MAVANGIRA J: This matter
was initially set down for hearing on 11 June 2009 on which date it
was postponed to 10 July 2009. It was again postponed a number of
times and was finally heard on 3 February 2011 after which date the
court called for supplementary heads of argument from both legal
practitioners for reasons appearing later in this judgment. The
applicant seeks the following order:
“IT IS ORDERED THAT;
1. The second respondent be and
is hereby compelled to uplift caveat she noted on Stand 7813
Fountainbleau Township of Fountainbleau Estate measuring 200 square
metres. (sic).
2. The first respondent be and is
hereby ordered to transfer Stand 7813 Fountainbleau Township of
Fountainbleau Estate measuring 200 square metres. (sic)
3. The first and second
respondents and all those claiming possession through them be and are
hereby ordered to vacate the above property within ten (10) days of
this order failing which the Deputy Sheriff be and is hereby
authorized to evict the respondent.
4. Or alternatively, the first
respondent be and is hereby authorized to pay the applicant the
current market value of the property within (10) ten days of this
order.
5. The first and second
respondents be and are hereby ordered to pay costs of suit.”
The applicant's case is as follows.
On 19/09/07 and through Amazon
Real Estate Agents, applicant entered into an agreement of sale with
the first respondent. In terms of the agreement the applicant
purchased from the respondent an immovable property namely Stand
No.7813 Fountainbleau Township or Fountainbleau Estate, also known as
House No.7813 Kuwadzana 4, Harare.
The purchase price for the property was $5 billion ($5,000,000,000-
00).
In terms of clause 2 of the agreement of sale, payment for the
property was to be made through the estate agents. It was also a term
of the agreement that Mushuma Law Chambers, legal practitioners were
to transfer the property into the applicant's name. The applicant
alleges that despite the fact that he has paid the purchase price in
full, the first respondent has not transferred the property into his
name.
The applicant avers that sometime
in January 2008 he approached Mushuma Law Chambers with a view to
ascertaining the cause for the delay in effecting transfer of the
property into his name. He avers that it was at that stage that he
then learnt that 1st
and 2nd
respondent were formerly husband and wife and that their divorce
order had awarded 30% of the market value of the immovable property
to the second respondent.
He avers that he was also surprised to learn that Mushuma Law
Chambers had also acted as the first respondent's legal
practitioners in the divorce proceedings. He avers that Mushuma Law
Chambers had not disclosed to him the circumstances in which the
house was being sold to him.
The applicant also avers that before buying the property he had done
or conducted a deeds search and had verified that the first
respondent was the registered owner of the property.
Mushuma Law Chambers then assured him that everything was under
control and that the property would be transferred into his name
within a short period of time.
Thereafter, Mushuma Law Chambers
made an application to the Magistrates Court and obtained an order
which inter alia
barred the second respondent from denying him the right of occupation
to four rooms of the house. The second respondent appealed against
the order. The applicant however managed to occupy part of the house
after applying for and obtaining leave to execute pending appeal.
The applicant contends that at
the time of the sale he had no knowledge of the dispute between first
and second respondent. He further contends that the second
respondent's recourse lies in a claim of personal rights against
the first respondent and that this cannot take precedence over his
rights as a bona fide
purchaser. He further contends that the 1st
respondent's appeal against the order obtained by the applicant in
the Magistrate's Court and referred to above was filed after he had
already purchased the property.
The first respondent has not filed any opposing papers in this
matter.
The second respondent has opposed this application on the following
grounds.
She avers that the house in
question forms part of the matrimonial property of the former
marriage between her and the first respondent. She avers that the
property was fraudulently sold behind her back and that she was not
party to the agreement of sale yet she has a substantial interest in
the property as she contributed directly and indirectly in the
purchase of the Stand and its construction or development.
Furthermore she never received any payment. She further avers that
the applicant was aware of the dispute over this property when he
purchased it. She avers that the property was never evaluated. She
further avers that at the time that he became aware that there was a
dispute, the applicant should have cancelled his agreement with the
first respondent.
