The question of fraud was raised by the appellants in their papers.

I consider it desirable to deal with this allegation as it clearly has a bearing on the question of costs.

The suggestion that the respondents have conducted themselves improperly appears to have substance. Firstly, the cause of action of the respondents was never established. In his founding affidavit, the first respondent alleged that the second appellant had “pledged” the Stand to his father “as remuneration and pension.” 

How such a pledge gave rise to a cause of action in which transfer was sought was never substantiated. 

Upon realising that the property in question was not owned by the second appellant but by the first appellant, the first respondent then alleged that “the property in question is registered in Folly Cornishe (Pvt) Ltd which is largely owned and controlled by the second respondent. The pledge given to my father by the second respondent cannot be separated from the first respondent and the first respondent is bound by the actions of the second respondent in these circumstances.” 

No further details justifying the piercing of the corporate veil were given. 

On the basis of this bald allegation an order was then granted in favour of the first and second respondents for the transfer of the Stand in question.

Further, the court application was served at 25 Meath Road, Avondale West, Harare upon one Gabriel on 22 October 2008. 

In their founding papers, the appellants demonstrated that this address was unknown to them. They attached to their papers Form No CR.6 executed in 2007, i.e. before the filing of the application in the Magistrates' Court. Form CR.6 is a record of the company's physical address and postal address. The form confirms that the physical address of the first appellant had been Suite 1, Westgate House West, Westgate Shopping Mall, Lorraine Drive, Bluffhill, Harare and with effect from 30 January 2007 its new physical address was 7A Aurora Terrace, Meyrick Park, Mabelreign, Harare. Despite the fact that the appellants had taken the trouble to demonstrate that the address at which the court application was served was unknown to them, the first and the second respondents' response was that “the address, 25 Meath Road, Avondale West, Harare was obtained from the Registrar of Companies as the last known address of the first applicant.”

No documentation from the Registrar of Companies to this effect was filed and the claim remained a bald one. The same bald claim was repeated in the heads of argument filed before this Court. 

Coupled with the admission by the first respondent that he had been aware that the second appellant, a Director of the first appellant, had not been resident in Zimbabwe for a very long time, the totality of the circumstances suggest impropriety on the part of the first and the second respondents. The two respondents relied on a cause of action which was not properly grounded in law and further caused the court application to be served on an address unknown to the appellants. That the Magistrates' Court had no jurisdiction to order the transfer of the property in question must have been apparent….,.

In the result, the following order is made.

1. The appeal succeeds with costs on the legal practitioner and client scale.

2. The order of the Court a quo is set aside and in its place the following is substituted:

It be and is hereby ordered that:-

1. Deed of Transfer (Registered No.8361/2008)  pertaining to Stand 2558, Glen Lorne Township, measuring 18,2024 hectares, registered in the name of the Estate Late Misheck Tapomwa (DRH 641/01), the second respondent, be and is hereby cancelled.

2. Deed of Transfer (Registered No.6050/2006) dated 23^rd August, 2006, pertaining to Stand 2558, Glen Lorne Township, measuring 18,2024 hectares registered in the name of Folly Cornishe (Private) Limited, the first applicant, be and is hereby revived in terms of section 8(2)(a) of the Deeds Registry Act [Chapter 20:05].

3. The sixth respondent, the Registrar of Deeds, be and is hereby ordered and authorised to attend to the cancellation of Deed of Transfer (Registered No. 8361/2008) in the name of second respondent and the revival of Deed of Transfer (Registered No. 6050/2006) in the name of first 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].

At the end of the day, applying the relevant law as enunciated supra, it matters not that Nkululeko Ndlovu sold the house to the first defendant, or that the first defendant is an innocent purchaser or a bona fide possessor or that the title to the house is currently registered in the first defendant's name. 

The pith of the matter is that the plaintiff's house was sold and transferred to the first defendant without the plaintiff's consent. 

Nkululeko Ndlovu had no authority to alienate the plaintiff's property. In the event, he had no title to pass. Consequently, “the true owner [plaintiff in casu] of a thing, whether movable or immovable, which has been alienated without his consent, not only by one who has stolen it, but by one to whom it has been lent, given in deposit, or let, or by any other like person, not having authority to sell, may legally claim it from anyone who is in possession of it without making restitution of the price paid by him.” Per De VILLIERS CJ in Adams v Mocke (1906) 23 SC 782…,.

3. FLAT NO. 3 SELMONT GARDENS, BELVEDERE

The learned judge a quo noted that the appellant had confirmed that this property was purchased by the respondent through a loan facility granted by her employer, the Reserve Bank of Zimbabwe, and was registered in her name. The court found that the parties had agreed that the mortgage loan in respect of this property would be serviced through the respondent's income while the appellant's income would be used to maintain the family. The court accepted the evidence of the appellant that he also contributed towards the maintenance of the property, through the payment of levies and rates during the parties' three (3) year stay at the flat. It was not in dispute that the respondent, in part, bought the flat in question using proceeds from the sale of another flat she had bought before she married the appellant. It is also common cause that the appellant made no direct contribution to the acquisition of this property.

In awarding 5% and 95% of the value of this property to the appellant and respondent, respectively, the learned judge a quo, after noting that he had drawn guidance from, inter alia, the celebrated case of Takafuma v Takafuma 1994 (2) ZLR 103 (S) reasoned as follows…,:

“…,. As regards Number 3 Selmont Gardens, the starting point to note is that it was acquired during the subsistence of the marriage and therefore constitutes matrimonial property. However, the acquisition was solely financed by defendant, albeit, from the proceeds of an earlier property. It is, in fact, registered in defendant's name and would fall in the category of “hers.” 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. The amount involved was not stated. The parties only stayed in the property for about three years. I would hold that the plaintiff is entitled to a share, albeit, it would be very negligible, on account of his small, indirect, contribution. This is in accordance with s 7(1)(a) of the Matrimonial Causes Act which 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)…,.'

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)…,.”

After citing the provisions of section 7(4) of the Matrimonial Causes Act [Chapter 5:13], the learned judge determined that in the court's discretion, the appellant would be awarded 5%.

The appellant, while accepting that the learned judge a quo properly considered the principle enunciated in Takafuma v Takafuma 1994 (2) ZLR 103 (S) argues that the court then erred by failing to give due weight to his indirect contribution to the acquisition of the property. Additionally, that the award made had the result that the respondent was unjustly enriched.

The appellant does not allege that the court a quo applied a wrong principle in determining the apportionment of this property. The contrary is, in fact, suggested in his submission in relation to the court's reliance on, inter alia, the case of Takafuma v Takafuma 1994 (2) ZLR 103 (S). Nor does the appellant argue that the trial court allowed extraneous or irrelevant factors to guide it, mistook facts, or disregarded some relevant considerations.

There is no dispute, and the court a quo properly took this into account, as to who between the parties contributed substantially and directly to the acquisition of the property in question. Nor is the indirect nature and manner of the appellant's contribution in the short period of three (3) years that they stayed in the property, disputed.

There is, in my view, no doubt that the learned judge a quo took into account all the relevant facts and was guided by the correct principles in its application of section 7 of the Matrimonial Causes Act [Chapter 5:13] to the distribution of the property in question.

I therefore do not find that the court a quo exercised its discretion erroneously in making the award that it did. It follows that the appellant's submission that the respondent would be unjustly enriched, is without merit.

I would, accordingly, dismiss this ground of appeal.

The third issue is whether Stand Number 3414 Mainway Meadows, Waterfalls, is matrimonial property.

In the heads of argument, the appellant alleges that the property in question is matrimonial property within the meaning of the Matrimonial Causes Act [Chapter 5:13].

In the court a quo, the respondent company showed that the appellant's husband was not the sole shareholder. The argument that the appellant's husband, is the sole shareholder of the respondent company is not supported by any evidence. There is no evidence that the appellant's husband used his resources to finance the purchase of the property by the respondent. The appellant did not place any evidence before the court to show that at any other time, her husband exercised sole and complete control over the respondent company.  The papers show that he was never a sole shareholder or only an active Director of the respondent company.

Proof of ownership of the property by the respondent company in the form of a copy of the Title Deed produced in the court a quo disproved the claim that the house is matrimonial property.

This is an appeal against the entire judgment of the High Court sitting at Harare which directed cancellation of Deed of Transfer Number 2541/14 issued in the name of the appellant, Guoxing Gong, with costs at the punitive scale of legal practitioner and client.

The order appealed against is couched in the following terms:

“In the result, I make the following order:

1. Deed of Transfer No. 2541/16, in the name of Guoxing Gong, be and is hereby deemed cancelled and the Registrar of Deeds be and is hereby directed to effect such cancellation.

2. The first respondent shall surrender the said Deed of Transfer to the Registrar of Deeds within 48 hrs of service of this order to enable the Registrar of Deeds to endorse such cancellation.

Section 78(a) of the Deeds Registries Act [Chapter 20:05] provides:

This appeal challenges an interdict granted to the respondents by the Magistrate Court with respect to land which the appellant refuses to vacate on the basis that it is State land.

The respondents are registered companies who own, under title deeds, the two separate properties described as Lot 2 and Lot 13 of Spitzkop Estate. It is in terms of these title deeds that they base their clear right to the properties, having obtained title following acquisition through authorised subdivision of the land owned by E Drakes and Son (Pvt) Ltd in 2012 who were the holders of the original Title Deed.

The appellant argues that the land in question, being State land, by virtue of its acquisition through the constitutionally sanctioned land reform programme, as such, the respondents have no greater right than himself to be on this property and cannot chase him away. He argues that the respondents obtained title under a “dead Deed” since the land was effectively owned by the State at the time that transfer to the respondents occurred.

The circumstances are articulated more fully below.

The respondents successfully obtained an interdict in the court below with the magistrate finding that there was no land ownership dispute and that the respondents were entitled to an interdict. The grounds upon which the appeal is brought are as follows:

1. That the court a quo erred in finding that there was no ownership dispute between the parties.

2. That the court a quo erred in holding that the respondents established a clear right and all other requirements required to warrant the relief sought of an interdict.

The appellant's prayer is that the appeal be allowed and the judgment of the court a quo be set aside. The appellant also prays for an order as to costs on a legal practitioner client scale.

The context in which the appellant frames his “State land” argument is as follows:

In 2000, the land in question, which belonged to E Drakes and Son (Pvt) Ltd, was acquired by the State under General Notice 418A of 2000. It was listed therein as item 324. However, following this listing, the itemised land, among others, was withdrawn from the compulsory acquisition list in 2001. This was through GN 613 of 2001. The land in question, nonetheless, found itself re-listed again in 2005 when section 16(B) was incorporated into the then Constitution together with Schedule 7. The latter listed the properties affected by the amendment. The relevant aspects of section 16B of the old Constitution read as follows:

“(1)…,.

Notwithstanding anything contained in this chapter

(a) All agricultural land –

(i) That was identified on or before the 8^th July 2005, in the Gazette or Gazette Extraordinary under s 5(1) of the Land Acquisition Act [Chapter 20:10] and which is itemised in Schedule 7, being agricultural land acquired for resettlement purposes referred to in subparagraph A or B

(ii)…,.

(iii)…,.

is acquired by and vested in the State with full title therein with effect from the appointed day…,.”

Section 290 of the new Constitution of Zimbabwe Amendment (No.20) Act 2013 which deals with the continuation of rights of the State in agricultural land, effectively captures the spirit of section 16B. It reads as follows:

“290 (1) All agricultural land which –

(a) Was itemised in Schedule 7 to the former Constitution; or

(b) Before the effective date, was identified in terms of s 16B(2)(a)(ii) or (iii) of the former Constitution; continues to be vested in the State.

(2) Any inconsistency between anything contained in –

(a) A notice itemised in Schedule 7 to the former Constitution; or

(b) A notice relating to agricultural land and published in terms of section 16B(2)(a)(ii) or (iii) of the former Constitution;

and the title deed to which it refers or is intended to refer, and any error whatsoever contained in such notice, does not affect the operation of subsection (1) or invalidate the State's title to agricultural land contained in terms of that subsection.”

It is on the basis of the above provisions that the appellant argues that the land belongs to the State and that the magistrate erred in finding no ownership dispute. He also relies for his interpretation on the more recent case of Kennedy Magenje v TBIC Investments (Private) Ltd & 4 Ors (Case 1) and Kennedy Godwin Mangenje v Minister of Lands & Rural Resettlement & Ors (Case 2) HH377-13.

In that case, MAFUSIRE J, disagreeing with the interpretation by MAKONI J in Matanda (Pvt) Ltd v Minister of Lands & Ors 2009 (2) ZLR 340 which regarded the re-listing of property previously withdrawn as an error, opined as follows with regards to the interpretation of section 16B:

“If indeed such a property would have been withdrawn but nonetheless found itself back on the list in terms of s16B of the of the Constitution then the acquisition in terms of the Constitution would prevail. Such an error, if ever it was, would be 'any error whatsoever contained in such notice…,' within the meaning of s16(5)(a) and (b). The Supreme Court, in the Mike Campbell 2008 (1) ZLR 17 ( S) case above, stated that the pieces of agricultural land listed in the 157 Preliminary notices as itemised in Schedule 7 had been acquired by and vested in the State with full title therein with effect from the appointed day, namely 14 September 2005.”

The appellant further draws strength on his occupation of the land since 2000 when forced occupations of white farms occurred although he admits that his occupation has not been regularised.

Whilst the 'State land' argument makes sense by virtue of the supremacy of the Constitution, what complicates the picture for the appellant vis-a-vis the standing of the respondents as compared to his own is the State's own expressed “lack of interest” in the particular land in question subsequent to the enactment of the above provision.

It is trite that the State can issue a certificate of no interest to land that it is otherwise entitled to, if it deems it proper to issue such a certificate. Such action by the State cannot be regarded as irrelevant and neither can it be overlooked. It is indeed a legitimate action which suspends the State's de facto acquisition of the land thereby allowing for whatever status quo to prevail until such time that interest is expressed.

In the present case, the State, through the Ministry of Lands, issued a Certificate of No Present Interest in the land in question on 2 February 2011. This was valid for a year. The land was transferred to the respondents in 2012 following an authorised subdivision of the land by the Department of Physical Planning for Mashonaland West Province.

The gist of the respondents' argument is that by allowing subdivision and transfer, there was no other interest by the State in the land. The result is that the title of the respondents have not been cancelled by the State whom the appellant argues is the rightful owner of the land. The appellant's argument that the respondents have no claim to the land lacks merit in light of these facts.

I have decided in the two cases above that it would make justice “turn on its head” (see Zimbabwe Electricity Supply Authority v Maposa 1999 (2) ZLR 452 (S)…, and Pamire & Ors v Dumbutshena NO & Anor 2001 (1) ZLR 123 (H)…,.) if I did not grant relief to the applicant. These cases were heard together. The parties had agreed to such a course of action.

(a) INTRODUCTION

The applicant has undoubtedly “been more sinned against than sinning” (William Shakespeare in King Lear)….,.

The dispute centres on a piece of land in Goromonzi District….,.

What the applicant seeks in the main, in a nutshell, and in my own words, is the setting aside of the current Deed of Transfer in respect of the property which is held by one of the litigants called TBIC Investments (Private) Limited….,. I shall from now on refer to it simply as “TBIC”.

The applicant also wants the re-instatement to him of the so-called 'offer letter' in respect of the property. He seeks other ancillary relief that includes the eviction from the property of TBIC Investments (Private) Limited (TBIC) and all those claiming through it.

As I determine these issues, I have to deal with the technical objections raised by, or on behalf of the Minister of Lands and Rural Resettlement, the Attorney-General and TBIC Investments (Private) Limited such as whether or not the applicant has locus standi; whether or not Case 2 was filed timeously or properly and what the correct identity or description of the property in question is. But before I get into the technicalities of the nature of the relief sought and the nature of the defences proffered, and before I set out the crisp issues for determination, it is necessary to explain the background of the dispute in some detail. One has to rewind back to 1997 and begin the story from there.

(b) BACKGROUND

As at 18 June 1997, the property existed as a certain piece of land situate in the District of GOROMONZI called REMAINING EXTENT OF STUHM, measuring 1074,7410 hectares. The owner was one Cecil Michael Reimer (hereafter referred to as “Reimer”). The title deed number was 3032/87. From now on I shall refer to this property as the 'property', or, depending on the context, 'the original property' or 'the Goromonzi property'.

It appears that at some stage, Cecil Michael Reimer had obtained a sub-division permit to subdivide the original property. He was carving out portions of land and selling them off to third parties. One such portion, measuring 412,1091 hectares, was sold off to an entity called Darnall Investments (Private) Limited. It was transferred as Lot 2 of Stuhm on 19 June 1997 under Deed of Transfer No. 4975/97.

In 1988, Cecil Michael Reimer sold and transferred another portion, called Lot 3 of Stuhm, to another entity called Douglasdale (Private) Limited, under Deed of Transfer No, 9247/98. That portion measured 79,4959 hectares.

TBIC Investments (Private) Limited enters the picture in 1999.

Its case, and that of the Minister, was that in that year, TBIC Investments (Private) Limited had bought from Cecil Michael Reimer what had remained of the original property. In correspondence and affidavits deposed to on his behalf, the Minister avers that TBIC Investments (Private) Limited had made considerable investment on the portion of the original property sold to it. However, TBIC Investments (Private) Limited itself does not say anything in this regard. Be that as it may, it appears that once it had bought the remaining extent of the original property, TBIC Investments (Private) Limited subsequently leased it to one Paul Esau Hupenyu Chidawanyika (hereafter referred to as “Chidawanyika”). That was in 2003. Chidawanyika is cited as the second respondent in Case 1. He is not a party in Case 2.

Before going to the events of 2003 in any greater detail, I note that on 25 August 2000, the original property was identified for compulsory acquisition by Government in accordance with its programme of land reform. It was listed in the Government Gazette under General Notice No. 405A/2000 as the Remaining Extent of Stuhm. But there were errors. The Notice referred to the owner as one Cecil Michael Reiner. The extent of the property was given as 1074,7410 hectares. Thus, the owner's surname was mis-spelt. He was Reimer, not Reiner. Further, as a matter of fact, by that time, 412,1091 hectares and 79,4959 hectares had already been hived off the original property when Lots 2 & 3 had been sold and transferred in 1997 and 1998 respectively. Thus, the arithmetic was also wrong because if 412,1092 hectares and 79,4959 hectares had been deducted from the original 1074,7410 hectares then 583,1360 hectares would have remained. But it seems the Notice had simply referred to the original area, namely, 1074,7410 hectares. It was partly for this reason that TBIC Investments (Private) Limited argued that the property that had been listed for acquisition was not the same property that had been sold to it.

I shall come back to this particular argument later on.

In May 1992, the Government had enacted the Land Acquisition Act [Chapter 20:10]. Part III of that Act provided the procedure for compulsory acquisition of land. Among other things, a Notice of Acquisition had to be published in the Government Gazette. Such notices would remain valid for one year after which they would automatically lapse, unless an application for the confirmation of the acquisition was pending in the Administrative Court, in which case the period during which such application was pending would not be counted as part of the one year period.

I mention, in passing, that the Land Acquisition Act was amended in 2001 and 2004 to increase the period of validity for the preliminary notices of acquisition to two years and ten years respectively. However, at the time that GN 405A/2002 was published, the period of validity was one year. One of TBIC Investments (Private) Limited's strong arguments was that GN 405A/2002 had automatically lapsed after the period of validity had expired and that therefore the property could not have been up for acquisition and re-allocation by the time that the Constitutional Amendment (No.17) Act was promulgated. It was that Constitutional amendment that ushered in section 16B in the then old Constitution of Zimbabwe. It was common cause that GN405A/2000 had never been expressly withdrawn by the time of the promulgation of section 16B of the Constitution. Furthermore, the acquisition of the property had never been subsequently confirmed in court in accordance with the provisions of section 8 of the Land Acquisition Act [Chapter 20:10].

I shall revert to this point later on.

The next significant events were in 2003. On 13 May 2003, GN 228/2003 was published. It listed the original property for acquisition. Whilst this time the owner's surname was spelt correctly the area was still referred to, incorrectly, as 1074,7410 hectares. However, GN228/2003 was, on 1 August 3003, withdrawn by GN 298A/2003.

The property was again listed for compulsory acquisition for the third time. This was under GN 323A/2003. But, again, GN323A/2003 was later on withdrawn by GN438/2003. Both the Minister and TBIC Investments (Private) Limited averred that it was TBIC Investments (Private) Limited that had been behind these withdrawals - allegedly owing to its vested interest in the property. TBIC Investments (Private) Limited argued that the withdrawals of those notices, coupled with the fact that the first one under 405A/2000 had lapsed automatically, meant that the property was no longer available for acquisition when the aforesaid section 16B to the Constitution was promulgated in 2005.

Again, I shall revert to these points later on.

By 2003, the applicant had not yet entered the picture. It appears that in that year he had bought himself a farm elsewhere. That was in the District of Salisbury. The farm was called Remainder of Guernsey. It measured 743,8355 hectares. Hereafter I shall refer to that property as “applicant's Guernsey farm” or, plainly 'Guernsey Farm'. The applicant had taken transfer of Guernsey Farm on 29 May 2003. However, he was subsequently to lose this farm in 2005. It was to be compulsorily acquired by Government for resettlement.

The new section 16B evidently had far-reaching provisions with far-reaching consequences as far as rights to land ownership were concerned. Prior to the amendment, the right to protection from compulsory deprivation of property was justiciable. Under that new Constitutional provision the jurisdiction of the courts to adjudicate on any aspect of land acquisition other than the amount of compensation payable was expressly ousted;

See Mike Campbell (Pvt) Ltd & Anor v Minister of National Security Responsible for Land, Land Reform & Resettlement & Anor 2008 (1) ZLR 17 (S) and Commercial Farmers Union & Ors v Minister of Lands & Ors 2010 (1) ZLR 576 (S).

