In 1995, the applicant (Agro Chem) purchased an undeveloped Stand (the Stand) from the second respondent (City of Harare). The full purchase price was paid. In terms of the agreement, Agro Chem was enjoined to undertake certain minimum developments on the Stand within a stipulated period after the purchase.

It is common cause that no development has been undertaken on the Stand by Agro Chem. Sometime in June 2008 it came to the attention of officials in Agro Chem that developments were being undertaken on the Stand in question. After investigations it emerged that the first respondent (Gomo) had moved onto the Stand. He had purchased the same from the City of Harare. A copy of such agreement has been attached to papers filed on his behalf and the contract between the two was concluded on 12 May 2008.

There seems to be some dispute as to whether or not the parties did conclude an agreement of sale or whether, in fact, the Stand was awarded to Gomo as a retrenchment package. It is common cause that Gomo is a former employee of City of Harare. I do not believe that it matters, for purposes of resolution of this dispute, what the nature of the transaction was. I will therefore accept that Gomo purchased the Stand from the City of Harare.

The applicant had the property transferred to itself before the developments envisaged in the agreement were effected. The applicant has now approached the court seeking the eviction of Gomo from the Stand.

Both respondents have opposed the relief being sought by Agro Chem.

Gomo is opposed to the relief on the basis of his agreement with the City of Harare. He is also of the view that Agro Chem has now lost its title to the Stand because City of Harare had cancelled the agreement.

The view of the City of Harare is that Agro Chem failed to undertake developments within the period set in the agreement, and that, as a result it, City of Harare had cancelled the agreement and repossessed the Stand.

It is pertinent to note, at this juncture, that although the City of Harare wrote letters to Agro Chem there is no other action that has been taken by it to repossess the Stand in question. As a result of certain submissions made by counsel for the two respondents I requested that additional heads of argument be filed in relation to those submissions.

Before I go into the merits of the application it is only pertinent that I examine the basis upon which Agro Chem seeks the eviction of Gomo and discuss the legal status of the Stand as matters stand presently.

It is not in dispute that the Stand is registered in the name of Agro Chem, such title having been registered in favour of Agro Chem on 20 November 1995. Registrations of title in land are made in terms of the Deeds Registries Act [Chapter 20:05] (the Act), specifically section 14 thereof which provides as follows:

“Subject to this Act, or any other law -

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Once the City of Harare had sold and transferred the dominium in the Stand it lost any right to treat the property as its own. It could sell the Stand to Gomo, as it did, but it could not transfer the dominium in the same as it had lost it when it sold and transferred the same to Agro Chem. The purchaser thus has the right to defend his rights in the property against the world at large.

The two respondents have, however, sought to oppose the application on the basis that the contract of sale has been cancelled and that not only does the City of Harare have the right to sell it; it (City of Harare) can deal with the property in any manner it deems appropriate.

I will therefore examine the defences mounted by the respondents to the application. To put matters in context, it is appropriate to start with the second respondent, City of Harare.

It is contended, on behalf of both respondents, both in the opposing affidavits and in the supplementary heads of argument requested by myself, that not only had the City of Harare cancelled the agreement of sale, it had commenced the process of re-transfer in terms of clause 12 of the agreement of sale. Both make reference to two letters allegedly sent to Agro Chem by City of Harare, the letters are dated 26 February and 20 June 2008 respectively.

The deponent to the answering affidavit filed on behalf of Agro Chem denies having received the letters in question. According to the respondents, Agro Chem did not respond to the letter of 20^th June, which required that it surrender the title deeds to the legal practitioners of the local authority as demanded, and, therefore, its silence meant that it had not challenged the process of re-transfer that had been started by the local authority. The submission is also made that the cancellation of the agreement of sale had also not been challenged.

I am being entreated, by the respondents, to enquire into the agreement and the terms and conditions of the same.

Both respondents contend that the agreement between the City of Harare and Agro Chem was cancelled due to non performance of its contractual obligations by the latter and that therefore the City of Harare was entitled to sell the Stand anew to Gomo.

Although both respondents talk of the agreement as having been cancelled, it seems that of the two, Gomo was certainly alive to the need to have something done about the agreement and to have the transfer to Agro Chem set aside before any meaningful action could be taken in having the property transferred to him. It seemed that this necessary legal process completely escaped the local authority. The mere demand by it of the return of the Deed of Transfer does not, in itself, reverse ownership in the Stand from Agro Chem to itself. Equally, the lack of response to the alleged letters of cancellation does not, in itself, exhibit that the recipient has accepted that the property has changed hands as contended on behalf of the respondents.

According to the local authority, when the parties signed the agreement both were aware that ownership would be determined only upon the development of the property.

I have not been referred to any authority that would convince me to accept this submission and find that ownership in the Stand, notwithstanding the transfer to Agro Chem, would still be uncertain. I have examined the Deed of Transfer that is attached to the papers and it does not have any conditions in which there is any limitation on the vesting of title in the title holder.

Counsel for the second respondent has referred me to section 154 of the Urban Councils Act [Chapter 29:15] which provides as follows:

“Conditions of title to land transferred by municipal council

In the case of land granted to a municipality in trust for the inhabitants of the municipality, such area being known as municipal township land, which was granted subject to the conditions that -

(a) The British South Africa Company or the Governor of Southern Rhodesia shall have the right to resume ownership of and to retake possession of the said land or any portion thereof on payment of such compensation as may be mutually agreed upon, or, failing such agreement, as may be determined by arbitration; and

(b) The right to all minerals in or the power to make grants of the right to prospect for minerals on that land was reserved, either to the British South Africa Company or the Governor of Southern Rhodesia;

any such land which is or has been transferred whether before or after the date of commencement of this Act, by the municipality or by any successor in title to the municipality shall be deemed to have been transferred and shall be held, notwithstanding anything to the contrary in any other law, subject to the conditions referred to in paragraphs (a) and (b) which were applicable to the municipal township land concerned, save that any reference to the British South Africa Company or the Government shall be construed as reference to the President, and subject to any other conditions that may be imposed by the municipality or any subsequent owner of the land.”

It is correct, as contended on behalf of the City of Harare, that, in terms of the section local authorities have been accorded the right to impose conditions on the transfer of such land in the transfer of lands falling under municipal township lands which would have devolved upon such local authorities by way of grants from central Government.

The Deed of Transfer exhibited to me does not contain conditions apart from a servitude registered in favour of the municipality and the further requirement that any transfer from the title holder will require its prior written consent.

I will assume that the reservation for resumption of title and the right to prospect for minerals provided for in the section quoted in the heads of argument are also applicable. Other than these remarks, I find no relevance in the section referred to the current dispute. The title deed did not impose any conditions other than those that are stated on the same and we are not in this dispute dealing with a resumption of ownership by the State or a dispute relating to mineral rights.

Counsel for the second respondent makes the submission that the conditions referred to in clause 12 of the agreement did not have to be mentioned in the Deed of Transfer.

I am not sure, by that submission, if he means that the section he quoted gives his client the right to summarily expropriate any municipal land. To begin with, his client is a local authority and cannot be equated, under any circumstances, to the President as provided for in the quoted section. In any event, his client has not set in motion any legal process to reclaim the Stand apart for the alleged letters that I have made reference to above. The view I take is that the attempt to rely on section 154 of the Urban Councils Act does not assist his client's position at all.

I do not have before me the issue of the cancellation of the agreement between the City of Harare and Agro Chem and I am mindful that it is therefore incumbent upon me to tread very carefully in this enquiry lest I compromise any future proceedings in connection with this matter. However, it appears to be the position of the respondents that the agreement between Agro Chem and City of Harare has been cancelled and it is therefore virtually impossible to decide the dispute without considering the position they have adopted. The point was made by counsel for the second respondent (City of Harare) that upon receipt of the letters allegedly sent to Agro Chem the latter should either have complied with the demand to hand over the title deeds or seek a declaratory order raising its entitlement to the claimed property.

I have already dealt with the lack of co-operation to return the title deeds and I will deal here with the suggestion that Agro Chem should have sought a declaratory order.

This was apparently to deal with the conflict which is in the agreement and the title deed. If the local authority finds that there is a conflict in the agreement and the title deed then it would be within its rights to have such conflict resolved by the court. The local authority has not seen fit to do the same and has, instead, been content to defend a vindicatory action brought by the title holder to evict a claimant to the Stand in question. A court cannot resolve a dispute that has not been brought before it for specific relief.

In so far as the issue that the agreement was cancelled is concerned, the attitude of Agro Chem is that any claim by the local authority seeking the cancellation has now prescribed. The agreement was concluded in 1995 and transfer to the purchaser was effected before the year was up.

In terms of section 15(d) of the Prescription Act [Chapter 8:11] a debt shall prescribe after a period of three years. Debt, in the Act, is defined as, without limiting the meaning of the term, includes anything which may be sued for or claimed by reason of an obligation arising from statute, contract, delict or otherwise. It therefore goes without saying that the claim for cancellation of the agreement of sale is a debt which then would prescribe within three years.

Although this submission was made in the heads of argument filed on behalf of Agro Chem, the issue was not discussed by the local authority. My prima facie view is that any attempt on the part of the local authority to seek cancellation and re-transfer will be met with the defence of prescription and I cannot fathom of any factor that may be available to counter it.

It is trite that where cancellation is lawful and justified on account of breach it takes effect from the time that the innocent party communicates the breach to the defaulting party. For this proposition, see Bako & Anor v Bulawayo City Council 1996 (1) ZLR 232…, wherein GUBBAY CJ stated the following dicta:

“Thus, it is those actions and events which occurred after 23 March 1992 to which regard must be had in determining whether the resistance to the cancellation was justified in law; for cancellation takes effect from the time it is communicated to the other party. See Swart v Vosloo 1965 (1) SA 100 (A) at 105 (G); Phone-A-Copy World-wide (Pty) Ltd v Orkin & Anor 1986 (1) SA 729 at 752A-C.”

It is common cause that the letter in which the local authority sought to cancel the agreement of sale was written on 26 February 2008 - which was a period well in excess of twelve years after the contract was concluded. I do not think that it can be argued that Agro Chem did not breach the agreement. It did not perform part of the obligations imposed on it in the agreement, in that it failed to construct buildings of a minimum standard and value as demanded by the agreement. It is not in dispute that prior to the letter of 26 February 2008, there was no intimation, on the part of the local authority, that it was canceling the agreement due to the breach. The local authority therefore was within its rights to elect to cancel the agreement due to the breach. It is common cause that instead of acting on the breach the local authority went on to have transfer of the Stand registered in the name of Agro Chem.

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

This averment, which is evidentiary in nature, is made as a submission in the heads of argument. If indeed there was issue to be taken on the date on the power of attorney the appropriate manner of bringing it to the attention of the parties was by averment under oath in the opposing affidavit - which was not done. Indeed, one would have expected that the document itself would have been exhibited to the court as part of the papers used by the local authority in opposing the application.

In any event, why would the local authority question the authenticity of the power of attorney when transfer is not being challenged?

The moot point, however, is that in all this debacle the local authority has never sought to have the transfer reversed even if one were to accept that it was effected in an irregular manner.

Again, in the heads of argument, it is submitted that the local authority waived its rights to claim cancellation of the contract.

According to CHRISTIE, The Law of Contract, 3ed…, there is a presumption against waiver of contractual rights even in some cases strongly suggesting the same. Thus, there is a heavy evidentiary burden on the party alleging waiver to establish the same on a balance of probabilities.

In considering the question of waiver, I am reminded that the issue was brought up in written submissions and was not raised as an averment in the papers filed by the parties.

An examination of the facts, as presented on the papers, may throw some light as to whether, despite not having raised it on the papers, Agro Chem can rely on the issue of waiver as submitted in the heads of argument.

In the opposing affidavit filed on behalf of the local authority there is an acceptance that the property was transferred to Agro Chem and that demand of the Deed of Transfer was made by a letter dated 26 February 2008. This is the cancellation that is being relied on to defeat the claim for eviction. It seems to me that by transferring the Stand to Agro Chem the local authority elected to abide by the contract. The local authority in fact discharged its obligations in terms of the agreement between the parties. If the innocent party to the contract elects to abide by the contract, he cannot thereafter rescind it for the original breach, even though a subsequent breach may give rise to a fresh right to cancel. Thus, a tacit election to affirm the contract may be viewed as a form of waiver.

As to what amounts to an election this is what SANDURA JA said in Guardian Security Services (Pvt) Ltd v ZBC 2002 (1) ZLR 1 (S)…,.:

“…,. It is clear that election generally involves a waiver. One right is waived by choosing to exercise another right which is inconsistent with the former.”

What is referred to as the doctrine of election was discussed in the earlier case of Segal v Mazzur 1920 CPD 634…, by WATERMEYER AJ in the following terms:

“Now, when an event occurs which entitles one party to a contract to refuse to carry out his part of the contract, that party has the choice of two courses. He can either elect to take advantage of the event or he can elect not to do so. He is entitled to a reasonable time in which to make up his mind, but once he has made his election he is bound by that election and cannot afterwards change his mind. When he has made an election one way or another is a question of fact to be decided by the evidence. If, with knowledge of the breach, he does an unequivocal act which necessarily implies that he has made his election one way, he will be held to have made his election that way; this is, however, not a rule of law, but a necessary inference of fact from his conduct…,.”

The evidence I have to consider is none other than the Deed of Transfer in favour of Agro Chem as well as the Agreement of Sale itself, specifically the latter, the pertinent part of which is as follows:

“12 (a) THE PURCHASER shall effect or cause to be effected on the Stand principal buildings designed for industrial manufacturing, factory, or other purposes permitted by the Municipality to the minimum value of $750,000=.

(b) Such buildings shall be commenced on the Stand within six months from the date of sale and shall be duly completed within twelve months from such date. If such buildings have not been commenced or completed as aforesaid then in either case the Municipality shall ipso facto be entitled to cancel the sale of the Stand or claim re-transfer as the case may be. If the sale of the Stand is cancelled or the Stand is claimed in terms of this clause for default in the payment of the balance of the purchase price or any interest thereon or by mutual consent then the Municipality shall refund to the purchaser the amount paid in respect of the purchase price of the Stand plus compensation for any buildings or other permanent improvements.”

The agreement was concluded on 29 March 1995. When regard is had to clause 12(a) and (b) therefore, the building of improvements with a minimum value of $750,000= should have commenced within six months of the date of conclusion of the agreement. Transfer to Agro Chem was effected on 20 November 1995, which is a period just short of seven months after the agreement was concluded. It was obvious, at that date, that no improvements had been effected on the Stand and that the purchaser might be in mora in the performance of its obligations. There is no suggestion, on the papers, that it sought an extension of time within which to comply with that particular obligation; yet, notwithstanding this failure to abide by the conditions set in the contract, the property was transferred to the purchaser. This failure to build on the Stand is the reason that the local authority seeks to rely on in alleging cancellation of the contract. In my view, an event entitling the local authority to seek cancellation occurred before the transfer was effected yet the local authority elected to discharge the last of its obligations in terms of the contract.

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

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

It was decided by SANDURA JA, in Guardian Security Services (Pvt) Ltd v ZBC 2002 (1) ZLR 1 (S), that in determining whether or not the facts established an intention to waive a right in a contract a court had to apply the objective test. The learned judge of appeal had this to say…,.:

“I find support for my views in number of South African cases. In Palmer v Poulter 1983 (4) SA 11 (T) at 20C-D, ACKERMAN J, in delivering the judgment of the Full Bench, said:

'If the appellant, with full knowledge of the facts has so conducted herself that a reasonable person would conclude that she had waived her accrued right to cancel the agreement or had affirmed the agreement, a mental reservation as to the contrary will not avail her.'

The objective test therefore prevailed.

That decision was followed by the full bench of the Cape Provincial Division in Multilateral Motor Vehicle Accidents Fund v Meyerowitz 1995 (1) SA 23 at 27. Subsequently, in Bekazaku Properties (Pty) Ltd v Pam Golding Properties (Pty) (Ltd) 1996 (2) SA 537 (C) at 543J-544A, FRIEDMAN JP, in delivering the judgment of the full court, said:

'If the innocent party, with full knowledge of his rights, performs an unequivocal act from which a reasonable person would necessarily infer that he has elected to affirm the contract, he would be bound thereby, whatever subjective reservations he might have had. On the other hand, if the act on which it is sought to rely for the existence of an election is not unequivocal, regard must be had to the subjective considerations which motivated the party concerned in order to determine whether the act in question does in fact constitute an election or not.'”

Applying these principles to the facts of this matter, it leaps to the mind that the conduct displayed on the part of the local authority's officers an impression was created that not only was the latter affirming the contract, it was complying with all its obligations under the contract of sale.

A transfer to Agro Chem could not have been effected without the specific authorization of the seller. Documents necessary for such transfer would have been drawn up and signed by authorized signatories on behalf of the local authority. At the time the decision to transfer title to Agro Chem was made there must have been an awareness that there had been no compliance with the requirement to effect the minimum improvements on the Stand as required by the Agreement of Sale. Notwithstanding the knowledge that the conditions had not been complied with it took the local authority almost thirteen years before it called up the agreement. If such dilatoriness, in seeking to enforce a right in a contract, is not indicative of a waiver of a right to cancel it would be difficult to imagine what else such conduct constitutes.

In Guardian Security Services (Pvt) Ltd v ZBC 2002 (1) ZLR 1 (S), SANDURA JA considered that a period of twelve months before an innocent party decided to terminate an agreement based on the alleged breach of the same by the other party to the contract is not a reasonable period. In casu, more than a decade went by before the local authority decided to do something. Even then, its attempt to enforce its rights under the agreement cannot even be termed half-hearted. They are virtually non-existent.

Having had transfer in the Stand registered in the name of the purchaser it cannot have escaped notice that what was required, if at all it was still possible, was an effort to have the transfer set aside. It has not done so, and would, in all probability, not have come to court to allege cancellation of the agreement if the purchaser had not dragged it to court in a bid to evict Gomo.

From the facts established on the papers, it is my view that the local authority never reserved its rights in the contract, and that if it did those reservations were never communicated to the purchaser. It is my finding that it elected to abide by the agreement notwithstanding the default by Agro Chem to construct improvements as required by the agreement. I find, therefore, that there was waiver on the part of the local authority and it cannot now rely on cancellation to seek to prop up the defence proffered by Gomo to defend the claim mounted for his eviction from the Stand.

I turn now to consider the opposition mounted by Gomo against the claim for eviction.

It seems to me that strength of his defence to the claim is wholly dependant on how successful the local authority is in defending its own position in this dispute. The basis of the defence was that the agreement had been cancelled; and, I have found that there was no cancellation as by the time the local authority sought to cancel the agreement transfer had been effected the result of which was to vest dominium in the Stand in Agro Chem.

It was contended, on behalf of Gomo, that an aggrieved party to a contract of sale has the option of not only cancelling an agreement of sale but also claim cancellation and restitution of what he has paid over or transferred under the contract.

In casu, cancellation was communicated more twelve years after default occurred and there has been no effort on the part of the seller to claim re-transfer in the Stand. Apart from an excerpt from KERR, I was not referred to any authority to bolster the contention that after the transfer of real rights to it, Agro Chem could be compelled to re-transfer the Stand on the basis of a breach which occurred prior to the registration of real rights in its name.

In the supplementary heads of argument filed on his behalf, Gomo contends that the reversal of transfer was in terms of clause 12(a) of the Agreement of Sale between Agro Chem and the City of Harare.

Unfortunately for Gomo, there has been no process filed to have the transfer set aside and Agro Chem therefore remains the registered owner of the Stand.

It is a correct statement of the law that a seller has an option to cancel and to claim restitution of merx, even where there has been delivery. The question I posed to counsel for the first respondent was whether in fact a seller, after having transferred land and authorized its registration in the name of the purchaser can cancel the contract and obtain re-transfer. I have not been pointed to any authorities on the issue in point. The only authorities I have had occasion to read are those where either movables were the subject of the sale, or, if an immovable was the subject matter, then cancellation would be before transfer of rights to the purchaser.

In this regard, I have been invited to look at the conditions of the agreement by Gomo, which conditions he contends were not performed by Agro Chem. It was contended, further, that the court in casu could not ignore the Agreement of Sale as it recorded the intention of the parties vis-à-vis the transfer. It is further contended that the election to claim rescission of a contract and the return of the thing sold is available to a seller where the contract contains a clause (a lex commissoria) providing for rescission in the circumstances in question.

Indeed, the agreement which gave rise to this application does contain a clause for rescission, but, the local authority, apart from the letters I have mentioned above has not sought to have the sale set aside and the property re-transferred to itself.