The second respondent avers that she is pursuing her appeal against
the order granted by the Magistrates Court in favour of the applicant
and the appeal is still pending. Furthermore, that the applicant has
not, contrary to his averment, taken occupation of part of the
property.
The second respondent contends that the applicant should wait until
all appeals filed by the parties are heard and that he has no clear
right until then, to justify the granting of the order that he seeks.
The second respondent contends that the applicant's claim has no
basis at law and that his only remedy is a claim for damages against
the first respondent and his legal practitioner.
The applicant on the other hand denies that the sale was fraudulent
and denies that he was aware that it was part of the respondents'
matrimonial property. He avers that when he inspected the title deed
to the property, it reflected the first respondent's name only.
Attached to the applicant's answering affidavit is an affidavit by
Oliver Mushuma, a legal practitioner of Mushuma Law Chambers. He
states that to his knowledge the first respondent is outside the
country. He states that the first respondent obtained a default
judgment in the Magistrate's Court on 24 August 2007 in terms of
which he was awarded a 70% share in the immovable property and the
second respondent was awarded a 30% share. Pursuant to this judgment,
the first respondent sold the immovable property to the applicant
through the estate agents, Amazon Real Estate Agents.
The first respondent appointed Mushuma Law Chambers as his
conveyancers.
He states in his affidavit that as soon as the applicant and the
first respondent signed the agreement of sale, the applicant paid the
purchase price through the estate agents. Immediately thereafter the
applicant and his sons reported at his office with the agreement of
sale. At that stage the second respondent had filed an application
for rescission of the default judgment referred to. He duly advised
the applicant of this state of affairs so that the applicant could
make a decision on the matter as he had already paid the purchase
price and the values of properties were escalating on a daily basis.
The applicant (and his sons) then decided to stand by the agreement.
They also confirmed to him that at the time when they went to view
the property they met the second respondent who denied them entry
into the premises. He denies that he never mentioned to the applicant
that Mushuma Law Chambers acted for the first respondent in the
divorce matter.
Mushuma also states in his affidavit that the immovable property was
evaluated at Z$5,000,000,000 and that the second respondent's share
was only Z$1,117,826,373. 58 which amount the first respondent had
confirmed to Mushuma that he had transferred into the second
respondent's account in November 2007.
In her notice of opposition the second respondent contended, amongst
other things, that besides having received no payment, she never
consented to the sale of the matrimonial property which she states
was done behind her back. She contends that the sale was fraudulently
done and that the applicant was party to the fraud and that for that
reason the applicant's only remedy is a claim for damages against
the first respondent and his legal practitioners.
A perusal of the record shows
that on 28 August 2007 a default judgment was granted in favour of
the 1st respondent, in terms of which judgment, inter
alia, the 1st
respondent was awarded a 70% share in the immovable property in issue
and the second respondent a 30% share. A perusal of the record also
shows that on 2 November 2007 the second respondent's application
for rescission of the default judgment was dismissed.
A perusal of the record further
shows that payment was made to the first respondent by way of RTGS or
electronic transfer on 8 November 2007 of an amount of Z$3,506,166
396.14. It also reflects a reconciliation done by Mushuma Law
Chambers which inter
alia, shows that of
the said amount paid into the first respondent's account,
Z$1,117,826,373. 58 constitutes the second respondent's 30% share.
The record bears no proof that any payment was made to the second
respondent in respect of her award of a 30% share in the immovable
property.
The second respondent denies having received any payment.
In such circumstances it would appear to me that the effect of
granting the order sought by the applicant would be to deprive the
second respondent of her 30% share in the property. For that reason,
this application must in my view fail, with costs following the
cause.
If I am wrong in this respect, it seems to me that there is another
dimension of this matter that needs to be addressed.
This arises from the fact that it
appears to be an undisputed fact that the first and second
respondents were customarily married. According to Oliver Mushuma's
affidavit, they were divorced on 20 July 2005. It also appears from a
perusal of the record that the first respondent approached the
Magistrates' Court in 2007 seeking an order for the “sharing of
property” between him and the second respondent; the property to be
shared including the immovable property the subject of this
application.
