Res Litigiosa, Caveats, the Anti-Dissipation Interdict and Liability for Disposal of Encumbered Property

HH842-19 : BARIADIE INVESTMENTS (PVT) LTD vs PUWAYI CHIUTSI and TENDAI MASHAMHANDA and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O. and ELLIOT ROGERS
Ruled By: CHITAPI J

The applicant prays for an order that Deed of Transfer No.708/19 made in favour of the second respondent should be cancelled and that the prior Deed of Transfer No.8421/2000 in the name of the first respondent, and from which transfer in favour of the second respondent was made should be revived.

Upon revival of the prior Deed, the applicant prays for an order that the property conveyanced therein, called Remainder of Subdivision C of Lot 6 of Lot 1890 to 195 (inclusive) measuring 4,377 square metres be transferred, by the third respondent, into the applicant's name.

I must note that the part of the order sought, directing transfer by the third respondent, is incompetent.

The third respondent is the Registrar of Deeds. The Registrar of Deeds does not transfer properties but registers them. A conveyancer, acting under a power of attorney given by the owner of the property or transferor is the one who transfers the property to the transferee. The Registrar of Deeds, as the name clearly denotes, registers the transfer documents subject to all requirements imposed by applicable law being met.

For the benefit of the applicant, the duties of a Registrar are set out in section 5 of the Deeds Registries Act [Chapter 20:05] as read with the Deeds Registries Regulations S.I.236 of 2018.

The court does not create a duty outside what the law permits for the Registrar to perform.

The relief sought, for the court to order the third respondent to transfer the property, assuming that the current holding Deed is cancelled as prayed for is therefore a non sequitur and cannot be granted.

The applicant also prays for costs against the first respondent and any other respondent who opposes the application on the scale of legal practitioner and client.

The basis of the application is succinctly set out in paragraph 8 of the founding affidavit deposed to by the applicant company's Managing Director, Kingstone Hamutendi Munyawarara who stated that he is aware of the facts of the matter. He states as follows in paragraph 8 of the said affidavit:

“8. The application is premised on the fact that the said property was sold to the applicant by the fourth respondent in execution proceedings against the first respondent in HC3331/14. First respondent, whilst aware that the property had already been sold to the applicant by the Sheriff, fourth respondent hereto, purported to sell and transfer the property to the second respondent.”...,.

The applicant's case, as set out in the founding affidavit, was to the following effect:

It averred, that, it was declared the highest bidder at a judicial auction held on 18 September 2017 wherein the first respondent's property, which had been judicially attached, was up for sale to satisfy the judgment in case no. HC3331/14 made in favour of the fifth respondent against the first respondent.

The applicant was declared the highest bidder, having offered US$270,000 for the property.

Following the dismissal of an objection to the confirmation of the sale, filed by the first respondent, the applicant avers that it paid the purchase price of $270,000 to the fourth respondent as confirmed by the letter from the fourth respondent, dated 6 November 2018, addressed to the fifth respondent's legal practitioners as execution creditor.

The applicant paid transfer fees to the fifth respondent's legal practitioners in the sum of US$23,100 on 9 November 2018 as per proforma invoice of the same date prepared by the fifth respondent's legal practitioners.

The applicant attached a copy of judgment no. HH604-18 by MATHONSI J…, wherein the first respondent had, in case no. HC11349/17, challenged the fourth respondent's decision to confirm the sale of the property to the applicant.

Judgment HH604-18 was delivered on 3 October 2018 and the first respondent's challenge to confirmation was dismissed.

Judgment no. HH604-18 also disposed of case no. HC2650/18 brought by the fifth respondent herein as applicant therein. Case no's HC11349/17 and HC2650/18 were consolidated for purposes of hearing.

In case no. HC2650/18, the fifth respondent prayed for a declaratur to be made by the court to the effect that once the Sheriff had confirmed a sale, after dismissal of any objection(s) made in terms of Rule 359(7), then the Sheriff was obliged to pass transfer to the purchaser as provided for in Rule 361 of the High Court Rules (1971).

The court dismissed the application for the declaratur.

In dismissing the application for the declaratur, the learned judge, albeit agreeing that Rule 361 in its wording appeared to support the fifth respondent's interpretation, that, following confirmation of the sale and compliance with sale conditions, the Sheriff was required to transfer the property to the purchaser against payment of the purchase price; it made sense for the Sheriff to await giving transfer to the purchaser until all objection procedures had been exhausted.

The learned judge also held that the court had the discretion to regulate its processes.

In commenting on the provisions of section 14 of the High Court Act [Chapter 7:06] which gives this court jurisdiction to determine existing, future, and contingent rights, the learned judge, after referring to several decided cases, correctly held that the grant of a declaratory order was a discretionary matter for the court.

In my view, there is a further consideration which attaches to the interpretation of Rule 361.

The consideration has to do with rules of statutory interpretation. Rules of court, as with other legislative statutes, are read as a whole and not as a collection of isolated phrases.

Rule 361 should be read together with the rest of the rules regarding execution on immovable property.

Rule 359(8) and (9) provide that the Sheriff's decision to confirm a sale is open to challenge by “any person” who is aggrieved by the Sheriff's decision made in terms of Rule 359(7), that is, to confirm or cancel the sale.

The person challenges the decision by way of court application made within one month of the Sheriff's decision.

In terms of subrule 9 of Rule 359, the court may confirm, vary, or set aside the Sheriff's decision or “make such order as the court considers appropriate in the circumstances.”

It cannot have been the rule maker's intention that the Sheriff should carry out a concomitant transfer of the property upon his or her confirmation of the sale without allowing for the exercise by aggrieved parties of their right to object to court. Such interpretation would render nugatory the rights of objectors aggrieved by the Sheriff's decision.

Therefore, Rule 361 should be read as directing the Sheriff to transfer the property following his or her confirmation of the sale, only after allowing for the objection period of one month to lapse and no aggrieved party has applied to court to set aside the Sheriff's decision, or after all court processes have been exhausted in the event that an aggrieved party has applied to court.

This includes the appeal process which would need to be exhausted where the challenge by an aggrieved person has progressed that far.

It must therefore follow, that, even if l was to cancel the Deed of Transfer in favour of the second respondent, an order of the transfer of the property to the applicant by the fourth respondent can only be made if all court processes have been completed to finality.

In the judgment HH604-18, the learned judge made an order that “this order shall not be suspended by any appeal by either party but shall remain in force not withstanding such appeal.”

The first respondent was dissatisfied with the judgment. He noted an appeal against that judgment.

The notice of appeal was not attached to the papers but it appears common cause that such appeal was noted.

The applicant, in its founding affidavit, did not relate to the appeal nor deny its existence save in the answering affidavit, in paragraph 4, where, in denying that the matter is lis pendens, the applicant contended that an order was made that the noting of an appeal would not suspend the operation of judgment no. HH604-18.