The arguments being presented by Gomo would be more properly and appropriately made if they were being presented on behalf of the local authority. As he was not a party to the agreement I cannot accept that Gomo has even a modicum of standing to make submissions in relation to the dilatoriness on the part of Agro Chem in the performance of its obligations under the agreement.

There is, before me, no application for a reversal of the transfer and to embark on this enquiry appears to be a futile exercise.

I also find that the suggestion that the court look at the intention of the parties to the contract is ill-conceived. A party who was not privy to a contract which is the subject matter of a dispute cannot make submissions in relation to the intention of the parties to the contract with any conviction. Any suggestion of what the parties thereto may have intended can at best be described as conjecture. Only the parties to the contract can speak to the terms and conditions thereof and whether or not such terms accord with the intentions of the parties at the time the contract was concluded.

In any event, the Agreement of Sale was antecedent to the transfer and once transfer is effected the court cannot revert to the agreement except in certain exceptional circumstances not pertinent to this dispute.

It was further contended, on behalf of Gomo, that what was before the court was a situation which was akin to a double sale and that therefore the principles applicable to a double sale should be applied in determining this dispute.

I do not see how the situation I am dealing with can be akin to a double sale. The local authority sought to sell what was no longer its property. It is correct, as submitted by counsel for the first respondent that a person can sell property that belongs to someone else. The only problem is that the effect of registration of rights in land is that the registered owner has the right to defend his right in the property against the world at large. Gomo cannot get title because the vendor in his case had no title to pass to Gomo.

It is not necessary, in my view, to embark on another exercise as to whether or not Agro Chem was in possession of the Stand. It is for the trespasser to establish a right to be on the Stand. In Chetty v Naidoo 1974 (3) SA 13…, JANSEN JA, quoting with approval the dicta in Jeena v Minister of Lands 1955 (2) SA 380 (AD) stated thus;

“…,. 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 establish any right to continue to hold against the owner (cf…,. Jeena v Minister of Lands 1955 (2) SA 380 (AD) at pp 382E, 383).”

It appears to be immaterial whether, in stating his claim, the owner dubs the defendant's holding 'unlawful' or 'against his will' or leaves it unqualified (Krugersdorp Town Council v Fortuin, 1965 (20 SA 335 (T)).”

The right claimed by Gomo cannot withstand a claim by the owner for eviction, the former not having proffered a justifiable reason for being on the Stand. The registered owner has a right to vindicate his property against anyone unless a lawful defence is presented against the claim. No such defence has been established on these papers and it is my finding that the applicant has established a claim for the eviction of Gomo from the Stand.

In the premises, I make an order in the following terms:

It is ordered that:

(a) The respondent and any person claiming occupation through him be and are hereby ordered to vacate Stand 404 Willowvale Township of Willowvale, situate in the District of Salisbury, within ten (10) days of the date of service of this order and in the event of the first respondent or any person claiming occupation through him failing or refusing to vacate the Stand in question, then the Sheriff for Zimbabwe or his lawful Deputy be and is hereby authorized to evict them from the same and give vacant possession to the applicant.

(b) The costs of this application shall be borne by the first and second respondents jointly and severally, the one paying the other being absolved.

The full history of this case is reported in Chikadaya v Chikadaya & Ors 2000 (1) ZLR 343 (HC) and its sequel cyclostyled judgments of Chikadaya v Chikadaya & City Council of Harare SC58-01 and Chikadaya v Chikadaya & City Council of Harare HH01-02.

At the time the plaintiff purchased the rights, title and interest in Stand 6058 Glen View, the property in dispute, he owned another property in the municipal jurisdiction of the City of Harare. To circumvent the municipal prohibition against owning two properties in its jurisdiction he had the property registered in the name of the second defendant, his young brother Zakeyo Chikadaya. On 25 September 1998 he sued his younger brother for the cession of rights in the property.

The brother contested the action.

On 1 March 2001, SMITH J of his own accord non-suited the plaintiff on the basis of the dirty hands principle and dismissed his claim without hearing the merits. The plaintiff noted an appeal to the Supreme Court on 29 March 2000. The notice of appeal was served on both his young brother's legal practitioners, Wintertons, and the City of Harare….,. In a judgment delivered on 14 June 2001, the Supreme Court, upheld the appeal, set aside the order of the High Court and remitted the matter to the lower court for the continuation of the trial on the merits. The subsequent trial was held on 3 and 4 September 2001. In a judgment handed down on 20 February 2002, SMITH J ordered the younger brother to cede his rights, title and interest in the property to the plaintiff failing which the Deputy Sheriff was authorised to act in his stead. The second defendant noted an appeal in SC85/02 which was dismissed on 15 November 2004 for want of prosecution. …,. In order to execute the judgment on the merits of SMITH J, the plaintiff filed a court application against the present defendants on 8 December 2004. He sought the cancellation of the sale and transfer of the property to the first defendant; the transfer of the property to him and the eviction of all parties claiming occupation through the first defendant and costs on the scale of legal practitioner and client. Although the application was served on all the defendants, it was opposed by the first defendant only….,.

The plaintiff averred in his declaration that the first defendant took transfer of the property when he was aware that the rights, title and interest in the property held by the second defendant were being challenged by him in the Supreme Court. In his declaration, the plaintiff set his cause of action thus -

“12.1 First defendant is a mala fide purchaser who obtained defective title. As such, plaintiff is entitled to recover this property as against this defendant.

12.2 Alternatively, plaintiff is entitled to the relief of rei vindicatio as against the first defendant.

12.3 Alternatively, plaintiff is entitled to such damages as shall constitute the replacement value of the property at the date of judgment as against first, second, and third defendants jointly and severally, the one paying the others to be absolved.

12.4 Alternatively, plaintiff is entitled to such damages as shall constitute the replacement value of the property at the date of judgment as against second and third defendants jointly and severally.”

He prayed for transfer of the property from the first defendant to himself and in the alternative prayed for such damages as would constitute the replacement value of the property at the date of judgment and costs of suit.

At the pre-trial conference that was held on 1 April 2010 two issues were referred to trial. These were -

1. Whether the first defendant was a bona fide purchaser of the property in question.

2. Whether the plaintiff is entitled to the remedy of rei vindicatio under the circumstances.

The plaintiff testified…,.

She did not know the first defendant until she met him at the pre-trial conference. Before that date her late husband was the one who was personally attending to the case. She stated that the property in issue was purchased and developed by her husband. He built an eight-roomed house. She accurately related the court history of the legal wrangle between her husband and the second defendant. When her husband sought to take cession, he discovered that the first defendant had taken transfer of the property during the period that the appeal against the first judgment was pending. She averred that her late husband had told her that the first defendant had been a tenant at the property in dispute before he purchased it. She alleged that he was aware of the legal wrangle between the two brothers because her husband had alerted all tenants that the property belonged to him. Under cross examination she conceded that her husband did not protect his rights in the property by interdicting the second defendant and the City of Harare from undermining his claim by ceding it to third parties. She was adamant that the City of Harare was served with the notice of appeal which would have alerted it against the transfer of the property to the second and third defendants. She was shown the Deed of Sale between the second and first defendant dated 6 December 2000 and the Deed of Transfer into the first defendant's name dated 14 February 2001. She challenged their authenticity and averred that the second defendant fraudulently sold the property which was the subject of litigation between the two brothers. She was shown the second defendant's instructions to Sommerfield Real Estate to sell; copies of the advertisements flighted in the Herald of 30 November 2000; the offer made by the first defendant for the purchase of the property and the acceptance form signed by the second defendant.

She remained adamant that the first defendant was aware of the legal dispute that was raging between her husband and the second defendant.

The first defendant gave evidence, produced four documentary exhibits and called the further evidence Chiedza Chemere. He told the court that he saw exhibit 1, an advertisement in the Herald of 30 November 2000, for the sale of a four bed-roomed house with title deeds in Glen View 3 that had been flighted by Sommerfield Real Estate. An employee of the estate agency, Mr Machudze, directed him to the property in issue. It was a seven-roomed house which was not painted, its windows were incomplete and some were broken, some roofing asbestos were cracked and the verandah was not fully roofed, some doors were missing and others were broken, it had no gate and durawall. He was satisfied from his discussions with the tenants at the property that it was for sale. After viewing the property he completed exhibit 2, an offer form, on 1 December 2000 and offered $500,000= for the property. The estate agent showed him exhibit 4, a document dated 15 November 2000 from the City of Harare to the second defendant's conveyancers authorizing them to transfer the property into the joint names of the second and third defendants. An Agreement of Sale between the second defendant and his wife as Sellers and the first defendant as the Purchaser, exhibit 3, was signed by the parties at the offices of the estate agent on 6 December 2000. He borrowed the purchase price from his Pension Fund. It was a requirement for the loan that title be registered in his name. He took title on 14 February 2001 and surrendered it to his Pension Fund. He took occupation at the end of February 2001. As soon as he took occupation the plaintiff's husband came to the property and laid claim to it. He denied ever renting the property before taking occupation. He further stated that before he purchased the property he was not aware of the legal dispute that raged between the plaintiff's husband and the second defendant. He was cross-examined. He maintained his version that he was oblivious of the dispute between the two brothers before he purchased the property. After he took transfer and residence at the property the plaintiff's husband visited the property three times when he was at work. When he confronted the second defendant he assured him that the property belonged to him and not to his difficult brother....,. 

Whether the plaintiff is entitled to the rei vindicatio

The rei vindicatio is a remedy that is available to the owner of property for its recovery from the possession of any other person. The two essential elements of the remedy are –

1.Proof of ownership; and

2. Possession of the property by another person.

Counsel for the first defendant…, submitted that the remedy was not available to the plaintiff because the first defendant is the registered holder of title in the property. The first defendant took registered title on 14 February 2001. He took occupation on 28 February 2001. He holds title in the property and he possesses it.

Counsel for the plaintiff…, contended that the transfer of title by the City of Harare to the second and third defendants and the subsequent registration of title in the first defendant's name were based on the fraud perpetrated by the second defendant who took title on the basis of an assignment to him of the rights, title and interest of the plaintiff. He therefore submitted that as the plaintiff was the true owner of the rights, title and interest in the property he was entitled to vindication.

It is apparent from the sentiments expressed by MALABA J…, in Stanbic Finance Zimbabwe Ltd v Chivhungwa 1999 (1) ZLR 262 (H)…, that the true owner of the property is entitled to recover it from any person who has possession of it without his consent. In the present matter, I am satisfied that the plaintiff has established that her husband was the true owner of the rights, title and interest in the property and the first defendant has possession of it. She is entitled to the remedy of vindication.

The plaintiff's main claim was for the transfer of the property in issue from the first defendant. It seems to me that the competent order that can be granted is not the transfer of the property to the plaintiff; but the cancellation of the first defendant's title. The result of the cancellation would be to return the property to the holder of title before the transfer was effected. It appears from the papers that the second defendant and his wife…, took title before they transferred it to second defendant. It would be necessary to cancel their title too. Thereafter, title would revert to the City of Harare while the cession held by the second respondent would be restored. The effect of this judgment would be to restore the prevailing position contemplated by the judgment of SMITH J of 20 February 2002. The plaintiff would then have to execute that judgment in the proper way.

Accordingly, it is ordered that -

1. The transfer of Stand 6058 Glen View Township to Cladios Chenga under Deed of Transfer No.1285/2001 be and is hereby cancelled.

2. The transfer of Stand 6058 Glen View Township to Zakeyo Chikadaya and Beauty Mpofu under Deed of Transfer No.1284/2001 be and is hereby cancelled.

3. The plaintiff shall execute the order of 20 February 2002 granted in case no HC11678.

It appears to me the basis of Mr.Masunda's claim to occupy Jijima Lodge on a claim of right is grossly misplaced in so far as the concept of claim of right is only recognized as a defence at criminal law and not as a mode of acquiring rights or perpetuating one's illegal occupation of property.

On the return day of the rule nisi I confirmed the provisional order and dismissed the counter application indicating that the reasons will follow. These are the reasons.

This is the return day of the rule nisi issued by this court on 10 May 2007 interdicting the two respondents (applicants in the counter-application hereinafter referred to as “respondents” or “first and second respondents”) from using the applicant's (respondent in the counter application hereinafter referred to as “applicant”) two Mercedes Benz motor vehicles registration numbers AAA 3378 and AAA 4417 and directing the respondents to surrender to the applicant the said motor vehicles immediately.

The applicant undertook not to re-allocate two of its senior staff members the said motor vehicles pending the return day.

The respondents complied with the terms of the order requiring them to surrender to the applicant but have filed a counter-application seeking an order that the present applicant be ordered to surrender the two motor vehicles to the respondents upon tender and payment of the amount due to it for the value of the two motor vehicles.

This application and counter application arose out of the following facts:

The applicant employed the first and second respondents as Finance Director and Operations Director respectively. The applicant is the lawful owner of the two Mercedes Benz motor vehicles. It allocated the use of the motor vehicles to the respondents in terms of its company vehicle policy. Sometime in February 2007 the applicant's Board of Directors had reason to cause a forensic audit to be carried out within the applicant. A forensic audit report produced after the audit investigations revealed possible fraudulent and prejudicial conduct by the two respondents. The forensic audit report, which is part of the papers, reveals that the investigations included seeking explanations from the respondents and recording such explanations as they would have given. When the findings and conclusions of the forensic audit report were put to the respondents, they both offered to resign with immediate effect.

They both refused to hand over the two vehicles on the ground that they were entitled to purchase the motor vehicles from the applicant. This necessitated the chamber application resulting in the present litigation.

The applicant argues that the provisional order should be confirmed as the final order since;

(a) The applicant has not, in the exercise of its discretion, granted the two respondents the option to purchase the two motor vehicles; and

(b) The employees leaving its service are required to surrender the vehicles.

The first and second respondents, on the other hand, contend that the provisional order be discharged and that the applicant be directed to surrender the two motor vehicles to them up on tender of the value of the motor vehicles.

The respondents ground their counter-application on the following basis.

During their term of employment with the applicant, the applicant came up with an executive car policy which governed the acquisition and use of motor vehicles by senior employees. The first and second respondents contend that the scheme entitled them to exercise an option to purchase the motor vehicles which they were using at the time of resignation. Upon resignation, the respondents notified the applicant that they were exercising the option to purchase the motor vehicles for which the purchase price would be fixed in accordance with the applicant's executive car policy.

The right to the motor vehicle accrued at the time of the purchase of the motor vehicle; this is demonstrated by the registration of the motor vehicle in the respondents' names. They contend that they are entitled, upon exercise of the option, to the motor vehicles. The respondents also draw the court's attention to the fact that they are in a possession of the two motor vehicles' registration books.

The issue in this dispute, in my view, is whether, upon a proper interpretation of the applicant's motor vehicle policy scheme, the respondents have an enforceable right to purchase the two motor vehicles. Put differently, did the counter-applicants hold an option exercisable against the counter-respondent to purchase the two motor vehicles upon their resignation from employment?

In order to answer this question, regard must be had to the document which both parties agree governed the use of motor vehicles by the first and second respondents.

In interpreting the document, the court will give effect to the ordinary grammatical meaning of the words used unless the context clearly requires otherwise. It will be clear from the opening paragraph of the executive car policy document that it was formulated so as to uphold the principle of ensuring improved welfare of the applicant's key staff through the provision of a motor vehicle benefit designed to motivate and retain skilled personnel.

Clause 4 deals with the replacement period of the vehicle. It states that a company vehicle shall be due for a replacement or renewal after a period of five years from the date of manufacture. Clause 5 goes on to spell out that the executive using the vehicle due for a replacement will be given the first option to purchase the vehicle and the fixing of the price. It states that an application to exercise the option to purchase the vehicle will be processed in line with the relevant provisions of the policy. That same paragraph gives detail to what happens when an employee is promoted to a higher grade. Clause 6 is titled Vehicle Operating Expenses and sets out what the employer will pay for. Clause 7 spells out the responsibilities of the company vehicle operator. Clause 8 is titled Administration and Control. In terms of this clause the Group Company Secretary keeps custody of the motor vehicle registration books at all times even though, at purchase, the motor vehicle is registered in the name of the employee in terms of clause 2.

Management reserved the right to withdraw the company car facility at its discretion where there is evidence of abuse of allocated vehicle in terms of clause 8. Under clause 8 as well, an employee who leaves the company is required to surrender the vehicle and all accessories to the Group Managing Director with the option provided for them to purchase the vehicle as provided for under clause 5.

Clause 9 deals with interpretation and application of the policy and states that this is the responsibility of the Board. Clause 10 specifically states that “…, all provisions under this policy are at the discretion of the Group Managing Director or Chairman of the Board subject to cash flow availability.”

The first and second respondents argue that Clause 8 creates the option which they exercised by written notice of election to purchase the vehicles upon their resignation.

The question that arises is whether the option in clause 8 creates legally binding consequences between the parties. In other words: is the “option” an option in the legal sense of the word?

The Dictionary of Legal Words and Phrases, 2^nd edition, Vol. 3…, defines an option as follows;

“An option is an 'offer' which is irrevocable by the grantor during the period stipulated in the contract, or, if there be no such provision, within a reasonable time. See also: Van Pletsen v Henning 1913 AD 98; Annamma v Moodley 1943 AD 538; Hersch v Nel 1948 (4) SA 695; Brand v Spies 1960 (4) SA 14.

If the option be exercised, the potential contract contemplated by the parties to the option agreement is complete.”

It is contented, on behalf of both the respondents, that the applicant made an irrevocable offer in clause 8 of its policy.

In Bilodeh Properties (Pty) Ltd v Wilson 1946 NPD 736…, an option was defined thus:

“A true option is nothing more than an offer by one party to the contract to the other; which offer remains open according to the terms of the contract. The option holder has merely to accept the offer in the manner, and within the time prescribed by the contract, and a new contract comes into existence between him and the other party…,.”

In Wasmuth v Jacobs 1987 (3) SA 629 (SWA) it was explained that:

“An option constitutes nothing more than an offer coupled with an arrangement (express or implied) to keep the offer open for a certain period of time…,. It is fundamental to the nature of any offer that it should be certain and definite in its terms. It must be firm, that is, made with the intention that when it is accepted, it will bind the offeror. Efroiken v Simon 1921 CPD 367 @ 370; Finestone v Hamburg 1907 TS 629 @ 632…,.

Therefore, if an offer, which is an essential element of any option, is vague on all capable of more than one meaning, it is open to the offeror to contend that it is not capable of being accepted and thereby convert it into a binding contract. Where there is an 'offer' which provides that certain terms were to be 'renewed' or to be 'negotiated' or to 'stand over' for decision at a later stage, then, pending agreement on such outstanding terms, neither party has any rights against the other.”

OK Bazaars v Bloch WLD 37; Wilson Bros Garage v Texas Co (SA) Ltd 1936 NPD 386. See also Film and Video Trust v Mahovo Enterprises (Pvt) Ltd 1993 (2) ZLR 191 (H).

The contention by the respondents is that the provisions of clause 8 constitute an option exercisable against the applicant. Once exercised, it became binding.

I disagree.

It will be clear from the above authorities that even assuming in favor of the first and second respondents that “option” existed there is no offer capable of such acceptance by the offeree as would legally bind the offeror. There is no definite period within which the “option” would remain open. The terms of the offer cannot be implied. It is not contended that the terms of the sale agreement was spelt out expressly since price of the motor vehicles was not yet fixed. In any event, there is repeated reference to the discretion of the management, in clause 5, to which clause 8 refers, such that it cannot be said with certainty that there existed a formula to fix a price as the decision to sell depended on the discretion of management.

I am fortified in my interpretation by the principle espoused at the commencement of the policy document that the intention was never to make the document a contract which binds the employer to sell its motor vehicles once an employee applied for that. The document makes it clear that the policy is to retain personnel not to reward ex-employees. Such a benefit can only be extended to an ex-employee, if, in the discretion of management or Board of Directors, such employee merited it.

That is not the position here.

In any event, that is not the interpretation given to the policy document by the parties. The fact that the applicant allowed its vehicles to be registered in its employees names cannot, in my view, be construed as bestowing any right to purchase the motor vehicles on the employees. It does not advance the respondents' argument nor does it destroy the applicant's argument. It merely reinforces the spirit espoused by the policy which is to retain key personnel and nothing more. In my view, the two motor vehicles remain the property of the applicant. It is therefore ordered as follows:

The provisional order is confirmed. The counter application by the respondents is dismissed with costs.

