hectares be and is hereby cancelled in terms of section 8(1) of the Deeds Registry [Chapter 20:05].

3. Deed of Transfer Reg.  No.3777/2009) dated the 7^th of September 2000, registered in the name of Patson Sithole, 7^th Respondent, in respect of Stand No. Stand 92 Glen Lorne, Township 8 of Lot 40A Glen Lorne measuring 1,6363 hectares be and is hereby cancelled in terms of section 8(1) of the Deeds Registry [Chapter 20:05].

4. Deed of Transfer Register No. 9154/2006 dated the 29^th of December 2006 registered in the name of Lacerose Investments (Private) Limited, 2^nd Applicant, Stand No. Stand 9 Glen Lorne, Township 8 of Lot 40A Glen Lorne measuring, 1,3464 hectares be and is hereby revived in terms of section 8(2)(a) of the Deeds Registry Act [Chapter 20:05].

5. Deed of Transfer Register No.9140/2006 dated 29^th of December 2006 registered in the name of Lacerose Investments (Private) Limited, 2^nd Applicant, Stand No. 92 Glen Lorne, Township 8 of Lot 40A Glen Lorne measuring 1,6363 hectares be and is hereby revived in terms of section 8(1) of the Deeds Registry [Chapter 20:05].

6. Deed of Transfer Register No. 9153/2006 dated 29^th of December 2006 registered in the name of Lacerose Investments (Private) Limited, 2^nd Applicant, in respect of Stand No. Stand 92 Glen Lorne, Township 8 of Lot 40A Glen Lorne measuring 1,6363 hectares be and is hereby revived in terms of section 8(1) of Deeds Registry [Chapter 20:05].

7. The Registrar of Deeds, 8^th Respondent, be and is hereby ordered and authorized to attend to the cancellation of Deed of Transfer Nos.1554/2009; 1555/2009; and 1556/2009 and the revival of Deed of Transfer Nos.9140/2006; 9153/2006; and 9154/2006 in the name of Applicant and to make the appropriate endorsements on the relevant deeds and entries in the registers in terms of section 8(2)(b) of the Deeds Registry Act (Chapter 20:05].

8. 8^th Respondent be and is hereby empowered and ordered to do all acts necessary to reinstate the Applicant as the lawful owner of Stand No.90 Glen Lorne Township 8 of Lot 40A Glen Lorne Measuring 1,3348; Stand No.91 Glen Lorne Township 8 of Lot 40A Glen Lorne measuring 1,3464 hectares; and Stand No.92 Glen Lorne Township 8 of Lot 40A Glen Lorne measuring 1,6363 hectares.

9. The Registrar of Companies, 9^th Respondent, is hereby empowered and ordered to do all such acts necessary to reinstate John Dillistin Humphreys and Sandra Jean Humphreys as the Directors of Lacerose Investments (Private) Limited and Sandra Jean Humphreys as the Company Secretary of Lacerose Investments (Private) Limited.

The third defendant, Langton Mashiri, purchased an immovable property, Number 5417 Glen Norah 'B' Township, Harare from the estate of the late Cecilia Gunda and took transfer of the said property….,.

Lastly, it is the plaintiff's case that both the first and second defendants had no rights, title and interests over the property in issue, Number 5417 Glen Norah 'B' Township, Harare as such rights were procured by fraud. As a result, the plaintiff's case is that no rights, title and interest were conferred to the third defendant….,.

The third defendant, in his plea, indicated that the plaintiff only surfaced at the pre-trial conference stage in case number HC740/09 in which one Anderson Gunda and Daison Gunda were the plaintiffs but their locus standi was put into issue. In relation to the dispute, the third defendant said he bought the immovable property, Number 5417 Glen Norah 'B' Township, Harare after the fourth defendant had authorized the sale of the property. The third defendant stated that he is a bona fide purchaser of the property who has title to the property and that if at all the plaintiff has a claim she can lay her claim against the estate….,.

I still have to consider whether in the circumstances of this case there is basis to reverse the transfer of the said property from the third defendant who has since acquired real rights over the property.

It is clear from the written submissions by the plaintiff that the plaintiff has now abandoned the basis upon which the administration of this said estate was being challenged. The plaintiff had made allegations of non-compliance with the provisions of the Administration of Estates Act [Chapter 6:01]. The plaintiff had alleged that this non-compliance was engineered by the first and second defendants with the complicit of the fourth defendant and also connivance of the third defendant and with the intention of disposing of the house in issue. Allegations were made that the estate of Cecilia Gunda was improperly registered and false information used. It was alleged that the edict meeting was not properly advertised. The appointment of the executor was put into issue. The disposal of the house was challenged…,.

After the evidence of the new executor, Oliver Masomera, and the third defendant, Langton Mashiri, the plaintiff has now shifted ground, and, as per closing written submissions, the plaintiff is now challenging the whole process not on the basis alleged of non-compliance with the provisions of the Administration of Estates Act [Chapter 6:01] but is now on the common law platform of fraud. One is not sure at what point this Damascean feat engulfed the plaintiff.

Let me deal with the evidence of the executor and the third defendant.