The first respondent, on the other hand, averred that his appeal was also against the order decreeing the judgment to remain operational despite the noting of the appeal.

The applicant also averred that the “purported” appeal did not affect this application.

I cannot agree in view of my interpretation that transfer in terms of Rule 361 cannot be proceeded with until the court challenge processes given in Rules 359(8) and (9) have been finalized.

The applicant also attached the judgment of the HONOURABLE BERE JA delivered under case no. SC843/18 and bearing case citation SC02-19.

In that application, the first respondent filed an urgent application seeking interim relief that transfer of the property be stayed pending the determination of his appeal against the judgment HH604-18.

The learned judge dismissed the application for want of form and for the first respondent's failure to apply for condonation or to give an explanation for not using Form 29 or Form 29B of the rules of court.

The learned judge expressed his displeasure at what he described as “errant conduct” by the first respondent in engaging in endless and hopeless litigation to frustrate full execution on the judgment.

The learned judge's remarks were expressed obiter because the first respondent's application was found lacking or wanting as to form.

What, however, did not escape my attention was that neither MATHONSI J…, nor BERE JA made an order specific that the fourth respondent should transfer the property to the applicant.

The learned judges ruled in favour of the continuation of due process of execution.

The first respondent then purported to correct his defective application, which had been dismissed by BERE JA for want of form, by filing another application on 21 January 2019 seeking the same relief as sought in the dismissed application.

Under case no SC15-19, the Honourable GWAUNZA DCJ struck the application off the roll.

I imagine that since the same application had not been struck off the roll by BERE JA, but dismissed, it was incompetent for the first respondent to file the same application seeking the same relief.

The earlier dismissal had the effect of res judicata on the issue.

The first respondent however indicated that his appeal was still pending - a fact which was not disputed by the applicant.

The applicant referred to the judgment of this court in HH209-19 in case no HC1444/2019 delivered by MANZUNZU J on 14 March 2019.

In that case, the applicant filed an urgent application in which he cited all the other parties in the application before me as respondents. Significantly, the applicant herein was the fifth respondent therein.

The first respondent herein was the first respondent therein, the second respondent herein was also second respondent therein, and the third and fourth respondents herein were therein third and fourth respondents. There was a fifth respondent, namely, the Law Society of Zimbabwe which is not cited in the current application.

In the interim relief, and in particular in paragraph (i) of that application, the fifth respondent, as applicant therein, sought the following relief;

“That Deed of Transfer No.708/19, issued in the name of Tendai Mashayamunda, in respect of a piece of land in the district of Salisbury called the remainder of Subdivision C of Lot 6 of Lot 190, 191, 192, 193, 194 and 195 Highlands Estate of Welmold measuring 4,377 square metres be and is hereby cancelled.”

The rest of the relief sought, in both the interim relief and final relief, concerned prayers for orders of the de-registration of the first respondent herein as a legal practitioner, the placement of his legal firm under curatorship, and incidental relief, including costs.

It is common cause that application HC1444/19 was dismissed with costs by MANZUNZU J.

The case was determined on the merits and the decision by MANZUNZU J was therefore final.

In his judgment, MANZUNZU J made certain observations which l find apposite in so far as the present application is concerned. The learned judge stated as follows on page 3 of the cyclostyled judgment;

“Despite the judicial attachment of Chiutsi's immovable property, and, in fact, with a sale having been confirmed by the Sheriff, against all odds, Chiutsi sold the property and transferred ownership to the second respondent.

The applicant's interest in this application is for him to get his money from Chiutsi. The sale of Chiutsi's immovable property to the fifth respondent, by the Sheriff, had at least guaranteed him of his money. He fears the second respondent may pass title to a third party complicating his chances of recovering his money.

Chiutsi said he has now paid $115,000 to the applicant through his lawyers' trust account.

The payment has been acknowledged though there is a dispute as to whether or not such payment is considered as payment towards the judgment debt because, as Mr Biti argued, it goes towards costs.

As I have already pointed out, the applicant's interest is to get his money, otherwise he cannot be seen fighting a case for the fifth respondent as to whether the sale between fifth respondent and Sheriff should proceed. He has no mandate to do so.“

The above pronouncements hold true in the application before me in so far as the interests of the fifth respondent is concerned. His interest, as the judgment creditor in case no. HC3331/14, is to have the judgment order satisfied and must remain so.

What however happened is that in the case before MANZUNZU J, the fifth respondent prayed for cancellation of the Deed of Transfer no.708/19 in favour of the second respondent and left it at that.

He did not ask for any other relief as would have ensured that he gets payment in terms of the judgment granted in his favour.

The fifth respondent noted an appeal to the Supreme Court against the judgment of MANZUNZU J. The appeal was noted on 15 March 2019. It is pending before the Supreme Court under case no. SC140/19.

The first respondent, in the application before me, also raised the defence of lis pendens.

He averred, in his opposing affidavit, that, there was a pending case, HC649/17, in which he challenged the attachment of the property in question and that the matter was still to be resolved.

He also averred that there was further pending litigation in case no. HC8122/17 and that the fourth respondent should not have proceeded with the sale in execution.

He lastly averred, that, he had a pending appeal before the Supreme Court and that in any event the Judicial Services Commission had directed the fourth respondent to stay execution until the Supreme Court had determined the first respondent's appeal made against the judgment of MATHONSI J…,.

The applicant attached a copy of a letter from the Secretary of the Judicial Service Commission, dated 12 November 2018, directing the fourth respondent to stay execution pending appeal.

In response to the defence of lis pendens, the applicant, in its answering affidavit, did not deny the existence of the alleged pending litigations nor the appeal.

It took the position that the gist of its application was that the first respondent had sold to the second respondent the property in question in the full knowledge that the property had been attached by the fourth respondent.

The applicant further averred that the matter was not lis pendens by virtue of the first respondent's pending appeal because the appeal was also against the order that the judgment would remain operational despite the noting of any appeal.

The applicant also averred that BERE JA had dismissed the first respondent's attempt to interdict the transfer of the property to the applicant on the basis of a pending appeal. The applicant stated, in the final sentence in paragraph 4 of the answering affidavit, thus –

“Therefore, the fact that first respondent has noted a purported appeal against Justice MATHONSI's judgment does not affect this application.”

In regard to res judicata, the first respondent averred that the applicant filed an affidavit in case no. HC1444/19 specifically requesting the court to cancel the title deed in favour of the second respondent. The applicant further averred that the dismissal of case no. HC1444/19 by MANZUNZU J rendered the issue of cancellation of the Deed of Transfer to the second respondent res judicata and that this court was functus officio on the issue.