Thus, while the immovable property was allegedly registered in the
name of the first respondent only, it was the first respondent
himself who brought it before that court for distribution.
In default of the second respondent he then obtained an order
awarding him a 70% share and the second respondent a 30% share of the
immovable property. Presumably those were the terms of the order that
he sought from the magistrate.
That in itself, in my view, is an acknowledgment by the first
respondent that the second respondent has a 30% interest or is
entitled to a 30% share in the immovable property. Subsequent to
obtaining the default judgment the second respondent then sold the
immovable property to the applicant.
Mushuma then dispatched to the
first respondent a “reconciliation” in terms of which the second
respondent's share of the net proceeds of the sale was recorded.
The impression created is that the second respondent dealt with the
immovable property in terms of the distribution of it made by the
magistrate. It was for these reasons that I requested the applicant's
and the second respondent's legal practitioners to file
supplementary heads of argument addressing the effect, if any, on
this matter of the following cases: Feremba
v Matika 2007 (1) ZLR
337 (H); Mandava v
Chasweka 2008 (1) ZLR
300 and Nyaradzai
Kazuva v Gilbert Dube HB119/10.
They both did.
It appears to me that whether or
not the parties' so called “divorce” was by an order of the
Magistrates Court or was customarily done, the fact remains that the
subsequent and apparently consequent claim by the first respondent
before the Magistrates Court was for “sharing of property”; the
property in issue being that of the joint estate of the first and
second respondents. The principles enunciated in the Feremba
and Mandava
cases would thus be
applicable.
In the Mandava
case MAKARAU JP, as
she then was, stated at 303:
“The issues that I have
highlighted above are not new to this Appeal Court. I have had
occasion to discuss the same issues in Feremba
v Matika HH33-2007. I
will take the risk of repeating myself again in this judgment and
exhort all trial magistrates approached to distribute the joint
estates of persons in an unregistered customary union to ensure that
the parties before them have made the appropriate choice of law
between customary and general law. Once a choice of law has been
appropriately made, two further issues arise but only if general law
is chosen. These are the cause of action and the monetary
jurisdiction of the trial magistrate.
In view of the fact that the trial magistrate failed to observe any
of the above, his decision cannot stand.”
In the Feremba
case MAKARAU JP stated
at 342:
“Finally, if the court is to
entertain the matter on the basis of any of the above principles,
then its general monetary jurisdiction limits apply. It therefore
becomes imperative for the court to be aware of the value of the
estate involved and to then ascertain whether it has the requisite
jurisdiction in the matter.”
At 342D-E she further stated:
“Thirdly, as the trial
magistrate was not applying customary law or proceeding in terms of
section 11(b)(iv) of the Magistrates Court Act, he had to be
satisfied that the value of the estate that he was distributing fell
within his monetary jurisdiction. This he did not do.”
In casu
there would appear to
be no cause of action that was properly pleaded before the magistrate
by the first respondent. Neither does the magistrate appear to have
been alive to the issue of his monetary jurisdictional limits let
alone the choice of law in terms made by the first respondent in
those proceedings.
The inevitable conclusion would thus be that the trial magistrate had
no jurisdiction to deal with the first respondent's matter. If that
be so, his order would be void.
The applicant's legal
practitioner submitted in her supplementary heads of argument that
this aspect ought not to be a concern of this court as none of the
parties have raised it. However, in Muchakata
v Netherburn 1996 (1)
ZLR 153 (SC) it was held:
“If the order was void ab
initio it was void at
all times and for all purposes. It does not matter when and by whom
the issue of its validity is raised; nothing can depend on it.”
It appears therefore that insofar as the first respondent in selling
the immovable property to the applicant, purported to act on the
basis of the default judgment that he had obtained, the said sale
cannot be valid as it purports to be founded on an invalid judgment
on which nothing can depend.
If I am correct on this, then the applicant's case ought therefore
to fail on this basis too.
In the result the application is dismissed with costs.
Mabuye Zvarevashe, applicant's legal practitioners
Hangazha & Partners, first
respondent's legal practitioners