The position of the first and second defendants has been that the estate of the late Cecilia Gunda was properly administered and that all legal requirements were followed. They have insisted that the appointment of the late Susan Zvinoira was above board just like the appointment of her replacement, Oliver Masomera, which is now not contested.

The new executor, Oliver Masomera, testified, and his evidence remained largely unchallenged on material issues. He is now seized with the administration of the estate of the late Cecilia Gunda which is yet to be finalized. He took the court through the process of the administration of an estate in terms of the Administration of Estates Act [Chapter 6:01]. In broad terms, he said the process involves registration, administration, distribution and finalisation. In casu, he said what has been done is the registration and part of the administration. The distribution and finalisation is outstanding. In terms of section 5 of the Administration of Estates Act [Chapter 6:01] the registration of the estate can be done by a relative or connection. The first defendant, Tsitsi Gunda, is daughter to Cecilia Gunda and therefore a relative. The late Susan Zvinoira, from the evidence which is irrefutable, was well-known to Cecelia Gunda and therefore was a connection. This means that the first and the second defendants could properly register Cecilia Gunda's estate. According to Oliver Masomera, all the relevant documents, which are the Death Notice, exhibit 4 and the preliminary inventory were lodged. The relevant fee for an edict meeting was paid. He said there is evidence in the file that there was an advertisement for the edict meeting as he found proof of such payment. Oliver Masomera said an edict meeting was properly held in terms of section 25 of the Administration of Estates Act [Chapter 6:01] and attended by the first and second defendants whereupon Susan Zvinoira was appointed the executrix and the second defendant, Tsitsi Gunda, signed waiver of security which means the late Susan Zvinoira was now authorized by the fourth defendant, the Master of the High Court, to administer the estate. The relevant administration entails advertising for debtors and creditors lodging of accounts and/or distribution plan.

As per exhibit 12, the Master of the High Court's Report, compiled in terms of Rule 248 of the High Court Rules 1971, an edict meeting was properly held after the estate had been duly registered. The Master of the High Court attached the minute sheet of the edict meeting and copies of Letters of Administration issued to Susan Zvinoira. The Master of the High Court confirmed that the edict meeting was advertised.

Oliver Masomera testified that the second defendant then wrote to the Master of the High Court seeking authority to sell the house in issue in terms of section 120 of the Administration of Estates Act [Chapter 6:01]. The second defendant, Tsitsi Gunda, testified that she is the one, as a beneficiary, who instructed Susan Zvinoira to sell the property. The Master of the High Court granted the authority and the sale was effected; which sale can be by private treaty or done by a registered estate agent. As per exhibit 12, the Master of the High Court had this to say in relation to the sale of the house;

“I reiterate that the disputed property was legally sold after the executrix acquired proper documentation as per our law. It does not need one to have real rights or title to enable the same of estate assets. The law governing disposal of estate assets requires the executors to have the Master's consent to enable such a sale.” 

Oliver Masomera, in his evidence, stated that the plaintiff, as per the file DR265/06, did not assert any of her rights accorded to her in terms of the Administration of Estates Act [Chapter 6:01]. She did not seek any amendment to the Death Notice, exhibit 4, in terms of section 5(4) of the Administration of Estates Act [Chapter 6:01] after the estate was registered within the prescribed period of 14 days. No initial objections were raised in terms of section 58(8) of the Administration of Estates Act [Chapter 6:01] or in terms of section 116 or 117 of the Administration of Estates Act [Chapter 6:01].

According to Oliver Masomera, Susan Zvinoira was supposed to lodge an account after the sale of the property which was not done. He was not able to get Susan Zvinoira's file to ascertain why this was not done and why the proceeds of the sale were paid into the Guardian Fund. Under cross examination, Oliver Masomera stated that after the death of Cecilia Gunda, on 13 December 2005, her estate was registered on 3 February 2006 after which the property was sold in 2008. He conceded that all things being equal the estate should be wound up within 6 months. As per exhibit 12, the Master of the High Court, while reiterating the need to timeously finalize the administration of the estate, such delay is also blamed on Anderson Gunda and the late Daison Gunda who have at all times had been in occupation of the property to the prejudice of potential beneficiaries and/or the buyer. He said that if Anderson Gunda and Daison Gunda had been evicted this would pave way for the executrix to prepare and lodge the first and final account distributing the proceeds to potential beneficiaries.

The evidence of Oliver Masomera is well corroborated by the Master of the High Court's Report - exhibit 12. It confirms the position that the law was complied with in the registration of the estate and in all the processes done to date in terms of the Administration of Estates Act [Chapter 6:01]. It has been shown that the disposal of the property to a third party was in accordance with the law. It has not been said, by the plaintiff, how the relevant Administration of Estates Act [Chapter 6:01] has not been complied with and the allegations in the plaintiff's declaration are therefore incorrect. What is clear is that there has been a delay to finalise the administration of the estate by advertising to creditors and lodging the relevant accounts. The bottom line is that the estate of the late Cecilia Gunda is still to be wound up and is still under administration….,.

I now deal lastly with the third defendant, Langton Mashiri's, case. Langton Mashiri is the one who purchased the property in issue.