The relevant provisions of section 16B of the then Constitution read as follows:

“16B Agricultural land acquired for resettlement and other purposes

(1)…,.

(2) Notwithstanding anything contained in this Chapter –

(a) All agricultural land –

(i) That was identified on or before the 8^th July 2005, in the Gazette or Gazette Extraordinary under section 5(1) of the Land Acquisition Act [Chapter 20:10], and which is itemised in Schedule 7, being agricultural land required for resettlement purposes; or

(ii) That is identified after the 8^th July 2005, but before the appointed day, in the Gazette or Gazette Extraordinary under section 5(1) of the Land Acquisition Act…, being agricultural land required for resettlement purposes: or

(iii) That is identified in terms of this section by the acquiring authority after the appointed day in the Gazette or Gazette Extraordinary, for whatever purpose, including but not limited to –

A. Settlement for agricultural or other purpose; or

B. The purposes of land re-organisation, forestry, environmental conservation or the utilisation of wildlife or other natural resources; or

C. The relocation of persons dispossessed in consequence of the utilisation of the land referred to in subparagraph A or B;

is acquired by and vested in the State with full title therein with effect from the appointed day or in the case of land referred to in subparagraph (iii) with effect from the date it is identified in the manner specified in that paragraph; and

(b) No compensation shall be payable for land referred to in paragraph (a) except for any improvements effected on such land before it was acquired.

(3)…,.

(4) As soon as practicable after the appointed day, or after the date when the land is identified in the manner specified in subsection (2)(a)(iii), as the case may be, the person responsible under any law providing for the registration of title over land shall, without further notice, effect the necessary endorsements upon any title deed and entries in any register kept in terms of that law for the purpose of formally cancelling the title deed and registering in the State title over the land.

(5) Any inconsistency between anything contained in –

(a) A notice itemised in Schedule 7;

(b) A notice relating to land referred to in subsections (2)(a)(ii) or (iii);

and the title deed to which it refers or is intended to refer, and any error whatsoever contained in such notice, shall not affect the operation of subsection (2)(a) or invalidate the vesting of title in the State in terms of that provision.

(6)…,.

(7)…,.”

The Schedule 7 referred to in subsection (2)(a)(i) of section 16B had 157 preliminary notices that had been published in the Government Gazette. They listed the properties that had been 'identified' for acquisition. The two notices under GN 405A/2000 and GN 228/2003, relating to the property, were on the list. On 3 November 2005, the original Title Deed No. 3032/87, aforesaid, was endorsed by the Registrar of Deeds. This was in line with section 16B(4) of the Constitution. That subsection required that as soon as the new Constitutional provision had come into force, the Registrar of Deeds would be required to make the necessary endorsements on the properties as 'identified' for compulsory acquisition as provided. The purpose and effect of the endorsements were to cancel the existing Deeds and registering such properties in the name of the State.

The endorsement over the original property read as follows:

“The within mentioned land now vests in the President of Zimbabwe in terms of section 16B(4) of the Constitution of Zimbabwe as amended.”

Although it was not clear as to when the applicant's Guernsey Farm had been listed in the Government Gazette, it was also acquired in 2005 on the coming into being of the new Constitutional Amendment (No.17) Act. An identical endorsement was noted on its Title Deed on 10 October 2005.

On 7 August 2006, the Minister, in terms of the standard term 'offer letter' allocated the remainder of Stuhm to the applicant. The actual description of the offered land was “Subdivision 1 of R/E of Stuhm in Goromonzi District of Mashonaland East Province…,. The farm is approximately 534,00 hectares in extent.” The applicant accepted the offer on 2 February 2007. He said before accepting he had checked the status of the land at the Deeds Office and had been satisfied that it had become State land by virtue of the endorsement aforesaid. On request, he had been given a copy of the endorsed Deed of Transfer.

However, when the applicant had tried to take occupation of the offered land, in terms of the offer letter, he had found Paul Esau Hupenyu Chidawanyika already in occupation in terms of the lease agreement aforesaid. Chidawanyika refused to move. Problems then started. The dispute that has raged incessantly began at this time. The applicant wanted to take up occupation. He wanted Chidawanyika evicted. Paul Esau Hupenyu Chidawanyika claimed rights of occupation through TBIC Investments (Private) Limited, which, in turn, claimed prior rights of ownership.

When Paul Esau Hupenyu Chidawanyika would not vacate, the applicant enlisted the help of the Minister. The applicant also approached the Attorney-General. He agitated for Chidawanyika's prosecution for his refusal to vacate what he considered to be State land. There were intense and protracted agitations. TBIC Investments (Private) Limited maintained that the inclusion of the property on Schedule 7 had been a mistake. It argued that the property was no longer available for acquisition because the notices for acquisition had either lapsed or been withdrawn.

On the other hand, the applicant maintained that GN405A/2000 had never been withdrawn, and that, in any event, the property had been listed on Schedule 7 through both the original notice and the subsequent ones. The title deed had been endorsed. The property had become State land. It was still therefore capable of being offered for re-settlement.

At first, the Minister, through the in-house counsel, had seemed to support the applicant's position. Part of her letter, on 2 September 2009, to the Attorney-General, read as follows:

“Chidawanyika contends that after Remaining Extent of Stuhm was gazetted on 8 September 2003, the preliminary notice was subsequently withdrawn and thereafter the land was never gazetted again. He is wrong. The land was identified in that gazette of 08 August 2003 and it is itemized in Schedule 7 of the Constitutional Amendment (No. 17) Act. That constitutes acquisition. In fact, the acquisition is confirmed twice in that the gazette of 2000 in which the Remaining Extent of Stuhm is identified is also itemized in Schedule 7 of the Constitutional amendment (No.17) Act of 2005. The intention to acquire Remaining Extent of Stuhm cannot be clearer.”

As the applicant piled up pressure for Paul Esau Hupenyu Chidawanyika's prosecution, and as the Attorney-General apparently pondered on what action to take, he had suggested that the property be re-gazetted for compulsory acquisition. However, in the letter aforesaid, the Minister's in-house counsel had strongly argued against such a move. She had concluded her letter by saying it was totally unnecessary and an extra expense to re-gazette the land because it had already been gazetted.

There was a stalemate.

(c) LITIGATION

As efforts to prosecute Paul Esau Hupenyu Chidawanyika fizzled out, the applicant switched his attention to civil redress. He says when he went to the Deeds Office to check on the title deed, he had been surprised to learn that the original one with the endorsement aforesaid had been removed and had been replaced with one without the endorsement. Since he still had that copy that the Deeds Office had given him before, the registry staff had made an extra copy for their file.

Under HC7301/10, the applicant filed an application for the eviction of TBIC Investments (Private) Limited and Paul Esau Hupenyu Chidawanyika. It was this application that he subsequently withdrew and tendered wasted costs. He felt that the application had incurable errors. According to him, not all interested parties had been joined.

In March 2009, TBIC Investments (Private) Limited had somehow managed to take transfer of the remainder of the property under Deed of Transfer No. 1724/2009. The transfer had apparently been the consummation of the alleged 1999 agreement of purchase with Cecil Michael Reimer. The description of the property, as transferred to TBIC Investments (Private) Limited, was “Remaining Extent of Stuhm, measuring 583,1360 hectares.”

The applicant complained that the transfer was fraudulent.

He said the property, having become State land in 2005, there was no way TBIC Investments (Private) Limited could lawfully have taken transfer. He fingered TBIC Investments (Private) Limited in the disappearance from the Deeds Office of the original Deed of Transfer and the copy that he had supplied and both of which had the endorsement.

Cecil Michael Reimer, the original owner and transferor of the property, explained, in an affidavit dated 10 March 2009, that in April 1999 he had sold it to Time Bank Investments Company (Pvt) Ltd which allegedly had become the 'real owner' and that the certificate of “no present interest” which he held at that time in respect of the property had eventually expired before the property had been transferred. He further explained that in May 2005 he had offered the property to the Minister but had got no response within the stipulated 90 days. He had then gone on to inform the Minister, in September 2008, of his intention to sell and transfer to Time Bank Investment Company (Private) Limited which had now become TBIC Investments (Private) Limited.

The transfer attorney or conveyancer, one Christopher Chigwanda deposed to an affidavit, also on 10 March 2010. The substance of that affidavit was that after he had been instructed to transfer the property he had been advised by the Deeds Office that their office copy of the title deed had gone missing but that there were no encumbrances registered against the property. He had then requested the Registrar of Deeds to transfer the property using the client's copy of the Deed.

The Registrar of Deeds filed identical affidavits in the two cases above.

The summary of those affidavits was that the Remaining Extent of Stuhm had, at all times, been registered in the name of Cecil Michael Reimer; that an XN Caveat had been noted against the title deed in 2000 following the listing of the property in the Government Gazette; that on 3 November 2005, the property had been transferred to the President of Zimbabwe in terms of section 16B of the Constitution Amendment (No.17) Act, an endorsement to that effect having been noted on the title deed; that both the original title deed and a copy, which had been requested by one of the Deeds registry staff, had been removed deliberately and had gone missing; that the transfer of the property from Cecil Michael Reimer to TBIC Investments (Private) Limited had been irregular and that an investigation was underway but was being hampered by the fact that even the new title deed in favour of TBIC Investments (Private) Limited had also been removed and could not be located.

The applicant filed Case 1 in January 2011. He sought a declaratory order that the compulsory acquisition of the property by Government had been valid. He sought several other orders, namely, the nullification of the transfer of the property to TBIC Investments (Private) Limited; the nullification of TBIC Investments (Private) Limited's lease of the property to Paul Esau Hupenyu Chidawanyika; and the eviction of Paul Esau Hupenyu Chidawanyika and anyone else claiming occupation through TBIC Investments (Private) Limited.

TBIC Investments (Private) Limited, the Minister, and Paul Esau Hupenyu Chidawanyika all filed opposing papers in Case 1. The Registrar of Deeds simply filed the aforesaid affidavit….,.

The one ground of opposition by both TBIC Investments (Private) Limited and the Minister was that the applicant lacked locus standi, allegedly because his claim was, in reality, based on the rei vindicatio remedy; that this remedy was available only to owners of property and that since he was not the owner his claim was ill-conceived. The Minister weighed in with the argument that it was only the State that could take civil or criminal proceedings in relation to the land.

The next ground of opposition was taken by the Minister alone. This was in the heads of argument. It was that in Case 2, the applicant was out of time. It was argued that whatever name the applicant had chosen to call the nature of his proceedings, in reality the application was one for review which had to be filed within eight (8) weeks of the decision sought to be impeached in accordance with Rule 259 of the Rules of this Court. In Case 2, the applicant was some five (5) weeks out of time. No application for condonation had been made.

The next ground of opposition was by TBIC Investments (Private) Limited. It was that the property that the applicant had been offered was different from the property owned by TBIC Investments (Private) Limited which it held under Deed of Transfer No. 1724/2009. Much was made of the discrepancy between the description and the extent of the property in the offer letter and the description and the extent the property in the Title Deed. In the offer letter, the property had been described as “Subdivision 1 of R/E of Stuhm in Goromonzi District of Mashonaland East Province measuring approximately 534 hectares in extent.” In the Title Deed held by TBIC Investments (Private) Limited, the property was registered as “Remaining Extent of Stuhm situate in the District of Goromonzi measuring 583,1360 hectares.”

On the merits, TBIC Investments (Private) Limited argued that the offer letter given to the applicant had been invalid because it had referred to a non-existent property since not only was the description of the property incorrect, as already stated, but also that by the time the offer letter had been issued, the property was no longer available for compulsory acquisition by reason of the fact that the notices of acquisition had either lapsed automatically or had expressly been withdrawn.

On the merits, the Minister argued that by the time the property had been acquired by Government, the original property had been subdivided and a portion thereof had been sold to TBIC Investments (Private) Limited and that, therefore, the property was no longer available for acquisition; that, on buying the property, TBIC Investments (Private) Limited had gone on to lease and invest heavily on it; that it was not Government policy to dispossess indigenous persons of their land in favour of other indigenous persons and that efforts were underway to offer the applicant alternative land.

The applicant had prosecuted Case 1 up to the hearing stage. About four months before the date of hearing, the Minister gave the applicant a written notice of the immediate withdrawal of the offer letter (hereafter referred to as “the withdrawal letter”). The withdrawal letter was said to be in terms of the conditions of offer attached to the offer letter. The applicant was required to forthwith cease all operations on the property and to immediately vacate. The withdrawal letter concluded by inviting the applicant to make representations, if he wished to do so, within seven days of the receipt of the letter.

The reasons for the withdrawal letter were explained in two other letters written to the applicant and his legal practitioners by the Minister's in-house counsel three days later. The reasons were basically that the property was owned by an indigenous entity, that it was not the policy of the Ministry to dispossess indigenous owners of land and that therefore the applicant could not insist on enforcing his rights against TBIC Investments (Private) Limited.

The applicant reacted to this development by making strong representations against the withdrawal of the offer letter. He wrote to the Minister, some three days after the letter from the Minister's in-house counsel. In the letter, he basically laid out the history of the matter from the time that the property had been listed for acquisition, the actual acquisition, his offer letter, the transfer to TBIC Investments (Private) Limited, the abortive prosecution, and the loss of his Guernsey Farm. He complained of the Minister's manifest double standards on the policy regarding dispossession of land owned by indigenous persons since he, also an indigenous person, had lost his farm to Government.

The applicant had been offered an alternative piece of land in the Beatrice area. However, after inspecting it he had turned the offer down as he had considered the land to be unsuitable for the type of farming that he had been carrying out in Goromonzi and which he intended to continue with. The applicant touched on this in his written representations. He concluded by imploring the Minister to support his efforts to get occupation of the property since, as he said, no plausible reason had been given for why he could not.

The applicant further reacted to the withdrawal letter by instituting Case 2 above. He argued that the withdrawal letter had offended against the rules of natural justice in that he had not been afforded an opportunity to make representation before the Minister had taken the adverse decision against him. He also argued that by taking that administrative function, the Minister had failed to act fairly and had therefore breached the Administrative Justice Act [Chapter 10:20]. After setting out the history of the dispute all over again, the applicant sought the setting aside of the withdrawal letter and the reinstatement of the offer letter. He explained that his Case 1 had been predicated on the offer letter. Since it had now been withdrawn it was pointless to proceed with it without first sorting out the issue of the withdrawal letter. In Case 2, the applicant cited the Minister as the first respondent, the Attorney-General as the second respondent, and TBIC Investments (Private) Limited as the Interested Party.

Only the Minister and TBIC Investments (Private) Limited opposed Case 2. The Attorney-General prepared all the pleadings on behalf of the Minister but filed no papers for himself.

The Minister's one ground of opposition in Case 2 was that he and his officials had actively engaged the applicant and his legal practitioners to explain why he could not occupy the property and that therefore he could not be said to have violated the rules of natural justice.

The Minister also argued that where the acquiring authority did not support the holder of an offer letter it was incumbent upon it to withdraw the letter. He then repeated the argument that TBIC Investments (Private) Limited had bought the property and had been recognised as the owner; that it had been TBIC Investments (Private) Limited that had been behind the delisting of the property; that TBIC Investments (Private) Limited had invested heavily on it; and that owing to the applicant's adamant stance, despite previous correspondence to him, it became necessary “to speak legally with a withdrawal letter.”

TBIC Investments (Private) Limited opposed Case 2 on the preliminary basis that the applicant had not exhausted his domestic remedies.

It was argued that the applicant had made representations in respect of the withdrawal letter as the Minister had invited him to do; that he ought to have waited for the Minster's response before he approached this court and that the applicant “cannot challenge un-consummated administrative proceedings” in a court of law. It was argued that until the Minister had responded, the applicant's cause of action was incomplete.

I note for the record that the withdrawal letter was on 24 June 2011. The applicant's representations were on 30 June 2011. Case 2 was filed on 28 September 2011.

TBIC Investments (Private) Limited's opposing affidavit is largely argumentative on mere technical points such as the claim that the Administrative Justice Act did not authorise a court to intervene in a matter that was still under consideration by an administrative authority; that the Constitutional amendment that introduced section 16B had actually supported the Minister's policy that indigenous owners of land would not be dispossessed of their land; that the applicant had not accepted the offer of  land timeously; and that it was unlawful for the applicant to have “ordered” the Registrar of Deeds to insert, in the official records of the Deeds registry, a foreign document that he himself had brought. The argument that the property was no longer available for compulsory acquisition by the time of the Constitutional amendment was repeated. TBIC Investments (Private) Limited criticised the applicant's rejection of the offer of an alternative land and claimed that the applicant believed that no other land in Zimbabwe was suitable for him and that, at any rate, the Minister had no obligation to offer him an alternative piece of land.

(d) THE ISSUES

Despite the volumes of papers filed of record, in my view, there was one major issue that was decisive; What was the status of the original property by the time of the Constitutional Amendment (No.17) Act in September 2005 when it was included on Schedule 7 to section 16B via the Preliminary Notices that had previously been published in the Government Gazette?

However, before dealing with that main issue, there are some other preliminary points arising in Case 2 that I have to dispose of. Only if the applicant succeeds in Case 2 can I go on to decide Case 1.

The first issue in Case 2 was whether or not the applicant had approached the court prematurely without first having exhausted his domestic remedies. The next was whether the audi alteram partem rule of natural justice had been violated. The third was whether there had been a breach of the provisions of the Administrative Justice Act. The last was whether applicant lacked locus standi.

I will now deal with these issues in turn….,.

STATUS OF PROPERTY AS AT 4 SEPTEMBER 2005

The Registrar of Deeds states, categorically, that the transfer of the property from Cecil Michael Reimer to TBIC Investments (Private) Limited, under Deed of Transfer No.1724/2009, dated 18 March, was done irregularly because the rightful owner of the property was the President of Zimbabwe at the time of the that transfer.

I agree.

In their opposing papers, both the Minister and TBIC Investments (Private) Limited gloss over certain facts. TBIC Investments (Private) Limited may have bought the remaining extent of Stuhm form Cecil Michael Reimer in 1999. However, at that time, it had only acquired personal rights. Real rights in a property are transferred by the registration of transfer in the Deeds Office. In terms of the Deeds Registries Act [Chapter 20:05], the owner of an immovable property is the person registered as the owner thereof. Registration of real rights in the Deeds Office is not a mere matter of form. In the case of Takafuma v Takafuma 1994 (2) ZLR 103 (S), the Supreme Court, per McNALLY JA…, stated as follows:

“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. See the definition of 'real right' in s2 of the Act.”

TBIC Investments (Private) Limited obtained transfer of the remaining extent of Stuhm only in 2009. Until it did, it had no real rights over it. But, most importantly, Cecil Michael Reimer, who purported to transfer the property to it, had lost all rights over the property save, perhaps, the right to a fair compensation.

By 3 November 2005, the property had become State land by virtue of section 16B of the then Constitution of Zimbabwe as amended by Constitutional Amendment (No.17) Act.

The circumstances surrounding TBIC Investments (Private) Limited getting transfer of the property in 2009 have already been canvassed. The deliberate and unlawful removal, from the Deeds Registry, of the original title deed which bore the endorsement in favour of the President of Zimbabwe undoubtedly facilitated the transfer. Admittedly, there was no evidence placed before me that TBIC Investments (Private) Limited, or anyone else associated with it, was behind that illegal move. Therefore, I have drawn no inferences. Nonetheless, that does not detract from the fact that the act was illegal and that it was only because of it that the transfer could have been registered in the face of the endorsement on the title deed.

Whether or not TBIC Investments (Private) Limited was innocent of the act does not transform a patently and blatantly illegal act into a legitimate one which this court could ignore….,.

If TBIC Investments (Private) Limited had invested heavily on the property, as the Minister claimed, then it would have done so on the basis of mere personal rights. Obviously it would have taken a huge risk. That should not affect the status of the transaction, and, therefore the status of the property.

Title Deed No.1724/2009 was registered irregularly and must be set aside….,.

DISPOSITION

On 12 February 2009, which was about a month before the transfer of the property to TBIC Investments (Private) Limited, the Registrar of Deeds had issued an open letter addressed to “whom it may concern.” In substance, the letter stated as follows:

(i) That Cecil Michael Reimer had been the owner of the original property called the remaining extent of Stuhm measuring 1047,7410 hectares and held under Deed of Transfer 3032/87;

(ii) That two subdivisions therefrom called Lot 2 of Stuhm measuring 412,1091 hectares, held under Deed of Transfer 4975/97, and Lot 3 of Stuhm measuring 79,4959 hectares, held under Deed of Transfer 9247/98 had been sold and transferred to Darnall Investments (Private) Limited in 1997 and Douglasdale (Private) Limited in 1998 respectively; and

(iii) That, as at that date, the remainder of that property was being held by Cecil Michael Reimer, under Deed of Transfer 3032/87 and that the extent thereof was 583,1360 hectares and that it had been acquired by the State on 3 November 2005.

As it was the property described in (iii) above that was transferred irregularly to TBIC Investments (Private) Limited, as already noted, that transfer is hereby declared null and void ab initio. Deed of Transfer No. 1724/2009 is hereby set aside.

Flowing from that ruling, I order as follows:

1….,.

2….,.

3. It is declared that the piece of agricultural land situate in the District of Goromonzi called the Remaining Extent of Stuhm measuring 583,1360 hectares and previously held by Cecil Michael Reimer under Deed of Transfer No. 3032/1987, dated 12 May 1987, had been validly acquired by the State in terms of section 16B of the then Constitution of Zimbabwe.

4. Deed of Transfer No. 1724/2009, dated 18 March 2009, in favour of TBIC Investments (Private) Limited, over the piece of land situate in the District of Goromonzi, called Remaining Extent of Stuhm, measuring 583,1360 hectares is hereby cancelled.