In response to the defence of res judicata, the applicant averred that the judgment of MANZUNZU J did not deal with the merits of the application. The applicant averred that whilst application HC1444/19 was concerned with the protection of the fifth respondent's rights, the applicant in casu was seeking to enforce its rights to transfer to itself the property in question as purchaser.

In regard to the preliminary defences raised, it is trite that the court has an unfettered right to refer to its records: see Mhungu v Mtindi 1986 (2) ZLR 171 in which McNALLY JA…, stated:

“It seems clear from the judgment in which the learned judge a quo granted summary judgment that he made reference to the papers in case no. HC3406/84. In so doing he was undoubtedly right. In general, the court is always entitled to make reference to its own records and proceedings and to take note of their contents…,.”

Guided by the above dicta, I perused the records referred to by the second respondent.

Significantly, and in relation to case no. HC1449/19, decided by MANZUNZU J, the applicant herein did not oppose the application. The applicant in fact supported the application as shown in the affidavit which was filed of record on 28 February 2019. In paragraph 2 of the applicant's affidavit thereon, it is stated;

“2. I have perused the urgent chamber application for the cancellation and setting aside of Title Deed No. 708/2019, together with the certificate of urgency and the founding affidavit of the applicant in support of the application. I confirm that fifth respondent is in support of the application and the relief sought as fifth respondent has an inherent interest in this matter as is apparent from applicant's affidavit itself.”

The applicant then chronicled the history of how it bought the property on the Sheriff's auction; the declaration made by the Sheriff that the applicant was the highest bidder and purchaser; the challenges mounted by the first respondent including attacking the court judgment by MATHONSI J…,.; that the applicant paid the purchase price and transfer fees; the failed interdict applications made by the first respondent in the Supreme Court and determined by BERE JA and GWAUNZA DCJ; the allegation that the first respondent's appeal no. SC734/18 was dismissed for non-compliance with the Rules; and that the sale of the property by the first respondent was fraudulent as the first respondent was aware of the prior sale to the applicant made on 18 September 2017.

The applicant, in paragraph 13 of the affidavit, accused the first respondent herein of having connived with officials of the third respondent herein to perpetrate a fraud by registering the transfer to the second respondent herein. The applicant states as follows in paragraphs 13–16 of its affidavit:

“13…,. The sale and transfer of the property to the second respondent is void and that void transaction must be quashed.

14. The fact is, the title deed in favour of the second respondent is a fraud and it must be cancelled. The actions of the first respondent are criminal in nature and should not be condoned.

15. Fifth respondent has and continues to suffer prejudice at the actions of the first respondent, which, if allowed to stand, will greatly prejudice the applicant, fifth respondent, and our justice system.

16. It is therefore fifth respondent's position that there is sufficient basis for this Honourable Court to grant the relief sought for by the applicant. First respondent also ought to be ordered to pay the costs on a punitive scale.”

It is therefore clear that in case no. HC1449/19 the applicant took advantage of the application filed by the fifth respondent to present its own case to the court.

The relief sought by the fifth respondent was in effect for the benefit of the applicant as well.

In a manner of speaking, the applicant took the position of a co-applicant and prayed to the court that the relief sought by the fifth respondent herein should be granted.

The applicant argued, before MANZUNZU J, for the relief of cancellation of the Deed of Transfer made in favour of the second respondent to be cancelled. In paragraph 15 of its affidavit, the applicant averred that it continued to suffer prejudice as did the fifth respondent.

The applicant adopted the applicant's cause as its own.

The cancellation of the Deed of Transfer, had such relief sought been granted, would have benefitted the applicant.

The present application would not have been made.

The applicant has, by this application, sought the same relief which it looked forward to getting in case no. HC1449/19 before MANZUNZU J.

The extension to the same order then and now sought, that the prior Deed be revived, would simply have followed as a causa causans of the cancellation of the now holding Deed which was the causa sine qua non of the revival of the prior Deed. The same reasoning would apply to the faulty relief sought, that the third respondent transfers the property to the applicant.

I have already pointed out that the third respondent does not transfer property but registers transfers. Transfers are done by the seller to the purchaser.

There can be no doubt the dismissal of the application by MANZUNZU J resulted in the fifth respondent and the applicant being denied the common relief which they sought.

In deciding whether the plea of res judicata applies against the applicant in this case and similarly against the fifth respondent, I need to restate the requirements for a successful plea of res judicata.

In the case of Wilson Nakunyunda Banda and 45 Others v Zimbabwe Iron and Steel Corporation SC54-99, SANDURA JA stated…;

“The requisites of the plea of res judicata have been set out in a number of previous cases. In Pretorious v Barkly East Divisional Council 1914 AD 407. SEARLE J set them out as follows at p409:

As to the first point, the requisites for a plea of res judicata have several times been laid down in this court.

The three requisites of a plea of res judicata, said the Chief Justice in Hiddingh v Denysson L (3 Juta p424) quoting Voet (44.2.3) are that the action in respect of which judgment has been given must have been between the same parties or their privies; concerning the same subject matter; and founded upon the same cause of complaint as the action in which the defence is raised. In order to determine the cause of complaint, the pleadings, and not the evidence in the case, must be looked at.”

The pleadings in case no.1449/19 and in casu are similar.

What has simply happened is that the applicant herein, having made cause with the fifth respondent as applicant in HC1449/19, and lost the case, has decided, out of misplaced ingenuity, to file this application which otherwise involves the same parties, the same subject matter, and founded on the same cause of complaint as was before the court in case no. HC1449/19 which MANZUNZU J dismissed.

The fact that the applicant was a respondent does not alter the position.

A respondent who participates in an application is as much a party to the case as the applicant. Such respondent becomes an interested party who will be affected and bound by the order which the court may grant. The respondent, as much as the applicant, has a right of appeal against the judgment in which such respondent is a party.

In casu, the applicant herein did not appeal against the judgment of MANZUNZU J which means that it did not take issue with the dismissal of the application.

The dismissal of the application meant that the current Deed, in the name of the second respondent, remained extant, yet, in the application, case no. HC1449/19, the applicant had prayed for the order of cancellation of the Deed, as sought by the fifth respondent, to be granted.

In the current application, the applicant now took the leading role and petitioned the court for the same relief as previously sought in case no. HC1449/19 with the fifth respondent, who was applicant in case no. HC1449/19, being now cited again as fifth respondent.

The fifth respondent, for its part, filed what it terms a supporting affidavit on 12 April 2019.

It is a curious supporting affidavit in that it comprises 33 pages compared to only 7 pages which make up the founding affidavit of the applicant. The affidavit has 169 individualized paragraphs containing separate allegations in line with Rule 227(1)(b). The annexures to the supporting affidavit comprise 24 pages. In totality, therefore, the fifth respondent's so-called supporting affidavit, with annexures, comprises 57 pages.