The respondents undertook to vacate Greenhills Farm by 31 May 2006. They still remain on the property. My finding, therefore, is that the respondents have no right whatsoever to remain at Greenhills Farm, and accordingly, the applicant is entitled to the relief it seeks.

It is therefore ordered as follows -

1. That the respondents, and all persons claiming occupation through them be and are hereby ordered to vacate the property known as Greenhills Farm situate at the Prima Flora farming operation in Tynwald, together with all their goods and chattels, within fourteen (14) days from the date of service of this order, and failing which the Deputy Sheriff, together with such officers of the Zimbabwe Republic Police as he may require, shall eject the respondents aforesaid, together with all persons  claiming occupation through them, from the said farm.

2. That the respondents shall bear the costs of this application, and all costs of the Deputy Sheriff in evicting them.

Order 3 Rule 11(c) provides as follows:

"Contents of Summons

Before issue of, every summons shall contain-

(a)...,.

(b)...,.

(c) A true and concise statement of the nature, extent and grounds of the cause of action and the relief or remedies sought in the exception.

(d)...,."

The plaintiff, as represented by its Managing Director, Ms Elizabeth Chidavaenzi, issued summons out of this court on 9 June 2008 seeking the ejectment of the defendant from Stand number 3182 of subdivision A of Stand 159 Prospect in Harare ('the property').

On 2 October 2008 the defendant filed her plea and sought the dismissal of the plaintiff's claim on the basis that she was a legitimate possessor and occupier of the property in question, the right, title and interest in the property having been lawfully transferred to her by virtue of “the declaratory order issued by this court under case number HC7594A/06”.

It was further the defendant's contention that she was in occupation of the property pursuant to a sale agreement entered between herself and a company called Champion Constructors (Pvt) Ltd.

Alternatively, it was contended, by the defendant, that the plaintiff was estopped from denying that the seller, Champion Constructors (Pvt) Ltd, was the holder of rights, title and interest in, and was entitled to dispose of the property in the manner it allegedly did.

The Evidence

In support of its contention, the plaintiff relied on the evidence of its Managing Director and representative, Ms Elizabeth Chidavaenzi. Several documentary exhibits were tendered in support of the plaintiff's position which was mainly an unequivocal denial of Champion Constructors (Pvt) Ltd having been authorized to dispose of the property in the manner it did or at all.

The defendant relied on her own evidence together with the testimony of two former workers of Fingold Real Estate Agents which was said to have been mandated by Champion Constructors (Pvt) Ltd to dispose of the property to the defendant. In addition, reliance was also sought on several documentary exhibits…,.

The Issues

At the pre-trial conference which was held on 9 July 2007 the parties were unanimously agreed that the matter be referred to trial on basically two issues, viz;

(1) Whether the defendant has right of occupation over Stand number 3182 of subdivision A of 159 Prospect; and

(2) Whether the plaintiff has the right to evict the defendant from the property in question.

The Plaintiff's Evidence

The thrust of the plaintiff's representative's evidence was to demonstrate to the court that the plaintiff was the registered owner of the property in issue and that no mandate was given to anyone to sell the property.

The evidence, as presented by Ms Elizabeth Chidavaenzi, its Managing Director, who happens to be a major and controlling shareholder in both the plaintiff and Champions Constructors (Pvt) Ltd was that the property in issue was owned by the plaintiff as one of the 39 subdivisions of Stand 159 Prospect. Ms Elizabeth Chidavaenzi produced a title deed to confirm the ownership of this property by the plaintiff….,.

As regards the relationship between the plaintiff and Champion Constructors (Pvt) Ltd, it was Ms Elizabeth Chidavaenzi's testimony that the latter was contracted by the plaintiff to service the land and develop residential houses on the subdivisions and would be paid in kind for its services or in the form of completed houses which it would in turn sell to prospective home owners in order to recoup its expenses.

It was Ms Elizabeth Chidavaenzi's testimony that whilst in the past the plaintiff, through Champions Constructors (Pvt) Ltd, had mandated an estate agent called Fingold Real Estate to dispose two of its properties, it did not sanction the sale of the property in issue. According to this witness's testimony, this explains why the agreement pertaining to the defendant was not signed by the seller. To put it bluntly, she said it was a fraudulent sale which was masterminded by John Chagaresango (an employee of Finglold Real Estate) who is a close relative of the defendant.

Ms Chidavaenzi believed that John Chagaresango acted in collusion with his erstwhile fellow sales agent Ms Mutodi. It was the witness's further testimony that her attention to the 'agreement' signed by the defendant on 26 September 2006 was drawn to her for the first time ever when the defendant's legal practitioners sent her a letter of demand in November 2006 in which the lawyers were demanding that she signs the 'agreement' and that her immediate reaction was simply not to ratify such a fraudulent agreement.

It was significant that, according to this witness's testimony, Fingold Real Estate, the supposed agent of Champion Constructors (Pvt) Ltd did not present the 'agreement' to her for her signature. The witness strongly believed that Fingold sales agents, who had had the privilege of doing work for her company in the disposal of two houses earlier on, took advantage of their inside knowledge of the project to fraudulently 'sell' the property in question to the defendant.

The witness was quite adamant that for the two properties which Fingold Real Estate Agents had been mandated to sell she had herself given Fingold Real Estate Agents written sale instructions on behalf of Champion Constructors (Pvt) Ltd as is the norm in the industry.

Through her testimony, the witness challenged Fingold Real Estate sales agents to produce her written instructions to them authorising them to sell the property in question.

No such written instructions were produced.

It was Ms Elizabeth Chidavaenzi's further testimony that even if one were to lean backwards and accept for a moment that there had been a proper agreement between the defendant and Champion Constructors (Pvt) Ltd, the defendant had not even made the slightest attempt to comply with various provisions of that agreement to the extent that the defendant would not have been able to enforce it. It is significant that this breach was accepted by the defendant and both Ms Mutodi and John Chagaresango, both of whom sought to justify it on the strength of some other oral promises allegedly made by Ms Elizabeth Chidavaenzi.

Ms Chidavaenzi commented on the final order granted in favour of the defendant…, She said this order was confirmed in default and that an attempt was made to oppose the confirmation of this order but failed on some technicality. The witness further said that the poor handling of this particular case was one of the reasons she severed ties with her erstwhile legal practitioners, namely, Messrs Mandizha and Company. Ms Chidavaenzi further explained that, at the time, herself and Champion Constructors (Pvt) Ltd were barred leading to the granting of the final order in question the parties were engaged in negotiations to try and amicably resolve this matter.

Ms Chidavaenzi's understanding was that the final order in question did not give the defendant the right of occupation but the right to enforce the agreement. She stated that from the time the defendant obtained the order in question she has made no attempt to enforce that order and that even if she had attempted to do so she would not have succeeded.

It was further the evidence of Ms Chidavaenzi that having discovered this fraudulent agreement which involved the defendant, purely out of compassion and consideration for the defendant she initiated negotiations to try and resolve the impasse and that the only original but heavily amended (in pen) document from Fingold Real Estate (which bears the name of Betty Kanyuchi as a replacement of Miss Sibongile Kaziboni) must be looked at within this context.

Indeed, correspondence…, confirm there were in fact some discussions which were carried out on a “without prejudice' basis.

The Defendant's Evidence

In summary, the witness's evidence dealt with how she came to be involved in the “purchase” of the property in issue having been assisted to do so by a close family member, John Chagaresango, a son to her elder sister. She said John Chagaresango was working for Fingold Real Estate Agents.

It was her accepted evidence that she had told John Chagaresango that she wanted to buy a house and that having seen a completed sample house and the house now in issue under construction, she was invited by her nephew, John Chagaresango, to sign an agreement of sale on 26 September 2006 which was witnessed by John Chagaresango, Mr Phiri, her advisor, and one Faith Muzungu a younger and literate relative of hers.

It was her testimony that after signing the agreement…, she commenced to pay in three different instalments on 28 September 2006, 9 October 2006 and 3 November 2006 a total Z$32,500,000=. She had difficulties in explaining why she paid an extra Z$500,000= if the price of the property was pegged at Z$32,000,000=.

She said that sometime in November 2006, after she had made three payments, she went to view progress of construction on site where she met Ms Chidavaenzi for the first time. It was her evidence that, on confronting her on delay in the construction, Ms Chidavaenzi commented that the witness was troublesome and that the house would be finished soon. The record of proceedings will show that despite this being a very critical part of the defendant's case, Ms Chidavaenzi was never cross-examined on her alleged encounter with the defendant.

It was the defendant's evidence that the terms of the agreement which she signed were never explained to her and that she was assured by John Chagaresango that Ms Elizabeth Chidavaenzi would sign the agreement upon full payment of the purchase price of the property.

The defendant further explained that she moved onto the disputed property and started making improvements towards finishing the house. Under cross examination she told the court that Ms Chidavaenzi did not authorise her to make any improvements. It was very clear that the defendant blindly signed the agreement of sale….,.

The Evidence of Evis Monica Mutodi

She was the second witness called by the defendant to bolster her case.

The witness has a fairly balanced academic background and her chain of qualifications were given as follows:- a Bachelar's degree in Chemistry and a Certificate in Education (both from University of Zimbabwe), a qualified examiner with Zimsec and a Diploma in Real Estate with the Estate Agents Council of Zimbabwe. She is a member of the Estate Agents Council of Zimbabwe. The witness said she had 4 years experience in real estate.

It was the witness's evidence that at the relevant time she was employed by Fingold Real Estate as a Sales Negotiator and had previously sold two properties on behalf of Champion Constructors (Pvt) Ltd in the same scheme as the house in issue. The witness said she did not know and never dealt with the plaintiff in this case but dealt with Champion Constructors (Pvt) Ltd.

Ms Mutodi said she got to know of the defendant through her then workmate, John Chagaresango, who introduced her as someone who was looking for a house to buy. She said she then telephoned Ms Chidavaenzi who positively responded by referring her to the house in issue as being available for sale. She then drove to the site with the defendant, John Chagaresango, and another member who she could not remember. On site they were cleared to view a completed sample house first before they proceeded to Stand 3182 (the Stand in issue). The defendant, having shown interest, expressed the desire to purchase the property after which the witness said she telephoned Ms Chidavaenzi to advise of the defendant's interest. It was her evidence that she advised Ms Chidavaenzi that John Chagaresango would be reporting to her office in pursuit of this transaction. She understood, thereafter, an agreement was drawn up but she did not take part in drawing up that agreement.

The witness was emphatic in her evidence in chief that she did not deal with the defendant other than driving her to the construction site. She also remembered that when they visited the Stand in question no work had commenced on that Stand.

Under cross-examination, the witness confirmed that when they visited the property in question no work had commenced on it. However, with further probing she appeared uncertain of what the exact position of the property was.

The difficulty with this witness's evidence was that her alleged telephone conversation with Ms Elizabeth Chidavaenzi, important as it was given the nature of the plaintiff's declaration…, was never put to Ms Chidavaenzi in cross-examination.

Secondly, Evis Monica Mutodi's evidence was characterized by unmistakable prevarication.

In her evidence in chief she said the initial instruction to sell the property in question was given to her by Ms Chidavaenzi. When questioned by the plaintiff's counsel in what form the instruction came, she said it was Ms Chidavaenzi's practice to put instructions on an agreement of sale for Fingold Real Estate.

Probed further, she said such instructions had been given to her over the telephone.

When that averment was further tested, under cross-examination, she changed and said the instructions were in fact given to Mrs Alec over the telephone in her presence but conveniently claimed not to have heard everything that was said.

In one breadth she said she was given the instructions in agreement form and that she had herself taken that initial instruction to the defendant's lawyers. When further probed she changed her story and said that those initial instructions to sell the property were in fact given to Fingold Real Estate typists.

The record of proceedings, particularly where this witness was cross-examined, will reveal a sorry state because at the end of her evidence she had presented a hopelessly confusing piece of evidence.

It must be remembered that this witness was very critical to the defendant's case in that she was supposed to provide the nexus between the original instructions to Fingold Real Estate by Ms Elizabeth Chidavaenzi leading to the alleged contractual agreement with the defendant.

That nexus was heavily compromised by the prevarication which characterized Ms Mutodi's evidence.

Against that prevarication is the clear and concise evidence of Ms Chidavaenzi which was to the effect that she did not authorize or mandate Fingold Real Estate or anyone for that matter to dispose of the property in issue.

It is also significant that the much talked about written initial sale instructions to Fingold Real Estate were never tendered in court. Ms Chidavaenzi was quite categoric that there were no such instructions, and, in my view, the probabilities are firmly in her favour.

There were other aspects of Ms Mutodi's evidence which were far from convincing. It is common cause that both Ms Mutodi and John Chagaresango were employed by Fingold Real Estate Agents as sales agents or negotiators. They had worked together for a fairly reasonable length of time. However, when pushed, under cross examination, Ms Mutodi said she did not know whether or not John Chagaresango was a registered estate agent. She also said she did not know John Chagaresango's qualifications.

Further, her evidence under cross-examination was not consistent with that of the defendant even on the purchase price.

The defendant said the purchase price was pegged at Z$32,000,000= but Ms Mutodi said she told the defendant that the price was Z$32,500,000=. Not only that, but Ms Mutodi told the court in her evidence under cross examination that she disclosed to the defendant about some clauses in the sale agreement. Compare this with the defendant's evidence who said she was never told anything including any escalation in the event of delayed payment and any other clause in the agreement. In fact, the defendant's explanation was that when it came to the agreement itself she dealt with her cousin John Chagaresango and not Ms Mutodi.

The witness was categoric that the purchase price of the property was Z$32,500,000 when everyone else involved in this transaction, including the defendant and John Chagaresango, including the written copy of the supposed agreement, reflect Z$32,000,000 as the purchase price.

As the cross-examination took its toll on her, Ms Mutodi reneged from her earlier evidence that she had personally negotiated the agreement itself with the defendant but rather had dealt with John Chagaresango.

There was more confusion when the defendant's counsel sought to put things right in re-examination. The witness again changed her story and stated that the instructions to sell were given to her and she passed them on to John Chagaresango.

I think, in all fairness, it would be extremely dangerous for this court to seek to be guided by the evidence of this witness. She sufficiently discredited herself and the record of proceedings will confirm this observation.

If Evis Monica Mutodi's evidence was so porous and unconvincing then perhaps it is time to move and look at the evidence of John Chagaresango.

The Evidence of John Chagaresango

This witness was the last one for the defendant and is closely related to the defendant in that he is a son to the defendant's older sister.

The witness told the court that he went as far as Standard Six and did undergo some in-house training as a sales agent at Fingold Real Estate. At the time, he had worked for Fingold Real Estate, as a sales agent, for about 3 and a half years.

From his own testimony, it was clear the witness was quite conversant with his work. He said he was involved in advertising houses for sale, taking potential purchasers to view houses for purchase, verifying ownership of houses by checking title deeds through the Surveyor General's office, and handling agreements of sale.

The witness confirmed that the defendant was indeed closely related to him and that she had mandated him to look for a house to purchase.

The witness told the court that he knew Ms Chidavaenzi as they worshipped at the same church and then later interacted with her at Fingold Real Estate as Ms Chidavaenzi was not only a friend of Ms Violet Alec, the owner of Fingold Real Estate, but had given Fingold Real Estate the mandate to sell certain of her properties.

It was the witness's evidence that he was familiar with the sale of the property in question. Throughout his testimony, he referred to the property in question as Stand 1382. However, the truth is that the correct reference of the property is Stand 3182.

It was quite revealing that John Chagaresango vividly remembered Ms Chidavaenzi instructing Fingold Real Estate to dispose three of her properties but conveniently he said he was only involved in the sale of this particular property which incidentally is linked to his aunt and is the subject of this dispute.

In contrast with the evidence of Evis Monica Mutodi, John Chagaresango told the court that prior to the defendant visiting the site for construction Mrs Violet, Ms Mutodi, Ms Chidavaenzi and himself had been to the site.

John further told the court that it was to him that Ms Chidavaenzi disclosed the purchase price of the property in issue. Compare this with the testimony of Ms Mutodi who had earlier on told the court that it was to her that this same disclosure was made.

John vividly remembered that the agreement of sale was prepared at Fingold Real Estate with him and Ms Mutodi present and having some imput in it. This was inconsistent with the evidence of Ms Mutodi who said, among other things, that she handed the original instructions to John and that once she did that she had nothing further to do with that agreement.

There was further confusion created by John Chagaresango's evidence when he suggested that once the agreements were done, he, together with Evis Monica Mutodi took those copies, together with the original instruction copy, to Ms Chidavaenzi at her office at Robinson House to have the copies signed. It was his evidence that Ms Chidavaenzi then asked them to leave those copies for her to scrutinize after which she would telephone them. John went on to say that when he later followed up on those documents, Ms Chidavaenzi told him not to worry as she would sign the documents.

This piece of John's evidence presented quite some challenge to the court for basically three reasons;

(i) Firstly, it was in sharp contrast with the evidence of Ms Mutodi who clearly stated that once she gave the original instructions to John Chagaresango she never had anything to do with this agreement. She did not herself testify on the visit to Robinson House.

(ii) The second reason why the court had difficulties with this evidence was that, important as it appeared in as far as the plaintiff's declaration was concerned, Ms Chidavaenzi, who was subjected to quite some long and searching cross-examination, was never specifically asked about this visit to her offices by both Ms Mutodi and John Chagaresango as well as John Chagaresango's follow ups.

(iii) Thirdly, and more importantly, is the fact that after the trial had started the defendant filed a supplementary summary of evidence in which she undertook to produce “the original draft agreement with handwritten alterations by Miss E Chidavaenzi which alterations she made at the time of sale before the final draft was produced. This is evidence of her mandate from Ms Chidavaenzi.”

The assumption was that this document was available and would be produced in court. Alas! it was never produced and the explanation by John Chagaresango as regards the fate of this document runs contrary to what the defendant's summary made on the 11^th hour with the indulgence of the court sought to portray.

John further told the court, under cross-examination, that he did not explain all the terms of the agreement to his aunt, the defendant. Asked to explain his reasons for not doing so he retorted as follows:

“I did not because the sale of this property was done on trust between Ms Chidavaenzi and myself.”

In cross examination, the witness was directed to specific clauses of the agreement which were apparently not complied with by the defendant, and all the witness could do was to repeat that this agreement was not based on what the defendant and himself and others (as witnesses) had signed for but on other verbal assurances by Ms Chidavaenzi.

Assuming the agreement was indeed entered into, it was quite curious to the court that given the experience of John Chagaresango in real estate business, he would have failed to appreciate the significance of a written contract, particularly a contract with a variation clause which is as specific as clause 8 of the agreement which is sought to bind the parties in this case.

Surely, if the agreement was to be based on some other verbal assurances by Ms Chidavaenzi, would it have been prudent for a man in the mould of John Chagaresango to encourage his aunt to sign an agreement which was in sharp contrast with such verbal assurances. An inevitable question would then arise, why sign the agreement if one desires not to be bound by the terms above one's signature?

General Assessment of the Evidence

The evidence of the plaintiff's representative and Managing Director of both the plaintiff and the alleged seller, Champion Constructors (Pvt) Ltd, was precise and to the point. The witness was consistent throughout her testimony – firstly, in her plea, followed by her summary of evidence, her evidence in chief, and in her evidence under cross-examination that she did not give Fingold Real Estate, or anyone for that matter, the mandate to dispose of the property in issue and that what happened was tainted with fraud. She was quite clear that she only got to know about the alleged sale which had supposedly taken place on 26 September 2006 in November of the same year when a letter of demand had been dispatched to her by the defendant's legal practitioners and that she decided not to ratify such a fraudulent agreement.

The court was unable detect anything sinister in Ms Chidavaenzi being a major shareholder in both the above entities, that is Champion Constructors (Pvt) Ltd and the plaintiff.

The witness was subjected to a focused and thorough cross-examination, and, in my view, she acquitted herself extremely well and emerged unscathed.

One of the several pointed questions which was thrown at the witness in cross examination which demonstrated her focus and open-mindedness, which, in the court's view, gave some indication as to the possible motives behind the conduct of Evis Monica Mutodi and John Chagarasango in coming up with this idea of this 'sale' is captured in the record of proceedings as follows:-

“Q. Is there any probable reason why Ms Mutodi would go on to sell a specific Stand in respect of which she has no mandate?

A. A human being is not predictable, and, in this case, the most probable reason could have been money because on each sale they made they would earn a commission and Fingold confirms it that Monica Mutodi and John both shared the commission they earned from the unlawful sale.”…,.