5. The fourth respondent in HC601/2011 is hereby directed to restore the original endorsement in terms of section 16B(4) of the then Constitution of Zimbabwe on Deed of Transfer No.3032/1987, aforesaid, on the property as more fully described in paragraph 3 above.

6. The Interested Party in HC9527/2011, being the first respondent in HC601/2011 and the second respondent in HC601/2011, together with all those claiming rights of occupation through them, shall vacate the property more fully described in paragraph 3 above within sixty (60) days of the date of service of this order failing which the Sheriff for Zimbabwe, or his deputy, or assistant deputy, and, if need be, with the assistance of the Zimbabwe Republic Police, shall be authorised, empowered and directed to evict them.

7. The applicant's costs of suit in HC601/2011 shall be borne by the first respondent, the second respondent and the third respondent jointly and severally, the one paying the others to be absolved.

Where a property is registered in the names of two parties, the presumption is that such property is jointly-owned with each party owning a 50% share in the property.

It is for the party alleging that the property is not so owned to rebut that presumption.

In Lafontant v Kennedy 2000 (2) ZLR 280 (S)…, McNALLY JA alluded to the need for a party to lay a solid foundation for the transfer of another spouse's share when he said that:-

“The court cannot move from that position on mere grounds of equity. It cannot give away A's property to B on the mere grounds that it would be fair and reasonable, or just and equitable to do so. There must be a more solid foundation in law than that.”

Some of the instances where such solid foundation was found to exist include where the other party was found to have been a mere nominee of an undisclosed principal. In Lafontant v Kennedy 2000 (2) ZLR 280 (S), McNALLY JA went on to say that:-

“I think, by claiming and proving that she alone paid for the property, it must necessarily follow, if it was registered in their joint names, that she effectively gave him the half share as her nominee, for convenience. By instituting action she is terminating that nomination.”

This was an application for the restoration of title over a certain immovable property that the applicant alleged he had been fraudulently dispossessed of.

Respondents 1 to 3 [“the respondents”] opposed the application. But they had no case. At the end of the hearing, I granted the substantive relief sought.

Below are my reasons.

The applicant's case, in my own words, was this. In 1987, he bought a certain piece of land in Prospect, Harare ['the property']. It was duly registered in his name under Deed of Transfer No.6132/87, dated 2 September 1987. All along, he was keeping the Deed in safe custody together with the diagram Deed. However, in 2013 he woke up to find his property 'gone'. It was now jointly owned by respondents 2 and 3, husband and wife, under Deed of Transfer No.3241/2009, dated 5 August 2009. It transpired that respondents 2 and 3 had bought the property from the first respondent who had 'owned' it under Deed of Transfer No.2451/2008, dated 21 August 2008.

Investigations revealed that someone had impersonated the applicant and had 'sold' the property to the first respondent. Among other things, a fake special power of attorney, with a fake signature of the applicant, and a Capital Gains Tax clearance certificate, also with a fake signature of the applicant, had been used to facilitate the 'transfer' from the applicant to the first respondent. The crime was reported to the police. However, the thief was never caught.

The applicant brought vindicatory proceedings.

He cited respondents 2 and 3 as the current holders of title. He also joined the first respondent as an interested party.

He sought inter-related orders, namely, the restoration of his Title Deed No.6132/87 aforesaid, and the simultaneous cancellation of the other two Deeds, the one in favour of the first respondent [No.2451/2008], and the other in favour of respondents 2 and 3 [No.3241/2009].

The mainstay of the respondents' defence was that their purchase and transfer of the property, at different times, had been above board because at every turn they had employed professionals in the form of estate agents [to conclude the sales] and conveyancers [to register the transfers]. The application was said to be fatally defective for the non-joinder of those professionals.

The respondents' defence was moribund for a number of reasons.

That it was not their fault or that professionals had facilitated their purchase and transfer of the property could not possibly meet the applicant's case. It is often the case that in situations of fraudulent transfers, such as was this, it is the innocent buyer that gets hurt. The loss falls on him. His claim to title is illusory because he got it from a thief.

If the applicant could prove that he never sold his property but that a thief did, then the respondents, bona fide as they might have been, could not have obtained valid title. A thief cannot pass valid title in the thing he has stolen. Concomitantly, a third party cannot acquire valid title from the thief. The position was put this way by MAKONI J in The Trustees of the Lacerose Trust & Anor v Zimcor Trustees [Pvt] Ltd & Ors HH348-13, quoting the then 3^rd ed. of SILBERBERG & SCHOEMAN'S The Law of Property…,:

“A thief cannot acquire ownership or any other real right [except a jus possessionis] 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.”…,.

In his opposing affidavit, the first respondent did explain how he had bought the property via a firm of estate agents, and how he had subsequently transferred it. But none of what he said amounted to a defence. Among other things, it did not discount the applicant's story that a thief had 'stolen' his property and had sold it to the first respondent.

That indeed a thief had 'stolen' the applicant's property and sold it was proved. Among other things, the applicant produced a copy of the original Title Deed that had no endorsement of the putative transfer. He also produced the prior Deed of Transfer, the Diagram Deed. He promised to produce the originals at the hearing.

He never had to. The documents were not challenged.

The special power of attorney to pass transfer from the applicant to the respondent was plainly counterfeit. Contrary to the respondents' lame protestations, the signature on it, purporting to be that of the applicant, was markedly different from his regular signature that he tendered and which was also very similar to the one on his founding affidavit.

The purported Capital Gains Tax clearance certificate was also counterfeit. Among other things, the purported national registration number of the applicant thereon was incorrect, not just by one or two digits, but completely in all the digits, as well as the check letter. It had 80–066197 Z 42. The correct one on the applicant's metal identity document card was 63–164977 H 50.

The respondents alleged that the applicant's case was one huge attempted fraud to try and get back a property that he had purposefully sold away.

However, that seemed a long shot. It did not accord with the probabilities. The applicant still had the original title deed. He would have had to pass it on if he had legally transferred the property to the first respondent. Nobody ever said a duplicate original had had to be applied for, and had been obtained, as would have had been the case had the applicant lost the original. Furthermore, the applicant had gone on to report the fraud to the police when he had discovered it in 2013. The police had opened a docket which, among other things, contained the first respondent's statement. The sum total of it all was that a fraud had been perpetrated on the applicant which had led to him losing title over his property.

Two other small issues raised by the respondents as grounds of opposition were that there was a dispute of fact that the court could not possibly resolve on the papers and that the applicant's claim had become prescribed.

Both were ill-conceived.

There was no real dispute of fact. It was fanciful. I did not even have to adopt a robust approach.

Respondents 2 and 3 said, in their opposing affidavit, the applicant had been aware of their purchase of the property because they had spoken to him on the telephone in the year 2009.

That skimpy and bald statement was all they said. The applicant denied it. All the respondents then latched onto that to argue that not only was there a dispute of fact that was incapable of resolution on the papers, but also that the matter had become prescribed because the applicant had allegedly slept on his rights since 2009 [the application having been filed in 2015].

A party wanting to illustrate and rely on a dispute of fact must put forward cogent facts of his own version of events that must contrast with that of the other party.

In casu, against all what the applicant had said to prove that he had never sold away his rights, the respondents just casually alleged that they had spoken to him on the telephone in 2009. About what? Why would they have been speaking to him? They were not taking transfer from him, but from the first respondent. It was all implausible. This was not the kind of factual basis to found a genuine dispute of fact or the defence of prescription.

The order that I granted at the close of argument read:

IT IS ORDERED THAT

1, Deed of Transfer No.6132/1987, dated 2^nd September 1987, and registered in the name of Thomas Pasi, the Applicant, in respect of Stand 492 Prospect Township of Stand 106 of Prospect situate in the District of Salisbury and measuring four thousand one hundred and sixteen square metres [4,116m²] be and is hereby revived in terms of section 8(2)(a) of the Deeds Registries Act [Chapter 20:05].

2. The Registrar of Deeds, the fourth respondent herein, be and is hereby ordered and authorised to cancel and set aside the following title deeds and to make the appropriate endorsements on the relevant deeds and entries in the registers in terms of section 8(2)(b) of the of the Deeds Registries Act [Chapter 20:05], aforesaid:

2.1 Deed of Transfer No.2451/2008, dated 21^st August 2008, in respect of the property, purportedly transferred from Thomas Pasi and registered in the name of Wonder Mushure;

2.2 Deed of Transfer No.3241/2009, dated 5^th August 2009, in respect of the property, transferred from Wonder Mushure to Taurayi Madzivaidze and Linda Madzivaidze;

As a corollary to the declaratory order sought that the second registration of the estate, as DRBY659/12, is unlawful and therefore null and void, the applicant seeks the nullification of the purported sale of Stand 2459 Cowdray Park, Bulawayo to the third respondent and that the said property be registered in the name of the estate of the late Mishack Nyathi…..,.

1….,.

2. The purported sale and transfer of House Number 2459 Cowdray Park, Bulawayo by the first respondent, through the agency of the second respondent, to the third respondent is hereby declared null and void.

The plaintiff issued summons out of this court seeking an order in the following terms:

“1. That plaintiff be declared the owner of Stand No.6203 Mabvuku.

2. That second defendant facilitates that the first defendant cedes to the plaintiff Stand No.6203 Mabvuku within 7 days of granting this order failure of which the Deputy Sheriff is authorized to sign all necessary documents to effect transfer into plaintiff's name.

3. That the third defendant accepts and act on the documents signed by the Deputy Sheriff should first and second defendants fail to comply with clause 2.

4. That the fourth defendant excludes Stand 6203 Mabvuku from the assets of first defendant.

5. That second defendant pays costs.”…,.

It is apparent that, in this case, the court is called upon to make a determination on conflicting facts.

The property in dispute is ceded in the name of Bute Chikondo. The presumption of ownership thus rests with the title holder. The presumption may, however, be rebutted upon clear and satisfactory evidence.

In order to rebut this presumption, the plaintiff must show, on a balance of probabilities, that she is the actual owner of the property - even if it was not in her name.

In F Katirawu v D Katirawu 2007 (2) ZLR 64, an executor had obtained Letters of Administration on the pretext that he was a son of the deceased and that he was the only beneficiary. When his appointment was challenged, the purchaser of the property opposed the application to have the sale declared null and void on the grounds that she was an innocent purchaser. MAKARAU JP…, held that the appointment having been procured by fraud nothing legal could flow from it. Furthermore, the rights which the purchaser believed they had acquired were deemed to be tainted by the same illegality. As she put it:

“It is as if there was never a sale between her and 1^st Respondent, and, consequently, no rights can flow from a non-sale in her favour. The sale and consequent cession in her favour amount to nothing at law for nothing legal can flow from a fraud.”…,.

It would open the floodgates of abuse for the administration of deceased estates in particular were the courts to allow property sold by a person who had obtained authority through misrepresentation to be retained by the so-called innocent purchaser….,.

1….,.

2. The fourth defendant is ordered to cancel the transfer of Stand 4403 Highfield Township, Harare to the second defendant under Deed of Transfer 3184/13 and to confirm that the property is still registered under the name of the deceased under Deed of Transfer 4882/86.

A real right is defined, in section 2 of the Deeds Registry Act [Chapter 20:05], as 'any right which become is a right upon registration'. Section 14 of the Deeds Registry Act [Chapter 20:05] essentially deals with how such real rights are transferred. For instance, ownership of land is transferred from one person to another through a Deed of Transfer executed or attested by a Registrar.

The reality of having the property registered in one's name is that during the course of ownership they can dispose of it at will. Where, however, a party owns one half of the property then a party has the right to dispose of that half share.

See Linda Mudawadzuri v Kingdom Bank and Ors HH95-15.

The law is set out in SILBERBERG and SCHOEMAN's The Law of Property 5^th ed…,. It is stated that:

“Every co-owner has the right, freely and without reference to co-owners, to alienate his or her share, or even part of his or her share subject of course to the provision of the subdivision of Agricultural Land Act. It is this right which is probably the most important characteristic which distinguishes a co-owner per se from all other forms of co-ownership such as partnerships and associations. It is clear that the exercise of this right may lead to friction in that it enables one co-owner to force the others into a legal relationship with a party or parties which they do not desire.”…,.

In Masubey v Masubey 1993 (2) ZLR 36 (HC) the court was confronted with an issue whether or not a deceased was, during his lifetime, entitled to grant a usufruct over or usus or habitatio of part of immovable property co-owned without the consent of a co-owner (the applicant in that matter). SMITH J…, observed..., that:

“From the above, it seems clear to me that whilst the deceased was entitled, prior to his death, to dispose of his half share of the property to the respondent, either by donation inter vivos or by testamentary disposition, he was not entitled to grant a usufruct over or usus or habitatio of part of the property without the consent of the applicant. The rights of the applicant would clearly be infringed by any such right being granted to a third person.”

At law, a purchaser of an immovable property is at liberty to have the purchased property registered even in the name of a third party that he nominates.

The Deeds Registries Act does not say registration must only be made in favour of the purchaser himself or herself. Registration of a property in the name of a nominee would therefore not be a sound reason for cancellation of registration.

To make matters worse, as correctly found by the learned Judge in the court a quo, the appellant obtained dubious title in circumstances where the original title deeds with the endorsement of State title had been fraudulently removed from the Deeds Registry.

It is trite that one cannot transfer ownership of rights that he does not have nor can rights be lawfully transferred through fraudulent means. This is because the law prohibits anyone from deriving benefit from criminality regardless of the origin of the criminal conduct.

It is trite that registration in the Deeds Registry constitutes proof of ownership of land.

It would appear that conveyancing laws of this country are not foolproof because fraudsters continue to exploit the weaknesses in the procedure for registration of transfers to defraud innocent property seekers.

The leakages in the system have meant that cases of unlawful transfers of immovable property continue to reach the courts with alarming frequency.

For how long will these fraudsters, who strut among communities, continue to hold sway, to make a mockery of transfer rules to milk unsuspecting home seekers dry in order to make a dishonest living?

These shameless individuals bring the whole process of private ownership of immovable property and registration of title to disrepute. There is a pressing need for reforms to be introduced in conveyancing rules, in order, not only to modernise the system, but also to render the system foolproof and hopefully protect property owners.

Counsel for the applicant has drawn my attention to the remarks of HOLMES JA, which are apposite, in the case of Oakland Nominees Ltd v Gelria Mining & Investment Co Ltd 1976 (1) SA 441 (A) 452A where the learned judge of appeal made emphasis that our law jealously protects the right of ownership and the correlative right of the owner over his property. He further stated:

“The legal principle enunciated above is solidly noble because since time immemorial, at every stage of human evolution, societies have suffered the inevitable unfortunate phenomenon of having in their midst, an array of thieves, fraudsters, robbers, cut-throats, the throwbacks in evolution etc with no qualms whatsoever in employing force or chicanery to dispossess fellow humans of ownership of their property.

If the law did not jealously guard and protect the right of ownership and the correlative right of the ownership to his/ her property, then ownership would be meaningless and the jungle law would prevail to the detriment of legality and good order.”

Just how does a fraudster and a thief, coveting another person's property, succeed to advertise the property, attract a buyer, sign a sale agreement, and engage a conveyancer to successfully transfer that property from the true owner to the buyer before gleefully skipping away with the proceeds?

Cosmas Luckyson Zavazava is employed by an international organisation which posts him to various parts of the world and is currently stationed in Geneva, Switzerland. He and his wife, Vongai, identified an under-developed piece of land, Stand 816 Ruwa Township of Stand 659 Ruwa Township (the property) and purchased it on 29 November 1996.

They took transfer on 20 March 1997 and held title by Deed of Transfer number 997/1997.

They did not commence developing the property owing to their sojourn in foreign territories in pursuit of the husband's employment. When they tried to do so, in 2013, they discovered, to their amazement, that, Jonah Tendere and Tendai Idzai Anania Tendere, husband and wife, who are the first and second respondents in this matter, were busy trying to develop the property.

It turns out that, unbeknown to the Zavazava family, who are the applicants in this matter, a stranger, by the name Wilson Madziva, who is now deceased and was running an estate agency known as Thermo-Dynamics Real Estate (what a name), which is the third respondent in this matter, had advertised the property through the agency of another estate agent, Elite Real Estate (Pvt) Ltd, attracting the interest of the first and second respondents.

A sale agreement was entered into between them and the third respondent and signed on 17 July 2009 in terms of which the property was sold for $8,500. It was subsequently transferred from the third respondent to the first and second respondents with the active involvement of the late Wilson Madziva, by Deed of Transfer Number 204/2011.

The third respondent had itself taken transfer of the property by Deed of Transfer Number 1680/2009.

The conveyance of the property, from the applicants to the third respondent, was handled by one Walter Bherebhende, a conveyancer practising at Mavhunga & Sigauke Legal Practitioners of Harare.

The applicants say they never sold their property and never instructed Walter Bherebhende to transfer it to the third respondent. Only Walter Bherendere knows what transpired and he has deposed to an affidavit which has not been challenged stating:

“4. My knowledge of this matter is as follows:

4.1. In March 2009, I was practising under Messrs Mavhunga & Sigauke Legal Practitioners when I was approached by a Mr Wilson Madziva who was a client of our law firm and also the proprietor of an estate agent known as Thermo Dynamics Real Estate which is the third respondent herein.

4.2. Mr Madziva instructed me to process the transfer of Stand 816 Ruwa Township of Stand 659 Ruwa Township which was registered under the applicant's names under Deed of Transfer No.997/1997 into the name of the third respondent.

4.3. I confirm that I was shown an agreement of sale which purported to have been signed by all the parties.

4.4. I then proceeded to prepare the necessary powers of attorney to pass transfer and I requested that all of the parties appear at our offices to attend to the signing of the declarations and powers of attorney. I also requested the parties to bring their original identity documents and the original title deed.

4.5. Wilson Madziva appeared on behalf of the third respondent and persons purporting to be the applicants also appeared on behalf of them with the original title deed and identity documents in the applicants names.

4.6. I confirm that I had no reason to suspect that the persons purporting to be the applicants were in actual fact not the applicants.

4.7. Accordingly, the transaction proceeded as normal, and, after all normal channels and procedures were followed, the property only transferred into the name of the third respondent under Deed of Transfer No.1680/2009.

4.8. I was surprised, when, five years later, I was approached by the police and advised that the persons who had appeared before me were in actual fact not the applicants. Unfortunately, I had not made copies of the identity documents and I tried to access them from ZIMRA; however, ZIMRA insisted that it would only release the same upon a court order compelling them to do the same.

4.9. I can however confirm that the parties who appeared before me are not the applicants in this present matter.

4.10. Mr Wilson Madziva is however now deceased therefore he is also not in a position to clarify the issues.

5. In the circumstances, in light of the fact that initial transfer was done through a misrepresentation, I would aver that the applicants are entitled to the relief they seek in respect of cancellation of the title deeds.”…,.

Therein lies the problem.

The conveyancing instructions given to the conveyancer came from the purported purchaser of the property, Wilson Madziva, representing the third respondent, and not from the purported sellers and owners of the property - the applicants.

This did not stop the conveyancer, purporting to act on behalf of the sellers, from proceeding with such instructions.

He says he only requested that all the parties should appear before him, which is as difficult to believe as it is very unlikely in the circumstances of a busy law practice - assuming his was also busy.

A conveyancer is the agent of the seller and undertakes transfer at the instance of the seller and not the purchaser.

As long as legal practitioners in this jurisdiction do not grasp that basic fact, we will continue to have fraudulent transfers of property as occurred in this matter.

I must add, that, as long as law firms continue to relegate conveyancing practice to clerks and paralegals the rot that is presently manifesting itself will perpetuate.

For one thing, these conveyancing clerks and lodging clerks do not appreciate the legal implications of the procedure provided for transfer, and, as far as they are concerned, as long as the necessary documents have been signed, no matter by who, and the conveyancing fees paid, the job has been done.

Invariably, the conveyancer is merely presented with processed documents and happily appends his signature on the top of the Deed and appropriates the fee before hastily leaving the office to play golf.

No effort is made to verify the documentation and to ensure compliance with the rules.

In short, the rules are adulterated for expediency and the most important element in legal practice, conveyancing, is reduced to a mockery.

Once signed, the deeds are taken to the Deeds Registry by a lodging clerk for lodgement, and, although the contents announce to the world that the conveyancer appeared before the Registrar of Deeds to convey the transfer; in practice, the conveyancer never does that.

It is for that reason that we are now experiencing an influx in cases of fraudulent transfers.

What we have here therefore is an unfortunate situation indeed borne out of laxity and inattention.

The conveyancer was remiss in a big way and only succeeded in transferring property belonging to the applicants unlawfully. A fraudster took that transfer and later sold the same property to the first and second respondents who are also victims of a fraud.

The question which arises therefore is: what was the legal effect of all that activity and where does it leave the parties?

The papers before me clearly demonstrate that the applicants did not sell their property to the third respondent. They did not transfer it either. That was done by someone else - without their knowledge or consent.

The position of the law, in that regard, is aptly stated by the leaned author R.H. CHRISTIE, Business Law in Zimbabwe, 2nd Ed, Juta & Co Ltd…,:

“An owner whose property has been sold and delivered without his consent remains the owner, as the seller cannot pass ownership that was not his. The true owner can bring a vindicatory action to recover his property from anyone, including a bona fide buyer, in whose hands he finds it. The general rule that the seller can give no better title than he has operates in favour of the true owner, unless the purchaser proves that the true owner is estopped from denying the seller's authority to sell.”

McNALLY JA developed that point further in Mashave v Standard Bank of South Africa Ltd 1998 (1) ZLR 436 (S)…, when he pronounced:

“The Roman-Dutch law protects the right of an owner to vindicate his property, and, as a matter of policy, favours him against an innocent purchaser. See for instance Chetty v Naidoo 1974 (3) SA 13 (A) at 20 A-C. The innocent purchaser's only defence is estoppel.”