The fifth respondent's affidavit goes further than the applicant's affidavit in expanding on the grounds on which the relief sought by the applicant should be granted. Significantly, the fifth respondent, in the penultimate paragraph of the supporting affidavit, in paragraph 168, stated:

“Ad paragraphs 1 to 28 of the applicant's founding affidavit

168. I have read the founding affidavit of Mr Kingstone Hamutendi Munyawarara. I associate myself with the same. I agree with every contention made therein and l seek that an order be granted in terms of the draft.”

Other than paragraph 168, the fifth respondent, in the bulk of his affidavit, was setting out facts which found the application more comprehensively in content and detail than the applicant had done in the founding affidavit.

In my view, the procedure which was adopted by the fifth respondent is wrong.

Form 29, referred to in Rule 230, on application procedure, calls upon the respondents to oppose the relief sought by the applicant if they wish to do so. This implies that the respondent can also consent to the application expressly by stating so or not file any papers in which case the respondent who does not file any opposing papers is deemed not to be opposed to the order sought.

Where the respondent seeks to bring its own application and the cause of action, subject matter, and the parties are the same, he or she can file his or her own application separately and apply for consolidation of the applications for purposes of hearing.

The fifth respondent did not do this, and, instead, sought to sneak in its own dispute for resolution by the court through the back door in an application brought by another party.

To compound matters, the fifth respondent could not competently seek the court's determination on issue which it brought before the court and judgment which he has appealed against was given by the same court.

The matter is therefore res judicata as far as this court is concerned and lis pendens as far as the Supreme Court appeal is concerned.

This court has inherent power, in terms of section 176 of the Constitution, to regulate its processes, and, in the process of doing so, to guard against abuse of court process by litigants.

The fifth respondent seeks to abuse the court process by asking the court to determine and grant an order which he failed to obtain in case no. HC1449/19 and appealed against that decision.

Obviously, if the order is granted, the appeal becomes academic and may not be pursued leaving this court with two conflicting judgments.

In my view, what was before MANZUNZU J was a dispute which involved all the parties herein.

A decision thereon was granted. One of the parties, namely, the fifth respondent herein, appealed against the judgment. The others, including the applicant, did not do so.

The court is not a gambling place where parties take chances to try their luck where one who led the group failed to get relief which each member of the group was seeking in the prior or failed application.

I therefore found merit in the first respondent's plea of res judicata for the reasons l have outlined.

The dispute before me was determined in case no. HC1449/19, and, save for the fifth respondent herein who was the applicant, parties who did not appeal against the judgment, when in fact they were dissatisfied with it, must live with the judgment.

For the fifth respondent, the matter is not only res judicata in this court, but is lis pendens in the Supreme Court.

Assuming that my findings, upholding the plea of res judicata, are not properly made, I would still determine the matter against the applicant on the basis that it would be inequitable, in the circumstances of this case, to cancel the Deed of Transfer in favour of the second respondent.

The second respondent, in a lengthy opposing affidavit, chronicled how he came to buy the property in question. The second respondent did not connive with the first respondent when he purchased the property. The property was purchased through an estate agent company, and the estate agent levied and was paid its commission.

The second respondent paid transfer fees and registration cost and all taxes like capital gains tax.

The second respondent, before purchasing the property and taking transfer, investigated whether there were any encumbrances and found none. Indeed, the legal practitioner who conveyanced the property did not find any caveats or other encumbrances noted against the first respondent's title deed to the property.

The property was, to all intents and purposes, and to an outsider, free for sale, conveyance, and transfer.

The second respondent averred, that, he was an innocent purchaser who took all reasonable steps as could be expected of any astute and reasonable would-be purchaser to investigate that the property was free of impediments to purchase and transfer.

In response to the averment by the second respondent, that he was an innocent purchaser, the applicant did not specifically deny the second respondent's assertion nor allege any facts tending to show otherwise. It stated, in paragraph 18 of the answering affidavit:

“18. I am also unable to comment on whether the second respondent was an innocent purchaser or not as I am not privy to the sale. Second applicant (sic) it to purchase the property from first respondent. However, my point still remains that first respondent had not right to dispose a property which was under judicial attachment and which he knew had already been sold to the applicant.”

In relation to the existence of a caveat on the property and the second respondent's assertions that there was no caveat noted on the property when he investigated whether or not the property was free for conveyance, the applicant stated, in paragraph 22 of the answering affidavit, as follows:

“22. I should hasten to repeat that fourth respondent has already confirmed that a caveat had been attached to the property. This has been confirmed by the fifth respondent. I have no reason to believe that fourth respondent and the lawyers for fifth respondent, being officers of this Honourable Court, would have reason to mislead this Honourable Court that a caveat had been registered against the property.”

The issue about the caveat being registered against the property is not about whether or not to believe the fourth respondent's or fifth respondent's lawyers on their say so that a caveat was registered against the property.

The registration of a caveat against a registered title deed is a quasi-judicial act which is performed by the third respondent.

The procedure for attachment of immovable property is set out in Rule 347 of the High Court Rules (1971).

In terms thereof, the fourth respondent, or his deputy, should serve a notice in Form No.43 or Form No.44, as applicable, upon the property owner and the Registrar of the property. The notice to the owner of the property is in Form 43 whilst the notice to the Registrar of Deeds is in Form 44.

The notice to the Registrar reads as follows in material particulars after listing of the parties and the case number:

“Take notice that in pursuance of the writ of execution issued on the…, day of…, at…, a copy of which is annexed hereto, I hereby lay under judicial attachment the undermentioned immovable property namely…, (describe in full the immovable property attached) in order to satisfy the exigency of the said writ of execution and the costs and charges thereof.

You are hereby requested to note against the said property in your books of registration that this judicial attachment has been made, and advise me that you have done so.”

The noting of a caveat is meant to alert the world at large that the property against which the caveat has been noted is under an encumbrance the details of which can be checked by reference to the caveat.

The second respondent referred to the affidavit of the conveyancing legal practitioner, Jacqueline Sande, who stated that she took diligent steps to verify with the third respondent's offices that the property was not encumbered and thus she proceeded to transfer the property.

The fourth respondent did not oppose the application nor did the third respondent. It is customary for them not to participate and abide by the court's determination instead.

I however noted that the fourth respondent did not prepare and file his report as he did in case no. HC1449/19.

The court cannot therefore ascertain whether the fourth respondent complied with Rule 347(4) and served a Form 44 notice.

The respondent, in his report in case no. HC1449/19 indicated that he placed a caveat no.364/16 on the property on 18 July 2016.

There was nothing placed before the court to indicate that caveat no.364/16, if it existed, related to the property in dispute.