In his testimony, Langton Mashiri stated that he only knew Susan Zvinoira in connection with the case and that he only met the second defendant, Tsitsi Gunda, well after he had bought the property in issue and the proceedings in HC740/09 had commenced as the second defendant had attended a pre-trial conference.

Langton Mashiri's evidence is that he responded to an advertisement in the Herald on 12 May 2008, exhibit 8, for the sale of the house. This is how he subsequently met the late Susan Zvinoira. He explained that he telephoned one Amanda whose details were given in the advertisement. Amanda represented Property Heights Estates Agency and they met at Kurima House offices. Amanda told him that she was an agent of Baywood Real Estate represented by one Mukandawire. Amanda then invited him to meet the late Susan Zvinoira. He said Susan Zvinoira then explained to him that the house advertised for sale belonged to the estate of the late Cecilia Gunda. He was shown the Letters of Administration issued by the Master of the High Court to Susan Zvinoera. He was also shown the authority granted by the Master of the High Court for the sale of the said property. Langton Mashiri said he asked to verify the authenticity of all these documents with the Master of the High Court's office at the High Court. Susan Zvinoera obliged and took him to the Master of the High Court's office where the Master of the High Court confirmed the authenticity of the Letters of Administration and the granting of authority to sell the property and that Susan Zvinoera was the executrix of the estate of the late Cecilia Gunda. Langton Mashiri said this convinced him that and the transactions were above board and legitimate. They then proceeded to Baywood Real Estate where an Agreement of Sale, exhibit 9, was concluded on 27 May 2008. Langton Mashiri explained how he secured the funds to purchase the property. He said he obtained a loan from Beverly Building Society for 4 trillion Zimbabwean dollars and for other legal fees. He secured the loan through his employer who registered a mortgage bond, exhibit 10. His employer's legal practitioners acted on his behalf and instructions from the seller, Mrs Zvinoera, was that the full purchase price be transferred to Robson Makonyere Law Firm and this was complied with through an RTGS on 30 May 2008 and he was given a copy of the RTGS. He would not know what Susan Zvinoera did with this 4 trillion he paid. The ownership of the property was transferred to him and he obtained the Deed of Transfer, exhibit 11, on 4 September 2008.

Langton Mashiri explained how soon thereafter he attempted to get vacant possession of the property and has failed to date.

He testified that before the sale had been concluded he had gone with valuers to the house in issue as per the requirements of his employers who secured the loan on his behalf. He realised that there were people occupying the property. Susan Zvinoera had told him that Anderson Gunda and Daison Gunda were residing at the property. After the conclusion of the sale he then instructed his legal practitioners to give the requisite 3 months notice to the occupants of the property to vacate and such notice was issued in October 2008 and expired on 31 January 2009. See exhibit 12. This was the start of his tribulations.

Langton Mashiri said before he could take occupation of his property Anderson Gunda and Daison Gunda issued summons out of this court, HC740/09, against him, Mrs Susan Zvinoera and Tsitsi Gunda claiming that the property had been improperly sold to him without them being involved. This matter, HC740/09, dragged on until the pre-trial conference stage at which stage Anderson Gunda and Daison Gunda withdrew their claim and an order by consent, granted by my brother CHITAKUNYE J, on 16 February 2010 paving the way for the eviction of Anderson Gunda and Daison Gunda and all those claiming occupation of the property through them for Langton Mashiri to get vacant possession. This was duly done as Anderson Gunda and Daison Gunda were served with notice to vacate but they did not comply. They were duly evicted on 15 March 2010 as per exhibit 13 as they had not complied with the court order granted by consent. Langton Mashiri said he proceeded to secure the property in the presence of the Deputy Sheriff and went home to convey the good news to his family and to collect the goods for his family to start a new chapter in the newly acquired house.

His joy was short-lived.

On his return he now found that the plaintiff, Ennety Gunda, was now in occupation of the property. He reported this defiance of a court order to the police and the plaintiff, Ennety Gunda, was arrested. The plaintiff, Ennety Gunda, then produced a letter from her legal practitioners indicating that she had instituted these current proceedings and could not be evicted. See exhibit 14. Langton Mashiri said since then he has not been able to occupy the property. He explained the anguish and pain he has suffered by paying rentals for his current lodgings and the repayment of the loan for the purchase of the house which he has since finished using proceeds from his salary….,.

Under cross-examination, he was taken to task on why he believed the beneficiary of the property was a minor as per his plea. He explained that he had made that impression when he learnt that the purchase price had been paid into the Guardian Fund. He reiterated that he did not know the second defendant, Tsitsi Gunda, until the court proceedings in HC740/09 which was well after the sale of the house. On how the purchase price was paid, Langton Mashiri said his legal practitioners were instructed to pay the purchase price to the seller's legal practitioners and that this was done as he himself did not personally handle this transaction. Langton Mashiri explained that although the Herald advertisement had put the price for the property at 2.5 trillion Zimbabwean dollars he subsequently bought it for 4 trillion Zimbabwean dollars due to the hyper inflation obtaining at that time. He denied that when he bought the house he was aware of the dispute surrounding the house. Instead, he said all Mrs Zvinoera explained was that the owner of the house, Cecilia Gunda, had died in that house not that the occupants of the house would cause him problems.