The nemo dat quod non habet and nemo plus iuris ad alium transferre potest quam ipse habit; that is, no one can give what he does not have and noone can transfer any right greater than he himself possesses are firmly rooted in our legal science.

Therefore, where a person who is not the owner, and possesses no mandate to do so, purports to transfer property, such transfer is a nullity; see SILBERBERG and SCHOEMAN, The Law of Property, 2nd ed…,.

The applicants therefore have a vindicatory right against whomsoever is in possession of their property - even an innocent purchaser.

The actio rei vindicatio is available to the owner whose property is in the possession of another without his authority or consent. Its concept is that an owner cannot be deprived of his property against his will. Such owner is entitled to recover the property from any person who is in possession of it without his consent.

All the owner is required to prove is that he is the owner and that the property is in the possession of another at the commencement of the action. Proof of ownership shifts the onus to the possessor to prove a right of retention; see Jolly v A Shannon & Anor 1998 (2) ZLR 78 (H)…,; Chetty v Naidoo 1974 (3) SA 13 (A)…,; Stanbic Finance Zimbabwe Ltd v Chivhungwa 1999 (1) ZLR 262 (H).

It is regrettable that the possessors of the applicants' property are an innocent couple which was trying to find a home for themselves and have lost their money to a trickster who has already met his maker.

There is however a glimmer of hope for them because the third respondent, the vehicle through which Wilson Madziva operated, is said to be still operational presenting them with a chance to recover damages from it.

For our purposes, to the extent that the applicants did not alienate their property, the attempt to do so by someone else was a nullity. Therefore, the purported transfer from the applicants to the third respondent, by Deed of Transfer No.1680/2009 was invalid as a non-owner could not transfer what he or she did not own. It follows, therefore, that, the purported transfer from the third respondent to the current holders was also a monumental nullity.

At all times, the applicants legally retained ownership.

As a necessary consequence, the provisions of section 8(2) of the Deeds Registries Act [Chapter 20:05] apply. It provides:

“Upon the cancellation of any deed pursuant of an order of court -

(a) The deed under which the land or any real right in land was held immediately prior to the registration of the deed which is cancelled shall be revived to the extent of such cancellation unless a court orders otherwise; and

(b) The registrar shall make the appropriate endorsement on the relevant deeds and entries in the registers.”

In the result, it is ordered that:

1. The 4th respondent is hereby directed to cancel Deed of Transfer No.1680/2009 and Deed of Transfer No.204/2011 in favour of the 3rd respondent and the 1st and 2nd respondents respectively in respect of the immovable property described as certain piece of land in the district of Goromonzi called Stand 816 Ruwa Township of Stand 659 Ruwa Township and to make any appropriate endorsements on the said Deeds of Transfer and entries in the registers to reflect the said cancellations.

2. Deed of Transfer No.997/1997 is hereby declared the valid deed in respect of the immovable property described as certain piece of land situate in the district of Goromonzi called Stand 816 Ruwa Township of Stand 659 Ruwa Township.

3. The 1st and 2nd respondents and all those occupying through them the immovable property described as certain piece of land situate in the district of Goromonzi called Stand 816 Ruwa Township of Stand 659 Ruwa Township, shall give vacant possession of the said property to the applicants within fifteen (15) days of this order failing which the Sheriff of the High Court or his lawful deputy is hereby authorised and directed to evict them and give vacant possession to the applicants.

4. The 1st, 2nd and 3rd respondents shall bear the costs of suit jointly and severally the one paying the others to be absolved.

The applicant is an incorporation based in Kwekwe and so is the second respondent. In HC2978/15 the applicant sued out a summons seeking an order declaring null and void the cession of certain Stands in Kwekwe to the second respondent and for the restoration of all rights and interest in those Stands to it on the pain of attorney and client costs….,.

The facts are that on 15 February 2011, Tetrach Investments (Pvt) Ltd passed a resolution, purporting to be a company, to sell Stand numbers 6544, 6533, 6534, 6535 and 6536 Kwekwe Township, Kwekwe to the second respondent for a price of $35,000=. In the same resolution, signed by a “Company Secretary,” it authorized Irvine Manhire to sign the power of attorney to pass transfer and to sign all other documents in connection with the sale.

It has not been explained what position Irvine Manhire held but counsel for the applicant admitted that he was, at the material time, employed by the applicant and not by Tetrach Investments (Pvt) Ltd which she also admitted did not exist. So, if ever there was an entity in existence at the time, it was the applicant, which also employed Irvine Manhire.

It is also worth noting here that the deponent of the founding affidavit is one Charles Manhire who shares a surname with Irvine and that the resolution, dated 23 November 2015, giving him authority to represent the applicant in legal proceedings, is written on a letterhead which gives the applicant's name only as “Tetrach.” It does not have “Enterprises (Pvt) Ltd” or “Investments (Pvt) Ltd.”

It is also significant that the signature of the secretary on the latest resolution of the applicant resembles that appended on the resolution of 15 February 2011 allowing Irvine Manhire to cede the Stands. The aid of a handwriting expert is not required for one to see that the secretary of the applicant who signed the resolution on 15 February 2011 is the same secretary of the applicant.

Whatever the case, it is common cause that in February 2011 the Stands were registered in the name of Tetrach Investments (Pvt) Ltd at the offices of the third respondent and that they were ceded to the second respondent in February 2011 as confirmed by a letter from the third respondent dated 18 September 2015. The second and third respondents and Tetrach Investments (Pvt) Ltd signed the cession agreement then with the latter represented by Irvine Manhire, who is said to be now in Dubai.

Having observed that the third respondent's rates account was in the name of the applicant, even after the cession, it is not clear when the third respondent's records were changed to reflect the applicant as the holder of title although it is admitted by the applicant that a correction was made at some stage, the applicant then instituted these proceedings.

Without bothering to explain why its official, the first respondent, alienated the properties and how he is related to Charles Manhire, the deponent of the founding affidavit, the applicant says that when he signed the cession agreement as he did, the first respondent was not authorized by the lawful owner, the applicant. For that reason, the cession was unlawful and fraudulent. The applicant insists that the cession was a nullity for want of authority on the part of the first respondent and also by reason that the applicant's name was erroneously cited in the third respondent's records “which error was corrected a long time ago.” The applicant adds that “no legal persona answering to the names of Tetrach Investments (Pvt) Ltd exists.”

Now, in my view, this is a trifle.

It is even moreso when considering that Charles Manhire, the deponent, says he is “one of the directors of the applicant.” He does not take the court into confidence as to who the other directors are and deliberately does not disclose the status of Irvine Manhire in the company. Other than saying that Irvine Manhire did not have authority, the applicant's papers are completely silent about this individual. The applicant trifles with the court when it seeks to found a cause of action on such vagueness and the fact that there was an error at the municipal offices in recording its second name. For that reason, even though it is one of its officials who executed the cession, it should be allowed to reclaim the properties without even explaining what became of the purchase price.

Life can never be that easy.

Summary judgment is an extraordinary remedy in the sense that it denies a party who has shown a desire to contest a claim, an opportunity to do so. It is a procedure conceived so that:

“a mala fide defendant might summarily be denied, except under onerous conditions, the benefit of the fundamental principle of audi alteram partem…, when all the proposed defences to the plaintiff's claim are unarguable, both in fact and in law…,..”

Chrisma v Stutchberry 1973 (1) RLR 277.

Conversely, in order to succeed in defeating a summary judgment application the respondent must set out a bona fide defence by alleging facts which, if established at the trial, would entitle him to succeed;

Kingstons Ltd v L D Ineson (Pvt) Ltd 2006 (1) ZLR 451 (S)…,.; Jena v Nechipote 1986 (1) ZLR 29 (S).

In my view, that is what the second respondent has done.

It has shown that an official of the applicant sold the properties to it and signed the agreement to pass the right, title and interest in the properties to it. This has been confirmed by the municipality which superintends the properties.

The applicant seems to be hiding behind a finger, not a very effective instrument for cover, and is obviously taking advantage of an insignificant error in records to try and reverse what is, on the face of it, a genuine sale.

There must have been a reason for the parties to record the name of the seller as Tetrach Investments (Pvt) Ltd when it did not exist. It is either because the second respondent's due diligence search had revealed that the records showed it as the title holder or the applicant's official wanted to mislead. Whichever way, the facts point to the existence of triable issues as the second respondent's case is clearly arguable.

In the result, it is ordered that:

1. The application for summary judgment is hereby dismissed.

2. The applicant shall bear the second respondent's costs.

The Mabelreign property was registered in the joint names of the parties.

The Mabelreign property was later sold and proceeds used to pay off the loan and to deposit for the current matrimonial house, namely, Number 9 Harare Drive, Logan Park, Hatfield, Harare.

This property is registered in the defendant's name only….,.

Section 7(1) 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) Division, apportionment or distribution of assets of the spouses, including an order that any asset be transferred from one spouse to the other…,.”…,.

This is a case where the court is enjoined to exercise its discretion in terms of section 7(1) of the Matrimonial Causes Act [Chapter 5:13] and order the transfer of half of the share in the defendant's name to the plaintiff.

The facts of this matter were largely common cause. But the dispute was most convoluted. It had several facets.

Introduction

The hearing of the matter was happening almost ten years after the proceedings had been instituted. The dispute had begun even earlier - almost sixteen years to the date of this judgment. Along the way there had been some profound developments. Among other things, one of the litigants – one of the main protagonists – had passed on. The property at the centre of the dispute had changed complexion. It had been split in two. Not only that, but it had changed hands several times over. To the original litigants had been added two more. Several supplementary or answering affidavits had been filed. Some aspects of the dispute had been brought to this court, to the Supreme Court, and to arbitration on no less than seven separate occasions.

The matter itself had started off as an opposed application. On the hearing, two years before this judgment, the presiding judge had felt there were disputes of facts that could not be resolved on the papers. The parties had failed to convince him otherwise. The matter had been referred to trial. Before me, there appeared little else by way of facts that would require viva voce evidence. The parties readily agreed. By consent, I referred the matter back to Motion Court. However, I would hear it myself. When eventually I did, I reserved judgment.

In this judgment, I have had to pack sixteen years of legal wrangling that had too many twists and turns. It was a morass.

The Parties

The first applicant was the mother of the second, third and fourth applicants [hereafter referred to as “applicants 2 to 4”]. Her status in the proceedings was the subject of one of two objections in limine. Her locus standi was challenged….,.

All the applicants sued via one Veronica Nzara [“Veronica”]. She was the deponent to the main affidavits. She was the mother of the first applicant and the grandmother of applicants 2 to 4.

She had been resident here. At the commencement of the proceedings all the applicants had been resident abroad. There had been a dispute over the authenticity and validity of the powers of attorneys granted by the applicants in favour of Veronica Nzara. But this dispute had petered out eventually. Among other things, the applicants had simply submitted fresh powers of attorneys. To be doubly certain, they had flown back into the country in time for the hearing. But the dispute relating to the first applicant's locus standi had lingered on right up to the time of the hearing.

The first respondent [“Ceciliah” or “the executrix”] was the wife of the Late Dzingayi Kashumba [“the Late Dzingayi” or “the deceased”]. She had been appointed the executrix dative to his estate. The Late Dzingayi was the original purchaser of the original immovable property at the centre of the dispute [“the original property”].

The second and third respondents were nominal parties on account of their statutory rights and obligations. The second respondent, the Registrar of Deeds, was a party right from inception. The property was registered in the Deeds Office, an office under his control and supervision. The third respondent, the Master of this court, had been joined to the proceedings upon the demise of the Late Dzingayi Kashumba. The Master of the High Court has an oversight role over estate matters.

The fourth respondent came into the proceedings much later. After the Late Dzingayi Kashumba's demise, Ceciliah had sold him one of the subdivisions to the original property. By the time of the hearing he had already taken title. It was one of the two Deeds the applicants wanted nullified.

Relief Sought

The applicants seek the cancellation of Deed of Transfer No.3030/2006, in the name of estate Late Dzingayi Kashumba, and Deed of Transfer No.773/2011, in the name of the fourth respondent.

At the hearing, the applicants amended their prayer, with no objection, to include a claim for the ejectment from the respective subdivisions occupied by them, of the first and fourth respondents, and anyone else claiming occupation through them.

The first and fourth respondents oppose the claims.

Among other things, the first respondent maintains that the first applicant was paid all her dues long back and that therefore she has no basis to seek cancellation, let alone to vindicate.

The simplicity with which the relief sought and the defences proffered were cast belied sixteen years of complex and ferocious legal wrangling….,.

The Dispute

The main dispute…, was whether the Agreement of Sale of the original property between the first applicant, as the seller, and the deceased, as the purchaser, was ever duly cancelled. The applicants said it was. The first respondent said it was not. Within that main dispute were several others.

As time went on there were new developments. They gave birth to new disputes. These included:

(i) The propriety or lawfulness of the Late Dzingayi Kashumba getting an extension with the City of Harare, the local authority with jurisdiction over the property, of the expired subdivision permit which had been in the name of the first applicant as the owner and seller of the property;

(ii) The propriety or lawfulness of the Late Dzingayi Kashumba taking transfer of the original property, not from the first applicant, who, because of the donation, no longer had title, but from the applicants 2 to 4 who now had title;

(iii) The propriety or lawfulness of the Late Dzingayi Kashumba, not only in taking transfer from applicants 2 to 4 whom he had no relationship with, but also in doing so on the basis of a superannuated court order that not only had given him no right to take transfer as such, but also whose main direction, i.e. to pay the balance of the purchase price within 30 days, he had failed to comply with;

(iv) The propriety or lawfulness of the second respondent, the Registrar of Deeds, agreeing to register transfer in favour of the Late Dzingayi Kashumba, and, subsequently, the fourth respondent, in the face of not only pending court proceedings to which he had been cited as a party, but also in the face of specific XN caveats that he himself had noted, or ought to have noted, on the properties at the specific instance and request of the applicants;

(v) The propriety or lawfulness of Ceceliah selling and transferring one of the subdivisions to the fourth respondent in the face of pending litigation;

(vi) Whether or not the fourth respondent was an innocent buyer.

The Facts

At the hearing in February 2016 there were two properties. The first was Stand 552 Quinnington Township of Subdivision A of Subdivision F of Quinnington of Borrowdale Estate [hereafter referred to as “Stand 552” or “552”]. It was 3,999m² in extent. It was registered under Deed of Transfer No.3030/2006 in the name of the Late Dzingayi Kashumba. As said already, this Deed was one of two the applicants wanted set aside.

The second property was Stand 553 Quinnington Township [“Stand 553” or “553”]. It was a twin subdivision of Stand 552, except that, at 4,002m², it was slightly larger. This property was registered under Deed of Transfer No.773/2011 in the name of the fourth respondent. It was the second Deed the applicants wanted set aside.

Sixteen years ago, at the start of the dispute, there had been only one property, i.e. the original property. It was known as the Remainder of Subdivision A of Subdivision E of Quinnington of Borrowdale Estate. It was 1,2141 hectares in extent. It had been registered under Deed of Transfer No.350/2003 in the name of the first applicant.

How the original property became two, and how those two subdivisions came to be registered in names other than that of the first applicant, has been the controversy that has seen the parties being in and out of court more than seven times. I have to deal with the developments in stages.

Phase 1

This phase is May 1999. By a written Deed of Sale [“the DOS”] signed by the parties on 11 and 12 May 1999, the first applicant sells the original property to the Late Dzingayi Kashumba who buys it. The payment of the purchase price is spread over a period of time in excess of seventeen instalments. In the event that the purchaser fails to pay, the seller is entitled to cancel, but upon 14 days' notice requiring payment. If the Deed of Sale is cancelled for reasons of breach, the purchaser forfeits, and the seller keeps, as rouwkoop [i.e. pre-estimate of damages] any payments already made.

The other significant aspect of the Deed of Sale is that the original property is described as two Stands, namely, Stand 552 and 553 Quinnington Township. But, on the ground, it is one property. This reality is later to be confirmed by this court when GOWORA J…, refuses to grant an interdict on the basis that the two purported Stands are non-existent in the Deeds Office.

However, by referring to two Stands in the Deed of Sale, the parties are in agreement that the first applicant is in the process of subdividing the original property into two. She already possesses a conditional subdivision permit. As it panned out, this permit is extended from time to time. The Deed of Sale (DOS) captures this reality. It refers to the two Stands as undeveloped pieces of land. It names the sub-division permit that has already been approved by the City of Harare and makes reference to survey diagrams that “…, are being approved by the Surveyor General…,.”

Phase 2

The Late Dzingayi Kashumba does pay part of the purchase price. However, in this phase he is seen failing, or neglecting, to pay the balance of the purchase price in accordance with the Deed of Sale. The first applicant cancels, or purports to cancel, the Deed of Sale (DOS). Apparently, in her endeavour to cancel, she overlooks the provisions of the Contractual Penalties Act [Chapter 8:04]. In terms of it, no cancellation of an instalment sale of land on account of breach where the purchase price is paid over three or more instalments, or by way of a deposit and two or more instalments, is valid unless the purchaser is given not less than 30 days' notice, or the number of days stipulated in the agreement, whichever is the greater, to rectify such breach.

Phase 3

The Late Dzingayi Kashumba rejects the first applicant's purported cancellation. He sues. On 9 May 2001, this court, per BARTLETT J, in HC10065/2000, grants the following relief:

“1. That the purported cancellation of the Agreement of Sale between Dzingayi Kashumba and Mavis Shorai Nzara be and is hereby declared null and void and set aside.

2. That the purchaser, Mr Dzingayi Kashumba, be and is hereby directed to pay the balance of the purchase price due and outstanding within 30 days of the date of this order.

3. That the Respondent be and is hereby ordered to transfer to Dzingayi Kashumba the properties known as Stands 552 and 553 Quinnington Township of Subdivision F of Quinnington of Borrowdale Estate measuring in extent 3,999 square metres and 4,002 square metres respectively by signing all the necessary transfer documents within 10 days of payment of the balance of the purchase price.

4. That in the event of the Respondent failing to comply with the provisions of paragraph 3 hereof that the Deputy Sheriff for Harare be and is hereby authorised and empowered to sign the relevant transfer papers.

5. That the Respondent pays the Applicant's costs of this application.”

There is an immediate major fall-out over this order. The parties read or discern different things into and from it. Despite further subsequent proceedings and further court orders, the major controversy over the order remains unresolved right up to the date of the hearing before me.

Phase 4

In this phase, the Late Dzingayi Kashumba complies, or purports to comply, with the order of BARTLETT J. He tenders, or purports to tender, and indeed does forward, a cheque in an amount which he considers to be the balance of the purchase price under the Deed of Sale (DOS). The amount of the cheque is $337,178=77 old Zimbabwean currency.

Immediately there are sharp differences between the parties over this tender and/or payment. The first applicant says, firstly, that the payment has been made outside the 30 day period set by the court, and, secondly, that it is not the full balance outstanding. She rejects, or purports to reject the cheque. She returns, or purports to return it. On the other hand, the Late Dzingayi Kashumba is adamant that his payment is within the 30 day deadline and that the amount represents the full balance of the purchase price.

At the hearing before me, there was another dimension to this particular controversy.

Despite the purported rejection of the cheque, and despite certain correspondence on behalf of the first applicant suggesting that the cheque had indeed been returned, counsel for the first respondent maintained that the cheque had, in fact, never been returned, and that the applicant had in fact helped herself to the proceeds.

I must briefly focus on some of the contemporaneous communication regarding this particular cheque dispute. Whether or not this cheque was paid timeously, and whether or not the first applicant in fact returned it, is a matter of fact.

In the founding affidavit, the applicants, speaking through Veronica Nzara, stated that the cheque for $337,178=77 was paid on 5 July 2001. She said that that date was outside the 30-day period. But no supporting documents were tendered to show that it had been paid on 5 July 2001. In the opposing affidavit, the Late Dzingayi Kashumba insisted that the cheque had in fact been released by his lawyers before the 30 days were up and had been receipted by the first applicant's then lawyers, Munangati & Associates [“Munangati] well within that 30 day period. He produced two documents as proof;

(i) The first was a copy of a delivery note from his lawyers. It showed a list of items delivered by his lawyers on 31 May 2001. One of those items was the cheque. It had been signed for by Munangati & Associates on the same day.

(ii) The second document was a receipt for the cheque payment. It had been issued by Munangati & Associates on 4 June 2001.

In the answering affidavit, Veronica Nzara, despite the Late Dzingayi Kashumba's proof aforesaid, was adamant that the cheque for $337,178=77 had been received on 5 July 2001 and that therefore it had been paid outside the 30-day period. She made reference to an Annexure VN 17. But there was no such annexure attached.

Whichever method of computation one uses, the 4^th of June 2001 was within 30 days of 9 May 2001, the date of the order by BARTLETT J.

At the hearing, counsel for the applicants was in obvious difficulty on this point. His position was, with all due respect, at best, equivocal, but otherwise incoherent. In one breath he would argue that the 4^th of June 2001 was outside the 9^th of May 2001. In another, he would argue that Munangati & Associates might have receipted the cheque on 4 June 2001 but that it was known that the cheque necessarily had to be cleared. As such, it would take some days before the cheque proceeds would be available to the applicants. He said the cheque proceeds had only become available to the first applicant on 5 July 2001 thus outside the 30 day period.

But, obviously, the applicants could not rely on that argument. Receipt of the Late Dzingayi Kashumba's cheque by Munangati & Associates, on 31 May 2001, was payment within 30 days of the order of BARTLETT J on 9 May 2001.

Strangely, that was not the end of this particular side-show.

Given that this matter had commenced by Notice of Motion, given the developments that had occurred over time, and given the fact that at some stage it had been referred to trial but had subsequently gone back to Motion Court, I had purposefully given the parties, both during the case management meeting in Chambers, and at the end of the hearing, a kind of open cheque to submit as much further information or argument on any aspect of the matter as they might feel could assist, and I would consider such information if it reached me before I concluded my judgment.