Counsel for the applicant, faced with the naked reality that there was no proof of the caveat, submitted, without proof to that effect, that the caveat must have been removed from the third respondent's records by the first respondent.

I do not have proof of the first respondent's shenanigans as alleged. The first respondent would have connived with the third respondent's and/or his or her officers.

Again, this would amount to speculation.

The applicant did, however, base its argument for relief on the fact that the property was under judicial attachment and that its sale by the first respondent was invalid.

It was argued that the first respondent's conduct, in selling the attached property, violated section 22 of the High Court Act in that the first respondent acted fraudulently. In consequence thereof, it was argued that since the sale of the property to the second respondent resulted from a fraud, it should be set aside and the Deed of Transfer cancelled since the sale was a nullity and nothing stands on a nullity.

Section 22(1)(2)(b) of the High Court Act provides as follows:

“Any person who –

(a)…,.

(b) Being aware that goods are under arrest, interdict, or attachment by the High Court, makes away with or deposes of those goods in a manner not authorized by law or knowingly permits those goods, if in his possession or under his control, to be made away with or disposed of in such a manner;

Shall be guilty of an offence and liable to a fine not exceeding six months or to both such fine and such imprisonment.”

The quoted legislation does not provide that an innocent third purchaser of attached goods will be deprived of the goods.

Consideration must, in any event, be given to the fact that there is no proof which was placed before me to establish that the attachment itself was procedurally processed in terms of the Rules.

If nothing sits on a nullity; then nothing would sit on an invalid attachment.

The applicant, relying on the judgment of PATEL J…, in Pambona Kudakwashe v Muzira Mathias and Others HH52-06 submitted, that, the transfer to the second respondent was not valid because the first respondent lost title to the property upon confirmation of the sale in execution.

I disagree.

Title in the property remained in the first respondent but would be encumbered by the attachment if such attachment was proven. Title would only be divested from the first respondent upon transfer to the applicant, or any other party, whereupon the transferee would acquire real rights to the property.

The rule that no one can give what he does not have and no one can transfer any right greater than he himself possesses is correct provided that it is proven that, as in this case, that the property had a caveat registered against it; such registration being shown to have been procedurally done.

The applicant further relied on the judgments of this court in Katsande v Katsande 2010 (2) ZLR 82 and Katirawu v Katirawu & Others 2007 (2) ZLR 64 to contend that nothing attaches on a nullity.

I do accept the general rule and the general approach of the court, but, would caution that a case authority is only binding or persuasive if the ratio decidendi sought to be invoked pertains to a factual scenario which is similar to the case under determination because every case is determined on its own peculiar facts and circumstances.

The facts in the judgments above were different from the facts of this application.

The applicant, in its argument, submitted, as in paragraph 16 of the heads of argument, that a caveat had been registered against the title deed and that consequently it was a wonder how transfer had been registered into the name of the second respondent.

He who avers must of course prove.

I have already noted that the so-called caveat existed in name only and in the words of the applicant and counsel. It was just not proved to have been noted as l have already observed.

It therefore appears to me, that, in considering the authorities cited herein, sight must not be lost that the attachment itself was not shown to have been done in terms of Rule 347(4).

The case of Maphosa & Another v Cook & Others 1997 (2) ZLR 314, again cited by the applicant, would be more persuasive.

The distinction sought to be drawn by the applicant, that, in casu, the sale had been confirmed and the purchase price paid does not persuade me otherwise because the confirmation of the sale and payment of the purchase price is not an end itself.

The sale remains suspensive until the challenge procedure provided for in Rule 359(8) and appeal procedures have been exhausted.

In a manner of speaking, one can say that the purchase of an immovable property consequent upon a judicial sale in execution can turn out to be a gamble when challenges are mounted because it can take forever before transfer is given to the purchaser in the event of the challenge process being exhausted in favour of upholding the sale.

The applicant raised what it coined as the real question as: “Can a judgment debtor sale (sic) and transfer property to a third party after a sale has been confirmed?”

In my view, the question cannot be answered by a simple yes or no.

The intricate circumstances of each case must be considered against the determination I made that Rule 361 must be read together with other relevant Rules.

I postulate that the real issue is to answer the question: “When is confirmation of a sale deemed to be perfecta?”

It can only be perfecta and final after the exhaustion of the challenge process where a challenge has been mounted.

It was not suggested that the challenge process had been exhausted. I already dealt with this issue.

The position which l consider to be the correct one is to understand that the rules of court are made for the convenience of the court. The court is not made for the rules.

The process of execution of a judgment, including a sale in execution, is a process of the court and the court can regulate its processes.

The circumstances of this case require that the equities of the case be considered.

The applicant's purchase price is held by the fourth respondent and thus by the court. The fourth respondent can refund the purchase price paid. The applicant already failed in its challenge, in case no. HC1449/19, to the sale of the property wherein it was a respondent and the fifth respondent the applicant. Having ended up on the losing side when it made cause with the fifth respondent, the applicant did not appeal but launched this application which l ruled to be res judicata and lis pendens as against the fifth respondent.

The fifth respondent, for his part, as judgment creditor, accepted a payment of $115,000 made by the first respondent to his legal practitioner. The first respondent has offered to pay any balance found to be due since he disputes that the money he paid did not cover the debt but costs only. Further, costs have not been taxed nor agreed other than the sum of $38,873. The judgment debt was for $70,000.

The two can resolve the disputed balance.

The second respondent took transfer of the property in the absence of a caveat having been noted against the property. If such caveat had been noted, the second respondent would have been alerted to its existence.

In my determination, taking into account the peculiar circumstances of this case, and that the process of execution is one which the court can regulate, there is no equitable reason to cancel the Deed of Transfer in favour of the second respondent. If the applicant considers himself hard done by the loss of the property he has the alternative remedy of suing for damages.

There is, in view of the payment made by the first respondent to the judgment creditor, no just cause for continued execution.

I need to lastly deal with the question of costs.

Costs are in the discretion of the court with the general rule being that costs follow the event. This means that if the application should be dismissed the applicant must bear the costs of suit.

The circumstances of this case are however peculiar.

The applicant and fifth respondent's positions were to pray for cancellation of the Deed of Transfer in the name of the second respondent. They mounted a sustained challenge to have the current Deed cancelled despite the fact that, in the case of the fifth respondent, the same matter is pending determination on appeal by the Supreme Court.

The third and fourth respondents did not file any papers and did not participate in the hearing.

The second respondent is entirely blameless in this whole saga. He deserves to be awarded his costs. His attitude throughout the progress of the case has been to maintain his position, that he is an innocent purchaser who is being dragged into the mud despite being blameless.

Indeed, none of the parties laid blame on him.

He must be awarded his costs.

The first respondent is the author of all the disputes which have culminated in this litigation. He did not disclose to the second respondent the correct history surrounding the property - including the first respondent's battles to save it from execution. I am not persuaded to grant him his costs.