The evidence of Langton Mashiri, already said, reads very well. The lukewarm cross examination he was subjected did not alter at all the colour of his evidence.

The question to be answered is whether there is a legal basis to reverse the transfer of the property from Cecilia Gunda's estate to Langton Mashiri or to consider Langton Mashiri as an innocent purchaser who now has acquired real rights over the said property.

The Master of the High Court, as per exhibit 12, is of this view that Langton Mashiri is an innocent third party whose real rights over the property should be protected. I have already alluded to the fact that the plaintiff has abandoned the basis upon which claim for the reversal of the transfer of the property to Langton Mashiri was premised, which was non-compliance with the Administration of Estates Act [Chapter 6:01]. This concession, although belated, is well-informed as evidence led does not make such an argument sustainable.

The plaintiff has decided to rely on the common law ground of fraud. I turn to that issue.

In the case of Katirawu v Katirawu & Ors 2007 (2) ZLR 64 (H), it was held that a beneficiary in the estate has capacity to approach this court at common law to move the court for the removal of an executor whose appointment would have been induced by fraud. The plaintiff, as is more apparent in the written closing submissions, is alleging that the appointment of Susan Zvinoera as the executrix of the estate was induced by fraud which would make it null and void abinitio. The reasoning by the plaintiff is that once such a finding is made the consequences are that all what the executor did is of no legal effect - including the purported sale of the house to the third defendant.

The question which has exercised my mind is whether, on the facts of this case, the plaintiff has indeed established the alleged fraud.

The case of Katirawu v Katirawu & Ors 2007 (2) ZLR 64 (H), which the plaintiff has heavily relied, is distinguishable on facts from the matter at hand. In that case, the first respondent who was one of the deceased's sons, forged a death certificate and induced the Master of the High Court to appoint him as the executor and sole beneficiary of his father's estate. He also gave a false name to the Master of the High Court and disposed of an immovable property to a third party under the guise of such false identity. In casu, both the first defendant and the second defendant did not forge any document. The second defendant is a daughter of the late Cecilia Gunda. She has maintained the stance that she is a sole beneficiary of the estate. I have already discussed at length why I hold the view that the plaintiff has failed to prove how she is a beneficiary. The late Susan Zvinoera, who was initially appointed the executrix, was never removed from such a position until the time of her death. The first defendant's appointment is now not in issue.

The plaintiff has failed to establish any impropriety in an administration of the said estate. I have already made a finding that the estate was properly registered and the appointment of the executor was done lawfully. The disposal of the house was done in compliance with the law. There is therefore no evidence adduced by the plaintiff to prove any fraud in this matter. I am not persuaded by the argument that the first and second defendants misrepresented to the Master of the High Court the maternity of the plaintiff.

Lastly, it is also my finding that there is no basis at law to reverse the sale and subsequent transfer of the house from Cecilia Gunda's estate to the third defendant. There is no evidence led to support the assertion that the third defendant connived with the first, second and fourth defendants in this matter. The third defendant's position is akin to an innocent purchaser in matters similar to double sales. See Crundall Brothers (Pvt) Ltd v Lazarus N.O. & Anor 1991 (2) ZLR 125 (S); Mwayipaida Family Trust v Madoroba & Ors 2004 (1) ZLR 439 (S).

It is clear from the evidence led that the third defendant was entirely ignorant, at the relevant time, of the claims of the plaintiff in relation to the estate of the late Cecilia Gunda and he took transfer of the said house in good faith for value. The fact that the executor deposited the proceeds of the sale into the Guardian Fund is neither here nor there. The third defendant's real right in this house in issue cannot, in my view, be disturbed.

In conclusion, it is my finding that the plaintiff has not shown that she is a daughter of Cecilia Gunda and therefore a beneficiary of the said estate despite the existence of exhibit 1 - her birth certificate. The consent granted by the fourth defendant, the Master of the High Court, for the sale of the property in issue was properly made in the circumstances. The sale of the house in issue, Stand Number 5417 Glen Norah Township 'B', Harare to the third defendant is above board and therefore valid. The third defendant is indeed a bona fide purchaser hence there is no basis to set aside the sale of the house and to reverse the transfer of the property….,.

In the result, I make the following order;

The plaintiff's claims against the defendants are for:-

“1. An order declaring the sale of House Number 3750, Magwegwe North, Bulawayo to 1^st defendant by Nkululeko Ndlovu unlawful, null and void.

2. An order that the plaintiff is the rightful and legal owner of Stand Number 3750, Magwegwe North, Bulawayo.

3. An order directing the 1^st defendant to transfer Stand Number 3750, Magwegwe North, Bulawayo into the plaintiff's name at the 2^nd defendant's offices within 5 days of this order failure to which the Deputy Sheriff be directed to sign transfer papers on the stead of the 1^st defendant.

4. An order directing the 1^st defendant and those claiming through him to vacate House Number 3750, Magwegwe North, Bulawayo within 5 days of this order failure to which the Deputy Sheriff be directed to evict the 1^st defendant and all those claiming through him.