The parties obliged.

As I began writing this judgment, I received further information that sort of threw open, again, the question of when exactly the Late Dzingayi Kashumba had submitted that cheque, and when exactly Munangati & Associates had received or receipted it.

Among the documents that I subsequently received was one that I found rather curious. It was a letter from the Late Dzingayi Kashumba's then legal practitioners, Wintertons, to Munangati & Associates. It made reference to an enclosed cheque for the same $337,178=77 amount. The letter was dated 2 July 2001. It had been received and signed for by Munangati & Associates on 5 July 2001. This was intriguing….,.

Phase 5

Some aspects of the controversy, whether or not the Late Dzingayi Kashumba has paid the balance of the purchase price spills back to this court, back to BARTLETT J. The specific aspect on this controversy is whether or not the Late Dzingayi paid the balance of the purchase price in full - not whether or not he had paid it within the 30 days deadline.

There are other fresh disputes the court is seized with.

The conditional permit over the original property to create the two subdivisions had since expired. The first applicant is now refusing to proceed with the Agreement of Sale, her argument being that the Deed of Sale (DOS) will be in violation of the Regional, Town and Country Planning Act [Chapter 29:12]. It is trite that in terms of this Act, an agreement to, among other things, sell a subdivision of a piece of land without a subdivision permit is invalid and therefore unenforceable.

On 11 December 2001 BARTLETT J issues his second order. The issue whether or not the Late Dzingayi Kashumba has paid the balance of the purchase price in full in terms of the earlier order on 9 May 2001 is referred to arbitration. The issue whether or not the agreement has become unenforceable, by reason of want of compliance with the Regional, Town and Country Planning Act, is withdrawn.

Phase 6

The arbitrator finds that the Late Dzingai has not paid the balance of the purchase price in full. He determines the amount by which it had been underpaid. The arbitration outcome is the source of new further wrangles.

Phase 7

On the basis of the arbitrator's award, the first applicant takes the view that the Late Dzingayi, not having paid the balance of the purchase price in full, the Deed of Sale (DOS) has definitely been cancelled. On 4 June 2002, about two weeks after the arbitration award, her new lawyers, Mudambanuki & Associates [Mudambanuki”] write to Wintertons, the Late Dzingai Kashumba's lawyers, drawing attention to the award, and stating, categorically, that the agreement has now been cancelled. From then on events unfold quickly and the matter completely goes off rail.

Phase 8

The Late Dzingayi does not accept the first applicant's purported cancellation. A month later his lawyers send over a cheque for $454,037=93, being, according to them, the balance outstanding plus accrued interest. Two days later, Mudambanuki & Associates reject it. They promise to work out all the other previous payments made by Late Dzingayi Kashumba in order to refund him. They also advise that the first applicant is no longer interested in the Deed of Sale (DOS) and the subdivision and will now be building on the property.

Five months later, the Late Dzingayi applies for an order condoning his non-compliance with the order of BARTLETT J on 9 May 2001. But he does not pursue this application. It is dismissed for want of prosecution.

This is now February 2003.

Another three months later, the Late Dzingai Kashumba makes yet another application for condonation. But he soon changes lawyers. The new lawyers, Kantor & Immerman [“Kantor”] withdraw this application. They file their own to make it the third application for condonation in a row.

To this third application for condonation the first applicant files heads of argument. But they are out of time. So she has been barred. Her new lawyers, Mutamangira & Associates [“Mutamangira”] try to argue a technicality. It fails. HUNGWE J writes a judgment stressing that she is barred. No determination is made on the substantive relief of condonation.

The first applicant appeals to the Supreme Court against the order of HUNGWE J. Later on, in June 2006, the parties' lawyers negotiate. Eventually, both the Supreme Court appeal and the main application before this court, i.e. the third application for condonation, are withdrawn. Apparently by this time the Late Dzingayi Kashumba has already managed, not only to have the City of Harare extend the subdivision permit but also to get transfer of the twin subdivisions. So before I proceed I have to dwell on the transfers to applicants 2 to 4 and the subsequent ones to the Late Dzingayi Kashumba.

Phase 9

As the Late Dzingayi Kashumba's third application for condonation is pending, and as her own appeal to the Supreme Court regarding the bar is pending, the first applicant's ex-husband, the father to applicants 2 to 4, sells, or purports to sell, the original property to a third party. The Late Dzingayi gets wind of it. He brings an urgent chamber application to bar the sale. He fails. That is when GOWORA J says there is nothing to bar if the subdivisions are non-existent in the Deeds Office. But apparently this sale fizzles out anyway. Among other things, the prospective buyer backs off.

It seems it is in this phase that both parties now decide to take matters in their own hands, aided and abetted by their lawyers. They resort to naked guerrilla tactics.

The judgment by HUNGWE J, confirming the first applicant's bar, is in June 2005. A day after that judgment is handed down, the Late Dzingayi Kashumba submits a cheque for $773,445=72 which his lawyers, Kantor & Immerman claim is the balance of the purchase price plus accrued interest. The following day, Mutamangira & Associates reject the cheque. In their covering letter they say they have returned it. But at the hearing counsel for the first respondent maintained that contrary to that claim the cheque had in fact been banked and the Late Dzingayi's bank account debited. He drew attention to a contemporaneous bank statement.

But whilst the Late Dzingayi Kashumba is making application after application for condonation, it turns out that on 31 January 2003, i.e. two years before the judgement of HUNGWE J, the first applicant has already transferred the property to applicants 2 to 4. The causa in the Deed of Transfer is stated as donation inter vivos. In their declaration for stamp duty purposes the applicants 2 to 4 say the donation had been made on 2 August 2002.

None of this has been disclosed to anyone.

In the same month that HUNGWE J is confirming the first applicant's bar, the Late Dzingayi is seeking an extension of the subdivision permit from the City of Harare. He goes through a firm of land surveyors. Amongst the reasons the land surveyors, in their letter dated 22 June 2005, give to the City of Harare for the delay in completing the subdivision is:

“…, because there was a legal battle between the owner and the purchasers of the said Stands. However, this has since been resolved through the courts. The courts have directed that the said properties be transferred to the purchasers.”

The land surveyors must be referring to the order of BARTLETT J on 9 May 2001 - more than 4 years earlier. This, of course, is misleading. None of the legal battles has been resolved. Among other things, the Late Dzingayi Kashumba is still to get condonation. Furthermore, the order of 9 May 2001 was conditional. His applications for condonation are confirmation of that condition. Still further, at this stage the original property has already changed hands. It is now owned by applicants 2 to 4, not the first applicant in whose name the subdivision permit had initially been granted.

The withdrawal of both the Late Dzingayi's third application for condonation and that of the first applicant's appeal to the Supreme Court is made at the instance of Kantor & Immerman. Their letter to Mutamangira & Associates, containing the withdrawal proposal, is dated 2 June 2006. It reads:

“We refer to the above matter and advise that our client is considering withdrawing his opposition in this matter (that is, opposition to the Supreme Court appeal by the first applicant under SC173/05) as well as the High Court matter. What would be your client's attitude towards costs in the event of withdrawal?”

The letter is completely lacking in candour.

It does not disclose that on 3 May 2006 the Late Dzingayi Kashumba has already taken transfer of the original property. It does not disclose that the Late Dzingayi had applied for an extension of the subdivision permit in his own right and had got it. It does not disclose that the subdivision creating the two Stands, 552 and 553, had already gone through. Thus, by now the Late Dzingai has the twin subdivisions registered in his name under Deeds 3030/2006 and 3031/2006. Those transfers had been registered by Kantor & Immerman. The power of attorney to pass transfer had been signed by the Deputy Sheriff for Harare.

His authority for doing so was allegedly the Order of BARTLETT J - some five years ago.

Before the registration of Stands 552 and 553 into the Late Dzingayi Kashumba's name, Kantor & Immerman apply to the Registrar of Deeds for a replacement Deed. Someone from their firm submits an affidavit in support of that application. The affidavit is misleading in material respects. Among other things, it claims that the holding Deed for the twin subdivisions has been brought forward for transfer in terms of, inter alia, High Court Order HC10065/2000. But the affidavit conceals the true and obvious purport of that order. Quite apart from the problem the of Late Dzingayi not having paid within the 30 days, he manages to take transfer from applicants 2 to 4 in whom the property is now registered. Yet the order of court referred to the first applicant.

So, obviously, with title to the original property tucked in his bag, the Late Dzingayi Kashumba can now afford to be magnanimous. He offers to withdraw his application for condonation and nudges the first applicant to withdraw her appeal from the Supreme Court.

Phase 10

This is the phase in which the applicants institute these proceedings.

The application is filed in September 2006. A month before, the applicants write to the Registrar of Deeds complaining about the wrongful manner the Late Dzingayi Kashumba, assisted by Kantor & Immerman, had taken transfer. In that letter, Mutamangira & Associates request that an XN caveat be placed on the property. The Registrar of Deeds obliges, but warns that this kind of caveat is only temporary. He says a court order is needed for a permanent interdict.

In their request for an XN caveat, Mutamangira & Associates specifically cite Deed of Transfer No.3030/06. This of course, is for Stand 552. They do not cite Deed of Transfer No.3031/06, the one for Stand 553. It was a loophole through which, it seems to me, the fourth respondent is able, later on, to take transfer from the estate Late Dzingayi Kashumba, now represented by Ceciliah, the executrix.

The Late Dzingayi Kashumba passes on in April 2007.

In February 2011, Ceciliah sells Stand 553 to the fourth respondent. The third respondent, the Master of the High Court, approves the sale. On 17 February 2011 the fourth respondent takes transfer under Deed No.773/2011 - the second one the applicants want nullified.

Ceciliah swears to an affidavit and says that there are no objections to the proposed transfer. The applicants blast this apparent falsehood. They say Ceciliah knew, not only as the executrix, but also as the wife of the Late Dzingayi Kashumba, of the raging battles over the property. They also blast the Registrar of Deeds. He could not possibly have transferred the property with so many impediments in place, in the form of not only the caveats that he himself had registered, but also in the face of the court documents that ought to have been filed in the registers of the two Stands, given that he had been cited as a party right from inception.

Even though, in their request for an XN caveat, Mutamangira & Associates have only cited Deed of Transfer No.3030/06 for Stand 552, it transpires that on 21 September 2007, another law firm, V.S. Nyangulu & Associates, who had registered the donation transfer from the first applicant to applicants 2 to 4, had also written to the Registrar of Deeds, separately from, and independently of, Mutamangira & Associates, expressly requesting that XN caveats be placed on the two Deeds of Transfer Nos. 3030/2006 and 3031/2006 and advising that the applicants wished to take legal action to have them cancelled. However, there is no indication whether or not the Registrar of Deeds has received these letters, let alone, acted on them.

In September and October 2007 there is some kind of dance-around between Mutamangira & Associates and Kantor & Immerman over yet some other cheque payment. It appears Kantor & Immerman are the first to forward the cheque to Mutamangira & Associates. Mutamangira & Associates reject and return it. Kantor & Immerman send it back saying they no longer have the mandate to receive it back. They suggest that Mutamangira & Associates may send it directly to their client. Mutamangira & Associates say they will, but stress that the cheque stands rejected.

The amount on, and the purpose for this latest cheque was not clarified. The pleadings did not talk about it. The story about it emerged from the consolidated bundle of documents filed just before the hearing.

The fourth respondent said he was an innocent purchaser.

The property had been advertised in the press. He had done a due diligence. Among other things, he had checked with the Master of the High Court. He had been assured that Ceciliah had the requisite authority to sell. At any rate, the first and final distribution account in the estate Late Dzingayi Kashumba had been published in the Government Gazette as a matter of course. The property would have been listed. The applicants had raised no objection.

The fourth respondent also said that he had checked the deeds registry. The property had been free from any encumbrances. He had gone through a firm of legal practitioners for both the Agreement of Sale and the registration of transfer.

The applicants argued that the fourth respondent was far from being an innocent buyer. They said he must have been aware of the raging battles. Among other things, all the pleadings had been filed with the Deeds Office. This office is a public office. If he had checked he would have been alerted to the court cases.

That was the case before me. I now proceed to deal with such of the issues as will, in my view, dispose of the matter.

This is an appeal against part of the judgment of the High Court Harare.

The first appellant, Shorai Nzara (Shorai) is the mother of the second to fourth appellants to whom she donated the property that forms the subject of this dispute. The first respondent, Cecilia Kashumba N.O., was the wife of the late Dzingai Kashumba and is the executrix dative of his estate.

Dzingai Kashumba (Dzingai) entered into an Agreement of Sale with Shorai Nzara, the original owner of the property at the heart of this seventeen-year-old dispute. The second respondent is the Registrar of Deeds who was cited in his official capacity as the official who registers title of immovable properties. The third respondent is the Master of the High Court, cited in his official capacity as the official who exercises oversight over deceased estates. The fourth respondent Tafirenyika Kambarami bought a sub-division of the land in question from Cecilia Kashumba in her capacity as the late Dzingai Kashumba's estate's executrix dative.

The detailed facts of the case are as follows;

On 12 May 1999, the first appellant, Shorai Nzara entered into an Agreement of Sale with the now late Dzingai Kashumba for the sale of two proposed Stands, being Stand number 552 and 553 Quinington Township of Subdivision “A” of Subdivision “F” of Quinington of Borrowdale Estate. At the time the parties entered into the agreement the two Stands constituted one property for which a subdivision permit had been granted by the City of Harare.

Shorai Nzara instituted application proceedings for the cancellation of the Agreement of Sale, under case number HC10065/00. She claimed that Dzingai Kashumba had breached the agreement of sale, as he had not paid the full purchase price. The court (per BARTLETT J) accepted that Dzingai Kashumba had not paid the full purchase price but held that the first appellant had not lawfully cancelled the agreement as she had not given Dzingai the mandatory 30 days' notice in terms of section 8(2)(c)(ii) of the Contractual Penalties Act [Chapter 8:04].

In terms of section 8(2)(c)(ii) of the Contractual Penalties Act [Chapter 8:04] a purchaser is entitled to a notice period of 30 days within which to pay the purchase price before the contract can be cancelled.

BARTLETT J ordered Dzingai Kashumba to pay the outstanding amount within 30 days failing which the contract could be lawfully cancelled. That judgment was handed down on 9 May 2001.

Shorai Nzara alleges that Dzingai Kashumba thereafter attempted to pay the outstanding purchase price through her legal practitioners - but over fifty days later on 5 July 2001. Apart from the payment having been made out of time, she claimed that he did not tender the outstanding balance in full. She contended that the amount paid was ZW$166,403=25 less than was due and her legal practitioners therefore refused to accept the payment.

In view of the abovementioned breaches by the late Dzingai Kashumba, Shorai Nzara again cancelled the agreement and made another application seeking confirmation of the subsequent cancellation.

The first respondent argued that payment had been made by cheque to Shorai Nzara's legal practitioners who presented it to his Bank for payment. She alleged that his account was debited to the value of that cheque, indicating acceptance of the payment. The first appellant disputed this alleging that the cheque, through which the late payment was attempted, was returned to Dzingai Kashumba's legal practitioners.

The dispute over the outstanding balance was referred to arbitration where an award was made confirming that the purchase price had not been settled and that there remained an outstanding balance. By letter dated 4 June 2002 the appellant's legal practitioners again advised Dzingai Kashumba's legal practitioners that the contract had been cancelled. The first respondent conceded that this position was made clear to Dzingai Kashumba but contented that the cheque he presented to Shorai Nzara's legal practitioners was presented to his Bank and debited from his account. She did not however dispute that the amount held by the Arbitrator to have been outstanding had not been paid.

Shorai Nzara alleged that there was no response to her letter of 4 June 2002 till 10 July 2002 when Dzingai Kashumba purported to pay the outstanding balance. On 12 July 2002 her legal practitioners wrote another letter to Dzingai Kashumba's legal practitioners stressing that the contract had been cancelled and enclosing a cheque for ZW$454,037=93, being the money the respondent had tendered in his attempt to pay part of the outstanding balance.

Shorai Nzara alleges that notwithstanding the cancellation of the contract Dzingai Kashumba made an application in November 2002 for condonation of his non-compliance with the order of 9 May 2001 but did not pursue it. It was dismissed for want of prosecution in February 2003.

It was contended on behalf of the late Dzingai Kashumba's estate that the application was not an application for condonation per se, but an application for reversal of the donation made by Shorai Nzara to her children who are the second to fourth appellants, which it is alleged was in clear violation of the order of the High Court granted by HLATSHWAYO J…, against the alienation of the property. That order was to remain in force “pending the finalization of the Arbitration proceedings” which were finalised on 28 February 2002.

Shorai Nzara's donation to the second to fourth appellants was effected on 31 January 2003 - long after the arbitration proceedings had been finalized. The transfer was registered in the Deeds Registry and reflected on the title deeds in the second, third and fourth appellants' names.

On 9 May 2003 Dzingai Kashumba, through his legal practitioners, filed an application for condonation of his failure to comply with the judgment of BARTLETT J, which Shorai Nzara opposed. He subsequently withdrew it when he changed legal practitioners. The new legal practitioners filed another application for condonation for non-compliance with the order of 9 May 2001 in which Dzingai Kashumba argued that Shorai Nzara had no locus standi in the matter as she had donated her interest in the property to the second to fourth appellants.

In that application, Dzingai Kashumba argued that the full purchase price, except the interest, had been paid by August 2000. He therefore admitted that he had not paid the accrued interest. He maintained that the purported cancellation was a nullity at law. He disputed Shorai Nzara's right to cancel the agreement.

Dzingai Kashumba argued that the matter only went for arbitration to clarify the issue of the outstanding interest. On 3 May 2006, while the dispute was still raging, the property was unlawfully transferred from the second to fourth appellants to Dzingai Kashumba.

Dzingai Kashumba died on 30 April 2007. Cecilia Kashumba, his surviving spouse, was appointed executrix dative of his estate, substituting him as the first respondent. She entered into an agreement of sale with the fourth respondent, Tafirenyika Kambarami, for the sale of one of the contentious properties which the court a quo held to be unlawful.

Shorai Nzara contested this development as an act of fraud, theft and misrepresentation to the office of the Registrar of Deeds. She claimed that she was unaware of the change of ownership from her children to the late Dzingai Kashumba.

In response to the unlawful transfers, the appellants registered caveats against the properties. Shorai Nzara pursued her application in the High Court for the confirmation of the subsequent cancellation of the agreement between her and Dzingai Kashumba, which would in turn cancel deeds of transfer number 3030/06 and 3031/06 which Dzingai Kashumba unlawfully obtained from Shorai Nzara at a time when the property had already been transferred to her children the second to fourth appellants. The transfer was therefore purportedly from the first appellant, who no longer had title, without the involvement of the second to the fourth appellants who now had title.

In her evidence to the court a quo, Cecilia Kashumba alleged that, contrary to the repeated promises of a refund, the money debited from Dzingai Kashumba's bank account was never returned. In heads of argument prepared on behalf of Shorai Nzara in the court a quo it was suggested that Dzingai Kashumba took ownership of the property sometime in 2006 without her knowledge. The court a quo correctly found that the judgment of 9 May 2001 had not been complied with, when it was relied on to get transfer from the second to fourth appellants, who were not parties to that judgment, to Dzingai Kashumba. Dzingai failed to pay the balance of the purchase price within the time ordered by BARTLETT J, leading to the cancellation of the agreement by the first appellant.

In spite of the caveats registered by Shorai Nzara, and, subsequently, by the second to fourth appellants against the title deeds of Stand 553, title was passed to Tafirenyika Kambarami by Cecilia Kashumba in her capacity as the executrix dative of Dzingai Kashumba's estate.

These are the facts on which the court a quo made the following decisions;

1. That the transfer of the two Stands to the late Dzingai Kashumba was unlawful.

2. That the late Dzingai Kashumba and his estate did not pay the full purchase price.

3. That the donation of the two Stands by the first appellant to the second, third, and fourth appellants was lawful.

4. That the sale of Stand 553 to the fourth respondent was unlawful.

After making these findings, the court a quo surprisingly gave Cecilia Kashumba a grace period of thirty days within which to settle the outstanding debt. Dzingai Kashumba's estate and Tafirenyika Kambarami, the fourth respondent, were allowed to remain in possession of the two properties during the grace period. The order further provided that if Cecilia Kashumba failed to pay by the deadline the property would be returned to the appellants and all monies paid to date would be forfeited by the deceased estate.

The appellants appealed to this court against the decision of the court a quo. The appeal is based on the following grounds of appeal;

1. Having come to the conclusion that the first and fourth respondents had obtained title irregularly and without lawful cause the court a quo erred in not finding that the requisites for an action rei vindication had been met.

2. Having come to the conclusion that the first appellant had been entitled to donate the property to second to fourth appellants, and had in fact done so, the court a quo erred in granting consequential relief which completely ignored the rights of the true owners of the property.

3. The court a quo erred in granting relief which had not been sought from it and which the parties had not addressed their argument to and so erred in adopting a course which is incapable of resolving the dispute between the parties.

4. The court a quo erred in coming to the conclusion that the agreement between the first appellant and the late Dzingai Kashumba had not been validly cancelled and erred in ignoring an ex nunc cancellation of 4 June 2002.

This appeal raises two issues:

1. Whether or not a court can grant an order not sought by the parties.

2. Whether or not the law calls for the strict application of the rei vindicatio?

I will address each issue in turn…,.

Whether or not the law calls for the strict application of the rei vindicatio?

Counsel for the appellants submitted that in view of the court a quo's findings, the appellants' ownership of the property should have been vindicated by the court a quo regardless of the court a quo's considerations of equity and justice, on the basis of the strict application of the rei vindicatio.

Counsel for the first respondent and counsel for the fourth respondent, without laying a clear legal basis for their submissions, supported the court a quo's decision.