As a witness, I found Ms Elizabeth Chidavaenzi focused, emphatic, confident, and convincing throughout the proceedings. Her evidence proclaimed loudly and boldly that there was no contract to talk about between Champions Constructors (Pvt) Ltd and the defendant.

The same cannot be said of the evidence of Evis Monica Mutodi and John Chagaresango. I have already tried to highlight some of the obvious shortcomings in their testimonies. Their evidence, individually and combined, was quite suspect as it failed to tally where it mattered most.

The evidence of the two witnesses was critical to the defendant's case because it was through them or one of them that the defendant's case was supposed to be anchored.

After listening to, and carefully weighing that evidence it became clear to the court that Fingold Real Estate could not possibly have been mandated to sell this property to the defendant by Champion Constructors (Pvt) Ltd or anyone for that matter. If my reading of the evidence is correct (which I am certain it is) then Fingold Real Estate could not possibly have acted as an agent of Champion Constructors (Pvt) Ltd.

We have a scenario where, at most, John Chagaresango acted as an agent of his aunt, the defendant, in looking for a house to purchase. If John abused his position at Fingold Real Estate then the defendant, by initiating this litigation, has targeted the wrong party. She is simply 'barking up the wrong tree.” The defendant's recourse should be against either Fingold Real Estate Agents or its identified former employees, John Chagaresando and Monica Mutodi, if it is true they shared the commission derived from the money paid by the defendant (which allegation incidentally stands unchallenged in the record of proceedings).

The effect of the order of this Honourable Court

That order was an order by default and it was affecting the parties cited therein, viz, the defendant in the instant case, Champion Constructors (Pvt) Ltd and Elizabeth Chidavaenzi.

Paragraph (a) of that order clearly stated that it was “legally binding and enforceable against Champion Constructors (Pvt) Ltd.”

It is common cause that the holder of title of the property in question is the plaintiff in this case, which was not cited in the proceedings of 19^th September 2007. It appears quite clear to me that this order could not possibly have been fully enforced without the citation of the holder of title - the plaintiff.

This might possibly explain why almost three years after obtaining that order the defendant has not attempted to enforce it. The defendant might have fully appreciated the futility of pursuing that route.

In any event, it is doubtful that if the court sitting on 19 September 2007 had been fully armed with the evidence presented in this fully fledged trial would have granted that order. In my view, the court would have been constrained to grant that order given that the title holder was not party to those proceedings. No court desires to be associated with a brutum fulmen decision.

Is the defendant a bona fide possessor?

It is abundantly clear from the evidence that the defendant obtained an order from this court on 19 September 2007 which called upon her to enforce it. The defendant has, from that time, adopted a lackadaisical approach in dealing with that order. She has made no effort to enforce that order and does not seem to be in a hurry to do so.

Instead, as the plaintiff's counsel has correctly observed, the defendant has simply moved onto the property without attempting to properly enforce the order.

The defendant is fully aware that the plaintiff was vehemently opposed to her occupation. Not only that, but when she occupied the property she embarked on unauthorized improvements on the disputed property. I believe that under such circumstances the defendant cannot qualify to be an innocent possessor of the property in question.

In any event, in the light of the findings of the court, the defendant is in a fraudulent agreement masterminded by her own agent, John Chagaresango, and is therefore disabled from deriving any benefit awarded to a bona fide possessor. The defendant must have recourse against either her agent or Fingold Real Estate Agents.

The position the defendant finds herself in was aptly put by RH CHRISTIE, Business Law in Zimbabwe, Juta and Co. Ltd 1985…, in the following:

“But, if the agent fraudulently misrepresents his authority he is liable in delicit for all consequential damages that are not too remote.”

Does the defendant have a right of lien?

The point has been made by the defendant's counsel that the defendant is a bona fide possessor, and, as such, has a lien or ius retentionis to enforce her right to compensation for the improvement she made on the property in issue.

The plaintiff's counsel is of the firm view that the defendant has recourse against her cousin and agent who fraudulently masterminded her entering into an agreement with a non-existent principal.

SILBERBERG and SCHOEMAN, The Law of Property, second edition, published by Butterworth, 1983…, admirably deal with this issue of lien when they state;

“By definition, a lien holder's right lies against the owner of the property which he has maintained, repaired, or improved…,. The headnote of the report states that Brooklyn House case is also authority for the proposition that a person who has improved property of another, in pursuance of a contract with a third party, has the same rights as a person who has merely protected it against loss or damage…,.”

See also Brooklyn House Furnishers (Pvt) Ltd v Knoetze and Sons 1970 3 SA 264 (A) for further guidance on the issue.

It does seem to me that the issue of a lien, not having been pleaded in the alternative or the defendant not having counter-claimed for compensation for the improvements made, that issue falls squarely outside the purview of the enquiry that must seize me. For this reason, this issue which is not part of the pleadings but was only given prominence in court addresses is irrelevant in the enquiry before me. The issue does not call for consideration in this matter for a case is rooted in the pleadings and not in court addresses.

What the plaintiff has successfully established in this case is that it is the holder of title of the property in question and that it did not mandate anyone to dispose of that property. Consequently, the defendant cannot use her improvements as a weapon or defence against her eviction. She can only file a claim if she so desires - but after vacating the premises in question. In this regard, I lean on the reasoning or the ratio in the case of Syfrets Participation Bond Managers Ltd v Estate Co-op Wine Distributors (Pvt) Ltd 1989 (1) SA 106 (T). Although the case involved improvements made by a tenant, I am satisfied that the same principle would apply in the instant case.

Overally, I am satisfied that the plaintiff's case is with merit and judgment is accordingly entered in its favour.

IT IS ORDERED;

1. That the defendant be and is hereby evicted from the property being Stand 3182 of subdivision 'A' of Stand 159 Prospect within seven days from the date of this order.

2. That the defendant pays costs of suit.

The plaintiff in this matter seeks an order requiring the defendant to vacate Stands 322 and 324 in Beitbridge Township and pay holding over damages from the 1^st of April 2006 to the date of vacation.

The defendant avers that it is the lawful purchaser of both houses in terms of written agreements of sale and counterclaims for the transfer of the Stands.

The plaintiff disputes the validity of the agreements of sale and pleads, in any event, that the defendant's claim in reconvention has prescribed.

At the trial of this case, the first witness (Peter Lewis Bailey) was called by the defendant. At the conclusion of this witness's testimony, it was agreed by both counsel that there were no material disputes of fact and that no further evidence would be adduced by either party.

Background Facts

In February 1998, Peter Bailey was appointed as the plaintiff's liquidator. Subsequently, in October 1999, a Deed of Compromise (the Deed) was concluded with the creditors and Bubye Minerals (Pvt) Ltd, and, thereafter, sanctioned by this Court in Case No. HC15191/99 [Exhibit 1].

Under the Deed of Compromise, Bubye Minerals was to take transfer of all claims of the creditors against the plaintiff. By virtue of the Court order, Peter Bailey was appointed as agent of the parties; firstly, to effect the transfer of claims in terms of the Deed, and, secondly, in order to receive, administer, and make payments of all amounts payable to the creditors in terms of the Deed. The Court order operated to set aside the winding up of the plaintiff.

Peter Bailey testified that he was approached by Bubye Minerals to sell the two houses in Beitbridge to the defendant. Peter Bailey then authorised both sales which took place in September 2002. At that time, one of the houses was occupied by a third party who had been given notice to vacate by the plaintiff, while the other house was already occupied by the defendant as lessee.

Thereafter, the defendant paid the purchase price in cash and this was immediately transferred to Bubye Minerals. The money was to be used to continue the running of the plaintiff's mines and thereby generate more income for the benefit of all the creditors. Peter Bailey's evidence was that the agreements of sale [Exhibits 2A and 2B] were entirely open and above board. Moreover, there was no indication, at the time, that the parties did not intend the sale of the houses or that the sales should be cancelled and the money paid by the defendant be refunded. On the contrary, after the purchase price was paid, the plaintiff gave vacant possession of both Stands to the defendant who then duly took occupation of the houses.

Authority to Sell

According to Peter Bailey, clause 2.3 of the Deed of Compromise, as read with clauses 4.1.1.3 and 4.2.1, empowered him to authorise Bubye Minerals to effect the sales in casu. Moreover, the disposal of the houses did not require any resolution of the plaintiff's Board of Directors whilst the Deed was in place.

By virtue of clause 2.3 of the Deed of Compromise, for so long as any amount payable to the preferred or concurrent creditors remained unpaid, Bubye Minerals was prohibited from alienating any of the plaintiff's assets “without the prior written consent of the Liquidator having first been obtained.”

In terms of clause 4.2.1, “the Liquidator shall exercise sole and absolute discretion in relation to the interpretation and implementation of this Deed and in the event of a dispute arising thereon, his decision shall be final and binding on all the parties hereto.”

In my view, although Article 2.3 is negatively couched in the form of a prohibition against alienation, when read in conjunction with clause 4.2.1, its necessary implication is that the liquidator was empowered to authorise the disposal of the plaintiff's assets if and when he deemed it appropriate to do so in the execution or furtherance of his general mandate.

In the agreements of sale concluded in September 2002 [Exhibits 2A and 2B] the plaintiff, as the seller, was represented by Adele Farquhar as “being duly authorised thereto”. At that time, Adele Farquhar was the Managing Director of Bubye Minerals. As appears from certain correspondence between March 1998 and March 2006, Adele and Michael Farquhar and/or Bubye Minerals were assumed to be the majority shareholders in the plaintiff [Exhibits 5, 6 and 7], while the Farquhars also evidently became directors of the plaintiff [Exhibits 4A, 4B and 4C].

Article 78 of the plaintiff's Articles of Association [Exhibit 9] provides for the appointment of Board of Directors. It empowers the existing directors to fill casual vacancies or appoint additional directors. Every such appointment is “subject to confirmation by the members at the next ordinary meeting.”

In the instant case, a former Director (one Cowper) gave notification, by letter dated the 30^th of August 2002, of his resignation as director of the plaintiff with immediate effect and his replacement in that capacity by Adele Farquhar. However, no evidence was placed before the Court as to whether the existing directors had concurred in this appointment or whether it was subsequently ratified at the next ordinary meeting of members.

In any event, the agreements of sale in casu were entered into by Adele Farquhar on the 5^th of September 2002 - after her ostensible appointment as a Director of the plaintiff. In this regard, according to Article 101 of the Articles of Association, “all acts done…, by any person acting as a Director shall, notwithstanding that it shall afterwards be discovered that there was some defect in the appointment of the Directors or persons acting as aforesaid, or that they or any of them are disqualified, be as valid as if every person had been duly appointed or was qualified.”

Under the law of agency, it is trite that the agent's actions operate to create a contractual or other legal tie between the principal and the third party. The agent's authority to act may arise either by dint of actual authority, whether express or implied, or by way of ostensible or apparent authority or authority by estoppel.

According to CHRISTIE: Business Law in Zimbabwe (1985)…,:

“In the language of the law of agency, apparent and ostensible authority are synonymous…, and ostensible authority is sometimes said to be created by the principal holding out the agent as having authority…, although sometimes a distinction seems to be drawn between apparent authority (flowing from the capacity in which the agent is employed) and holding out (by particular words or actions)…,.

Ostensible authority may arise otherwise than from the capacity in which the agent is employed, as exemplified by:…, from a course of dealing;…., from the third party's knowledge that the agent had authority to pay certain debts and presumption that he had authority to pay others;…, where the presumption of continuity was applied and the third party was entitled to assume that an agent to whom (unknown to the third party) the principal had transferred his business was still the principal's agent.

What is not clear is whether apparent authority, ostensible authority and authority by holding out are all synonymous with authority by estoppel, which requires not only a representation by the principal but that the third party has acted on it to his prejudice. No doubt, in ninety-nine cases out of a hundred the third party will have no difficulty in establishing prejudice, but it is suggested that it is not necessary for him to do so, as the situation contains all the elements of quasi-mutual assent, for which proof of prejudice is unnecessary.”

As regards the principal's right to vindicate property disposed of without his authority, the learned author states as follows…,:

“A principal whose agent has, without authority, disposed of property entrusted to his care may recover that property from third parties unless estopped from doing so, as by having given the agent ostensible authority to deal with the property.”

Applying these general principles of agency to the facts of this case, it seems to me that Adele Farquhar was duly authorised to represent the plaintiff as the seller of the two houses in September 2002.

Adele Farquhar's authority to do so derives, firstly, from the sales having been authorised by Peter Bailey in terms of clause 2.3 as read with clause 4.2.1 of the Deed of Compromise, and, secondly, from her ostensible appointment and subsequent acts as a Director of the plaintiff under Article 78 as read with Article 101 of the plaintiff's Articles of Association.

In my view, the cumulative effect of these provisions, coupled with the conduct of the parties before and after the disputed sales, affords the requisite authority to sell the houses in question.

It is to be noted in this regard that the first intimation of the sales being challenged was only provided in a letter from the plaintiff's lawyers addressed to the defendant on the 7^th of September 2004 [Exhibit 8] - over two years after the houses had been sold. In the intervening period, the plaintiff did not question the propriety of the sales and in fact gave vacant possession of the houses to the defendant. The latter, on its part, paid the agreed purchase price in full and took occupation of the houses. If the sales were to be reversed at this juncture, the defendant would be significantly prejudiced in terms of its monetary outlay for the Stands in 2002.

In the premises, I am satisfied that Adele Farquhar did possess the requisite ostensible authority to represent the plaintiff in the agreements of sale and that they were therefore validly concluded. The plaintiff is accordingly bound by the agreements and thereby estopped from recovering the Stands in question.

It follows that the plaintiff's claim for the eviction of the defendant cannot be sustained and it is accordingly dismissed with costs.

It also follows that the defendant is entitled to enforce the binding agreements of sale and therefore succeeds in its counterclaim for the transfer of the two Stands, subject to the determination of the plaintiff's special plea of prescription of the counterclaim.

In Jadwat and Moola v Seedat 1956 (4) SA 273…, CANEY J dealt with the issue as follows:

“An action for ejectment, on the grounds of a defendant being in wrongful and unlawful occupation, is, in essence, based upon his being a trespasser, and, trespass is an infringement of possession, which is one of the rights of ownership. If the owner has parted with possession, he cannot maintain an action for trespass against a third party and sue him for ejectment on that ground, since possession is not in him but in the one to whom he has parted with it; the owner has a cause of action only if his reversionary right to possession is injured by the trespass. Thomas v Guirguis, supra.

If, however, the owner has not parted with possession, he retains the right to sue for trespass and to claim ejectment.

He has the right to eject the trespasser in order that he may perform his contractual obligation to the person to whom he has parted with the right to possession, as in Jeena v Minister of Lands, supra.

This, in my opinion, is clearly so whether he has parted with the right to possession by selling the property or in some other manner conferring on another the right to possession.

Clearly, the buyer of a property who has not obtained transfer (nor cession of the owner's right of action) is not entitled to sue for ejectment: Nicholas v Wigglesworth 1937 N.P.D. 376. Nor, in my opinion, can a lessee who has obtained the right to possession but not obtained possession itself, sue a trespasser for ejectment.”

This case was followed in a long line of cases by the courts in South Africa....,.

The clear principle from those cases is to the effect, that, a lessee acquires a personal right to possession of the leased premises, and, until and unless granted vacant possession of the said premises by the lessor, such lessee has no locus standi in judicio to claim the ejectment from the same of a trespasser.

As stated by VAN DIJKHORST J in Nkadia v Mahlazi and Ors 1982 (2) SA 441 (TPD.)…:

“In respect of the claim for ejectment, the applicant's objection to the first respondent's locus standi is, in my view, sound. The rights acquired by the first respondent, in terms of the certificate of occupation, were, in the absence of possession on her part, merely personal rights. Her rights to vacua possessio are to be enforced against the person or body from whom they were acquired. I need not here decide which of the respondents this is to be done; cf Chiloane v Maduenyane 1980 (4) SA 19 (T); Tshandu v City Council 1947 (1) SA 494 (W); Bodasingh's Estate v Suleman 1960 (1) SA 288 (N); Padayache v Veerapan and Another 1979 (1) SA 992 (W).”

In this application, the applicants have sought the eviction of the respondent from 33 Taomina Avenue, New Marlborough together with all those claiming occupation through him.

I will start with the facts which are common cause.

The applicants are husband and wife. On 30 June 2008, the property in question was transferred into their joint names, and it is still registered in their joint names. The respondent is in occupation of the property in question.

As to the disputed facts from which the contentious issues emanate, the allegations are these: The applicants allege..., that the respondent is in illegal occupation of the residence.

The respondent has countered that by alleging that he purchased the Stand from them on 3 October 2008, and has attached an Agreement of Sale in respect of the alleged Agreement of Sale. He also has a copy of the title deeds which he says he obtained from the sellers.

It is accepted by the respondent that the applicants are the registered owners of the house in dispute.

The next issue for determination is: whether or not the applicants have the right to vindicate their property from the respondent.

The effect of registration of title to the property with the Deeds Office is to create exclusive rights for the holder of such title. Real rights are entrenched rights, and their registration is a declaration to the general public as who the holder of title is. It is a right in rein which is indefeasible. It is enforceable against the world at large.

The applicants are thus vested with real rights which entitle them to recover the property from whomsoever.

The defendant was married to one Clemens Westerhoff in terms of the marriages Act [Chapter 5.11]. The marriage was dissolved by this court on a date that is not readily ascertainable, and is, any event, immaterial for the purposes of this trial.

During the subsistence of the marriage, the parties had acquired an immovable property called Stand 491 Mount Pleasant Township 13 of Lot 33 of Mount Pleasant. This they set up as the matrimonial home. Title in the property was held freehold by a company called Westerhoff Investments (Private) Limited. It is common cause that the parties regarded the company as their joint alter ego, set up primarily for the purposes of holding title in the property.

Prior to divorce, and with the assistance of the judge who presided over a pre-trial conference in their matter, the parties settled as between themselves, a consent paper, which disposed of the issues of paternity and maintenance for the minor child of the marriage and the distribution of the joint estate. The consent paper was, at the time of the divorce, incorporated into and became part of the divorce order.

Regarding the fate of the matrimonial home, the court ordered as follows, following the wording of clause 5 of the consent paper:

“5. After the results of the paternity tests, the following scenario will obtain:

(a) The property known as No.29 Morningside Drive, Mount Pleasant, Harare, shall be valued for commercial purposes and the value shall be divided in such a manner that:

(i) If the plaintiff is the natural father of the minor child, plaintiff gets a 40% share, the defendant a 40% and the minor child 20% share, and the defendant shall pay to the plaintiff such amount as may be the difference between the plaintiff's 40% share and the sum of $110 million which is the lump sum payment for the maintenance of the minor child in full and final settlement as provided for in clause 2 hereof; and

(ii) If the plaintiff is found by results of the tests not to be (the) natural father, then the ratio shall be 60% for the plaintiff and 40% for defendant.

(b) The valuation provided for in clause 5(a) hereof shall be conducted by an independent valuer appointed by the Master of the High Court from his list and such valuation shall be conducted and concluded within 7 days of receipt by plaintiff (who shall serve the results on the defendant's legal practitioner within 7 days of receipt of them) of the results of the valuation.

(c) The costs of the valuation shall be borne by plaintiff and defendant in the ratio of 50% plaintiff and 50% defendant. The valuation costs shall be paid for in full by plaintiff to facilitate the process and he shall be refunded his share by defendant at the time that defendant pays what is due to plaintiff either in terms of clause 5(a)(i) or clause 6.

(d) Should the defendant fail to pay the amount payable to plaintiff within 12 months of the date of valuation, then, and in that event, and without notice to defendant, the plaintiff shall be entitled to sell the immovable property, and from the proceeds pay $110 million as provided for in clause 2, to defendant for the minor child and 40% of the proceeds to the defendant as her share. In a sale in terms of this clause, the defendant herein irrevocably appoints her legal practitioner, failing him the Sheriff or his lawful deputy to sign all documents necessary to effect the sale and resultant transfer, and the rates duties and other taxes payable by reason of the transfer including transfer fees shall be paid from the proceeds of sale.

6….,.

7….,.

8….,.”

It is common cause that in January 2006, the property was evaluated for the purposes of clause 5(a) of the divorce order. This was to set the value of the property at which the plaintiff before me, then defendant, could “buy off” her former husband's share in the property to enable her to acquire joint title with the minor child in the property, to the exclusion of her former husband. The defendant had a year in which to do this and the clock started ticking against her in January 2006.