5. Alternatively, the 1^st defendant be ordered to pay the plaintiff a sum of R150,000= being the current market value of the house on grounds of unjust enrichment within 10 days of this order.

6. The 1^st defendant to bear costs of suit at an attorney-client scale.”

The salient facts of the matter are the following.

The plaintiff purchased the property in question from the second defendant in 1978. The plaintiff lived in the house from 1978 to 1999 when he retired and went to live at his rural home in Zhombe. He left his son, Nkululeko Ndlovu, living in the property. It is the plaintiff's case that Nkululeko Ndlovu sold the house to the first defendant without his knowledge and consent. It is alleged that he used a fake general power of attorney to achieve this fraudulent sale of the property. As a result of this fraudulent sale, the plaintiff caused the arrest of his son, Nkululeko Ndlovu. Nkululeko Ndlovu was charged with theft by false pretences. Nkululeko Ndlovu died in prison before the criminal trial took place. The first defendant has refused to vacate the house or transfer it back to the plaintiff or pay current market value of the house. 

This resulted in this action against the first defendant.

The first defendant has raised a special plea that the plaintiff's claim has prescribed. The parties have made submissions on the question of prescription and want me to determine this issue first.

Displaying a ''never say die'' attitude, the respondent was not to give up easily. He then elicited a photocopy of an affidavit purportedly deposed by one Nkosana Ncube in the United Kingdom, alleging that he purchased the garage from the applicant and later sold it to the respondent. 

The evidence…, from both parties brings to the fore such issues as:-

a) Whose rights and interests did the 1^st defendant buy in Stand 8237 Unit K, Seke, Chitungwiza?

b) Did that person have such rights and interests in the property to sell?

From the pleadings filed of record and evidence adduced, it is clear that whilst the parties seemed to believe that the property was owned by the person in whose name it was registered this is not so. The Memorandum of Agreement that the plaintiff entered into with the Chitungwiza Municipality and the Government clearly shows that this was a case of cession and not ownership or title in the property.

Ownership lay in the Government.

The issue of such properties has been commented upon by these courts on several occasions. Parties and their legal practitioners have been called upon to take heed of the fact that properties in High Density suburbs fall into different categories. These include:-

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; and

3) Owners, who graduated from category two, in the fullness of time.

See Hundah v Murauro 1993 (2) ZLR 401 (S).

Each category has aspects that need to be considered. The need for legal practitioners, magistrates and estate agents dealing with such properties to be alive to the categories alluded to above cannot be overemphasised. The capacity of parties to dispose of the property is sometimes dependant on the category of rights and interests held.

In casu, the agreement between the plaintiff, on the one hand, and Chitugwiza Municipality and Central Government, on the other hand, fell into Category Two, which, upon payment of full purchase price, would graduate to Category Three.

In that regard, Clause 19 of the Agreement states that:-

“The purchaser shall not part with possession of the property or any part thereof nor cede nor assign nor hypothecate without the previous consent in writing of the Council.” 

There is no denial that when the first defendant purported to buy the property from the fourth defendant no consent, whether in writing, as required, or in any manner, had been obtained from the Council. When the first defendant obtained cession it was because the Council felt compelled by a Court Order and not that Council was giving its consent.

In Hundah v Murauro 1993 (2) ZLR 401 (S), Council found itself having to accede to cession in order to comply with a Court Order. The Honourable McNALLY JA…, had this to say regarding such scenario:-

“But Mr. Biti, for Mr. Murauro, argues that the Municipality has cured the invalidity. He has produced a letter dated the day before the postponed hearing of the appeal on 25 November 1993. The letter contains the following relevant sentence:

'Please be advised that Council will abide by the Supreme Court's decision just as it has done with the High Court's Order.'”

The honourable judge of appeal went on to say this letter and the fact that Council had gone on to consent to an agreement of cession between Hundah and  Murauro with the Deputy Sheriff signing in place of Mr Hundah, was not a waiver of rights by Council but a compliance with a Court Order.

Such act of compliance did not validate the cession at all.

In casu, it is clear Council acceded to cession in order to comply with a court order. This is evident from the fact that in May 2009 the Council, through is Director of Housing, purported to apply for the reversal of the cession. In the founding affidavit, the Director of Housing Chitungwiza stated in paragraph 5, inter alia, that:-

“2^nd respondent (Nancy Kutyauripo) apparently had sold the said property, which is registered in the name of Stephen Vhavha, her ex-husband,- to 1^st respondent (MSIZI DUBE) relying on judgement in case Number CC13/07 which judgment the Municipality had also relied on in approving cession until we got another judgment CC13/08 (sic) which ordered non-disposal of the property.”…,.

It is common cause that case CC13/07 did not cite the Chitungwiza Municipality or the Government of Zimbabwe as a party and neither had the Council's consent been obtained for this property to be sold as ordered by the court.

It is my view that at the time the fourth defendant purported to sell the property she had no property to sell. The judgment she paraded as granting her authority to sell, at the most, only granted her personal rights against her ex-husband. It is nevertheless the judgment the Director of Housing said Council relied on in consenting to cession.