The court a quo came to the conclusion that the contract was never properly cancelled at the instance of Shorai Nzara. However, by the time Dzingai Kashumba attempted to claim title, based on the judgment of 9 May 2001, which had superannuated, and the time within which payment should have been made had long passed. Therefore, the late Dzingai Kashumba failed to perform his obligations in terms of the contract. He therefore could not lawfully claim title to the property. This means transfer to him was unlawful and the subsequent sale and transfer to Tafirenyika Kambarami was a nullity.

R.H. CHRISTIE in his book “Business Law in Zimbabwe” states as follows:

“An owner whose property has been sold and delivered without his consent remains the owner, as the seller cannot pass ownership that was not his. The true owner can bring vindicatory action to recover his property from anyone including a bona fide buyer.”

These are precisely the circumstances the first respondent and fourth respondent found themselves in, and, as a result, the appellants contend that the court a quo, having found that ownership never lawfully passed to the first respondent that should have been the end of the matter and the principles of the rei vindicatio ought to have been applied with full force and effect. The land should have been returned to its rightful owners.

The late Dzingai Kashumba failed to pay and finalize the sale agreement in terms of the judgment of 9 May 2001. He could not therefore rely on a judgment he had not complied with to enforce the Agreement of Sale. He could not seek transfer of the property to himself without complying with the legal requirements of a contract of sale. He in fact admitted that he did not pay the full purchase price after BARTLETT J's judgment. That entitled the first appellant to an immediate cancellation of the agreement as she did on 4 June 2002. In its own order giving a further grace period as BARLETT J had previously done the court a quo had, in paragraph 5 of its order, ordered that if payment was not made as per its order the appellants would be entitled to “forthwith have the right to declare, in writing, the immediate and automatic cancellation of the Deed of Sale aforesaid and, without prejudice to any other rights they might have at law.”

This is an admission that a party who has been given notice through a court order, as required by the Contractual Penalties Act, need not be given a further such notice in terms of the Contractual Penalties Act. The seller can cancel immediately as was submitted by counsel for the appellants.

As the late Dzingai Kashumba never lawfully owned and held title to the property, his estate could not alienate the said property. Cecilia Kashumba, his executrix dative, could not sell property which did not belong to her late husband's estate. The purported sale was also tainted by Cecilia Kashumba's misrepresentation in an affidavit that the property was not subject to any disputes. This lie was intended to mislead the purchaser into the Agreement of Sale and facilitate its transfer.

The first respondent therefore sold the subdivision to the fourth respondent through deceit. That cannot justify transfer of the appellants' property to the fourth respondent.

After title was transferred, and a subdivision was sold, developments were allegedly made to the land in dispute. It must be noted that the respondents' counsel only raised the issue of vast and substantial improvements on the property from the bar on appeal. The alleged improvements were vaguely referred to, but were not quantified. No evidence was led to establish their existence and their value.

Therefore, the claim for improvements, not having been properly raised or quantified, cannot be taken into consideration by this court. Nevertheless, even if these issues had been properly raised and quantified in the court a quo, the title of an owner is so respected that the rei vindicatio operates against a third party who innocently purchases the property even where improvements or developments were made. The owner remains entitled to his property. This was made clear in the case of Alspite Investments (Pvt) Ltd v Westerhoff 2009 (2) ZLR 236 where MAKARAU JP…, said:

“There are no equities in the application of the rei vindicatio. Thus, in applying the principle, the court may not accept and grant pleas of mercy or for extension of possession of the property by the defendant against an owner for the convenience or comfort of the possessor once it is accepted that the plaintiff is the owner of the property and does not consent to the defendant holding it. It is a rule or principle of law that admits no discretion on the part of the court. It is a legal principle heavily weighted in favour of property owners against the world at large and is used to ruthlessly protect ownership. The application of the principle conjures up in my mind the most uncomfortable image of a stern mother standing over two children fighting over a lollipop. If the child holding and licking the lollipop is not the rightful owner of the prized possession and the rightful owner cries to the mother for intervention, the mother must pluck the lollipop from the holder and restore it forthwith to the other child notwithstanding the age and size of the owner-child or the number of lollipops that the owner child may be clutching at the time. It matters not that the possessor child may not have had a lollipop in a long time or is unlikely to have one in the foreseeable future. If the lollipop is not his or hers, he or she cannot have it.”…,.

This case therefore sanctions ruthless vindication of the owners' rights.

Ownership is a well-guarded title in property law. For this reason, after finding the second, third and fourth appellants to be the true owners, the court a quo was bound by law to vindicate their title to the land.

One of the critical maxims of property law is nemo plus iuris transfer e protest quam ips habet – translated as meaning that an owner cannot, as a general rule, be deprived of his property against his will. Therefore, where an owner's property is sold and delivered without his consent his right to ownership can be vindicated from any person.

SILBERBERG and SCHOEMAN in their second edition of “The Law of Property”…, make it clear that the maxim stands firm even where the third party acquires the property in good faith, having paid a fair market value and acted in all innocence.

Our law calls for ruthless vindication and protection of the right of ownership.

Counsel for the appellants cited the words of HOLMES JA in the case of Oakland Nominees Ltd v Gelria Mining & Investment Ltd 1976 (1) SA 441 (A)…, where he said:

“Our law jealously protects the right of ownership and the correlative right of the owner in regard to his property…,. If the law did not jealously guard and protect the right of ownership and the correlative right of the owner to his/her property, then ownership would be meaningless and the jungle law would prevail to the detriment of legality and good order.”

In view of the arguments put forward on behalf of the fourth respondent two things are clear;

(i) Firstly, that his right to title is directly and inextricably linked to whether or not the late Dzingai Kashumba's estate owned the property. As it did not, the case of Mashave v Standard Bank of South Africa 1998 (1) ZLR 436 (S) is instructive. In that case, McNALLY JA…, said:

“…,. Roman-Dutch law protects the right of an owner to vindicate his property, and as a matter of policy favours him as against an innocent purchaser. See for instance Chetty v Naidoo 1974 (3) SA 13 (A) at 20A-C. The innocent purchaser's only defence is estoppel. Estoppel depends upon an allegation that a representation was made by the owner or claimant.”

Therefore, having found that Dzingai Kashumba was not entitled to transfer, the sale to the fourth respondent was rendered void ab initio….,.

Accordingly, having considered argument from both parties, and the findings of the court a quo, we order as follows:

1. The appeal succeeds with costs.

2. The judgment of the court a quo be and is hereby set aside and substituted by the following:

(a) The transfers effected in favour of Tafirenyika Kambarami and Dzingai Kashumba, under Deed of Transfer number 773/2011, for the former, and Deed of Transfer numbers 3030/2006 and 3031/2006 for the latter, having been found invalid, the Registrar of Deeds is ordered to cancel them.

(b)…,.

(c) First and fourth respondents be and are hereby ordered to vacate Stands 552 and 553 Quinnington Township of Subdivision A of Subdivision F of Quinnington Borrowdale Estate within 30 days of this order, failing which the Sheriff of Zimbabwe, or his lawful deputy or assistant deputies, be and are hereby, authorized and directed to evict the aforesaid respondents and all those claiming occupation through them.

(d) The donation made in favour of the second, third and fourth applicants having been found to have been validly and legally made is upheld. The Registrar of Deeds is ordered to reinstate title to the second, third and fourth applicants as the owners of Stand 552 and 553 Quinnington Township of Subdivision A of Subdivision F of Quinnington Borrowdale Estate.

As aptly noted in Takafuma v Takafuma 1994 (2) ZLR 103 (S)…,:

“The registration of rights in immovable property in terms of the Deeds Registries Act…, 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…,.”

In Takafuma v Takafuma 1994 (2) ZLR 103 (S) the Supreme Court said:

“The registration of rights in immovable property in terms of the Deeds Registries Act is not a mere matter of form. Nor is it simply a device to confound creditors or tax authorities. It is a matter of substance. It conveys real rights upon those in whose name property is registered. See the definition of 'real right' in section 2 of the Deeds Registration Act [Cap 139] (as it was). The real right of ownership, of jus in re propria, is 'the sum total of all the possible rights in a thing'. See WILLE's Principles of South African Law 8^th ed at 255.”

The applicants approached this court seeking:-

1….,.

2….,.

3….,.

4. That the cession of rights into the first respondent's name be reversed such that the property be registered in the estate late Fanuel Karimanjonda Muzungu's name….,.

The Master of the High Court submitted a report in terms of Rule 248 of the High Court Rules, 1971. In that report the Master virtually confirms that the first respondent misrepresented to him leading to the appointment of the first respondent as executrix dative…,. The Master of the High Court confirmed that the first respondent declared herself as the only surviving spouse as at the time of the late Fanuel Karimanjonda Muzungu's death when, as he subsequently learnt, there were two wives who survived the deceased….,.

The Master of the High Court, in his report, in effect, confirms the fraudulent conduct of the first respondent….,.

The transfer or cession of rights in the immovable property in question, which may have been effected at the instance of the first respondent, must be reversed….,.

1….,.

2….,.

3….,.

4….,.

5. The transfer or cession of rights in the immovable property, namely, House Number 1145 Rutenga Street, Cherutombo, Marondera, that may have been occasioned by the first respondent into her name is hereby set aside and the property shall revert to being in the name of the late Fanuel Karimanjonda Muzungu till the process of administration is completed.

Whether or not the first respondent's share in the property can be transferred to the appellant

It is trite that property, either movable or immovable, may be owned jointly by two or more persons. In respect of immovable property, each co-owner has real rights in the property to the extent of their defined share. In this respect, the learned authors, SILBERBERG and SCHOEMAN, in their book 'The Law of Property', 4^th Ed…, state as follows:

“THE CONCEPT OF A REAL RIGHT

A real right is a jus in rem. It establishes a direct connection between a person and a thing in the sense that the holder of a real right is entitled to control the use of a thing within the limits of his right. In other words, a real right is enforceable against the world at large – that is, against any person who seeks to deal with the thing to which a real right relates in any manner which is inconsistent with the exercise of the holder's right to control its use (and in so far as a person may have a real right in another person's property, a real right is also enforceable against the owner of that property.”…,.

What is emphasised in this excerpt is that every owner or co-owner enjoys real rights over the property registered in his or her name and such real rights cannot be lightly interfered with.

In casu, the property is registered in the names of the appellant and the first respondent, meaning that both parties are owners of part of the property and have real rights over their respective shares therein which cannot be lightly interfered with.

The right of ownership to immovable property must be registered with the Registrar of Deeds. A title deed is thus prima facie proof that a person enjoys real rights over the immovable property defined in the Deed. In the case of Fryes (Pvt) Ltd v Ries 1957 (3) SA 575…, the court held that;

“Indeed, the system of land registration was evolved for the very purpose of ensuring that there should not be any doubt as to the ownership of the persons in whose names real rights are registered. Generally speaking, no person can successfully challenge the right of ownership against a particular person whose right is duly and properly registered in the Deeds Office.”…,.

It therefore follows that where two or more names appear on a title deed, a presumption exists that the property is owned by both or all the persons whose names appear on the Deed. The court explained the effects of registration of ownership in Chapeyama v Chapeyama 2000 (2) ZLR 175 (S)…, as follows:

“In the first place, as already stated, the property was, and is, registered in the names of both parties. What this means is that Susan has real rights to an un-divided half share of the property. In other words, she is the registered owner of an undivided half share in the property.”

A few years ago, this Court dealt with a similar issue in Takafuma v Takafuma 1994 (2) ZLR 103 (S). At 105H-106A, McNALLY JA had this to say:

“The registration of rights in immovable property in terms of the Deeds and Registries Act [Chapter 139] (now [Chapter 20:05]) is not a mere 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.”

The title deed in casu does not define the shares owned by the appellant and the first respondent in the property. However, where property is co-owned, there is a presumption that the parties own the property in equal shares. The position was enunciated in Lafontant v Kennedy 2000 (2) ZLR 280 (S), where the court held that;

“Where two persons own immovable property in undivided shares (as is the case here) there must, I think, be a rebuttable presumption that they own it in equal shares. That presumption will be strengthened when (as here) the parties are married to each other at the time ownership was acquired. Thus, Jones, Conveyancing in South Africa 4ed p118 states:

'Where transferees acquire in equal shares it need not be stated in the Deed that they acquire 'in equal shares', as this fact is presumed in the absence of any statement to the contrary.'”

On the basis of this authority, therefore, nothing turns on the fact that the Title Deed in relation to the property in casu (a Deed of Grant), simply 'grants' the property to the appellant and the first respondent. The property in this case was acquired in 2012, after the parties had solemnised their union in terms of the Marriages Act [Chapter 5.11]. Thus, by virtue of their names appearing on the Deed the two own the property in equal un-divided shares.

The contention by the appellant that she solely purchased the property does not alter the legal effect of its registration in the parties' joint names. In other words, it does not legally undermine the second respondent's ownership and entitlement to the enjoyment, and use of, real rights over the 50 percent share of the property that is registered in his name.

In the absence of a court order, fraud, undue influence, mistake, gross irregularity or other factor vitiating such registration, this right cannot be lightly interfered with.

The appellant has neither claimed nor established any such circumstance. By all accounts, she voluntarily chose to have the property that she had solely paid for, jointly registered in her name and that of her husband.

In our law, the legal regime governing ownership of immovable property by spouses, within a subsisting marriage, reinforces rather than derogates from the principle that ownership of real rights is to be protected. In simple terms, it provides for marriages out of community of property in the absence of an antenuptual contract executed by the spouses according to the relevant law. Specifically, section 2 of The Married Persons Property Act [Chapter 5:12] provides as follows:

“1….,.

2. Community of property excluded from marriages after 1 January 1929, except where agreements made to the contrary

(1) Community of property and of profit and loss and the marital power or any liabilities or privileges resulting therefrom shall not attach to any marriage solemnized between spouses whose matrimonial domicile is in Zimbabwe entered into after the 1 January 1929, unless such spouses shall, by an instrument in writing, signed by each of them prior to the solemnization of their marriage and in the presence of two persons, one of whom shall be a magistrate, who shall subscribe thereto as witnesses, have expressed their wish to be exempt from this Act.”…,.

The import of this provision is that a spouse whose name appears, for instance, in the Title Deed of any immovable property enjoys full ownership rights therein. He or she can deal with the property in any way he wishes, including alienating his rights therein or otherwise encumbering such property. Similarly, if both spouses are registered as joint owners of the property, each one enjoys full ownership rights over his or her share in the property.

This situation is to be contrasted with a regime, for instance, the South African one, that imposes community of property in marriage. Since all the property is owned equally by the spouses, neither is at liberty to deal with any share thereof as he/she wishes without the consent of the other.

I have already found that, in casu, the appellant and the first respondent each legally, and independently, own an undivided half share in the property in dispute. On the basis of common law as well as our matrimonial property regime, the shares owned by each of them, being real rights, cannot lightly be interfered with.

It should be noted that the appellant, having used her own resources to fully purchase the property, could have effectively safeguarded her real rights therein by having the property registered in her name only.

It is contended, on her behalf, that her decision may have been motivated by societal and cultural pressures and considerations that shape and impact on gender relations within the family set up. In other words, factors that fall outside the dictates of the law. As this may very likely be true, one may sympathise with the appellant given the predicament she now finds herself in. Unfortunately for her, however, there is no gainsaying the fact that the inclusion of the first respondent's name in the Title Deed in question, clearly reposed in him real rights that, at law, cannot lightly be interfered with - this includes depriving him of property that he rightfully owns.

One circumstance that may constitute an exception to this principle would be the division of immovable matrimonial property between a divorcing couple, irrespective of whose name the property may be registered, in accordance with section 7 of the Matrimonial Causes Act [Chapter 5:13].

The case at hand, not being a divorce matter, does not constitute any such exception.

In light of the above, I fully concur with the reasoning of the court a quo in holding, as it did, that the appellant had not established a legal basis for the transfer of the first respondent's share of the property in question into her name. The court stated as follows in its judgment:

“…, there is no establishment of a solid foundation or a basis why the first defendant's share should be awarded to her. Without any recognised ground, mere contribution not being enough as mere grounds of equity do not suffice, (the) applicant cannot get the relief sought.”

As no fault can be found in this finding, this issue is determined against the appellant.

The learned authors, SILBERBERG and SCHOEMAN's the Law of Property …, stated:

“Every co-owner has the right freely and without reference to his co-owners to alienate his share, or even part of his share subject, of course, to the provision of the Agricultural Land Act…,. It is this right which is probably the most important characteristic which distinguishes a co-owner per se from all other forms of co-ownership such as partnerships and associations. It is clear that the exercise of this right may lead to friction in that it enables one co-owner to force the others into a legal relationship with a party or parties they do not desire.”

Following on the applicant's assertion that she contributed the entire price, counsel for the applicant urged the court to consider that the applicant has a far greater share in the property - it having been acquired through her employment and therefore entitled to transfer of the whole property. This submission he premised on the fact that whilst jointly owned, the property is held in shares proportionate to respective contributions. Adopting this perspective would result in the declaration of the applicant as the sole owner of the property….,.

It is common cause that the property in issue is jointly registered, therefore, it is co-owned. Unlike in Linda Mudawadzuri v Kingdom Bank Africa Ltd HH95-15, the Deed of Grant which is filed of record does not specifically state that either party owns an un-divided half share. The preamble to the Deed which refers to the State as the transferor or simply states;

“I do hereby grant unto Antony Ishemunyoro (born 10 January 1964) and Judith Mandidewa (born 28 February 1970).”

“I do hereby grant unto Antony Ishemunyoro (born 10 January 1964) and Judith Mandidewa (born 28 February 1970), their heirs, executors, administrators or assigns hereinafter referred to as the owner, or a piece of land measuring 2,085 square meters called Stand 424 Sinoia Township.”

In the absence of the specificity regarding the shares, the legal position where property is jointly registered was enunciated by McNALLY JA as follows in Lafontant v Kennedy 2000 (2) ZLR 280 SC;

“What then is the Zimbabwean law relating to joint ownership of immovable property?

It seems on that joint ownership is the same as co-ownership, which in turn coincides with what the Deeds Registry Act [Chapter 20:05] calls a land held by two persons in undivided share. See sections 24, 25 and 26 of that Act.

Where two persons own immovable property in undivided shares (as is the case here) there must, I think, be a rebuttable presumption that they own it in equal shares. That presumption will be strengthened when (as here) the parties are married to each other at the time ownership was acquired.”

He further cites JONES, Conveyancing in South Africa, 4ed…, which states;

“Where transferees acquire in equal shares it need not be stated in the Deed that they acquire 'in equal shares' as this fact is presumed on the absence of any statement to the contrary.”

In essence, the starting point is that parties are prima facie owners in equal shares.

The court held in the same case that “the court cannot move from that position on mere grounds of equity. There must be a more solid foundation in law than that. Examples of facts amounting to evidence which may lead to successful rebuttal of the presumption are stated as instances where the co-owner is a nominee or agent of the other owner, where there is fraud, mistake, or a donation which can be voided by the donor.”

I am not satisfied that the applicant presented to court any evidence which would persuade the court to declare her the sole owner of the property. Apart from absence of any evidence to prove her extent of contribution (except mere say so), and, further, establishment of a solid foundation or a basis why the first defendant's share should be awarded to her. Without any recognised ground, mere contribution not being enough as mere grounds of equity do not suffice. The degree of rebuttal of the presumption on equal shares is very high as enunciated above.

Following the finding that the applicant has failed to establish grounds why she should be entitled to the whole property, it follows, therefore, that the first respondent remains the owner of 50% share in the jointly-owned property.

That being so, to what extent can he deal with his property?

The answer can be extricated from SIELBERG and SCHOEMAN's The Law of Property, 5th edition…, where the rights of a co-owner are enunciated as follows;

“Every co-owner has the right, freely and without reference to co-owners, to alienate his or her share, or even part of his or her share subject of course to the provision of the subdivision of Agricultural Land Act. It is this right which is probably the most important characteristic which distinguishes a co-owner per se from all other forms of co-ownership such as partnerships and association. It is clear that the exercise of this right may lead to friction on that it enables one co-owner to force the others into a legal relationship with a party or parties they do not desire.”

Thus, a co-owner has a right to deal with his rights.

As far as I am concerned, it was either a failure or refusal to apply one's mind properly to the relevant documents, or plain obstinacy, that resulted in this matter having to be determined in court. I am reminded of complaints by two judges of this court against the conduct of some legal practitioners. In Commercial Bank of Zimbabwe Limited v MM Builders and Suppliers (Private) Limited & Ors 1996 (2) ZLR 420 GILLESPIE J said…,:

“There may exist those silver-tongued orators who prove that black is white(!), but I am unable to hold that the argument advanced on this point is valid.”

In Vengesai and Others v Zimbabwe Glass Industries Ltd 1998 (2) ZLR 593 (H) the same learned judge said…,:

“I have to say that argument on the law, with appropriate citation of all relevant cases, including adverse decisions, is as rare amongst legal practitioners as are hens' teeth. Yet it is to counsel that a judge must look for appropriate research and argument if he is to be able to give judgments efficiently and correctly. It is that duty of him, who would undertake the responsibility of an advocate, a duty owed both to the client and the court, to do all relevant research and to present that research to the court. A judge cannot be expected to undertake himself all the original research in every case.”

In Ndlovu v Murandu 1999 (2) ZLR 341 (H) SIBANDA J delivered the following scorcher…,:

“When the applicant sought legal advice, it must be assumed that he was keen to be advised as to the legality of his conduct in seeking termination of the contract…,. I have no doubt in my mind that his legal practitioner knew, at all material times, that the agreement he sought to terminate was valid and legally binding…,. Thus, these proceedings amount to an unacceptable abuse of the court process…,. It was…, the duty of the legal practitioner to advise his client properly as to the legal status of the contract. It was his duty to advise his client that the agreement…, was perfectly valid and legally binding. Instead, he chose to act as a catalyst in the applicant's attempt to frustrate and defeat the intention of the parties. He must be made to pay the price of his indiscretions…,.”