I accordingly dispose the application as follows:

1. For the reasons that the application is res judicata, and, in any event, devoid of merit on the merits, it is hereby dismissed.

2. The applicant shall pay the second respondent's costs of suit.

3. In regard to the first and fifth respondents, each party shall pay its own costs.

HMT12-21 : EMMANUEL RENSBURG vs KENNEDY NGIRAZI and NAN JIANG MINE (PVT) LTD and MEGAMANIA AUCTIONEERS and THE HIGH COURT SHERIFF (N.O.)
Ruled By: MUZENDA J

This is a Court Application for leave to execute pending appeal where the applicant is praying for the following relief:

“IT IS ORDERED THAT:

1. The application for execution of the order under HC40/20, dated 23 July 2020, pending the determination of SC333/20 is hereby granted.

2. The fourth respondent is granted leave to give effect to the Writ of Delivery of Movables lodged on 27 July 2020 under case HC40/20.

3. During the pendency of SC333/20, the applicant is temporarily interdicted from disposing of Cat Caterpillar Dump Truck 769C.

4. The first and second respondents shall bear the costs of this application if opposed.”

The application is opposed by the first and second respondents.

BACKGROUND

On 23 July 2020, after hearing the parties under case No. HC40/20, I granted the following order:

“1. The application for a declaration order succeeds.

2. The applicant is hereby declared the rightful owner of a Cat Catepillar Dump Truck 769C sold in execution on 18 October 2019 at Devuli Farm, Devuli Ranch, Bikita.

Consequently:

1. The first respondent is hereby ordered, within 24 hours of this order, to transport, at his own cost, the Cat Caterpillar Dump Truck 769C, from No.52B Plymouth Road, Southerton, Harare to Lot 2 Gweru Small Holding, Gweru.

2. The first and second respondents bear the costs of this application on legal practitioner and client scale.”

On 30 July 2020, the first and second respondents noted and filed an appeal against the entire and final judgment under HMT40-20, which appeal is pending.

The applicant has now applied for leave to execute the judgment albeit the appeal pending.

SUBMISSIONS BY COUNSEL

Counsel for the applicant submitted, that, a notice of appeal has the effect of staying a writ of execution but it ought not to come into effect in circumstances where such stay has the effect of perpetuating the commission of an offence or criminal conduct.

He submitted that the first and second respondents contravened section 22(2)(b) of the High Court Act [Chapter 7:06] by taking away the Dump Truck which has been attached and sold to the applicant at a public auction.

The applicant's counsel further submitted, that, the court has a discretion to grant or dismiss an application for stay of execution pending appeal.

He went on to contend, that, the court is enjoined to have regard to the preponderance of equities, the prospects of success on the part of the first and second respondents, and also whether the appeal had been noted so as to gain time or harass the applicant.

The court has to determine what is just and equitable in all the circumstances.

Counsel for the applicant urged the court to grant the application to enable the applicant to enjoy the use of the Dump Truck since he had judicially purchased it; furthermore, where the applicant is, by all means, an innocent purchaser.

The courts have to protect the purchaser even where an article is sold by mistake as belonging to a judgment debtor, it was contended by the applicant's counsel.

On the first and second respondent's prospects of success on appeal, the applicant submitted, that, judicial sales in execution, and the effects of a sale in execution, are immediate and profound and such sales are not lightly set aside, and the Supreme Court, equally so, is unlikely to interfere with such a sale.

The applicant went on to add, that, the reliance of the first and second respondent on Rule 340 of the High Court Rules 1971 amounts to a fresh argument which was never raised in the main application under HMT40-20.

In any case, it was submitted by the applicant, a sale in execution will only be set aside or negated under Rule 359 and not Rule 340.

The fourth respondent indicated that he did not receive the information timeously about the “full settlement” by the judgment debtor before the property was sold.

In view of the applicant, the appeal is hopeless and designed to frustrate the applicant by delaying the inevitable.

The first and second respondents counsel, on the other hand, submitted, that, the overall onus is on the party seeking execution pending appeal to satisfy the court that he is entitled to the relief sought and the court has the discretion.

The first and second respondents further contended that the grounds of appeal listed in the Notice of Appeal have bright prospects of success on appeal.

To the first and second respondents, they have an arguable case on appeal. To them, the appeal is free from predictable failure.

It was contended, that, the court erred in declaring the applicant owner of the Dump Truck when the sale in execution violated Rule 340 of the High Court Rules. Moreso when the first and second respondents satisfied the judgment well before the auction took place.

The first and second respondents further submitted, that, there is no prejudice or irreparable harm to talk about on the part of the applicant. The respondents are the ones who stand to be prejudiced, for the two will lose their valuable Dump Truck.

It was also argued, on behalf of the first and second respondents, that, the applicant has established no basis on the affidavits which upsets the common law position that allows staying of execution pending appeal.

Since the first and second respondents have tendered security, the applicant's fear of irreparable harm have been allayed.

Finally, the first and second respondents submitted, that, the equities favour them and they pray for the dismissal of the application with costs on a higher scale of attorney-client scale.

THE LAW

When dealing with an application for leave to execute pending an appeal, the Court is enjoined to exercise its discretion in coming to a decision regarding whether the application ought to succeed or not.

The following mundane and often-cited guidelines are relevant:

(a) The potentiality of irreparable harm or prejudice being sustained by the appellant if leave is granted;

(b) Conversely, the potentiality of irreparable harm or prejudice sustained by the respondent, on appeal, if leave to execute is not granted;

(c) The prospects of success on appeal, including the question whether the appeal is frivolous or vexatious or noted, not with the bona fide intention of reversing the judgment appealed against, but for some motive e.g. to gain time.

(d) Where there is the possibility of irreparable harm to both parties, the balance of hardship or convenience:

See Arches (Private) Limited v Guthie Holdings (Private) Limited 1989 (1) ZLR 152 (H); ZDCO (Pvt) Ltd v Commercial Careers College (Pvt) Ltd 1991 (2) ZLR 61 (H).

The Notice of Appeal has the general effect, at common law, of staying the writ of execution, but it is not intended to operate or come into effect in circumstances where such stay had the adverse effect of perpetuating a commission of an offence or to perpetrate criminal conduct: see Chase Mineral (Pvt) Ltd v Madzikita 2002 (1) ZLR 488 (H) 490.

Further, the automatic stay of execution, upon noting of appeal, as a rule of practice, is not a firm rule of law, but a long established practice regarded as generally binding - subject to the court's discretion: see Vengesai & Ors v Zimbabwe Glass Industries 1998 (2) ZLR 593 (H) 598.

At the core or pith of enquiry relating to an application of this genre is the duty of the court to determine what is just and equitable: see South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A)…,.