The High Court Order in HC6685/08, which the first defendant said he utilised to obtain cession, was not against the holder of rights and interests in the property, but against the fourth defendant who had given out herself as owner of the property when she was not.

That Order –

(i) Calls upon the 4^th respondent to make herself available for change of ownership when, as is common cause, she was not the owner;

(i) It orders the 4^th defendant to cede all her rights title and interest over House No.8237 Unit K, Seke, Chitungwiza to the 1^st defendant when, as has been shown above, she had neither title nor rights and interests to cede.

The Order further compels the Council to consent to transfer when there was no transfer to be effected.

It is apparent to me that the order in HC6685/08 was obtained after serious misrepresentations were made. These included that the fourth defendant was the owner and thus holder of title, registered rights and interests in the property in question which she could transfer when, in fact, and in truth, this was false.

The first defendant's housing application form, exhibit 8, has an endorsement dated 5 February 2009 stating that:

“Cession approved per Court Order No.6685/08.”

At p56 of the defendant's bundle of documents is a Chitungwiza Council document dated 5 February 2009 apparently reflecting a discussion within Council culminating in the decision to allow cession. The document reads:

“Upon consultation with the Director of Housing, it has been agreed that cession to Mr. Dube proceed since Order for disposal of property still stands. Mr.S.Vhavha can proceed against Nancy for any recourse.”

This, in my view, confirms that Council was merely complying with a Court Order. This should not be seen as validating the sale agreement between the fourth defendant and the first defendant. The consent to dispose could only be sought by the person with rights and interests in the property; that is the plaintiff. Had it been the plaintiff who had purported to sell it could be said that as a holder of rights under a suspensive agreement of sale with Chitungwiza Municipality, he could sell his rights under the agreement but he could not pass transfer/ title as he had none. The fourth defendant, not being a holder of rights in the property, is far removed from the plaintiff's scenario.

She clearly had nothing to sell.

The first defendant contended that since he has been granted title he should retain it as the owner.

I am, however, of the view that he sought and obtained title well after he had become aware that the person who had purportedly sold the property to him was neither the owner nor the holder of rights and interests in the property. He was then aware of the correct registered holder of rights and interest in the property but chose not to cite that party. It is my view he acted in bad faith in proceeding as he did. He clearly acted dishonestly in proceeding to obtain cession and then title when he had become aware of the truth regarding the holder of rights and interests in the property.

The above adequately answers the issues referred to trial.

It is clear that in terms of the Memorandum of Agreement between the plaintiff and Council, the property in question was not owned by the plaintiff but by the Government of Zimbabwe, the Central Government as owner of the land, and the Local Government as owner of the dwelling on that Stand. (See the 2^nd and 3^rd paragraphs on pages 1 of the Agreement). The plaintiff was a holder of rights and interests in the property at the time of the sale to the first defendant.

I also make a finding that the second and third defendants acceded to the cession purely to comply with a Court Order. Unfortunately, the Court Order referred to rights, title and interest of the fourth defendant in the property and she had none of that in the property. The second and third defendants therefore acted unlawfully in ceding the plaintiff's rights and interests in the property when what was sought were rights, title and interests of the fourth defendant. They ought to have indicated that according to their records the fourth defendant had no rights, title and interest in the property….,.

There is also a prayer for eviction. I believe there is no reason not to grant such.

In view of the above findings it is hereby ordered that:-

1. The cession of the plaintiff's rights and interest in Stand 8237 Unit K, Seke, Chitungwiza to the 1^st defendant was unlawful.

2. The 2^nd and 3^rd defendant's are hereby directed to reverse the cession in favour of the plaintiff, Steven Vhavha, within 30 days.

3. The Registrar of Deeds Harare be and is hereby directed to  cancel Deed of Grant Number 576 dated 7 February 2011 made in favour of the 1^st defendant, Msizi  Dube (Born 9 August 1968).

4. An order be and is hereby granted for the eviction of the 1^st defendant, Msizi Dube, and all those claiming occupation through him from Stand Number 8237 Unit K, Seke, Chitungwiza within 14 days from the date of service of this order failing which the Sheriff, Chitungwiza be and is hereby authorised to evict the 1^st defendant and all those claiming occupation through him.

5….,.

6. 1^st defendant shall pay interest on the above sum at the prescribed rate from the date of service of the summons to the date of payment in full.

Factual and Legal Analysis

The basic presumption is that the person in whose name property is registered is the one who has a real right. Such right is enforceable against the world at large. See Ncube v Ncube 1993 (1) ZLR…,.

It must also be borne in mind that rules on ownership, as provided by the formal law, play important roles. They have a protective function and provide predictability and transparency, particularly ascertaining ownership. When disputes arise, consequences of real rights stemming from formal rules can help to steer a case towards speedy resolution.

However, the presumption of real rights for the registered owner is one that can be set aside if it is successfully rebutted. Drawing on similar circumstances, an example where such presumption was successfully rebutted is the case of Kamanga v Estate Late Chikondo as represented by Oswold Bute Chikondo in his capacity as executor and Others 93/2011. Property had allegedly been registered in the name of another to evade local authority's regulation prohibiting multi-ownership. The evidence of the witnesses in that case was unassailable as to how the property had been paid for and as to who had effected the improvements to the properties.