It is further common cause that the defendant failed to raise the requisite funding necessary to bring into effect the provisions of clause 5(a)(i) of the order. She could not buy out her former husband and her failure to raise the necessary funding triggered the provisions of clause 5(d) of the divorce order. In terms of this clause, the property had to be sold and the proceeds parceled out in a pre-determined ratio.

Again, it is not in dispute that in the course of time, the property was sold to the plaintiff. Transfer of title was conveyed to the plaintiff, and, in due course, the plaintiff sought the eviction of the defendant from the property.

The defendant resisted the plaintiff's claim for eviction and this is the suit that came before me.

In defending the eviction summons at the instance of the plaintiff, the defendant pleaded that the agreement of sale to the plaintiff was defective, transfer to the plaintiff was fraudulently procured and was to the prejudice of the defendant and the minor child of the marriage. In the plea, the defendant prays for the sale and subsequent transfer of the property to be set aside.

At the pre-trial conference of the matter, where, in terms of our procedures, all legal issues ought to have been crystallized, the matter was referred to trial on the following issues:

1. Whether or not the agreement of sale entered into by and between the plaintiff and Westerhoff Investments (Private) Limited in respect of the property known as No.29 Morningside Drive, Mt Pleasant, Harare, and its subsequent transfer by the latter to the former, is valid at law.

2. Whether or not the plaintiff is entitled to an order for the eviction of the defendant from the premises.

3. Who between the parties should bear the costs of suit?...,.

It would appear that in terms of the defendant's summary of evidence, and indeed according to the evidence led at the trial, the defendant took issue with the fact that she was not consulted on the ultimate price at which the house was sold to the plaintiff. She is of the view that the property was sold at an unreasonably low price to her prejudice as she then could not buy another property from her share of the proceeds....,.

To substantiate its claim, the plaintiff first called Joseph Mandizha. He was approached by a third party to act on behalf of the defendant's former husband. He was instructed to carry out the terms of the divorce order as between the parties and as it related to the distribution and disposal of the former matrimonial home.

In January 2007, the witness advised the defendant that he had been instructed to cause the sale of the property. His instructions had been for him to proceed without informing the defendant as her time to act had come and gone by. He met with the defendant and her legal practitioner and they discussed the matter. He informed the defendant and her legal practitioners on how he intended to dispose of the property. He indicated to the defendant that while clause 5(d) did not place any obligation on him to consult her in disposing of the property, he would nevertheless keep her informed of developments out of courtesy.

Before putting up the property for sale, the witness caused a market appraisal of the property to be done. The estate agents that were approached to carry out this appraisal included Heaven on Earth, an agency in which he is the majority shareholder. After the appraisal, instructions were given to Heaven on Earth to sell the property. It is at this stage that reports were received to the effect that the defendant was objecting to the mandate given to Heaven on Earth Real Estate to sell the property. She sought to introduce a new agent to handle the sale.

Undeterred by the efforts taken by the defendant to stall the selling of the property, the witness had the property sold to the plaintiff in June 2007. The defendant was advised of the sale of the property through correspondence to her legal practitioners. Requests were made for the attendance of the defendant upon the witness for the signing of the agreement of sale. It is at this stage that the defendant intimated that the property could be sold for a higher price. It was indicated to the witness, by the defendant's legal practitioners, that, in view of the prices she was expecting, she was unlikely to sign the agreement of sale which reflected a purchase price of $13 billion. He received the purchase price for the property and then proceeded to facilitate the registration of transfer of the property to the plaintiff.

In disposing of the property, he never had sight of the Articles of Association of the company that held title in the property. He merely followed the dictates of the court order as to how the property was to be disposed and the proceeds distributed between the divorced parties and their minor child. While the parties held a meeting before the property was sold, it was never his intention to re-negotiate the dispute between the parties or to be taken outside the provisions of the divorce order. His instructions were not to revisit the distribution of the property.

When he was genuinely convinced that the defendant would not sign the agreement of sale, he requested the Deputy Sheriff to sign on her behalf in accordance with the court order.

The witness gave his evidence well and was very candid with the court. His explanations were full and while one may not agree that it was prudent of him to instruct his own agency to sell the property, one cannot, on that basis, find that he was an unreliable witness.

Next to testify on behalf of the plaintiff was one Tongoringa Mubaiwa. He is an estate agent working for Heaven on Earth Real Estate. He handled the sale of the property in dispute. Prior to putting up the property for sale he did a market appraisal of the property. He compiled a report of his findings. He was then given instructions to market the property which he did. Eventually he sold the property to the plaintiff. He drafted the agreement of sale which was signed in due course.

The witness gave his evidence well. He fared well under cross-examination. His answers and explanations were easy to follow. I find him a credible witness.

The plaintiff called Muriel Chengetai Dowa as its third witness. She represented the directors of the plaintiff in the purchase of the property.

She was under instructions from the plaintiff to look for a property. She, at one stage, responded to an advertisement by Heaven on Earth for a property in Mt Pleasant. The deal fell through. She then advised the estate agency to contact her should they have another property in the same area for sale. After some time, she was informed of the property in dispute. She was advised that the property was being sold as a result of a divorce. She could not view the property but was shown pictures of the same. The directors of the plaintiff advised her to seek legal advice before proceeding. She did and proceeded to buy the property. Eventually, the property was transferred to the plaintiff and when she tried to gain access to the property, after transfer, she was denied same by the defendant.

I find no fault with the evidence and manner of testifying of this witness. I shall rely on her evidence.

After the evidence of this witness, the plaintiff closed its case.

The defendant called one Bruce Beaven Mujeyi to give evidence first. He was acting as the legal practitioner of the defendant during the hearing of the divorce matter and was especially instructed to deal with the matter of the disposal of the matrimonial home.

At the time he received instructions to act in the matter, the matter had received a lot of publicity and tensions were high on either side. The legal practitioner who had acted for the defendant's husband during the divorce proceedings had renounced agency and he had to deal with Mr Mandizha, who, like him, had been instructed to act in the matter after the divorce had been granted. Mr Mandizha wrote to the defendant advising her that he was now handling the matter. He responded to the letter by telephoning Mr Mandizha. They agreed to meet. In view of the fact that neither he nor Mr Mandizha had handled the much publicized divorce, he suggested that the best way forward was for the parties to negotiate their way through the disposal of the former matrimonial home. He was aware of the divorce order and the consent paper on which the order was based.

In the meeting, Mr Mandizha agreed to keep him abreast of developments as he had the company documents and the Deed of Transfer in respect of the property. He also understood that the draft agreement would be forwarded to him for his input.

Regarding the agency of Heaven on Earth in the matter, the defendant was clearly uncomfortable that an agency in which Mr Mandizha had an interest should be used to sell the property. On the instructions of the defendant, he addressed a letter to Mr Mandizha expressing these concerns. When Mr Mandizha responded showing little concern for this since his client had no problem with the arrangement, he filed an urgent application on behalf of the defendant seeking to interdict Heaven on Earth from proceeding. Regrettably, the matter was not determined as the judge before whom the urgent application was placed ruled that the matter was not urgent as there were other remedies available to the defendant.

His further understanding was that if the property was to be evaluated, this had to be done by an estate agent on the Master of the High Court's roll.

The defendant also informed him that she had problems with people coming to view the house. Since the parties had agreed to negotiate, they had not agreed on who was to carry out the evaluation of the property. His client was aggrieved by this as it went against the spirit of the meeting while Mr Mandizha was equally aggrieved by what he perceived as lack of co-operation from the defendant. He was somewhat caught in the middle.

On 25 June 2007, he received notification that the property had been sold and requesting his client to sign the draft agreement of sale. He had not been shown a copy of the draft. He was constrained to write to Mr Mandizha informing him that he could not sign the agreement on behalf of his client; that his client was out of the country; and that she would take issue with the price at which the property had been sold. From the response he received, he gained the impression that he should wait for Mr Mandizha's further advice. The letter read:

“Your letter of 26 the instant received in fax form refers. (Sic)

We advise that it has been referred to our client. We will revert to you once his instructions are to hand.”

When his client returned, he contacted Mr Mandizha to advise him that the parties could now move forward. He was advised that the property had been sold. For his client's signature, Mr Mandizha had approached the Deputy Sheriff. He then advised his clients of the developments and the two parted company after he felt that it was best that another law firm takes over the matter as the defendant felt that she had been let down.

The witness gave his evidence well. He was quite clear in his responses to questions and while his reading of the divorce order may have been different to mine, in some respects, that is not a basis for impugning his credibility.

The defendant also gave evidence.

During the subsistence of her marriage to her former husband, the two bought a property that was registered in the name of a company. At the time of the divorce, the parties entered into a consent paper.

She tried to raise money to “buy the defendant out” but failed. She is living openly with HIV/AIDS and was not in gainful employment at the time. When she realized that she could not raise the necessary funds to buy him out, she tried to sell the property within the one year stipulated in clause 5 of the divorce order. She failed.

In January 2007, she received a letter from Mr Mandizha advising her that he wanted to sell the property. She attended a meeting with Mr Mandizha in the company of her legal practitioner. It was agreed at the meeting that the fighting between the parties should come to an end; that the parties would henceforth resolve all issues amicably; and that the parties would be in constant communication over the disposal of the former matrimonial home. At the meeting, no mention was made of the estate agency that would dispose of the property.

A day after the meeting, an agent from Heaven on Earth came to the property to carry out an evaluation of the property. She allowed him in. Later on, she did not open her gate to him and to people who wanted to view the property. She had issues with the whole process as she had not received the valuation report to compare it with her own idea of how much the property should fetch. When she finally received the evaluation report, she then realized that Mr Mandizha was one of the directors of Heaven on Earth. She raised the issue with her legal practitioner. She felt that there was an obvious conflict of interest in that Mr Mandizha represented her former husband, was selling the property through his agency, would do the conveyancing, and then distribute the proceeds from the sale to the parties as between the parties and the minor child. The matter came to court, but, unfortunately, the urgent application was not granted.

While waiting for developments in the matter, she instructed her lawyers to place a caveat against title to the property as she felt that she had real rights in the property that needed protection. She was also protecting the interests of the minor child.

Some time later she sent an e-mail to her lawyer suggesting that an independent estate agent be appointed to handle the sale. She suggested one. She copied the email to Mr Mandizha. In the e-mail she also gave her own suggestion of the fetching price for the property.

She left Harare for some time and when she returned she was advised that the property had been sold. She was not happy. She went to her legal practitioner and asked him to stop the transfer and he filed an urgent application. She went to the Anti-corruption Unit and lodged a complaint. Before the urgent application to stop the transfer could be heard, Mr Mandizha appeared and showed them the Deed of Transfer. She then withdrew the case.

At one point she expected her former husband to call for a company resolution on the disposal of the property.

In her view, her former husband did not comply with the court order from the beginning. Her legal practitioners ought to have been shown a copy of the draft agreement. They were not. At the same time she was also looking for another house to buy. The price fetched for the former matrimonial property was not sufficient to meet her obligations in procuring another property.

In conclusion, she prayed for an order setting aside the sale and transfer to the plaintiff and for the property to be resold under the supervision of the Master of this court.

The defendant was understandably highly emotional when she gave her evidence. This however did not deter her from giving her opinion on how the former matrimonial home should have been disposed of. Her testimony was to a large extent corroborated by that of her former legal practitioner. I have no cause to disbelieve her on fact. Due to the emotion which the defendant testified and presumably which she attaches to this matter, I have reproduced her testimony in greater detail than for any other witness deliberately as I shall try and examine each issue that she has raised in her evidence and upon which she rests her defence.

It is not in dispute that the plaintiff has brought the rei vindicatio against the defendant.

As aptly summarized by counsel for the plaintiff, in his closing submissions, the plaintiff has approached this court as an owner of the property to seek the ejectment of the defendant simply on the basis that it is the owner and is thus entitled, as such, to enjoyment of its property.

The rei vindicatio is an action that is founded in property law. It is aimed at protecting ownership. It is based on the principle that an owner shall not be deprived of his property without his consent. So exclusive is the right of an owner to possess his or her property that, at law, he or she is entitled to recover it from wherever found and from whomsoever is holding it without alleging anything further than that he or she is the owner and that the defendant is in possession of the property. Thus, it is an action in rem enforceable against the world at large.

This is settled law in this jurisdiction which hardly requires authority. See Sibanda v The Church of Christ 1994 (1) ZLR 74 (SC); Musanhi v Mt Darwin Rushinga Cooperative Union 1997 (1) ZLR 120 (SC); Mashave v Standard Bank of South Africa Ltd 1998 (1) ZLR 436 (S); Jolly v A Shannon & Anor 1998 (1) ZLR 78 (HC); and Stanbic Finance Zimbabwe Ltd v Chivungwa 1999 (1) ZLR 262 (HC).

The bedrock of all the above decisions is Chetty v Naidoo 1974 (3) SA 13 (A) where…, JANSEN JA had this to say:

"It is inherent in the nature of ownership that possession of the res should normally be with the owner, and, it follows that no other person may withhold it from the owner unless he is vested with some right enforceable against the owner (eg. a right of retention or a contractual right). The owner, in instituting a rei vindicatio, need, therefore, do no more than allege and prove that he is the owner and 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."

There are primarily two defences to the rei vindicatio, each aimed at destroying each of the two essential elements of the action;

1. The first one seeks to destroy the claim of ownership completely by denying that the plaintiff is the owner of the property in question or seeks to diminish his rights in the property by admitting his or her ownership but by alleging that the plaintiff has parted, under some recognized law, with the right to exclusive possession of the property.

2. The second defence, of course, is to deny possession of the property at the time the action is brought or the claim is instituted.

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.

In casu, the plaintiff has not denied that the plaintiff is the owner of the property. She has not denied that she is in possession of the property in issue. She has however sought to attack the right of the plaintiff to exclusive use of the property on the basis that she was unfairly treated by her former husband and his agents when the property was disposed of.

In my view, the defendant's case is hampered by the application of three legal principles.

(a) Firstly, she is relying on the consideration of equities in the matter to deny the plaintiff exclusive enjoyment of its property.

I repeat her evidence in this regard. She could not raise enough funds to purchase her former husband's share in the property as she was not in gainful employment at the time. She could not raise any loans as she is publicly known to be living with the HIV/AIDS virus. She intended to purchase another property for herself and for the minor child of the marriage. She could not do so from the proceeds of the sale of the property as her share was too low. The success of this suit against her will literally make her and the minor child of the marriage homeless.

On the other hand, the plaintiff has bought the property for investment purposes. It does not require the property for its own accommodation but as an income-generating investment. Thus, on equities alone, the defendant has a strong case.

Having heard and seen the defendant testifying and having listened to the impassioned plea that she was making to the court for a break for herself and the minor child of the marriage and having heard the anguish in her voice, I would have, if I had any, used my discretion in her favour and granted her prayer.

I have none. The law gives me none. I have no power to abrogate any to myself to change the principles of the rei vindicatio to bring in the consideration of equities into the matter. My hands are tied. I must apply the law that denies her a remedy even if I am keenly aware of her circumstances.

(b) Secondly, the defendant has not raised any personal relationship with the plaintiff in terms of which the plaintiff may be estopped from taking possession of the property from her.

The legal authorities are all clear that in a rei vindicatio, where the defendant shows that he or she has some right of possession enforceable against the owner, then the action cannot succeed. To succeed in defeating the action, a defendant must therefore set up facts that establish a legal relationship in terms of which possession of the property by the defendant is justifiable.

It is a settled position at law that it is only when the wife in the position of the defendant proves that the plaintiff has associated with her former husband to defraud her of her rights in the former matrimonial home can she resist an action of eviction at the instance of the plaintiff.

See Ferris v Weaven 1952 (2) ALL ER 23: Maganga v Sakupwanya 1996 (1) ZLR 217; and Nene v Nyatwa SC119-91.

In casu, no suggestion was ever made, in evidence, that the plaintiff fraudulently associated with the defendant's former husband to defeat her just claims in the former matrimonial home. If anything, all the blame was heaped on the legal practitioner acting for the defendant's former husband for violating the consent order in more than one respect.

I have been referred to two decisions of this court that seem to go against the finding that I make in this matter. See Ndlovu v Ndlovu HH15-04 and Chapeyama v Chapeyama HH96-05.

In Ndlovu v Ndlovu HH15-04 I made the finding that the personal rights that the wife had in that matter were equal to the personal rights that the third party had from his agreement of sale with the respondent/husband. It is worth noting that in that case, no transfer of the property had been effected in favour of the third party when the wife/applicant approached the court for relief. The facts of that matter are therefore distinguishable from the facts in this matter. The competition in that case was between two equal rights. The applicant wife and the respondent/purchaser had personal rights against the respondent/husband, and, on a balance of equities, the applicant succeded.

In Chapeyama v Chapeyama HH96-05 the suit was between the former spouses, and, in my view, GOWORA J correctly held that as between the two of them the wife had breached the terms of the divorce order in having transfer registered in her favour before first affording her former husband the right to purchase her out. She therefore ordered the two parties to proceed in terms of the divorce order.

In any event, the above two cases were each instituted by the wives to protect their rights in the properties in question. The causes of action in both cases were different and called for different considerations. As indicated above, the applicant in this matter is bringing a rei vindicatio. The considerations that I have to take into account when dealing with this specific cause of action are different from the considerations that arose in the above cases. Such is the law.

Finally, the defendant has raised issues with the manner in which the property was disposed of in terms of the divorce order. She alleges that the terms of the consent paper, incorporated into the divorce, were violated to her prejudice.

Two issues arise here.

(1) Firstly, the divorce order is only a judgment in rem as far as it regulates the status of the former spouses. When it deals with the distribution of the matrimonial estate, it becomes a judgment inter partes and is only binding as between the parties. It creates personal rights in favour of the divorcing parties and where it is violated, the injured former spouse can seek recourse against the other former spouse. The injured party cannot seek recourse against the world at large for an injury occasioned by a judgment that is personal.

(2) Secondly, the rights to property in the matrimonial estate that a divorcing party is afforded by the divorce order are founded on principles of equity as provided for in section 7 of the Matrimonial Causes Act [Chapter 5.13]. Such rights, even if granted by a court order, are not rights in rem.

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

It has been the position in this jurisdiction that the rights that a wife has against her husband in terms of family law are personal against her husband and do not enter the realm of property law to clog the rights of an owner.

The chasm between family law considerations and property law considerations has been the subject of many debates in this jurisdiction. This court is getting hoarse from bemoaning the injustice that this chasm has wrought on wives and from imploring the legislature to redress the injustice by enacting appropriate legislation. The situation has not yet been addressed and many wives in the position of the defendant will have to wait a while longer for redress and justice. See Muswere v Makanza HH16-05 and P.M. Semwayo and Another v C Chitara and Another HH48-07.

In casu, and for my purposes, it is not therefore material for me to determine whether or not the property was sold strictly in terms of the divorce order. Even if the defendant is correct and I find that the property was not sold strictly in accordance with the provisions of the court order, that finding will not assist the defendant's case. She cannot raise a defence from the principles of the law of husband and wife to defeat a rei vindicatio at the instance of a third party.

On the basis of the foregoing, the plaintiff's claim must succeed….,.

In the result, I make the following order:

1. The defendant and all those occupying through her are to give vacant possession of the property called Stand Number 491 Mount Pleasant Township 13 of Lot 33 Mount Pleasant to the plaintiff within 30 days of this order failing which the Deputy Sheriff is hereby authorised to evict the defendant and all those occupying through her from the property and give vacant possession to the plaintiff.

On 22 July 2008, the plaintiff issued summons out of this court seeking the following:

(a) An order compelling the defendant to release to herd sixteen her of cattle, plough, scotch-cart axle, two size 16 tyres with tubes and rims, seventy five litres of petrol, and a water pump.

(b) Costs of suit.

The plaintiff and her husband stay at..., Kambuzuma, Harare but have their rural home in Chikomba. Their cattle, at the rural home was left in the custody of the defendant who would look after them, and would, periodically, from time to time, account for them to the plaintiff and her husband....,. In 2000, at the height of the land reform exercise in this country, the defendant resettled at..., MuGreek Farm in Marondera district, and when he relocated to that place, he took with him the plaintiff's cattle.

After he had settled at his new place, the defendant approached the plaintiff, and her husband, and asked to be lent a water pump, plough, scotch-cart axle, two tyres with tubes and rims, both size 16, and he undertook to return these items once he was on his feet.