The principle to be applied by the court considering the grant of an application for leave to execute on a judgment under appeal is what is just and equitable in all circumstances: see Whata v Whata 1994 (2) ZLR 277 (S)…,.

In assessing whether an appeal pending determination in the upper court has got prospects of success, has to do with whether the appellant has got an arguable case or whether it is manifestly a predictable failure: see Pfumbidzayi v State HH726-15; Chikumba v State HH724-15.

APPLICATION OF LAW TO THE FACTS

Central to the principle or guidelines applicable to an application for leave to execute pending appeal is, in my view, the prospects of success on appeal.

Put differently, whether the appeal is frivolous or vexatious or was noted, not with the bona fide intention of reversing the judgment appealed against, but for some motive, for instance, to gain time.

Akin to this foregoing, whether the appellant has an arguable case in the matter pending in the Supreme Court.

The quintessence or gravamen of the appeal, in my view, focuses on the order that declared the applicant herein the legitimate owner of the Dump Truck by virtue of being a purchaser at a well-publicised auction.

The first and second respondents contend that I erred to order as such because they had fully met their indebtedness to the judgment creditor in the matter where the Dump Truck was subject of attachment.

In my judgment, under HMT40-20, I dwelt at a great length on this subject and concluded, that, the first and second respondents did not timeously offset the judgment debt.

The balance of $30,405=98, paid by the Sheriff, was deducted from the proceeds of the selling of the Dump Truck; that is, from the money paid by the applicant herein.

As such, Rule 340 of the High Court Rules 1971 does not come in.

Had that money been paid by the first and second respondents, the situation would be totally different.

Where an innocent purchaser of an asset, sold at a public auction, is involved, these courts readily protects such and a sale, once conducted and vests rights in the purchaser, such rights are not easily reversed even where an error is detected: see SILBERBERG and SCHOEMAN's The Law of Property, 5th ed…,.; Naran v Midlands Chemical Industries SC220-91; Kanoyangwa v Messenger of Court & Ors 2007 (1) ZLR 124 (S).

In my own view, I conclude, that, the first and second respondents do not have an arguable case before the Supreme Court; they had filed the notice of appeal to buy time.

The applicant before me genuinely and honestly parted with his money and bought the Dump Truck obviously for use at his workplace. He is not using the Dump Truck, his money is not earning any interest nor is it productively utilised; in a hyper-inflationary operational environment like in Zimbabwe, the time value of money theory is adversely affecting the applicant.

He complied with all the requirements of the Sheriff's auction and all his actions were above board.

I discern no reasonable basis to punish such an innocent purchaser by forestalling the legal process of ensuring that the applicant enjoys the fruits of his purchase.

In any case, the nature of the order being sought by the applicant caters for the non-disposal of the Dump Truck until the appeal to the Supreme Court is finalised. It is just and equitable that leave to execute pending appeal is granted.

The first and second respondents illegally snatched the Dump Truck from the control of the fourth respondent. They are still benefitting from its use, possibly earning money from its use, and drawing down its market value through wear and tear. The applicant virtually facilitated this retention of the Dump Truck by the first and second respondents by paying the debt, not for the applicant's benefit but to the advantage of the first and second respondents. The applicant will eventually get the Dump Truck in a condition that is entirely different from what it was at the time he bought it.

That situation obviously would result in an irreparable harm to the applicant.

The balance of convenience favours the granting of the order for leave to execute pending appeal.

As regards costs, I see no basis for denying the applicant costs as prayed for by the applicant.

The conduct of the first and second respondents in the matter shows a deliberate disregard of the law by snatching property on attachment and then opposes an application for leave to execute pending appeal, where it is clear that the applicant enjoys the benefits of the Dump Truck he acquired through a judicial sale.

The application succeeds and it is ordered as follows:

1. The application for Execution of the Order under HMT40/20, dated 23 July 2020, pending the determination of SC333/20 be and is hereby granted.

2. The fourth respondent is granted leave to give effect to the Writ of Delivery of Movable lodged on 27 July 2020 under Case No. HMT40-20.

3. During the pendency of SC333/20, the applicant is temporarily interdicted from disposing of Cat Caterpillar Dump Truck 769C.

4. The first and second respondents shall bear the costs of this application at an ordinary scale.

SC101-21 : EQUITY PROPERTIES (PVT) LTD vs ALSHAMS GLOBAL BVI LIMITED and REGISTRAR OF DEEDS
Ruled By: BHUNU JA, UCHENA JA and KUDYA AJA

This is an appeal against part of the judgment of the High Court of Zimbabwe sitting at Harare on 20 November 2019 granting an interim interdict in favour of the first respondent.THE FACTSThe appellant and the first respondent have been engaged in a flurry of litigation, and, at other times, ...

This is an appeal against part of the judgment of the High Court of Zimbabwe sitting at Harare on 20 November 2019 granting an interim interdict in favour of the first respondent.

THE FACTS

The appellant and the first respondent have been engaged in a flurry of litigation, and, at other times, with Interfin Banking Corporation Ltd in liquidation (the Bank) in both the High Court and in this Court. Some of the cases have been concluded while others are still pending.

The facts relevant to this appeal are narrow.

On 16 March 2018, in HC2463/18, the appellant brought motion proceedings against the first respondent seeking vindication of its original title deed no. 9068/2008, which pertains to Lot 3 of Bannockburn (the immovable property), within 10 days of the grant of the order failing which the second respondent was to issue a duplicate replacement deed within 90 days of that order.

The order was granted, purportedly in default of the first respondent, on 6 June 2018.

On 18 July 2018, while the application for rescission of the default judgment was pending, the appellant obtained the duplicate replacement title deed from the second respondent.

The first respondent filed three urgent chamber applications to stop the second respondent from issuing the replacement deed and one court application to prevent the appellant from using it.

The three urgent applications were all removed from the roll for lack of urgency while the court application was withdrawn.

The default judgment, upon which the replacement deed was issued, was rescinded a quo, in terms of Rule 449 of the High Court Rules 1971, on 21 November 2018.

The appellant duly appealed against the rescission of the judgment of the court a quo to this Court. The appeal was dismissed with costs on the higher scale on 7 October 2019 in case number SC924/18 for two reasons:

(i) The first was that the substituted service, upon which the rescinded judgment was based, had been effected on legal practitioners who did not have the mandate to represent the first respondent.

(ii) The second was that the order for substituted service had, by consent of the parties, been rescinded by this Court in SC733/18 on 25 March 2019.

It was common cause that the appellant used the duplicate title deed to subdivide an undisclosed number of Stands on Lot 3 of Bannockburn. He also used it to conclude an undisclosed number of agreements of sale with purchasers such as Conradie Tinofirei Mutumbuki, the third respondent in the application for rescission, on 11 October 2019, and to transfer title thereof to three purchasers, one of which was David Madyausiku who took transfer on 12 April 2019.