In the present case, all those who could have properly shed light on the matter are deceased. The evidence stated by the second defendant and by his sister, Longina Munatsi, as to what was intended as regards ownership was not always consistent. The issue of ownership vacillated between various scenarios. In the second defendant's evidence, the property, in fact, belonged to his father and on his death his mother should have been the rightful owner. By contrast, according to Longina Munatsi, the family met and chose Charles Munatsi as a trustee. Her claim was that the property has always been collectively owned and in fact belongs to all of them. Even accepting that a trust can be established informally the certainty of an intention to create a trust was, in my view, far from established. The fact that a home was to be used to the benefit of the family did not in itself create a trust. The claim that objections to the property having been listed as belonging to Charles Munatsi was not supported by evidence. What appears to have stimulated the challenge to the sale was that it was spearheaded by Charles Munatsi's widow, whom the family deemed as an outsider, rather than that it did not belong to the late Charles Munatsi. It is therefore my view that the property in dispute rightly formed part of the estate of the late Charles Munatsi in the absence of tangible evidence to support the notion that the property was wholly and entirely developed by Andrew Munatsi only….,.

Whether a purchaser had knowledge of a dispute relating to the ownership of the property under sale is pertinent in determining whether such sale should be set aside. See Nkomo v Ncube HB27-04.

In the present case, the evidence is that the proceedings challenging the sale were only initiated after the property had been sold and after the plaintiff had taken transfer on behalf of the minor child, Jaden Taongaishe Mutange. I do not think that the second defendant was being candid with the court when he claimed that the property had been purchased with the full knowledge that it was under dispute. It is my finding, on the evidence placed at the trial, that Sithembinkosi Godzongere was not aware of the dispute over the property between the Munatsi family.

There is no basis, in my view, for overturning the real rights that were acquired by Jaden Taongaishe Mutange through the purchase of the property by Sithembinkosi Godzongere. She is entitled to the relief sought on behalf of the minor child….,.

Accordingly, I hereby make the following order:

1. That the 2^nd defendant and all those claiming occupation through him be and are hereby ordered to vacate the premises known as Stand No.11095 Zengeza 4, Chitungwiza within 30 days from the date of this order, failing which the Deputy Sheriff be and his hereby ordered and directed to evict the 2^nd Defendant together with all other persons claiming right of occupation through him.

The other point taken by the applicants was that the transfer to the respondents is invalid as there was no valid cause.

The properties could only be acquired by acquisition of Shares - they being properties held under sectional title. None of the respondents hold the relevant Class B Shares. This point has not been contested by the respondents in their heads of argument.

In view of the above, the application must succeed. In the result, I will make the following order:

1. The transfer of Unit/Share 9 of certain piece of land called the Remainder of Lot 3 Lewisam of Lot E of Colne Valley of Reitfontein to Pervaz Khan under Deed of Transfer number 8952/08 be and is hereby set aside.

2. The first respondent be and is hereby ordered to transfer to the first applicant Shares in Cheni Investments (Pvt) Ltd which will confer on her ownership and the right to possession of Unit 9.

3. The transfer of Unit/Share Number 5 of certain piece of land called the remainder of Lot 3 Lewisam of Lot E of Colne Valley of Reitfontein to Brighton Matikiti be and is hereby set aside.

4. The transfer of Units/Shares 4 and 12 in certain piece of land called the Remainder of Lot 3  of Lewisam of Lot E of Colne Valley of Reitfontein to Ian Khumjalo be and is hereby set aside.

5. The first respondent be and is hereby ordered to transfer:

(a) Shares in Cheni Investments (Pvt) Ltd which will confer ownership of Unit 5 to Allan Tilling Russell or his nominees.

(b) Shares in Cheni Investments (Pvt) Ltd which will confer ownership of Units 4 and 12 to Fairclot Investments (Pvt) Ltd or its nominees.

6. The transfer of Unit/Share 3 of certain piece of land called the remainder of Lot 3 Lewisam of Lot E of Colne Valley of Reitfontein to Pervaz Khan under Deed of Transfer No.8950/08 be and is hereby set aside.

7. The first respondent be and is hereby ordered to transfer to the fourth applicant Shares in Cheni Investments (Pvt) Ltd which will confer ownership of Unit 3 to the fourth applicant.

8. In the event of the first respondent failing to effect transfer in terms of para 2, 4 and 5, the Deputy Sheriff be and is hereby authorised to sign the necessary papers to effect transfer.

Further, this property was registered in the joint names of the first respondent and his late mother. 

The plaintiff cannot seriously claim ownership on the basis of assisting his father in his upkeep and development of Plot 5, and, subsequently, Plot 8.

The Plots were registered in the plaintiff's late father's name.

There might have been intimation and intention to change the name and ownership but there was no such due process effected. An intention does not at all give title to the plaintiff. The minutes of the Committee that sat to deliberate on the issue tendered as exhibit 3, page 2 thereof, outlines nothing more than the plaintiff's father's wish. The Committee's resolution came from the common understanding that Chakanetsa Enerst Mazarura, although he was still alive at the time, his wish was to cede Plot 8 to his son.