To confirm the fact that the plaintiff, and her husband, had cattle in Chikomba, the plaintiff produced their 1986 stock card..., which showed that the family had nine herd of cattle in the district of Chivu. The stock card bore the official stamp of the Animal Health Inspector. On that card, the dip tank is given as Mpatsi, a factor which was confirmed by both the defendant and his son Evanz.

It was also the plaintiff's husband's unchallenged testimony that ...., the plaintiff's husband made a follow up at MuGreek Farm, whereupon arrival he was shown nineteen herd of cattle by the defendant's daughter..., (as directed by the defendant)...,. It was his evidence that on this occasion the defendant was not there...,. This witness further testified that after his visit he went back again to MuGreek Farm and arranged with the defendant about the collection of the cattle, and, at that stage, there appeared to be no problem....,.

Both the plaintiff, and her husband, gave a flawless account of how the defendant paid them a visit at Kuwadazana and asked for, and was given, a water pump, tubes, scotch-cart axle, and other items mentioned in the summons. It was Isaiah Mucha's evidence that he actually took these items from his carport and handed them over to the defendant, and loaded them into his motor vehicle, and drove the defendant to Mbare Musika, from where he boarded public transport to MuGreek Farm with the items.

The arrangement was that these items would be returned once the defendant had settled down at his newly found home...,.

As for the claim for seventy five litres of petrol allegedly drained by the defendant, the claim arose from the fact the when the plaintiff's husband drove to MuGreek Farm to collect the family cattle, and the other property, he had filled up his motor vehicle with seventy six litres of petrol. In addition, he had carried twenty litres of fuel in a container.

The plaintiff's husband's uncontroverted testimony was that he must have used fifteen litres or so from Harare to MuGreek Farm. The result of the plaintiff's husband's unexpected assault, by the defendant, was that the plaintiff, and her husband, unceremoniously left MuGreek Farm, and when they did so, the defendant remained with both the motor vehicle and the unused fuel.

The plaintiff produced exhibits..., to show that she needed a court order, and a warrant of arrest, to compel the defendant to release the motor vehicle. It was the unchallenged evidence of the plaintiff that when the car was eventually recovered it had no fuel.

The court, therefore, finds no hesitation in concluding, by inference, that the defendant must have used the fuel, and the plaintiff's claim under this heading is, therefore, justifiable.

In denying the claim by the plaintiff, the defendant denied ever keeping the plaintiff and her husband's cattle, and denied ever receiving the other family items.

The defendant argued that the cattle he took from Chikomba to MuGreek Farm were his, as the plaintiff and her husband did not have any cattle.

The defendant produced his own stock card..., the movement of animal permit.

The plaintiff's position was that the stock card was a fake document...,. Above all, the plaintiff drew the court's attention to the defaced name of the cardholder, as well as the identity number of the cardholder, which had been interfered with.

The reservations raised by the plaintiff are quite evident..,.

The stock card has no official date stamp from the Animal Health Inspector, and there is overwhelming evidence of interference, both on the name of the cardholder and the identity number...,. In is the court's view, the authenticity of the plaintiff's stock card is beyond reproach but the same cannot be said of the defendant's stock card. That document is a fake document which was brought in in a stout effort to confuse issues in order to mislead the court...,.

What is clear..., is an unmistakable determination by the defendant to lie to this court...,.

The credibility of both the plaintiff, and the plaintiff's husband, cannot be doubted in this case. In the end, I am satisfied that the plaintiff's claim is a legitimate one and she has been able to establish it on a balance of probabilities.

Everything said, I am inclined to make the following order:

(a) That the defendant be and is hereby ordered to release to the plaintiff, within ten working days of the granting of this order, sixteen herd of cattle, one plough, scotch-cart axle, 2*2 size 16 tyres with tubes and rims, a water pump, and seventy five litres of petrol.

(b)That in the event of the defendant failing to comply with (a) supra, the Deputy Sheriff shall be and is hereby ordered to enforce this order.

On 9 April 2008, the two applicants entered into an Agreement of Sale of Stand Number 2700 Glen Norah A, Harare, with the first respondent. They paid the purchase price, and had the Stand ceded into their names.

On 14 April 2008, the applicants gave notice to occupants of the property to vacate the property so that they could take occupation.

The occupants did not vacate.

The applicants have, thus approached this court for an order for the eviction of the second respondent and all those claiming occupation through him.

The first respondent filed a purported notice of opposition in which she, in effect, was in support of the eviction of the second respondent and all those claiming occupation through him.

The applicant herein is the registered owner of an immovable property commonly known as 425 Dandaro Village. The applicant has owned the property since April 2004. In this matter, the applicant is seeking the eviction of the respondent from the premises.

The respondent is opposed to the granting of the relief being sought.

The respondent, in seeking to oppose the order being sought has raised a point in limine. He avers that there are many disputes of fact on the papers which cannot be disposed of without the hearing of oral evidence. He alleges that he occupies the property with the consent of one Margaret Kathleen Matthew and her husband. He said that these two had sold the property to him in February 2004 and that this alleged sale was an issue before this court in case number HC1454/05.

This court, on 4 October 2006, did, under that case number, issue out a judgment in terms of which the respondent was evicted from the premises. This judgment is however the subject of an appeal to the Supreme Court. I will therefore not comment on the findings by the learned judge in that matter.

The respondent contends, further, that even in these proceedings it is the said Margaret Matthews and her husband who are seeking to evict him and his family through the medium of the applicant.

It is correct that the Matthews have been litigating with the respondent under other case numbers for his eviction from the house. On 23 November 2006, Margaret Matthews filed an application for leave to execute pending appeal which was unsuccessful. In his opposing affidavit to that application, the respondent made the following averments under oath:

“Para 3(e)(i)

In my notice of appeal I raised a number of grounds against the judgment. In essence, I contended that I had offered to buy the property from the applicant to which the applicant did not act.

3(e)(ii)

In any case, the applicant had acted prematurely in seeking my eviction when I was expecting a written agreement to be signed by both parties.

3(e)(iii)

I deny that I appealed in order to frustrate the applicant. I raised the necessary grounds of appeal. I want to protect the offer I made to purchase the house.”

It is clear that whereas in the application before me the respondent contends that he purchased the house from Mrs Matthews; in the earlier application, where he was pitted against her, he told the truth that he had in fact offered to purchase the house but Mrs Matthews did not, as he put it, “act”.

I therefore find that there is no dispute of fact on the alleged purchase of the house by the respondent from Mrs Matthews.

As to whether or not it is Mrs Matthews and her husband trying to evict the respondent through the applicant is concerned, this averment has no merit.

The applicant is the registered owner of the property as the title deeds would show. The respondent has not, apart from making a bald averment as to their alleged involvement in this application, laid any foundation for his claim about how they are acting and I find no substance in the allegation.

It is correct that the respondent assumed occupation through Mrs Matthews in terms of an agreement of lease. It is not clear in what capacity the said Mrs Matthews assumed control of the premises and leased them to the respondent. At the time that the lease agreement was concluded the property was registered in the name of Wenham Investments (Pvt) Ltd. The capacity of Mrs Matthews to have concluded the agreement in the first place was raised by the applicant in these proceedings. She is not a party before me but the respondent, apart from stating that her right to enter into the agreement was recognized by this court, the respondent has not been able to place me any facts which would confirm the legal capacity for Mrs Matthews to have leased the property to him.

In my view, he has not even been able to defend the legality of the lease agreement that he alleges existed before the incidence of the applicant on the scene. He has also claimed that he is on the premises with the consent of Mrs Matthews, which claim I find untenable as she has been actively seeking his ejectment from the premises as far back as 2005 as the pleadings will show.

Coming to the present, the applicant is now the registered owner of the premises. It is therefore entitled to recover the same unless the person in occupation is vested with an enforceable right against the owner. See Chetty v Naidoo 1974 (3) SA 13…, where JANSEN JA stated the following;

“…,. It may be difficult to define dominium comprehensively (cf. Johannesburg Municipal Council v Rand Townships Registrar and Others 1910 TS 1314 at 1319) but there can be little doubt (despite some reservations expressed in Munsamy v Gen-gemma 1954 (4) SA 468 (N) at pp 470H-471E) that one of its incidents is the right to exclusive possession of the res, with the necessary corollary that the owner may claim his property wherever found, from whomsoever holding it. It is inherent in the nature of ownership that possession of the res should normally be with the owner, and it follows that no other person may withhold it from the owner unless he is vested with some right enforceable against the owner (eg. a right of retention or a contractual right). The owner, in instituting a rei vindicatio, need, therefore, do no more than allege and prove that he is the owner and that the defendant is holding the res - the onus being on the defendant to allege and establish any right to continue to hold against the owner (cf. Jeena v Minister of Lands 1955 (2) SA 380 (AD).”

The applicable action is the rei vindicatio which applies for both movables and immovables and it is an action in rem, The Law of Property – SILBERBERG, 3ed…,.

An owner who institutes a vindicatory action need allege, and prove, no more than that he is the owner and that the property is in the possession of the defendant at the time that the recovery action is commenced. If the owner does not go beyond proving ownership in the res, then the defendant has the onus to establish any right to retain possession of the thing being sought to be recovered.

Thus, in casu, the respondent can only remain therein if he can establish a legal basis to do so.

He has alleged an agreement of lease with Mrs Matthews. Mrs Matthews is not the registered owner. If his alleged defence is based on an agreement of lease, such defence would fail unless it was concluded with the applicant herein or if it had been entered into with the previous registered owner and was, at the time that the applicant assumed ownership, still in force. His only recourse would be to allege an agreement of lease with the applicant.

He has attached an agreement of lease concluded on 10 January 2004 with Mrs Matthews. An examination of the Deed of Transfer reveals that transfer to the applicant was effected on 6 April 2004. He cannot claim, therefore, to have concluded a lease agreement with the applicant as it assumed ownership after the lease agreement was concluded. The respondent has never held an agreement of lease with the registered owner of the premises in question at any stage. He did not purchase the property, and, consequently, he has not established a right to remain on the premises.

The respondent further contends that he is a statutory tenant. A statutory tenant can be protected from eviction as long as he shows that he is paying rentals.

Apart from alleging that he is a statutory tenant, the respondent has not even claimed that he has been paying rentals. In case number HC7306/06 the respondent claimed that Mrs Matthews had not indicated how much rental was due to her, and, further, that she had made no demands for rentals. That constitutes a clear admission, in my view, that he had not paid rentals. In this application, the respondent has conveniently left the issue of rentals unsaid.

The applicant, as part of the order sought, prays that the order not be suspended in the event that the respondent appeals against this judgment.

The respondent has not challenged the prayer for the order to remain operational even in the event of an appeal being noted. At common law, the noting of an appeal suspends the operation of the judgment appealed against. It is trite that the court has the discretion to grant an applicant leave to execute a judgment pending appeal.

In Whata v Whata 1994 (2) ZLR 277 (S) GUBBAY CJ stated that the principle to be applied by the court considering an application for leave to execute pending appeal is what is just and equitable in the circumstances.

The enquiry would involve the assessment of factors such as the potentiality of irreparable harm or prejudice being sustained by either the successful or losing party, and, if by both, the balance of hardship or convenience; and the prospects of success on appeal, including whether the appeal is frivolous, vexatious or has been noted for some indirect purpose such as to gain time to harass the other party.

The applicant, in paragraph 12 of the founding affidavit, alluded to the respondent probably noting an appeal to gain more time in on-going occupation of the disputed premises. It also opined that an appeal would have no prospects of success. There was, however, no attempt to deal with the other factors that must be considered in an application for leave to execute. I am of the view, therefore, that in the event that the respondent notes an appeal against this order, the applicant may, at that stage, lodge and file an application for leave to execute pending appeal.

In this regard, I wish to respectfully associate myself with the remarks of the learned Chief Justice in Whata v Whata 1994 (2) ZLR 277 (S) where he stated…,:

“The need to take account of such factors serves to underscore that it is contrary to the basic tenets of natural justice for a court to order that its judgment be operative and not be suspended before giving the unsuccessful party the right to be heard as to why execution should be stayed.”

In the premises, the applicant's claim against the respondent for his ejectment from the Dandaro house and an order will issue in terms of the draft. The application succeeds to that extent. The respondent is ordered to pay the costs of this application.

On 16 March 2007, and at Harare, the applicant entered into a sale agreement with Gatsikanayi Enock Nyamupanda (herein after referred to as Nyamupanda) for the purchase of a certain piece of land being Stand Number 9642 A Salisbury Township also known as Number 2 Umuguza Close, Wilmington Park, Cranborne, Harare, held under Deed of Transfer number 896/03.

The applicant duly paid the purchase price and title was passed to him on 20 April 2007 under Deed of Transfer number 2076/07.

He however could not take occupation of the property as the respondent's son, Killian Chipendo, was in occupation. As a result, the applicant instituted legal proceedings for the eviction of Killian Chipendo and all those claiming occupation through him in case number HC2951/07.

On 26 February 2008, the eviction order was granted and a writ of eviction issued. On 26 August 2008, Killian Chipendo and all those claiming occupation through him were duly evicted by the Deputy Sheriff.

The respondent, who was amongst those evicted on that date, re-took occupation of the property without any court order.

The respondent contended that she was not claiming occupation through Killian Chipendo but in her own right as the surviving spouse of the late Ronnie T Chipendo.

It is common cause that the Estate late R T Chipendo was administered by an executor dative – Muchivete Hungwe of Messrs Hungwe and Partners legal practitioners.

The executor dative obtained authority to sell the property in terms of section 120 of the Administration of Deceased Estates Act [Chapter 6:01] from the Master of the High Court.

Upon obtaining the Master of the High Court's consent he duly sold the property to Gatsikanayi Enock Nyamupanda. Title was passed to Gatsikanayi Enock Nyamupanda by virtue of Deed of Transfer number 896/03.

After the sale, the executor dative did a final Administration Account and distribution plan. The proceeds of the sale were shared amongst the children of the late Ronnie T Chipendo.

The respondent did not partake in the proceeds as she was said to have divorced the late R T Chipendo in 1991 - well before his death.

Gatsikanayi Enock Nyamupanda, as the new owner, sold the property to the applicant on 16 March 2007. The applicant duly obtained title by virtue of Deed of Transfer number 2076/07 dated 20 April 2007.

It was in furtherance of his title to the property, that, on 26 February 2008, the applicant obtained an order for the eviction of Killian Chipendo and all those claiming occupation through him from this court.

The eviction was duly executed by the Deputy Sheriff on 26 August 2008.

As already alluded to, the respondent was one of those who were evicted from the property. She however re-took occupation without any court order. In Mairos Lisimba v Lizzy Chipendo HC868/09, the applicant therein instituted contempt of court proceedings against the respondent for re-occupying the property after eviction.

The respondent opposed the application claiming that she was never cited in the proceedings that led to Killian Chipendo being evicted. As a surviving spouse she occupied the house in her own right.

In this case, HC2220/09, the applicant sought an eviction order against the respondent, her guests and invitees, and all those claiming occupation through her from the property in question.

The respondent opposed the application.

Her opposition was based on her contention that she was the surviving spouse as she had never divorced the late R T Chipendo.

There was no denying that the respondent did not challenge the initial sale of the property by the executor dative to Gatsikanayi Enock Nyamupanda. She also had not objected to the subsequent sale by Gatsikanayi Enock Nyamupanda to the present applicant.

It was further not disputed the property was now registered in the applicant's name.

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

This is what transpired in this instance when ownership passed to Gatsikanayi Enock Nyamupanda, and, later, to the applicant in that order. As owner, the applicant is entitled to claim the property from anyone who is in occupation.

Indeed, as noted in Chetty v Naidoo 1974 (3) SA 13 A:

“There can be no doubt that one of the incidents is the right of the exclusive possession of the res with the necessary corollary that the owner may claim his property wherever and from whosoever is holding it. It is inherent in the nature of ownership that possession of the res would usually be with the owner; it follows that no other person may withhold it.”

The respondent's defence to the application was bound to be affected by the decision in Lizzy Chipendo v Tinashe Muchivete Zenda & Ors HC2655/09.

In that case, the applicant, who is the present respondent, was seeking condonation for the late filing of an application for review in HC2575/09.

After the ruling in HC2655/09 in which I dismissed the respondent's application for condonation for the late filing of HC2575/09, counsel for the applicant inquired on whether the respondent was still intent on opposing the applicant's application in HC2220/09 and HC868/09.

Counsel for the respondent indicated that in view of the ruling in HC2655/09 she was no longer opposing the relief sought by the applicant in HC2220/09. She however expressed reservations about the relief in HC868/09 which is an application for contempt of court.

I did not hear the applicant's counsel to insist with that particular relief.

It was conceded that essentially what the applicant was seeking in both HC868/09 and HC2220/09 was the eviction of the respondent from the premises in question. In HC2220/09 the respondent was cited by her preferred name, and there is no doubt as to who the order affects, thus it may not be necessary to proceed to HC868/09.

Should she defy the order in HC2220/09 then contempt proceedings may be brought against her. This time she would have no excuse that the court order was not in her name.

In the circumstances, the application in HC2220/09 is granted in terms of the draft order, that is:

It is hereby ordered that:-

1. The respondent, her guests, invitees, and all those claiming through her, shall, within 48 (forty eighty) hours of the granting of the order vacate the premises known as Number 2 Umguza Close, Wilmington Park, Harare failing which the Deputy Sheriff is hereby empowered to evict them.

2....,.

3. There is no order as to costs.

On 26 July 2008, the applicant issued summons, out of this court, claiming eviction and other ancillary relief against the respondents.

On the same date the summons were served on the first respondent who accepted service on behalf of the second respondent.

The dies induciae expired on 6 August 2008.

The applicant is a duly registered corporate entity under the laws of this country. On 30 March 2008, following conciliation through an arbitrator, the dismissal of the respondent from amongst the ranks of the applicant's employees was confirmed.

As a result, the parties' formal relation came to an end.

At the time, the respondent was in possession of a vehicle belonging to the applicant. The applicant had requested that the respondent, some time prior to these sad events, use her own vehicle for the business of the applicant. In turn, the applicant undertook to have the vehicle serviced and repaired at its own cost. The vehicle required certain repairs, and, as a result, the respondent was given use of the applicant's vehicle on the understanding that it would be returned once hers had been properly repaired. When the relationship was terminated, the respondent's vehicle was still undergoing repair. Some time thereafter the applicant sent the respondent's vehicle to her with a request that its own be returned. The respondent refused and it is that refusal that has prompted the applicant to launch these proceedings for a rei vindicatio for the return of the vehicle.

The respondent has opposed the granting of the relief in question.

Our law, as it currently stands, is to the effect that once an employee has been suspended or dismissed from employment, any benefits extended to such employee from that relationship cease. In Chisipite Schools Trust (Pvt) Ltd v Clark 1992 (2) ZLR 324 GUBBAY CJ stated:

“Pending the removal of the suspension, the respondent was not entitled to the continued enjoyment of the benefits comprising the free occupation of the Headmistress's house and the continued use of the motor vehicle. A Labour Relations Officer cannot order the respondent to surrender these particular benefits. Consequently, the applicant, being unable to resort to self-help, approached the High Court for relief. I consider it was justified in doing so.”

I respectfully associate myself with the remarks of the learned Chief Justice.

The respondent stands dismissed and a conciliator has ruled in favour of the applicant. The respondent has noted an appeal to the Labour Court but the noting of the appeal cannot give her the right to retain the property that she had possession of as a result of the contract of employment which is currently terminated. She has then to return the property in the absence of a recognizable defence to the claim by the applicant for the return of its property. See Stanbic Finance Zimbabwe Ltd v Chivhunga 1999 (1) ZLR 262 (H) and Mashave v Standard Bank of South Africa 1998 (1) ZLR 436 (S).

In the latter case, the Supreme Court, per McNALLY JA…, stated authoritatively:

“The 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.”

This dicta was quoted by MALABA J…, in Stanbic Finance Zimbabwe Ltd v Chivhunga 1999 (1) ZLR 262 (H).

In casu, the respondent does not claim a right to retain the vehicle through an agreement to purchase the vehicle as was the case in the two cases quoted above. Rather, she seeks to rely on what has been termed an antecedent agreement between the parties.

In his heads of argument, counsel for the respondent argued that the parties had an agreement which imposed consecutive obligations on each other. He contends that the applicant had to finance and service the respondent's motor vehicle to a satisfactory and roadworthy condition, facilitate its transfer into the respondent's name, and, thereafter, deliver it to the respondent. It was only then, so the argument goes, that the applicant would be entitled to have the Toyota Corolla returned to it. He relies on SA Crushers (Pty) Ltd v Ramdass 1951 (2) SA 543 for this submission. At p 546D-F SHAW J stated;

“Mr Cooper, for the respondent, submitted that the two obligations could not be separated in this way although practically they would have to be performed consecutively. The passage above cited from Mackenzie's case, indicates, however, that where the obligations fall to be performed consecutively, the party who must first perform is not entitled to withhold performance merely because the other party has not tendered performance pari passu or expressed his willingness to perform at a later date.”