It shall soon become apparent why I preface my judgment with the above complaints.

On 27 October 2014 I delivered my ruling ex tempore. I said written reasons would be provided upon request. I heard nothing further until about four months later. In early February 2015, a letter from the Registrar of this Court was brought to my attention indicating that an appeal had been noted against my ruling and that the written reasons were now required. The record was brought to me. The appeal had been noted by the second respondent. Tucked inside was a letter dated 31 October 2014 from the first respondent's legal practitioners asking for the written reasons. The letter had not been brought to my attention.

The actual order that I granted ex tempore, but which appears not to have been captured properly, was this:

1. That the application for the upliftment of the bar (operating against the first and second defendants for their failure to file heads of argument timeously) is dismissed with costs.

2. That the application for a postponement of the matter by the first respondent is dismissed with costs.

3. That a default judgment be entered in favour of the applicant as follows:

3.1 The applicant is declared the rightful owner of the property known as the Remainder of Lot A Chikurubi, measuring 131,3710 hectares and held under Deed of Grant 13832.

3.2 The first respondent is interdicted from subdividing, developing, disposing of any portion of or dealing in any manner, with the property.

3.3 The second respondent is interdicted from allocating or authorising the allocation of the property to anyone.

3.4 The third respondent is interdicted from entertaining any transfer or alienation of the rights in the property to anyone except in favour of the applicant.

3.5 That the first and second respondents shall pay the costs of the application on the legal practitioner and client scale.

The central dispute in this case was who owned the property known as the Remainder of Lot A of Chikurubi that was held under Deed of Grant 13832 of 1953. The property was 131,3710 hectares in extent. Henceforth, I shall refer to it as “the Remainder of Lot A of Chikurubi” or, depending on the context, “the bigger property” or “the bigger piece.” The applicant said it was the owner. The first and second respondents disputed that. They claimed the Government, through the second respondent, was the owner.

Connected to the dispute or argument around the Remainder of Lot A of Chikurubi was a smaller piece of land called Stand 2 Cleveland Township of Lot A of Chikurubi, measuring 4,9521 hectares and held under Certificate of Registered Title 4089/75. I shall refer to this property as “Lot 2 of Cleveland Township”, or, again, depending on the context, “the smaller property” or “the smaller piece”. The applicant disowned this property and claimed it was what the Government owned. The second respondent, supported by the first respondent, equally dis-owned it and equally claimed that it was what the applicant owned.

The applicant produced documents to back up its claims. The first and second respondents relied on the same documents but read something different. In the end it was a matter of interpretation. None of the facts germane to the point was in dispute.

However, if the first and second respondents, particularly their legal advisers, had cared to read the documents, including the small print, and if they had cared to listen to the third respondent, i.e. the Registrar of Deeds, perhaps this case would not have come to court.

How the matter came to court was this.

Sometime in the early 2000s the second respondent, then headed by one Dr Ignatius Chombo, as Minister, allocated a portion of the bigger property to the first respondent, fronted by one Charles Chombo, as Managing Director. It was to be converted into a low density residential area. Appropriate subdivision permits and developmental plans were drawn up and approved by the local authority. The first respondent embarked on the project, and, among other things, started selling subdivision units, or residential Stands, to members of the public.

When the applicant learnt about this development, it implored its line ministry, Transport and Communications, to intervene and stop it on the basis that the land was its own property and that it had different plans for it. The applicant's basic position was that originally the property had been part of an original bigger piece of State land then known as Lot A of Chikurubi. Hereafter, I shall refer to that original piece of land as “the original mother property”. Sometime in 1953, the then Government of Southern Rhodesia had granted this original mother property to the then Posts and Telecommunications Corporation (“the PTC”), then a Government agency, under a Deed of Grant. The land would be used for communication purposes only.

The applicant said that sometime in 1975 Lot 2 of Cleveland Township had been excised or deducted from the original mother property. A titled deed had been created in favour of the Government. The ownership of the Remainder of Lot A of Chikurubi had remained vested with the Posts and Telecommunications Corporation (the PTC). Eventually, the PTC had unbundled into several successor companies. One of them was the applicant. It had inherited the Remainder of Lot A of Chikurubi. It planned to construct a sophisticated multi-billion dollar telecommunications centre. Such a development was incompatible with a housing project.

There was communication between the parties at both ministerial and executive levels. The housing project was halted. The second respondent explored the prospects of an amicable settlement. He enquired whether the applicant could consider utilising only that portion of the bigger property as was adequate for its developmental plans and allow the housing project to proceed on the excess land. However, the applicant was emphatic that such an arrangement was not possible.

The first and second respondents changed tack.

They charged that the applicant's claim of ownership of the Remainder of Lot A of Chikurubi was misplaced. The property was in fact owned by the Government. All that the applicant owned was the smaller property. The first respondent's erstwhile legal practitioners entered the fray. They dispatched a snotty letter to the applicant, among other things, stressing that the bigger property was owned by the Government and that all that the applicant owned was the smaller piece. The letter gave immediate notice of the first respondent's plans to resume the housing project and warned that they would brook no interference.

That seemed to have been the spark that ignited the legal confrontation.

The applicant responded by filing an application, in the main, seeking a declaratory order that it was the owner of the Remainder of Lot A of Chikurubi. Ancillary relief sought was in the form of an interdict to restrain the first respondent from proceeding with the housing project.

The first and second respondents opposed the application.

All the pleadings were filed timeously except the first and second respondents' heads of argument. When the matter came up for determination, argument was predominantly on the preliminary points….,.

On the merits, counsel for the second respondent stuck to the second respondent's version as set out in the notice of opposition, namely, that the applicant was mistaken as to which property it owned….,.

In this case, the defence proffered by the first and second respondents was palpably bogus. That is what largely influenced my decision to reject their applications and to grant the relief sought by the applicant. But, even the explanations for the delays were deficient. However, much energy was spent on the merits of the defence. I prefer to deal with them first.

Frankly, it has been difficult to appreciate what the respondents were saying by way of a defence. The documents proving ownership were unequivocal. So were the explanations by the various people connected to the properties.

The situation was this.

By Deed of Grant No.13832, issued on 10 September 1953 by the then Governor of the Colony of Southern Rhodesia on behalf of Queen Elizabeth II of Britain, the original mother property was transferred to the Government of the Colony of Southern Rhodesia, its successors or assigns. The land was 159.1596 morgen in extent. According to my research “morgen” was an imperial unit of measurement which has fallen into disuse. One morgen was equal to 8,565 square metres. It appears from the documents that the 159.1596 morgen translated to 136,3231 hectares.

The Deed of Grant aforesaid had two conditions, namely;

(1) That the land would be used for communication purposes only; and

(2) That should it not be used for that purpose then the municipality would have the right of first refusal to purchase it at five pounds.

The next development was in 1975.

Out of the original mother property was deducted, or carved out, Stand 2 Cleveland Township. This was at the instance of the then Minister of Local Government and Housing, through the Assistant Secretary in the ministry who furnished a power of attorney to the Registrar of Deeds to make the deduction and the transfer. The recitals on that power of attorney were quite insightful. Among other things, it stated that whereas the Government of the Colony of Southern Rhodesia was the registered owner of a certain piece of land situate in the district of Salisbury, being Lot A of Chikurubi, measuring 136,3231 hectares, held by virtue of Deed of Grant dated 10^th September 1953 (registered No.13832)…,. This, of course was the original mother property.

The power of attorney went on to recite that whereas it was desired that Stand 2 Cleveland Township of Lot A of Chikurubi, measuring 4,9521 hectares, be held by the President of Rhodesia under Certificate of Registered Title…,. The power of attorney then recorded that the Assistant Secretary, on behalf of the President of Rhodesia in terms of the powers granted by a Government Notice of 1967, was applying, in terms of the Deeds Registries Act, for the issuance, by the Registrar of Deeds, of the Certificate of Registered Title. The power of attorney was dated 2 October 1975.

The next development was the issuance of the Certificate of Registered Title No.4089/75 by the Registrar of Deeds on 6 October 1975 in respect of Stand 2 Cleveland Township.

Again, the recitals on that Certificate of Registered Title were insightful. They recounted the history of the land. It stated that the President of Rhodesia had applied for the issue to him of a Certificate of Registered Title in respect of the land registered in the name of the Government of the Colony of Southern Rhodesia, and that the Government of the Colony of Southern Rhodesia was the registered owner of Lot A of Chikurubi, measuring 136,3231 hectares and held by it under Deed of Grant No.13832 registered on 10 September 1953 (i.e. the original mother property). The Certificate of Registered Title then went on, in the vesting clause, to record the fact that the Registrar of Deeds was certifying that the President of Rhodesia, his successors in office or assigns, was the registered owner of Stand 2 Cleveland Township, measuring 4,9521 hectares, as would appear more fully on the Deed of Grant No.13832 of 10 September 1953. The two conditions that the property would be used for communication purposes only and that the Municipality would have the right of first refusal were carried forward and incorporated.

The next development was on 3 December 1975. The Registrar of Deeds placed the following endorsement on the face of the Deed of Grant (i.e. for the original mother property):

“The within land vests in the Posts and Telecommunications Corporation in terms of section 28(2) of the Posts and Telecommunications Act No…, subject to conditions I and II contained in the under-mentioned consent.”

On 3 June 2008, there was another consent endorsed by the Registrar of Deeds on the same Deed of Grant in respect of the same “…, within land…,.” However, this time the vesting was in the name of Netone Cellular (Private) Limited, the applicant herein. Among the applicant's exhibits was a letter from the Registrar of Deeds dated 23 January 2014 which the respondents did not put in issue. It explained the concept of vesting of ownership of land by means of consents endorsed on the title deed where there is no change of beneficial interest. The material portion of the letter read as follows:

“The remainder of Lot A Chikurubi is registered in the name of Netone Cellular (Private) Limited under Deed of Grant 13832. The property was originally owned by the Government of Zimbabwe who later transferred it, by endorsement of PTC, who also later transferred it to Netone Cellular (Private) Limited by the same method. It is a method we use where there is no change of beneficial interest. The words 'The within Land” on the endorsement simply refer to the land in the deed, the remainder of Lot A Chikurubi. The endorsement has the same effect like a transfer stamp. The piece of land held under Certificate of Registered Title 4089/75, that is, Stand 2 Cleveland Township, is owned by the Government of Zimbabwe.”

Despite that clear explanation by the Registrar of Deeds, the respondents still maintained that the applicant did not own the bigger property, but that the Government did. They argued that the reference to “[t]he within land…,” was a reference to the smaller property. They resorted to the dictionary for interpretation of the word “within”. Paragraph 6 of the second respondent's heads of argument read:

“6. The issue of concern in this matter seems to be the interpretation of the word within land as mentioned on the endorsement. If at all the endorsement is valid, according to Black's Law Dictionary, at page 1437, the word within means, 'inner or interior part of something…,.' If this interpretation is to be taken, the within land which was referred to by the endorsement would only logically mean whatever that was given to PTC was the inner or interior part of something. In this case, the within land was Stand 2 Cleveland township which was the interior part of the Remainder of Lot A Chikurubi measuring 131,3710 hectares.”

From the premise that it did not own the bigger property, the respondents went on to argue that the applicant had no locus standi to bring the proceedings. A whole gamut of cases on locus standi was cited.

With all due respect, the respondents' argument was plainly ludicrous.

GILLESPIE J's complaint in Commercial Bank of Zimbabwe Limited v MM Builders and Suppliers (Private) Limited & Ors 1996 (2) ZLR 420, about “silver-tongued orators who prove that black is white” could not have been more apposite.

The basic position that the respondents seemed unable to grasp, or simply refused to accept, was that when the Registrar of Deeds, on 3 December 1975, endorsed the Deed of Grant of the original mother property, thereby passing ownership of that property to the Posts and Telecommunications Corporation (PTC), the smaller piece of property measuring 4,9521 hectares had already been deducted or excised from or carved out of the original mother property. By the Certificate of Registered Title, that smaller property had been transferred to the Government on 6 October 1975. It had ceased being part of the original mother property. So, in no way would the endorsement refer to a property that was no longer part of the whole. The reference to “[t]he within land…,” on the endorsements was plainly a reference to the land referred to in the Deed of Grant, namely, the original mother property, less the smaller property. It was now called the Remainder of Lot A of Chikurubi. A new title deed would need to be created. That was done in the form of the endorsement.

The same position is arrived at even if one were to go by the hectarage or measurements of the properties. The original mother property had been 136,3231 hectares in extent. Out of it 4,9521 hectares were deducted or excised to create Lot 2 of Cleveland. The balance was 131,371 hectares, exactly the extent of the Remainder of Lot A of Chikurubi claimed by the applicant.

When the Posts and Telecommunications Corporation (PTC) unbundled, the applicant, as one of the successor companies, “inherited” Lot A of Chikurubi. Ordinarily, a new deed of transfer would be required to signify the transfer of the property from the defunct PTC to the applicant. But, again, by the endorsement of 3 June 2008, the Registrar of Deeds transferred the ownership to the applicant.

It is significant that the two conditions on the original Deed of Grant relating to the use of the land for communication purposes only, and the granting of the right of first refusal to the Municipality, were carried forward to the two newly created properties. Therefore, apart from anything else, the second respondent could not just have allocated Lot A of Chikurubi for a housing project. That would be contrary to law.

At the hearing, the second respondent shifted emphasis to argue that the Registrar of Deeds could make the endorsements only on the direction of the Minister in terms of the then Posts and Telecommunications Act No.9 of 1970. Reference was made to section 28 of the Posts and Telecommunications Act No.9 of 1970 which transferred the assets and rights, liabilities and obligations of the Government in respect of the services carried out by the Ministry of Posts, to the Posts and Telecommunications Corporation (PTC). Section 28(2) provided that the Registrar of Deeds:

“…, shall, where so directed by the Minister, make such endorsement on the appropriate title deeds and in his registers as may be required by reason of the transfer to the Corporation of the assets, rights, liabilities and obligations referred to in subsection (1) and all transfers shall be exempt from stamp duty, fees of office and other such charges.” (underlining for emphasis by second respondent's counsel)

Counsel for the second respondent argued that the applicant had not produced the directive by the Minister to the Registrar of Deeds authorising the endorsement and that therefore the endorsements on the title deeds remained just endorsements and not proof of ownership!

With respect, nothing could be more preposterous. It must have been the same kind of argument that had driven GILLESPIE J to complain the way he did in Commercial Bank of Zimbabwe Limited v MM Builders and Suppliers (Private) Limited & Ors 1996 (2) ZLR 420. At that rate, counsel for the second respondent could as well have demanded the proof of the directive from Queen Elizabeth II to the Governor of the Colony of Southern Rhodesia granting the original mother property to the then Government of Rhodesia. The Deeds Office is a public office. There was nothing stopping the second respondent from examining the documents therein. Unless it had proof to the contrary there was nothing to upset endorsements that seemed regular on the face of it.

Thus, I found no merit in the respondents' defence….,.

It was for those reasons that I granted the orders that I did.

This court is empowered, by section 7 of the Matrimonial Causes Act [Chapter 5:13], to stop any transfer or right to a property held by a third party in its distribution of matrimonial property.

The court a quo accepted that the respondent was the registered owner of the property in question on the basis of irrefutable evidence - the title deeds to the property.

A company is a person. It is a juristic person, or, in legal parlance, a legal persona, but all the same a person. It has an identity separate from that of its members. It can own property independently of, and separately from, its members. Thus, a company's assets are not the members' assets.

These cardinal principles seem to have been purposefully ignored or inadvertently overlooked in this matter. The result has been prolonged litigation for over five (5) years.

The facts were largely common cause.

The plaintiff was a duly registered private company. At all relevant times, prior to 16 June 2008, its major asset was an immovable property situate Stand 12896 Salisbury Township, measuring 3,066 square metres, held under Deed of Transfer No.39/76 and otherwise known as 98 Churchill Avenue, Gunhill, Harare (hereafter referred to as “the property”). Its principal officer, in the sense of being the majority shareholder and director, was the third defendant (hereafter referred to as “Sandra Muir”).

On 21 May 2008, this court, MTSHIYA J, granted a default judgment in HC1393/08. This followed an application by the first and second defendants herein who therein were the first and second applicants respectively. Hereafter, I shall refer to the first and second defendants as “Mr and Mrs Gurupira” or “the Gurupiras”. The default judgment effectively directed the plaintiff herein, the first respondent therein, to transfer the property to the Gurupiras. Sandra Muir, the second respondent therein, was ordered to sign the necessary papers within 10 days of the order failing which the Sheriff, who is the fourth defendant herein, or the Deputy Sheriff, who is the fifth defendant herein and was also the fifth respondent therein, would sign the transfer papers in place of Sandra Muir. The order by MTSHIYA J read as follows:

“IT IS ORDERED THAT;

1. The 1^st Respondent [the plaintiff herein] is hereby interdicted from transferring the property known as No.98 Churchill Avenue, Harare, also known as a certain piece of land situate in District of Salisbury Township Lands measuring 3,066 square metres under Deed of Transfer 39/76 to anyone except the 1^st and 2^nd Applicants.

2. The property in paragraph 1 above be transferred to Asswell Africa Gurupira and Jean Jane Gurupira and the 2^nd Respondent [Sandra Muir] is directed to sign all the necessary documents to finalise the transfer within 10 days of the Order.

3. Should the 2^nd Respondent fail or refuse to sign the necessary documents to effect transfer the 4^th or 5^th Respondent [Sheriff and Deputy Sheriff respectively] are hereby directed to sign all the necessary documents to effect the transfer by the 3^rd Respondent [Registrar of Deeds] to 1^st and 2^nd Applicants.

4. The 1^st and 2^nd Respondents shall bear all the costs of this application on attorney-client scale jointly and severally one paying the other to be absolved.”

The order was granted in default of appearance by the plaintiff and Sandra Muir.

Through their erstwhile lawyers, Manase and Manase, the Gurupiras said they had served their application in HC1393/08 in a letter-box at the property.

Following that default judgment, the property was transferred to the Gurupiras on 16 June 2008 under Deed of Transfer No. 4778/2008. The then Deputy Sheriff for Harare had signed the transfer papers. Manase and Manase had been the conveyancers. After that, Manase and Manase had applied for, and had obtained, ex parte, an order of eviction from the Magistrate's Court.

Meanwhile, the plaintiff had changed hands.

One John Legget had become the majority shareholder. This had followed a series of agreements with Sandra Muir. She, on her part, had by then emigrated to Israel. One Diniwe Chinyani (“Diniwe”) had been staying at the property. She had been Sandra Muir's employee of 10 years and more. With the change of ownership of the plaintiff, Diniwe's continued stay on the property, as an employee of the plaintiff, had been through an arrangement with John Legget. As the Messenger of Court was executing the ex parte order of eviction from the Magistrate's Court Diniwe Chinyani raised alarm. It did not help. She and her family were evicted. After that, the Gurupiras took occupation and moved in.

The plaintiff, through John Legget, filed an urgent chamber application for rescission of judgment. However, the matter was adjudged to be not urgent. The plaintiff then filed an ordinary court application for rescission of judgment. It also sought the reversal of the transfer of the property from the Gurupiras back to the plaintiff. Finally, it also sought the eviction of the Gurupiras. The application was filed under the reference no HC4211/08. The application was said to have been brought in terms of both Order 9 Rule 63 and Order 49 Rule 449.

The Gurupiras, through Manase and Manase, opposed the application.

The matter came before PATEL J…, The learned judge felt that there were serious and irreconcilable disputes of facts. On 24 September 2009 he referred the matter to trial. The application would stand as a summons. The parties would file further pleadings in accordance with the rules of court. That was done.

The trial came before me on 10 February 2014....,.

The plaintiff called seven (7) witnesses. The first was one Paradzayi Matambanadzo, a technician from Net One Cellular, a cellular network provider. His evidence was that without a special device, which Net One Cellular did not have, it was not possible for it to decrypt a short message service (sms) transmitted through its platform by one user to the other. This evidence was led to deal with one of the issues in the matter. That issue was whether or not Sandra Muir had transmitted to the Gurupiras an sms advising them of the Zimbabwean dollar balance due by them to her in respect of the sale of shares. It was in issue whether the purchase price would be paid in Zimbabwean dollars or in foreign currency. These transactions had been entered into before the advent of the multi-currency system adopted by this country in February 2009.

The second witness called by the plaintiff was one Leonard Nhari, a forensic scientist. One of the issues was whether or not Sandra Muir had acknowledged receipt of certain payments made by the Gurupiras. Mr Nhari's evidence was that after he had examined Sandra Muir's purported signatures on the questioned documents it was his conclusion that the signatures were not hers but forgeries or imitations.

The third witness called by the plaintiff was John Legget himself. His evidence was that at the time the Gurupiras had taken transfer of the property, through a court order that they had obtained in default, he had already become the owner of the plaintiff through an initial allotment of 98 of the un-issued shares and a subsequent buy out of the remaining two (2) shares still held by Sandra Muir.

John Legget said that neither he nor the plaintiff had been aware of the court application by the Gurupiras. Until the time of eviction he had never heard of the Gurupiras, let alone of their interest in the property. If their application had been served through the letter box at the property then Diniwe Chinyani ought to have seen it. She stayed permanently on the property. She would bring him all mail that concerned Sandra Muir or the plaintiff. John Legget questioned why Manase and Manase had chosen to serve the court application meant for the plaintiff and Sandra Muir through a letter box when they were, at all relevant times, duly represented by legal practitioners, Thompson Stevenson & Associates. At that time there was already litigation pending between the Gurupiras and Sandra Muir under HC6660/07. That was an application by the Gurupiras to compel Sandra Muir to furnish them with her local Bank account details allegedly to enable them to deposit the balance of the purchase price.