The late Godfery Zakeo Mahenga had no real rights to the property in question, and, as such, it could not accrue to the deceased estate. See Matsinde v Nyamuku 2006 (2) ZLR 2000. It was spelt out that the transmissibility of rights or action depends on whether they are rights or action in rem or persona.

The late late Godfery Zakeo Mahenga acquired land through Government resettled program and thus had personal rights.

The applicant seeks an order for transfer of a Stand. The applicant and the first respondent were formerly married….,.

Sometime in June 1996, the applicant and the first respondent, (hereinafter referred to as the respondent), jointly bought a commercial Stand, being Stand No.2024 Ruwa Township, and registered it into both their names. The applicant emigrated to the UK in the year 2000 with the respondent following in 2002. In the year 2000, the applicant's half share of the Stand was transferred into the respondent's name making him the sole owner of the Stand. A power of attorney, supposedly given by the applicant to a legal practitioner, who is now late, was used to transfer the Stand. The applicant denies giving a power of attorney to transfer her share of the Stand to the legal practitioner.

The applicant's account is that she never sold her half share of the Stand to the respondent.

Sometime in 2010, the parties commenced negotiations for the sale of the respondent's half share of the Stand to her and these failed. She discovered, in the year 2012, after a deeds search, that transfer of the full Stand had been effected into the respondent's name in 2000. She denies giving a power of attorney to a legal practitioner to transfer her 50% share of the Stand to the respondent.

The respondent's version of events is that the applicant sold her half share of the Stand to him for ZW350,000= in the year 2002 and transfer was effected after the applicant had given power of attorney to a legal practitioner to pass transfer of her half share to the respondent. The respondent maintains that the transfer of the Stand was done above board and denies having committed any fraud. In the year 2009, the respondent offered to sell the whole Stand to the applicant, which was in his name, and negotiations commenced but later collapsed….,.

The key issue that this court is being called upon to determine is whether the applicant sold her rights and interest in the Stand to the respondent in the year 2000. Both parties seem to be labouring under the erroneous view that the Stand was transferred into the respondent's name in 2002. In effect, it was transferred in 2000 as reflected on the Deed of Transfer.

The court will analyse the e-mails and Agreement document exchanged between the parties and try and deduce what the subject of the discussions was. The first e-mail is dated 6 November 2010 and records part of the negotiations that took place and was sent by the applicant. She adverts as follows;

“We can make some arrangements for you to see an acknowledgement of debt that I am holding.”

The contents of the acknowledgement of debt are not known as same was not produced or its details revealed. The respondent responded the same day and indicated that he had put together an agreement. The proposed agreement records that transfer of the property was to be made into the applicant's name and records the purchase price. Title Deeds would transfer to the applicant and she would be responsible for rates payments from the date of signing of the agreement to date of transfer. The agreement was signed by the first respondent alone. On 19 December 2010, the respondent withdrew the agreement with a view to make some changes to it. The agreement does not reflect whether it related to the whole Stand or half of it. On 3 January 2011, the respondent e-mailed the applicant notifying her that he had decided not to sell the Stand to her. These communications are not very helpful to the court insofar as they do not identify whether a full Stand, or half, was being discussed.

If the applicant had indeed sold her 50% share of the Stand earlier on to the respondent, the respondent was free to sell the Stand to anyone else. It seems to me that the reason that he engaged her is because of her 50% share in the Stand. The inference is that the parties were discussing the sale of the respondent's half share. There is very little support for the assertion that the applicant entered into an Agreement of Sale of her half share of the property and sold it to the respondent in 2000. That support is found in the disputed power of attorney. No Agreement of Sale and proof of payment was tendered in support of the assertion that the applicant sold and received the purchase price for half the Stand resulting in transfer. The respondent does not suggest how he paid the purchase price. No details are given as to how, where and when the purchase price for the half share was paid by the respondent. The applicant challenged the power of attorney she purportedly gave to the legal practitioner to effect transfer of the property. Ultimately, the only document available suggestive of a sale of the Stand is the power of attorney - which is challenged. The respondent's version is highly improbable. There is no sufficient evidence to show that the applicant sold her half share of the Stand to the respondent in the year 2000. The indications are that the Stand was fraudulently sold and transferred and hence that transfer is a nullity….,.

The applicant remains the lawful owner of a 50% share of the Stand….,.

The applicant is entitled to the order sought. In the result, it is ordered as follows;

a) The first respondent be and is hereby ordered to transfer ownership of an undivided half share of Stand No.2024 Ruwa Township of Stand 856 Ruwa Township into the name of the applicant within fourteen days of service of this order. 

b) Should the first Respondent fail to comply with (a) above, the Deputy Sheriff of Harare be and is hereby ordered to sign all necessary documentation to effect transfer of the said undivided half share of Stand No.2024 Ruwa Township of Stand 856 Ruwa Township, measuring 867metres squared, into the name of the applicant.

The first respondent has a right of vindication against the appellant, despite the fact that the appellant had become the registered owner of the property. The first respondent's right is derived from the common law principle memo dat quod non habet which means no one can transfer more rights to another than he himself has.