I did not understand counsel for the applicant to challenge the correctness of this principle.

His contention, rather, was that there were no consecutive obligations imposed by the parties on the return to the applicant by the respondent of the vehicle in question and that this was a defence mounted by the respondent as an afterthought to the vindicatory claim.

It is necessary therefore to consider the facts.

The vehicle was a benefit afforded to the respondent in terms of a contract of employment with the applicant. That contract has since been terminated. The respondent has therefore to establish a defence to the claim by the applicant for the return of its vehicle to its possession. The respondent has contended that the applicant was obliged to repair, service and register in her name, the vehicle she had purchased from the former and which was still in its name. The respondent has not produced a written contract and seeks to rely on an alleged oral agreement which the applicant disclaims.

The return of the vehicle was claimed by way of a written communication to the respondent dated 6 October 2008 but delivered to the respondent on 8 October 2008. Her own vehicle was returned under cover of the letter in question. The respondent received and retained her own vehicle but refused to surrender the applicant's. She wrote a note in which she raised the lack of insurance on the vehicle (hers), the lack of a licence, and that the vehicle, presumably hers, had nothing to do with her contract as “GM Finance and Corporate Affairs.”

On 9 October 2008, acting on instructions from their client, the applicant's legal practitioners addressed a suitable letter to the respondent demanding a return of the vehicle. The letter received a prompt reply from the respondent's legal practitioners, who requested for an extension to 27 October 2008 for their client, the respondent, to have use of the vehicle.

The alleged contract now being sought to be relied on as a defence was not alluded to by the legal practitioners in question.

The request was acceded to by letter dated 21 October 2008, and, on 22 October, the respondent's legal practitioners then wrote a letter to the applicant's legal practitioners requesting an indefinite extension for their client to return the vehicle. This was turned down and a repeated demand was made for the return of the vehicle ultimately resulting in the launching of these proceedings by the applicant for the recovery of its vehicle.

The respondent's use of the applicant's vehicle was by virtue of her employment with the applicant and her right to retain possession terminated with her dismissal from employment. She did buy a vehicle from the applicant and whatever obligations the applicant assumed under that agreement, those obligations were not tied to the respondent's use of her officially allocated vehicle as a member of staff of the applicant.

It is clear on the facts that the obligation by the applicant to service and repair the respondent's vehicle arose from the use by the respondent of her vehicle on the applicant's business and that this usage had occurred prior to her being suspended from duty. In any event, the communication from herself and her legal practitioners, prior to the institution of these proceedings, does not establish an oral agreement as alleged by her for the rectification of defects on her vehicle. There was no demand by her for the alleged service and repairs to be effected before she could return the applicant's vehicle. Indeed, as submitted by counsel for the applicant, repairs to her vehicle was not a condition upon which the parties had agreed for her to retain the applicant's vehicle. Rather, she is seeking to justify her retention of the vehicle on the basis of claims arising out of her contract of employment which she has not even litigated upon.

In the premises, I find that the applicant is entitled to an order as prayed. I therefore make an order in the following terms:

IT IS ORDERED THAT:

1. The respondent, within 24 hours of the date of service of this order upon her, shall deliver the applicant's vehicle viz, a Toyota Corolla registration number AAP 6950 to the applicant's premises at Pockets Hill, Highlands, Harare.

2. In the event that the respondent fails to comply with paragraph 1. above, then the Sheriff for Zimbabwe or his lawful deputy is hereby ordered and authorized and required to seize the aforementioned vehicle from the respondent or from whomsoever or wherever it may be found and to deliver the same to the applicant.

3. The Deputy Sheriff is authorized, in the execution of his duties above, to enlist the assistance of members of the Zimbabwe Republic Police as he may deem necessary.

4. The respondent shall pay the costs of this application.

This is an appeal against the trial court's order of eviction.

The history of this matter is that the appellant was employed by the President's office at the department of Central Intelligence Office and was based at Beitbridge. During his employment he was allocated House Number 795 Dulibadzimu Township, Beitbridge.

The circumstances surrounding this matter are that the respondent constructed sixty houses. It then gave forty of the said houses to Beitbridge Rural District Council (hereinafter referred to as “the Council”) while it retained twenty. The twenty houses were being managed by the Council. The President's office approached the respondent for accommodation for its members of staff and they were allocated the twenty houses. The Council then started charging the occupants for water and other services.

The appellant, as an employee of the Central Intelligence Office, benefited from this arrangement and hence took occupation of this property. The Council issued him with a rent card. The issuance of a rent card was for the purpose of collecting and monitoring payments for services rendered by the Council to all occupants.

The term “rent card”, is, however, misleading as one might think that the applicant was renting accommodation from the Council, yet, in fact and in truth, the applicant had no lease agreement with the Council, therefore, he was not paying any rent at all to the Council, but, was paying for water and other services only. The reason for the use of this rent card, even if it is so referred to, was because Council has always had these cards in existence anyway. It would not, in my view, make any business sense to print and give them another title for a few people under the agreed scheme.

After termination of his services with the Central Intelligence Office, he was asked to vacate the premises allocated to him during his employment.

The appellant has argued that the house was allocated to him by the Council and he was issued with a rent card.

His argument that he was issued with a rent card for the payment of rent does not support the arrangement between the respondent and the Council. It was for the purposes of recording payment of service charges to the Council and not rent. The Council could not charge him rent in a proper and legal sense because the house was not theirs, but, that of the respondent. It was erroneous, therefore, for him to conclude that the house was now his.

The Council had no legal capacity to sell a house which is not theirs. The only legal contractual transaction would have been executed by the respondent. His former employers have all the powers to re-allocate the said house to any of its members as long as the respondent has not withdrawn the house from them.

The appellant, therefore, did not acquire this property, all he had was the right of occupation which was at the pleasure of his former employer.

This appeal is accordingly dismissed with costs.

The applicant averred that at the beginning of this year, during the month of February, he was arraigned for contravening the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] on allegations that he had continued to use gazetted land without lawful authority.

He tendered a plea of not guilty on the basis that he was in lawful occupation of the said Inogo Ranch.

The applicant seeks a provisional order in the following terms -

“Terms of the order sought

That you show cause to this honourable court, if any, why a final order should not be made in the following terms:-

(1) That Deputy Sheriff, Bulawayo be and is hereby ordered to keep the vehicle, namely, a Hino truck, registration number AAV 5504 or AAR 8634, engine number H07DA29183, chassis number FD3HKA13698 until case number HC1887/07 is lawfully disposed of.

(2) Respondent shall pay costs of an attorney and client scale.

Interim relief granted

Pending confirmation, or discharge, of this order,

(1) The Deputy Sheriff be and is hereby ordered and directed to seize a motor vehicle, namely, a Hino truck, registration number AAV 5504 or AAR 8634, engine number H07DA29183, chassis number FD3HKA13698, from respondent, or any other person deriving authority from him, and wherever such vehicle may be found, and store same for and on behalf of this honourable court.”

The applicant seeks a provisional order in the following terms:-

“Final Order

It is ordered:

That the provisional order granted by this honourable court be confirmed in the following manner:

1. The continued holding of the applicant's goods after he had complied with all the contractual obligations, and paid ZIMRA clearance, be and is hereby held to be illegal.

2. The respondent be and is hereby ordered to pay for any damages to the goods, which may have occurred from the 7^th October 2009, when the goods were released by ZIMRA, and for any items which may have been stolen, or missing, as from that date.

3. The respondent be and is hereby ordered to pay costs of suit on an attorney and client scale.

Interim Relief Granted

Pending the confirmation, or discharge, of the provisional order, the applicant is granted the following relief:

The respondent be and is hereby ordered to release 10 drums of goods belonging to applicant within 24 hours of granting of this order.”

The salient facts of this matter are the following.

On 14 May 2009, the applicant entered into an agreement with Africa Links Ltd in the United Kingdom for the shipment of goods from the United Kingdom to Bulawayo. The items to be shipped were ten (10) drums containing food and household effects. The applicant paid 1,665 British Pounds for the services rendered by Africa Links Ltd.

The applicant was advised that the consignment would arrive in Bulawayo around June 2009, but it arrived at the Bulawayo bonded container depot on 7 September 2009.

According to evidence in affidavits filed with this application, when the consignment arrived, the applicant's agents were advised by the respondent to produce a list of items in each of the ten drums to ZIMRA, and pay import duty. The applicant's agents complied, and they were charged US$800= by ZIMRA.

This amount was paid to the respondent, who wrote an invoice to this effect, and advised that he wanted to collect money from the other customers and clear their import duty with ZIMRA at once.

The goods were finally released into the respondent's custody on 7 October 2009.

As from that date, the respondent has refused to release the applicant's goods to the applicant's agents. The respondent, according to affidavits filed, alleged that Africa Links Ltd owes him money, and he is holding the goods as security for his payment. The respondent refused to release the goods despite several visits to him by the applicant's..., agents.

The respondent has neither right nor title in the property, and these illegal occupants are, in essence, trespassing on the applicant's property.

I adopted a robust approach and concluded that, from the facts before me, the respondent was behind the illegal occupations.

Accordingly, notwithstanding what she raised in her opposing affidavit, I held the view that the applicant made out a case for the confirmation of the provisional order.

In January 2003, the first respondent attempted to evict the applicant from the applicant from the property using the Order she had obtained from this court in June 2002, and which was confirmed in August 2002.

The plaintiff..., issued summons out of this court in February 1994 seeking an eviction of the first and second defendants..., from a property known as Number 18 Ridgeway South, Highlands, Harare..., and payment of damages.

The first and second defendants counter-claimed for the cancellation of the transfer of the property to the applicant and subsequent transfer of the same property to them.

This was a long-drawn matter which has a very long history, and has been through the whole court system at its different levels. The chronology of event in this case is as follows.

On 11 March 1984, the third defendant..., who was the original owner, sold the property to the first and second defendants. In June 1985, he purported to cancel the said Agreement of Sale on account of breach by the first and second defendants.  On 31 October 1985, in case number M19592/85, the first and second defendants applied in the Magistrates Court for an order to compel the third defendant to sign all the documents necessary for the transfer of the property to them. On 17 July 1986, the first and second defendants' application was dismissed on account of their default. They applied for rescission of judgment on 27 November 1986, and that application was also dismissed because they were, again, in default. They then appealed to the Supreme Court against the dismissal of their application for rescission of judgment.

In case number HC1182/86, the third defendant instituted proceedings for the eviction of the first and second defendants. Default judgment was entered but was subsequently set aside. On September 5, 1988, the third defendant entered into an Agreement of Sale with the plaintiff over the same property.

A Deed of Transfer was registered in favour of the plaintiff on 5 April 1989.

The plaintiff then instituted proceedings for an order that the third defendant grant him vacant possession of the property. CHIDYAUSIKU J issued an order evicting the third defendant and all those claiming through him from the property but execution was stayed pending judgment in HC1182/86.

These two cases were then consolidated.

The matter proceeded to trial before MTAMBANENGWE J who granted absolution from the instance on 10 June 1992.

The plaintiff then instituted the present case on 8 February 1994 claiming the eviction of the first and second defendants, and payment of holding over damages. He obtained a default judgment which was subsequently set aside in case number HC3065/94. The first and second defendants then filed their opposing papers and a counterclaim on 1 August 1994, and the plaintiff filed his replication and plea in reconvention on 26 September 1994.

On 8 June 1995, CABS issued summons against the plaintiff seeking to foreclose, and judgment against the plaintiff was obtained on 27 December 1996.

CABS then applied to be joined as a party to this case...., and an order was granted joining CABS on 3 February 1997. The first and second defendants then undertook to pay what was due to CABS.

Issues pertaining to whether the matter was prescribed and whether the matter was res judicata arose.

Both the plaintiff, and the third defendant, had pleaded that the claim in reconvention by the first and second defendants, seeking an order directing the Registrar of Deeds to transfer the property into their name was bad in law because their claim was prescribed and the matter was res judicata.

The matter proceeded for argument and determination before SMITH J on 16 May 2001, whereat, the application was dismissed.

The plaintiff said he bought the house after he had viewed it in the company of the third defendant. The third defendant told him that there were people who were in occupation and were his tenants for three years, but were failing to pay rent. The third defendant further told him that he had wanted to sell them the house but that they had failed to pay the price.

He said he had cancelled the Agreement of Sale and that the tenants were going to leave.

After satisfying himself that everything was in order, he then proceeded to purchase the property.

The plaintiff further told the court that he was shown a letter of cancellation of the Agreement by the third defendant. He also said that he had sought the services of legal practitioners in order to evict the tenants.

The plaintiff said he instituted proceedings for eviction of the first, second, and third defendants in 1989. He obtained judgment against them but execution of the judgment was stayed pending judgment in another case. The two matters were later consolidated and came to trial before MTAMBANENGWE J, who granted absolution from the instance in favour of the first and second defendants. He said he then instituted these proceedings soon thereafter.

The plaintiff told the court that the first and second defendants had no right to occupy his property since he bought it, and had paid in full, and the property was registered in his name. He also said that he was paying the rates.

The following issues agreed to by the parties at the pre-trial conference fall for determination.

1. Whether or not the plaintiff is the owner of subdivision B of Lot 257, Highlands Estate of Welmoed, known as 18 Ridgeway South, Highlands;

2. Whether the occupation by the defendants is lawful;

3. Whether, in purchasing the property from the third defendant, the plaintiff was fully aware that the property had been sold to the defendants, and proceeded to take transfer recklessly;

4. Whether the plaintiff has suffered any damages by reason of the defendants occupation, if so, the quantum of damages; and

5. Whether the defendants' Agreement of Sale with the third defendant remained of force and effect, and enforceable by the defendants, at the time the plaintiff acquired the property.

Assuming that have erred in holding that this court has no jurisdiction in this matter, I still would have dismissed the application at common law.

Vindication is a remedy that is available to an owner against the world at large. By reason of his or her rights of ownership, an owner is competent, at law, to demand possession of his or her property from anyone who cannot invoke a right against him or her to keep the property. For one to succeed in such an action, one must allege, and prove, that they are the owners of the property in question, and that the respondent or defendant is in possession of the property. (See Van der Merwe and Another v Taylor N.O. and Others 2008 (1) SA 1 CC).

Whilst it is not necessary for the owner to allege that the possession of the respondent/defendant is unlawful for them to establish a valid cause of action such considerations come into play when the court is determining the application. The right of the owner to possess his property is not absolute, and may be subject to some other right that the possessor may have against the owner. (See Chetty v Naidoo 1974 (3) SA 13 [AD]; Hefer v Van Greuning 1979 (4) SA 952 (A); and Van der Merwe and Another v Taylor N.O. an Others 2008 (1) SA 1 CC).

Counsel for the applicant submitted, and correctly so in my view, that the onus rests with the respondent to prove the right to possess the motor vehicle against the owner. It appears to me that in casu, the right of the applicant to possess the motor vehicle is subject to the rights that the respondent has to the vehicle in terms of his employment with the applicant. Whilst the applicant has deposed to the fact that the respondent has been dismissed from employment, the dismissal is subject to appeal. It is still in dispute, and so are the entitlements of the respondent under the contract of employment.

In contrast I may, at this stage, mention that on the same day that I heard argument in this matter I also heard argument in the matter of Medical Investments Limited v Rumbidzayi Pedzisai HH26-10 wherein I found that the applicant in that case was entitled to vindicate its vehicle from the respondent, a former employee, as the employer-employee relationship between the parties had terminated on account of the resignation of the respondent. In that matter, the status of the former employee as such was not in doubt. In casu, it appears to me that the employee status of the respondent has not been finally determined as it is pending the appeal before the Labour Court. As such, the facts of this matter are distinguishable from that of the Medical Investments Limited v Rumbidzayi Pedzisai HH26-10 case.

It..., appears to me that the provisions of section 92E of the Labour Act [Chapter 28:01] have no effect on the claim of right that the respondent is raising at common law.

While the law regards the respondent as dismissed, he has never accepted that position, and is challenging his purported dismissal before the Labour Court. For as long as his challenge is alive, and not fully determined, his claim of right remains alive with it. The claim that the respondent has is not, in my view, dependent upon whether the law regards him as an employee or not. Rather, it is dependent upon whether or not the dispute between the parties has been definitively resolved. In this instance, the dispute between the parties is pending before the Labour Court, and, resultantly, the claim of right remains alive.   

The municipality of the City of Harare is the lawful owner of a certain piece of immovable property known as House No.4 Hampshire Road, Eastlea, Harare. Sometime in September 1993 it entered into a written lease agreement with one Soul Kenneth Manyasha, the defendant under case number 3174/08, and the plaintiff under case number HC6675/08.

The City of Harare is suing Soul Kenneth Manyasha for eviction from the said house, whereas Soul Kenneth Manyasha is suing for transfer of the property to his name.

Clause 2 of the Agreement provided for cancellation of the Agreement. It reads –

“2. The Lease shall commence on the 27^th day of September 1993 and shall thereafter continue until terminated by the service of one calendar month notice in writing by either party to the other.”

On 13 March 2007, the City of Harare wrote to Soul Kenneth Manyasha giving notice to terminate the lease agreement in terms of clause 2. The letter reads –

“Dear Sir/Madam

Re: Cancellation of Lease and Repossession of House 4 Hampshire Road, Eastlea

I refer to the above matter.

Please be advised that the lease agreement which you entered with Harare Municipality is hereby cancelled with effect from 30 April 2007 in terms of clause 2 of the Agreement.

You are hereby given one month's notice, that is, from 1 to 30 April 2007, and you are required to vacate this property on the expiry of notice period and hand over house flat keys to my housing officer at Sunningdale District Office.

If you remain in occupation of the property for the period after the date of cancellation and period of notice, court proceedings for eviction, with costs, will be taken against you.”

Before the expiry of the notice period, and on the same date, that is to say 13 March 2007, the plaintiff wrote to the defendant advising that Council had agreed, in principle that Council houses in Eastlea be sold to sitting tenants. As a result, Soul Kenneth Manyasha's lease continued to ensure the termination date of 30 April 2007.

On 14 September 1998, the Acting Director of Housing wrote to the Director of Housing giving a list of Council houses that were earmarked for sale to sitting tenants. The list included Soul Manyasha. He was earmarked to be sold dwellings at House No.4 Hampshire Drive, Eastlea, Harare. His account number was given as 1476. When it came to evaluation, the property was wrongly listed as Stand Number 3829 instead of 3818. The authorities, upon realizing the error, made the necessary corrections to reflect the correct Stand Number. The valuation table reads –

No        Name                  Stand No.                       Offered Price    Period

  1.       A.J.Dhlima          3704-230

                                          Samora Machel,

                                          Eastlea                             $722,960=            18                                                                         

   2.       E.Gachange         3706-234  

                                          Samora Machel,

                                          Eastlea                              $651,580=           7 yrs       

   3.       S.Manyasha         3829-4 Hampshire Drive,  Wrongly valued

                                          Eastlea                              as Stand 3818      6 yrs     

Despite the initial notice to cancel the lease agreement, and the error made in the course of the evaluation, the City's Acting Director of Housing and Community Services wrote to Soul Manyasha on 1 March 1999 offering to sell him the house in question. The letter reads –

“Dear Sir/Madam

Sale of Tied Rented Council Houses

Council intends to sell its' tied to sitting tenants.

If you are interested in purchasing the house you are currently occupying please report to the office of the Research Unit Department of Housing and Community Services, Old Superintendent's Office, Mbare, Harare, Telephone 726093 – 4 March 1999 at 8:00am, where further details of the scheme can be obtained, and where you will be interviewed to assess your eligibility.    

You should bring this letter together with your:

(a) Identification papers –

(i) National Registration cards (NR).

(ii) Marriage Certificate (if any).

(b) Proof of your earnings, and your wife's earnings, if applicable (that is current payslips).

(c) Proof of any savings you may have accumulated (savings account books) and/or letter from your employer stating precise financial assistance.

Should you fail to attend this interview, or advise if your inability to do so, it will be assumed you are not interested.”...,.