The fourth witness called by the plaintiff was Thompson David Stevenson. He had, at all relevant times, been Sandra Muir's attorney. No application had been served on him. He found it strange that Manase and Manase had not directed that the court application in HC4211/08 be served on him. He was at that time still seized of Sandra Muir's mandate in HC6660/07 in which she was vigorously contesting the Gurupiras' claims. Mr Stevenson also said that nobody had approached him for the original title deed for the property. It was strange that Manase and Manase had resorted to applying for a replacement copy in order to register the transfer of the property to the Gurupiras.

The fifth witness called by the plaintiff was Washington Meda. His firm, Admew Management Services, had provided secretarial services to the plaintiff. It had, among other things, registered the transfer of shares in favour of John Legget and had drawn up the share certificates for him.

The sixth witness for the plaintiff was Diniwe Chinyani. She explained that she checked the mail box everyday. She had seen no application. Although at the particular time the application is alleged to have been served Sandra Muir was now in Mozambique on her way to Israel, her home country, she would remit all her mail or that of the plaintiff to John Legget.

The seventh and last witness for the plaintiff was one Anthony Neil Purkis (“Mr Purkis”). He was a chartered secretary in real estate. His evidence was that it was him that had fixed the sale of shares agreement between Sandra Muir and John Legget. Initially, a Mr Stephen Lennox Attwell had offered to buy Sandra Muir's shareholding in the plaintiff. The agreed price had been around US$220,000. However, Mr Attwell had only paid a deposit of $30,000 and had defaulted afterwards. The sale had been cancelled. Mr Purkis had subsequently closed another deal with John Legget. That agreement had been consummated. Out of the proceeds from John Legget, $30,000 would be kept in trust for Mr Attwell. Mr Purkis said he had not heard of the Gurupiras prior to the agreement with John Legget. It was only much later that he had heard of them from Sandra Muir. He had heard that other than a trifle US$17,000, the Gurupiras had failed to pay the sum required on the plaintiff's shares.

For the defence, only Mr Gurupira gave evidence.

Basically, his evidence was that following an advert in one of the local newspapers they had learnt that the property was on sale. The property was owned by the plaintiff. They had been advised that in order to get the property they had to buy Sandra Muir's shares in the plaintiff. Although they were not really interested in the plaintiff they had signed an agreement for the purchase of those shares. This was the only way to get the property. The agreed purchase price had been ZW$7 billion payable over 6 months in local currency. They had fully paid the purchase price; partly in foreign currency, partly in local currency, and partly in kind.

Towards the end, when the balance owing was ZW$6 billion, Sandra Muir had started to prevaricate and it was becoming difficult to remit payments to her. In November 2008, which was the deadline for payment in terms of the agreement, they had had to apply to court for an order to compel her to disclose details of her local Bank account to enable them to make the last payment. This had been the application under HC6660/07. However, that application had not been proceed with. Sandra Muir had agreed to accept cash. She had received and had signed for it on 13 November 2008. The date on the acknowledgement of receipt had incorrectly been entered as 14 November. He had altered it in long hand to read 13 November.

Mr Gurupira denied that they had breached the agreement of sale. He confirmed that Manase and Manase had applied on their behalf to compel the plaintiff and Sandra Muir to transfer the property to him and Mrs Gurupira. The actual registration of transfer had been in terms of the court order.

The defence closed its case after the evidence of Mr Gurupira.

Having heard all the evidence and having read the voluminous record I was left in no doubt that Manase and Manase had snatched a judgment for the Gurupiras who, through their new attorneys, Sawyer and Mkushi, were improperly clinging onto it. The words of McNALLY JA in Zimbabwe Banking Corporation Ltd v Masendeke 1995 (2) ZLR 400 (S) (the Zimbank case) have kept playing in my mind. At p402E the learned judge of appeal made the following terse remarks (KORSAH JA and MUCHECHETERE JA agreeing):

“Here there was a mistake. It was clearly a mistake. Zimbank had no possible reason to allow the claim against it…, to go by default. No-one, and in that term I include My Moyo of Chikumbirike and Associates, who acted for Masendeke, could have reasonably have thought otherwise.”

The facts of Zimbabwe Banking Corporation Ltd v Masendeke 1995 (2) ZLR 400 (S) (the Zimbank case) were far removed from those of the instant case.

In Zimbabwe Banking Corporation Ltd v Masendeke 1995 (2) ZLR 400 (S) the respondent's suit had been preceded by a letter of demand. The letter had been acknowledged and had been said to have been under consideration. In the present case, apart from HC6660/07 which Sandra Muir was defending to the hilt, there was no prior demand for the transfer of the property prior to the application under HC421/08 being filed.

In Zimbabwe Banking Corporation Ltd v Masendeke 1995 (2) ZLR 400 (S) the summons had been served and had been acknowledged on behalf of the applicant. It had been served on the accountant of one of the branches of the applicant. The accountant had referred it to the applicant's Head Office where it had reached the office of the General Manager. In the present matter, the summons had been served in a letter box, notwithstanding that Sandra Muir was, at that time, duly represented by Mr Stevenson. The court application in HC4211/07 had actually cited the earlier application under HC6660/07 as a reference matter.

In one of Mr Gurupiras affidavit in opposition to the application for rescission of judgment it was claimed that it was not competent to have served the application on the legal practitioners in the absence of evidence that they had the mandate to represent Sandra Muir in that particular application.

Without doubt, this was a self-serving subterfuge. If no confirmation had been sought how could it be given?

In Zimbabwe Banking Corporation Ltd v Masendeke 1995 (2) ZLR 400 (S) the summons had been inexplicably filed away. The General Manager had not seen it. Default judgment had been sought without any further communication when no appearance to defend had been entered. The judgment was easily rescinded. The respondent's lawyers, who had unreasonably opposed the application for rescission of judgment, just as in this case, narrowly escaped an order of costs de bonis propriis.

In this matter, it is unbelievable that given the surreptitious manner in which Manase and Manase obtained the default judgment and the order of eviction from the Magistrates Court, ex parte, they had the audacity, not only to seek costs, and not only to seek such costs on the higher scale of attorney and client against the plaintiff and John Legget for having applied for rescission of judgment, but also they sought costs de bonis propriis against the plaintiff's attorneys, then, Matimba and Muchengeti.

In this mater, to allow the default judgment to stand would make justice turn on its head. See Zimbabwe Electricity Supply Authority v Maposa 1999 (2) ZLR 452 (S)…,.; and Pamire & Ors v Dumbutshena NO & Anor 2001 (1) ZLR 123 (H)…,.

What Manase and Manase were doing offends against all notions of justice even though the return of service by the Deputy Sheriff, on the application to compel transfer, stated that the application had been served through the letter box,

I am sceptical that such a huge bundle of documents, which, from its index, was 56 pages long, could be shoved into a standard letter box and fit. The return did not even say that this had been done after a diligent search for someone responsible to receive the papers. Diniwe Chinyani and her children stayed at the property. None of them saw the papers. This lends credence to John Legget's rejection that any such documents had been placed in the letter box. Manase and Manase deliberately avoided service on Sandra Muir's attorneys. It obviously meant that the application was intended not to be served on the plaintiff or on Sandra Muir.

Furthermore, it was manifestly reprehensible for Manase and Manase to rush an ex parte application for eviction through the Magistrate's Court. It was clearly an abuse of the court process. The main matter was playing out in the High Court. It is doubtful that the Magistrate's Court had jurisdiction over such a matter. The High Court was avoided deliberately because evidently no judge of this court would have countenanced an application for such profound and life-changing relief as eviction to be determined ex parte.

The application for an order to compel transfer was itself replete with patent falsehoods. It was claimed that Sandra Muir was the Managing Director of the plaintiff; that she owned 32,000 shares allegedly being the entire share capital of the plaintiff and that Sandra Muir was the sole beneficial owner of the property.

That was false.

Sandra Muir did not own 32,000 of the plaintiff's shares. To the knowledge of the Gurupiras and their lawyers, Manase and Manase, because this was manifest in the agreement of sale, Sandra Muir owned only 2 shares. That was all that had been issued at that time. 32,000 shares was the authorised share capital. Sandra Muir was not the beneficial owner of the property. She may have enjoyed a right of occupation but ownership of the property was vested in the plaintiff.

It was further alleged in Mr Gurupira's affidavit that on 25^th day of some undisclosed month, but in the year 2007, Sandra Muir had sold to him and Mrs Gurupira her entire shareholding in the plaintiff and that those shares had entitled the holders thereof to an exclusive right of ownership, occupation and use of the property. The reference to Sandra Muir's “entire shareholding” could only have been to the 32,000 shares that Sandra Muir was alleged to own. This was calculated to mislead. Sandra Muir had sold to the Gurupiras' only 2 shares. Whilst this was her “entire shareholding” the reference in the preceding paragraph to her owning 32,000 was evidently calculated to give the impression that Sandra Muir had sold Mr and Mrs Gurupira the entire 32,000 shares.

Furthermore, it was false to claim that the shares in the plaintiff gave the holder an exclusive right of ownership of the property. The order by MTSHIYA J directed that the property be transferred to the Gurupiras. Clearly, that relief was sought erroneously. Clearly, it was granted erroneously. Clearly, it was granted in the absence of the plaintiff. There had been no proper service of the papers. Therefore, under Rule 449, the order was liable to be set aside.

I am also satisfied that under Rule 63 the plaintiff has established good and sufficient cause why the order should be set aside. In order to show good and sufficient cause under Rule 63 the applicant has to give a reasonable explanation for the default, the bona fides of the application for rescission of judgment, and the prospects of success on the merits: see Roland & Anor v McDonnell 1986 (2) ZLR 216 (S); Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S); Stockill v Griffiths 1992 (1) ZLR 172 (S); and Enock Govha v Ashanti Goldfields Zimbabwe Limited & Anor HH48-12.

These aspects are considered cumulatively and not individually: Stockill v Griffiths 1992 (1) ZLR 172 (S)…,.

I have already considered that the plaintiff was not in wilful default. Regarding the bona fides of the application for rescission; it is quite clear that the plaintiff, without due process, was deprived of its only major asset. Section 183(1)(b) of the Company's Act [Chapter 24:03] prohibits the disposal of the whole or the greater part of the assets of a company without the approval of the company in a general meeting.

This was not done in this case.

The property was just about the only asset of significance owned by the plaintiff. The evidence placed before me showed that the Gurupiras never took transfer of the shares of the plaintiff. All that they were ever interested in was the property even though their agreement was for the purchase of the shares in the company, not the purchase of its assets. The evidence also showed that by the time that the Gurupiras took transfer John Legget had already become the majority shareholder and the Managing Director of the plaintiff. Thus, transfer of the property to the Gurupiras was a nullity. The plaintiff did not sanction it. Regarding the prospects of success, I have decided to leave this aspect for determination at the hearing of the main matter under HC1393/08.

Procedurally, once I set aside the order by MTSHIYA J, as I must, the application under HC1393/08 becomes alive again even though I have already heard viva voce evidence on it. In the end, this court shall have to pronounce the fate of the plaintiff and the fate of the assets owned by it. In my view, and without in any way being prescriptive or pre-emptive, some of the issues to be determined in the main application includes the question of whether or not there had been a double sale in the true sense; whether or not the Gurupiras breached the agreement of sale with Sandra Muir by failing to pay the purchase price either timeously or in full; and whether or not that agreement had automatically lapsed.

There is one final aspect of this matter.

When the application was referred to trial and the parties were directed to file further pleadings with the application taking the place of the summons, the Gurupiras, through Manase and Manase, had purported to join John Legget to the matter and had gone on to claim a substantive relief against both him and the plaintiff. It was pleaded that the sale and transfer of the shares in the plaintiff by Sandra Muir to John Legget had been a nullity. The counter-claim was for the reversal of that transfer of the shares.

At the trial, however, counsel for the Gurupiras, wisely, abandoned the counter-claim. John Legget had not been a party to the action. He had not been joined properly. His name had just been inserted in the citation as second defendant. Such crass conduct and wanton disregard of the rules by Manase and Manase properly ought to have attracted a penal order of costs at the very least. However, no such order was asked for. But, it was a correct decision by counsel for the Gurupiras to have abandoned the counter claim.

DISPOSITION

In the circumstances, this matter is disposed of as follows:

1. The default judgment granted by this court on 21 May 2008 in HC1393/08 is hereby set aside.

2. The Registrar of Deeds is hereby ordered and directed to cancel Deed of Transfer No. 4778/08 over certain piece of land situate in the district of Salisbury, called Stand 12896 Salisbury Township of Salisbury Township Lands, measuring 3,066 square metres, dated 16 June 2008 in the name of Asswell Africa Gurupira and Jean Jane Rudo Gurupira and to restore the prior Deed of Transfer No. 39/76.

In this opposed matter before me, I find the African proverb that “the best way to eat an elephant in your path is to cut him into little pieces,” metaphorically apt in this instance (I assume, of course, that the proverb relates to a dead elephant). I say this because in order to decide on the matter, at whose nub is the transfer of certain property to the applicant, I must first unpack and deal, bit by bit, with the story within a story that stands in the path of transfer.

An equally rich African proverb that gives context to the dispute, also inspired by the elephant, is one that says “one sees all sorts of knives the day an elephant dies.”

The property at the heart of the dispute is described as Stand Number 1006, Remainder of Hilton Subdivision of Waterfalls of Salisbury measuring 1,987 square metres held under Deed of Transfer No. 7666/2001. The first applicant, Eunice Dzangare (hereinafter referred to as “Dzangare”), bought this property as an undeveloped piece of land through a company called Wish Properties (hereinafter be referred to as “Wish”), then represented by its Director Biriam Wabatagore who is since deceased. This sale is not disputed by Wish Properties. It is confirmed by the late Mr Wabatagore's widow, Audrey Wabatagore, who is now the director of Wish Properties.

At the time of the agreement of sale, and upon payment of the purchase price, Eunice Dzangare was given vacant possession by Wish Properties in 2003. She has remained in undisturbed possession of the immovable property from that time and has since developed the property by constructing a dwelling house.

The problem arises from the fact that the property was not transferred.

She has tried to obtain transfer but it became necessary to join Wish Properties to this application because the agreement with Champion Constructors was not with her but with Wish Properties.

Wish Properties says it had bought the immovable property from the first respondent, Champion Constructors (Private) Limited (hereinafter referred to as “Champion”) under a written agreement of sale. Champion Constructors held a Parent Deed to a property which it was in the process of subdividing into various Stands which included the one that Wish Properties had purchased and subsequently sold to Eunice Dzangare.

The late Mr Wabatagore was also a legal practitioner. Mrs Wabatagore says that the agreement of sale between Wish Properties and Champion Constructors unfortunately cannot be found as the document was misplaced in the takeover of her late husband's law firm. However, she draws on various annexures in support of her claim of the existence of an agreement. The annexures consist largely, though not exclusively, of various correspondence between Wish Properties and Champion Constructor's then legal practitioners, Messrs Mandizha and Partners who were handling the issue of the subdivision of the principal property into Stands.

What Wish Properties seeks is that the sale to it by Champion Constructors be recognised so that it, in turn, can transfer the Stand in question to Eunice Dzangare to whom it has since ceded the property. Wish Properties has ceded its rights to transfer to Eunice Dzangare....,.

Champion Constructor's director is Elizabeth Chidavaenzi and is the second respondent in the matter. She is opposed to the transfer...,.

At the heart of her legal argument is that the order sought against Champion Constructors, as the respondent, is not competent....,.

She also argued that the cession by Wish Properties of personal rights to the property in question was irregular as it was effected after pleadings had closed and without the approval of the court.

Wish Properties, on the other hand, argue that Champion Constructors's consent was not necessary to effect a valid cession. On its behalf, counsel drew on section 11(1)(v) of the Deeds Registries Act which provides an exception in that the court may validly effect transfer direct to a third person although section 11(2) provides that liability for any duties still remains. He also emphasised that in terms of section 11(1)(a) and (b) departures of transfers of land and cessions from following the sequence of the successive transactions is permitted in exceptional circumstances.

The applicant instituted the present proceedings in a bid to evict the respondent and repossess Stand Number 9919 Phase 3 Kuwadzana, Harare.

The respondent opposed the application on the basis that the applicant was not married to the deceased, one Junerose Phosa, and, as such, not entitled to inherit the deceased's half share in the property. The respondent further argued that the property in question, Stand Number 9919 Phase 3 Kuwadzana was not matrimonial home and that the applicant was not residing there, and, as such, could not inherit the property in terms of section 68F(2) of the Administration of Estates Act.

The brief background to this application has to be put into perspective.

The applicant was customarily married to one Junerose Phosa in 1986, per evidence filed of record. In 2000 the applicant and the deceased purchased a residential Stand, 9919 Phase 3 Kuwadzana, Harare. The property was duly registered in both their names; Annexure A refers, Deed of Transfer number 3230/2000.

In April 2010 the applicant's wife passed on and the applicant was appointed the Executor of the deceased estate per Letters of Administration by the Master of High Court. As a surviving spouse, the applicant was awarded half share of his wife's share and thus registered the said property in his name per Annexure B31/2014 transfer in terms of the Deceased Estates Succession Act [Chapter 6:02].

The respondent is a step grand-daughter to the applicant, in that she is a daughter of the late Junerose Phosa's daughter, one Violet Posi.

The applicant's claim is based on the common law remedy of rei vindicatio. The applicant, as the owner of the property, is entitled to recover his property from whoever may possess without his consent. The applicant, by virtue of being the registered owner, would have locus standi to vindicatio.

Our law is settled that an applicant seeking to rely on rei vindicatio must prove that;

1. He is the owner of the property.

2. That, at the institution of proceedings, the thing or property sought to be vindicated was still in existence and the respondent was in possession.

3. That the respondent's possession is without his consent or respondent has no right to retain possession of the property.

The cases of Unimark Distributors (Pvt) Ltd v EFR 94; Silverstondale (Pvt) Ltd 1999 (2) SA 986; and Stanbic Finance Zimbabawe v Chivhunga 1999 (1) ZLR 262 are instructive.

In Stanbic Finance Zimbabwe v Chivhunga 1999 (1) ZLR 262 the court remarked;

“The owner may claim his property whenever found from whosoever is holding it. It is inherent in the nature of ownership that possession of the rei 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 right enforceable against the owner. 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.”

I fully subscribe to the sentiments by the court in that case.

Once the applicant establishes he is the owner and that the property exists which the respondent is holding on to or possessing without consent or trespassing then he ought to have his rights restored.

In casu, it is evident the applicant has always enjoined ownership of the property in issue with his wife through sharing as both their names were registered per the initial title deed. Upon the death of his wife, following the registrations of the estate and his appointment as executor, the applicant became the sole owner of the property in question per the current title deed.

It is not in dispute that registration of rights in immovable property, in terms of the Deeds Registries Act [Chapter 20:05], passes real rights upon the individuals in whose name property is registered; Chapenyama v Chapenyera 2000 (2) ZLR 103 (S) underscored that registration of title conveys real rights.

The applicant in this case has the property registered in his name and that title deed is prima facie evidence of his ownership of the property. The applicant is, further, the surviving spouse of Junerose Phosa, and, as such, a recognised beneficiary under the Deceased Estate Administration Act [Chapter 6:01].

Even if the respondent's argument that the applicant, at the time of the death of his wife, was not staying at the matrimonial home, he cannot be stripped of his beneficiary rights. Section 68(F)2(d) of the Administration of Estates Act [Chapter 6:01] reads:

“Where the deceased person is survived by one spouse and one or more children, the surviving spouse should get;

(1) Ownership of, or, if that is impracticable, a usufruct of the house in which the spouse lived at the time of the deceased person's death, together with all the household goods in that house; and

(2) A share in the remainder of the net estate determined in accordance with the Deceased Estate Succession Act [Chapter 6:02].”

This section should not be read in the abstract to mean a spouse will be disinherited because he or she was not in the matrimonial house for one reason or the other at the time of death of the spouse. The legislative intention to protect surviving spouses in a polygamous situation should not be ignored and misconstrued in the manner projected by the respondent. Interestingly, it should be noted the respondent is not a surviving spouse or child of the late wife of the applicant.

Further, the respondent's possession of the property in question is not with the consent of the applicant. The respondent has no right to retain possession of the property for she has no legal basis for such retention. Her claims of hold over being that her grandmother, the late wife of the deceased, claimed 50% share which should have passed on to her mother has no legal standing given the applicant, as a surviving spouse, is entitled to inheritance when the spouse died intestate. The fact that the respondent's mother is a daughter to the applicant's wife does not change the applicant's entitlement as a surviving spouse and equally it does not clothe the respondent in casu with retention or contractual rights over the applicant who has real rights over the property, and who, further, is a surviving spouse entitled to inherit from the estate of his late wife.

It is clear from the foregoing that the applicant, who is the owner of the property in question, is, without consent, being deprived of his property by the respondent which has no legal basis to claim retention of the property.

There is no merit in the respondent's opposition of the applicant's relief. It is clearly calculated with mala fides in a bid to prolong unlawful stay at the applicant's property. The applicant, being the owner of the property, has clearly shown that he is entitled to the relief sought.

Accordingly, it is ordered that:

1. The respondent and all those claiming occupation or possession through her are hereby ordered to forthwith vacate Stand Number 9919 Phase 3 Kuwadzana and restore undisturbed and peaceful possession to the applicant.

2. To the extent that it becomes necessary, the Deputy Sheriff is hereby authorised and empowered to attend to eviction and removal of any person claiming occupation or possession through the respondent. Pursuant thereto, the Deputy Sheriff be and is hereby authorized to enlist the assistance of Zimbabwe Republic Police who are hereby directed to provide such assistance to the Deputy Sheriff so as to ensure that provisions of this order are executed and implemented.

3. The respondent shall pay the costs of the suit.