The plaintiff, having sold the property to the defendant, it cannot evict him from the property which now belongs to him. In the result it is ordered –

1. That the plaintiff City of Harare's claim for eviction be and is hereby dismissed.

On 23 January 2009 the plaintiff issued summons against the defendant seeking relief in the following terms:-

“(a) An order for the ejectment forthwith of the defendant together with its subtenants, assignees, invitees and all those claiming through defendant from the plaintiff's premises known as Shop No.2 Stand No.12A Avondale Township located at Avondale Shopping Centre, Avondale, Harare.

(b) Plaintiff's claims arises from a lease agreement concluded between the parties. The lease agreement having expired on 31 March 2008 the defendant became a statutory tenant. Plaintiff now reasonably requires the premises for own use and despite being given three months notice to vacate the premises the defendant has failed and/or has neglected to vacate the premises.

(c) Plaintiff further claims payment of holding over damages at a rate that is equivalent to the market value of the occupation of the premises in question from 1 October 2008 to the date of the defendant's ejectment.

(d) Payment of costs of suit at legal practitioner and client scale.”

The defendant objected to the relief sought and the matter was then referred to trial for the determination of the following two issues -

“1.1 Whether or not the plaintiff requires the premises for its own use?

1.2 Whether or not the plaintiff is entitled to holding over damages. If yes, the quantum?”

It is common cause that under a lease agreement which commenced on 1 April 2005 the defendant occupied the plaintiff's premises, known as Shop No.2, Stand No.12A Avondale Township..., located at Avondale Shopping Centre, Avondale, Harare. In terms of the lease agreement the expiry date was 31 March 2008. In terms of clause 6 of the lease agreement, the lease was subject to renewal on agreed terms between the parties. There is dispute as to whether or not the lease agreement was renewed after 31 March 2008. The defendant asserts that the lease agreement was renewed but the plaintiff denies that and states that the defendant is now occupying the premises as a statutory tenant. On 30 May 2008 the plaintiff gave the defendant three months notice in writing. The notice was for the defendant to vacate the premises because the plaintiff wanted the premises for its own use. The said notice expired on 30 August 2008 but the defendant still remains in occupation. Indeed, the said notice, which was produced in court.., reads as follows -

“We write to advise that your lease agreement will be terminated in three months from the date of this letter, i.e. 30 August 2008. Please be advised that the Landlord will require the premises for owner-occupation effective 1^st September 2008.

This development is, however, strictly without prejudice to the other terms and provisions of the lease. Thus rentals proposed and agreed with your Mr. M. Raftopolous for the period May to July would remain payable.

Our maintenance department will come to carry out pre-vacation inspection, and we would afterwards advise of the necessary premises reinstatements.”

No onus lies on the respondent to show or deduce from the bulk payments as to who has paid or not in terms of the Deed of Settlement. This is because this information is solely within the knowledge of the applicants.

For the following reasons the application cannot succeed because no one is in danger of being unlawfully evicted should he manage to produce the required proof of payment.

On 9 January 2007 the plaintiff herein instituted proceedings against the defendant by way of summons for an order for its ejectment from three immovable properties.

The basis of the application is that the applicant is the current owner of a certain piece of land called Lot 1 of Orange Grove Hartley...,. On 12 December 2003 the Minister of Lands, Land Reform and Resettlement..., published a Notice of Acquisition of Lot 1 of Orange Grove Hartley in the Government Gazette. Representations were made to the Minister of Lands, Land Reform and Resettlement that Lot 1 of Orange Grove Hartley was now owned by indigenous Zimbabweans. On 21 January 2005 Lot 1 of Orange Grove Hartley was de-listed by a publication in the Government Gazette.

After the delisting of the farm, some persons, including the fifth to the ninth respondents, were issued with offer letters in respect of subdivisions on the farm. The respondents are now claiming the right to occupy and carry out farming activities on certain portions on the farm on the basis of the offer letters.

The first respondent's position is that despite the delisting of the farm, it was subsequently acquired by operation of the Constitutional Amendment Act (No.17)..., as it was listed in the Schedules. The applicant has no locus standi to seek the eviction of the respondents as it does not own the farm.

The fifth to the ninth respondents' position is basically the same as that of the first respondent.

From the first respondent's stance, it was my view, that the parties address me on the following -

(i) The effect of delisting gazetted land; and

(ii) The effect of the provisions of the Constitutional Amendment Act (No.17) on de-listed properties.

The parties filed supplementary heads addressing the issues...,.

This matter has a long history of a dispute over the ownership of a piece of communal land, in Mayambara, Seke Communal lands. The parties to the dispute inherited the dispute from their parents. The appellant's father and the respondent' brother, who were the original disputants died many years ago. The matter was further confused by the lack of knowledge of the applicable law on the part of the parties and court officials. Along the way, wrong advice was given to the parties leading to wrong decisions being given in courts.

The background of this matter is that the appellant claims that his father was allocated the Stand in question in or around 1960, while the respondent says his family has enjoyed undisturbed possession of the Stand since 1936. The appellant says that the respondent's brother was granted temporary use of the property in dispute as the appellant's father ordinarily resided in the city. The respondent's brother used structures built by the appellant's father. Upon the death of the appellant's father the first respondent's brother continued to stay at the property. The appellant says he was prepared to compensate the respondent for the developments made on the Stand; being a blair toilet and borehole.

According to the appellant's heads of argument, when the appellant insisted on the claim to his father's property the respondent refused allegedly insisting that he was the rightful owner. Legal proceedings were instituted at the Communal Court, presided over by Chief Seke, on 4 April 2009. The applicant was found to be the rightful owner of the Stand as records at the Rural District office confirmed that the land was in the appellant s family name and that they were paying levies to Council in respect of the land. The Chief also ordered the eviction of the respondent.

On or about 5 May 2009, and acting on the wrong advice of the Clerk of Court, the appellant issued summons for the eviction of the respondent. At that stage, the appellant was a self-actor. The presiding magistrate at the subsequent pre-trial conference held on 3 July 2009 ruled that the Chief had already ruled on the matter and that the respondent were to appeal against that order if he was not satisfied with the ruling of the Chief. Most importantly, the magistrate also ruled that the matter was not to be reinstated.

Further, wrong advice by the Clerk of Court led to more confusion. He advised the appellant to apply for summary judgment - which was granted in default. On 25 September 2009, the respondent applied for the review of the Chief's order of 4 April 2009. The application for review was heard and granted on 8 October 2009. The appellant failed to oppose the applications as his request for extension within which to file opposing papers was denied.

It is against the order of the magistrate granting the review of the Chief's order that the appellant is appealing to this court.

On 11 March 2010, the plaintiff issued summons out of this court seeking the eviction of the defendant from Stand 3667 Township of Gweru Township Lands.

Whilst accepting that the plaintiff is the registered owner of the property the defendant resisted the prayer sought by the plaintiff on the basis that she had been invited and offered accommodation by the plaintiff as part of her employment by the plaintiff. The defendant also filed a counter claim where she alleged that as a result of her employment by the plaintiff from 1999-2009 she had accumulated the sum of $6,274=80 in unpaid wages and that her understanding was that until such time she was paid her wages in full the plaintiff was precluded, at law, to evict her as she held a right of lien over the plaintiff's property.

At the joint pre-trial conference held by the parties on 3 November 2010, the parties narrowed the issues for determination at trial two basically two simple considerations viz:

(i) Whether or not plaintiff is entitled to evict the defendant from the property in question, No. 8 Rosemera Ivene, Gweru.

(ii) Whether or not the High Court has jurisdiction to determine whether or not the defendant is entitled to the payment of the alleged outstanding payment of $6,274= in the form of unpaid wages…..,.

Is the plaintiff entitled to evict the defendant?

The critical facts in this case were to a large extent common cause, the only notable area of disagreement being that whether or not the defendant's contract of employment was terminated in 1999 at the time the plaintiff left for South Africa after she had lost employment with her erstwhile employer, Blue Ribbon.

Herbert Kutirai, who appeared in this court on behalf of the plaintiff, duly authorised by a power of attorney signed on 16 February 2010, was most unhelpful in assisting the court in determining the status of the defendant at the time the plaintiff left this country. This was because he came into the picture much later and was not privileged to witness the parting between the defendant and the plaintiff.

The defendant insisted she was engaged by the plaintiff long before 1999 at an original wage of $400= which amount was raised to $800= at the time the plaintiff left the country. In this regard, she sought to rely on exhibit 1, the inventory of the property she claimed was left in her custody on 19 April 1999. The document is certainly not conclusive per se. The exhibit does not say what the defendant attributes it to mean. It is significant that at the conclusion of the document all the rentals for the plaintiff's houses are specified and when it came to the cottage which was occupied by the defendant it indicates:

“Cottage to be advised.”

There are several interpretations that can be derived from this. It could mean that at the time the plaintiff left the country she had not yet decided what amount of rentals she wanted from that cottage. This would be inconsistent with the defendant's position of her entitlement to occupy this property.

The defendant also sought to strengthen her alleged employment by the defendant by seeking to garner evidence which showed she has been carrying out many errands for and on behalf of the plaintiff. Whilst accepting that that, on its own, tends to raise the bar for the defendant's claim to have been employed, one must not lose sight of the fact that the plaintiff and the defendant appeared to have a very strong relationship given their historical association.

In the court's view, the evidence tendered did not, on a balance of probabilities, demonstrate that the defendant was employed by the plaintiff.

The boxing approach type of presentation of evidence adopted by both counsel did not assist the court in this regard. The defendant attempted to compute what she felt represented her alleged outstanding wages.

The presentation was badly done.

The closest she could do was to produce exhibit 8 in the form of a photocopy. She had no clue as to where the original document was. On her own, the defendant could not explain the number of months she was allegedly not paid by the plaintiff. In her poorly presented document, wages which were supposed to be computed in Zimbabwe dollars were presented in United States dollars. This was at a time when it was a clear violation of both the Exchange Control Act and Regulations to deal in foreign currency. The person who compiled the figures was not called to testify or to shed light on what rate was used to arrive at the figure of the claim. It was just hotchpotch and that is not the way evidence should be presented to court.

In the final analysis, it was not possible for the court to ascertain how the amount of the claim was computed. There was simply no real evidence tabled before me. What was placed before me was inconclusive and I order absolution from the instance in so far as the counter claim is concerned.

I must add caution and say that even if the defendant had been able to prove that she was owed money by the plaintiff it would not have been competent for her to resist eviction on the basis of some assumed common law right referred to as a lien. The best course of action open to her would have been to vacate the premises and fight her case in the special court that has been created by Parliament, i.e the Labour Court.

As was clearly stated in the Chisipite School Trust (Pvt) Ltd v Clarke 1999 (2) ZLR 324 case our law does not recognise any claim of right or right of lien in such circumstances. Even if the case had been pending at the Labour Court this would not have prevented the plaintiff from seeking the defendant's eviction in this court because eviction is not sought in the Labour Court, which, by statute, has no power to grant such a remedy.

The plaintiff's case for eviction is watertight and the defendant has no valid defence.

For the above reasons the plaintiff succeeds and I order as follows:

(i) The defendant is ordered to vacate the property called Stand 3667 Gweru Township, Gweru on or before 28 February 2011 failing which the Sheriff or his lawful deputy be and is hereby authorised to effect such an eviction including all those claiming occupation through her.

The plaintiff concluded an Agreement of Sale with the second defendant on 20 January 2003 and took registered title of the immovable property, Stand Number 2946 Gwelo Township of Gwelo Township Lands, also known as 40 Mcllwaine Southdowns, Gweru, on 19 February 2003.

The first defendant, Mrs Gwanzura, is the former wife of the second defendant, Mr Gwanzura. Their marriage of 19 years was dissolved by the High Court sitting at Bulawayo on 23 July 2002 in case number HC2877/98. The divorce order, inter alia, apportioned the house between the defendants. The relevant part of the order reads:

“a) That the immovable property known as 40 Mcllwaine Road, Southdowns, Gweru shall be valued by CC Sales (Pvt) Ltd within a month from the date of this order.

b) That after the valuation either party shall pay the other 50% of the valuation fine (sic) of the property and whichever party shall pay the other first will secure the property.

c) In the event that either party is not able to raise the half share will (sic) three months from the date of valuations (sic) the property shall be sold by Trevor Dollar Estate agents at the best advantage of the parties and the purchase price shall be shared equally between the parties.

d) In the event that the plaintiff has been paid his half share in terms of the divorce order he shall sign the transfer of guardianship (sic) documents within (sic) from the date of transfer failure (sic) which the Deputy Sheriff Gweru is hereby authorised to sign the transfer papers to effect transfer of ownership of 40 Mcllwaine Road, Southdowns, Gweru, to the defendant.”

The property was duly valued by CC Sales Ltd Gweru on 28 November 2002 at ZW$8.4 million. The report gives a full description of the property. It, inter alia, describes the swimming pool as non-functional, badly cracked and in a bad state of repair. The main bedroom, one other bedroom and the garage had structural cracks. Some sections of the walls were damp and the roof leaked. In terms of the court order either party had until 28 February 2003 to buy the other out failing which the house would be sold to best advantage and the proceeds shared equally between the parties.

Mrs Gwanzura remained in occupation of the house with the children of the marriage after Mr Gwanzura deserted them in 1997 and settled in Kwekwe with another woman. She has been residing in the house ever since the divorce order was granted.

The plaintiff issued summons out of this court on 31 March 2003 seeking the eviction of Mrs Gwanzura, holding over damages and costs of suit. He based his claim on ownership.

Mrs Gwanzura contested the claim and filed her plea and counterclaim on 16 April 2003. She averred that the plaintiff, with prior knowledge of her rights in the immovable property, fraudulently and criminally connived with Mr Gwanzura to defeat her of those rights. She prayed for the dismissal of the claim and for the cancellation of the Deed of Transfer 373/03.

On 19 May 2003, the plaintiff disputed the averments made in the counterclaim….,.

Mr Gwanzura filed his plea to the counterclaim on 27 February 2004. He averred that he had fully abided by the terms of the divorce order by buying out the defendant of her share in the immovable property before disposing it to the plaintiff; and denied acting fraudulently, contemptuously or in connivance with the plaintiff.

At the pre-trial conference of 23 June 2004, the following three issues were referred to trial:

1. Whether or not the plaintiff was aware that the property was the subject of a matrimonial dispute.

2. Whether or not the agreement between the plaintiff and second defendant was done fraudulently to defeat the court order under case 2877/98.

3. Whether the defendant is entitled to cancellation of title deeds.

The applicant is the son of the late Joseph Patrick Taremba who died on 24 December 2004 at Mutare. The applicant was duly appointed Executor Dative in the estate late Joseph Patrick Taremba on 15 October 2009.

The respondent is a male adult residing at Number W629 Amaveni, Kwekwe. This property is registered in the name of the late Joseph Patrick Taremba under Deed of Transfer No.1182/05.

After the death of his late father, the applicant attempted to evict the respondent from the said property to no avail.

On 2 August 2010, the applicant, in his capacity as executor, filed this court application seeking an order for the eviction of the respondent and all those claiming occupation through him, from House No.W629 Amaveni, Kwekwe.

The applicant and her husband instituted proceedings against the respondent in case no. HC1756/10 seeking an order for the eviction of the respondent from No.21B Moffat Avenue, Hillside, Bulawayo and holding over damages.

The respondent entered appearance to defend forcing the applicant to make this application for summary judgment on the basis that appearance has been entered for purposes of delay as no defence exists against the claim….,.

On the merits, the respondent has been leasing the house for several years by virtue of a lease agreement, the last one of which was signed on 19 December 2000 to take effect on 1 January 2001.  On 16 January 2007, Markam, Lewis and Company, acting as the agents of the applicants, gave the respondent notice to vacate the house. The respondent did not comply. Again, on 23 August 2010, the respondent was given notice to vacate by 31 October 2010.

When the respondent did not comply, this application was filed in which the applicant maintains that the respondent does not have a defence to the eviction proper and that appearance has been entered for dilatory purposes.

What a respondent in an application for summary judgment has to show in order to successfully contest the application was set out in Mbayiwa v Eastern Highlands Motel (Pvt) Ltd SC139-86…, which was quoted by MALABA J (as he then was) in Hales v Doverick Investments (Pvt) Ltd 1998 (2) ZLR 235…,.

''…, while the defendant need not deal exhaustively with the facts and the evidence relied on to substantiate them, he must at least disclose his defence and material facts upon which it is based with sufficient clarity and completeness to enable the court to decide whether the affidavit discloses a bona fide defence (Maharaj v Barclays National Bank Ltd 1976 (i) SA 418 (A) at 426 D…, the statement of material facts (must) be sufficiently full to persuade the court that what the defendant has alleged, if it is proved at the trial, will constitute a defence to the plaintiff's claim…, if the defence is averred in a manner which appears in all the circumstances needlessly bald, vague or sketchy that will constitute material for the court to consider in relation to the requirement of bona fides (Breitenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 at 228 D-E)…, he must take the court into his confidence and provide sufficient information to enable the court to assess his defence. He must not content himself with vague generalities and conclusory allegations not substantiated by solid facts (District Bank Ltd v Hoosain & Others 1984 (4) SA 544 at 547 G-H).''

In casu, the respondent's defence is that while he moved into the house in dispute as a tenant, he later upgraded his status to that of owner by buying the said house from the applicants. In an effort to substantiate this claim, he has annexed a bundle of documents the import of which is that sometime in 1998 he was given an option to purchase the house for a sum of US$50,000=. An agent by the name of Tumazos was acting on behalf of the sellers and the respondent was required to pay a deposit of US$25,000= by the end of February 1998 with the balance being payable by the 30^th June 1999.

In fact, in earlier negotiations, the respondent had been asked to pay the deposit by October 1997 but failed leading to fresh negotiations. A draft sale agreement was prepared by another agent of the seller, Markham, Lewis and Company incorporating certain proposals. That document was signed on an unknown date only by the respondent - meaning that the negotiations between the parties, then, did not result in an agreement being concluded.

The respondent has also submitted yet another unhelpful document being a photocopy of his Barclays Bank cheque dated 27 February 1998 drawn in favour of ''The Hot Bread Shop'' in the sum of $220,000= Zimbabwe currency although he alleges that the deposit of US$25,000= would have been much more than that. In fact, he says US$20,000= (which was not the deposit required) was equivalent to $340,000= in Zimbabwe currency.

Even assuming that there was an agreement for the purchase of the house, the respondent did not comply with that agreement because he did not pay even the requisite deposit. This is particularly so considering that while the proposed agreement was that payment should be made to one Mrs E.L Scheijde, not only did the respondent fail to pay anything to the said Mrs E.L Scheijde (at least he has not produced proof), what he purports to have paid, in the form of a cheque of $220,000=, was paid to ''The Hot Bread Shop'' and no connection has been established between the bread shop and the applicants or their agents.

I am fortified in my view that there was no Sale Agreement involving the house in 1998 by the fact that on the basis of the documents which the respondent relies upon, much later in January 2002, the house was still in the market for sale. By letter dated 21 January 2002 the applicant's agent, Markam, Lewis and Company, instructed John Pocock and Company to sell the house and give the respondent the first option to purchase. That letter reads, in part, as follows:

''Dear Mr Friend

B Fikilini, 21B Moffat Avenue Hillside

Our client resides in America and has instructed me to sell his house. Would you please make arrangements to view this property with the current tenant, Mr Juma Jamu, who must be given first option to purchase. No price has been mentioned and I would appreciate your opinion on the market value.

Yours sincerely

MARKHAM LEWIS AND COMPANY

E. Scheijdge

cc Mr J. Jamu, 21B Moffat Avenue, Hillside, Bulawayo''

John Pocock and Company proceeded to communicate with the respondent on 28 January 2002 and in June 2002 they came up with a breakdown showing a proposed sale of the same house to the respondent for 8 million dollars. There is nothing to suggest that any concrete agreement was concluded even at that stage. This factor, coupled with the fact that the respondent signed a lease agreement commencing on 1 January 2001, can only lead to one conclusion, namely, that there was never a sale agreement between the parties. The respondent was in occupation of the house as a tenant.

What the respondent is relying upon, even if proved at the trial, would not constitute a defence to the applicant's claim. Hales v Doverick Investments (Pvt) Ltd 1998 (2) ZLR 235 …; Kingston Ltd v L.D Ineson 2006 (1) ZLR 451 (S)…,.

I am therefore of the view that the applicant's claim is unanswerable and that the respondent has entered appearance for dilatory purposes. Accordingly, I make the following order:

1. Summary judgment be and is hereby granted in favour of the applicant.

2. The Respondent and all those claiming title through him shall be evicted from No.21B Moffat  Avenue, Hillside, Bulawayo.