On 21 October 2019, the first respondent filed the urgent chamber application which has given rise to this appeal. It sought, in the interim, the return of the replacement deed to the second respondent; its cancellation by the second respondent; and the setting aside of all transactions based on it.

On the return date, it sought confirmation of the interim relief and costs de bonis propriis on the higher scale against the appellant's legal practitioner of record, one Mr Kwaramba.

On 29 October 2019, the appellant opposed the application.

It also filed a counter urgent chamber application in terms of Rule 229A of the High Court Rules, 1971. It raised five preliminary points. These were;

(i) That one of the urgent chamber applications that had been removed from the roll was lis pendens;

(ii) There was material non-disclosure of all the urgent applications that had been removed from the roll and the court application that had been withdrawn;

(iii) The application was not urgent;

(iv) There was non-joinder of third parties who had benefited from transactions based on the replacement title deed; and

(v) Lastly, that the relief in the interim order was the same as the one in the final order.

On the merits, it sought the dismissal of the application.

In the counter application, the appellant sought the retention of the replacement deed in the interim and determination of the lawfulness of the first respondent's possession of the original title deed on the return date.

It indicated its avowed intention to utilize the replacement deed to conduct further subdivisions, conclude more agreements of sale, and transfer the subdivisions that had been sold.

One such purchaser was Conrad Tinofirei Mutumbuki, who was joined in the proceedings on his own motion as the third respondent at the hearing on 29 October 2019 and made common cause with the appellant.

The first respondent also raised the preliminary point of lack of urgency against the counterclaim and sought its dismissal on the merits.

THE FINDINGS A QUO

The court a quo dismissed all the preliminary points raised by the appellant.

While it regarded one of the urgent chamber applications that had been removed from the roll to be pending at the instance of the first respondent, it found the cause of action and relief sought to be different from those before it.

It found the non-disclosure of prior urgent chamber applications and court application irrelevant to the determination of whether the main application was urgent.

It held, that, as the appellant had only impugned the interim relief pertaining to the setting aside of all transactions based on the replacement deed, and not the surrender and cancellation relief as final in effect, it could exercise its Rule 240 discretion to grant interim relief that was not final in effect.

It proceeded to do so by suspending, rather than cancelling, all the transactions predicated upon the replacement deed.

The court a quo further determined, that, the relief sought did not seek to stop past events but “recent and ongoing events.”

It also relied on the provisions of Rule 87 to find that the non-joinder of the third parties who purchased or took transfer of the purchased subdivisions was not inimical to their rights and interests as they were not involved in the procurement of the impugned replacement deed.

Lastly, it found that the first respondent had acted with speed after the decision of this Court of 7 October 2019 to launch the urgent chamber application after the subsequent ten-day negotiations for the voluntary surrender of the replacement deed failed.

Under the consequence factor, it held, that, the first respondent had established that the failure to intervene on an urgent basis would result in the attenuation and dissipation of the immovable property to the detriment of the first respondent's rights in the security pending litigation in HC8113/16, the consolidated case under which the application for rescission had also been incorporated.

Regarding the counter-application, it upheld the preliminary point of lack of urgency that was raised by the first respondent and struck it off the roll with costs on the higher scale.

On the merits of the main application, the court a quo was cognisant of the fact that the issue before it concerned the legality of the possession of the duplicate title deed by the appellant and not the legality of the possession of the original title deed by the first respondent.

It held, that, the appellant had fraudulently procured the duplicate title deed through a deliberate omission of the timeous opposition to its application in HC2463/18 from the bundle of documents for default judgment and the improper appeal against the rescission of the default judgment.

It reasoned that the appellant had done so for the twin purposes of obtaining and utilizing the duplicate deed to undertake the transactions it could not do without the original title deed; such as, the advertisements for the sale of Stands, the conclusion of agreements of sale, and the transfer of the Stands.

It also determined, that, the rescission of the default judgment restored the status quo ante, thereby effectively maintaining and preserving the first respondent's possession of the original deed and preventing the appellant from utilizing the duplicate deed to attenuate and dissipate the security by subdividing, selling, and transferring any subdivisions.

Lastly, it held that the first respondent had established all the requirements for a mandamus.

It therefore granted the provisional order for the return of the duplicate deed to the second respondent for cancellation and suspended all pending activities founded on the subdivisions, agreements of sale, and transfers of title predicated upon the duplicate title deed.

The appellant was accordingly estopped from effectuating all activities based on the duplicate title deed.

The court a quo reserved the nature and level of costs for the return day.

GROUNDS OF APPEAL

Aggrieved by the determination a quo, the appellant sought the setting aside of the order in the main application only and its substitution by a dismissal of the urgent chamber application with costs on the following four grounds of appeal:

“1. The court a quo erred in concluding that the 1st respondent's application was urgent when the 'time' and 'consequence' factors of urgency were not satisfied.

2. The court a quo erred in granting the relief of an interdict when all the requirements of an interdict were not met.

3. The court a quo grossly misdirected itself by granting a final interdict on an interim basis.

4. The court a quo grossly misdirected itself by purporting to interdict past events done pursuant to the replacement title deed.”

It is noteworthy that the appellant did not appeal against the striking off order against its counter urgent chamber application.

THE ISSUES

It was common cause that the issues for determination that arise from the grounds of appeal are:

1. Whether the court a quo correctly determined that the matter was urgent.

2. Whether the requirements of an interim interdict were satisfied.

3. Whether or not the court a quo granted a final interdict when the first respondent had sought an interim order....,.

On the merits, the appellant contended that the court a quo erred in holding;

(i) Firstly, that, the time to act commenced soon after this Court's judgment of 7 October 2019 rather than 18 July 2018, when the replacement title deed was issued by the second respondent; and

(ii) Secondly, that, the continued use of the replacement deed to subdivide, sell, and transfer the subdivisions constituted an irreversible dissipation of the immovable property secured by the collateral held by the first respondent.

It submitted, that, the previous attempts, in HC5466/19 and HC7769/19, to stop the use of the replacement deed negated the “time and consequence” based urgency by the time the provisional order was sought on 21 October 2019, since the dissipation of the immovable property, which began in 2008, was known to the first respondent from March 2012 when it took possession of the original deed.

On the consequent aspect, the appellant argued, that, the failure a quo to determine whether the tender of security in lieu of the original deed negated any irremediable harm arising from the indebtedness claimed in HC8113/16, which had been fully ventilated by the parties, constituted a fatal misdirection warranting interference with its discretion on appeal.

The appellant further submitted, that, as the immovable property was not hypothecated, it could not constitute security for the Bankers Acceptances.

It strongly contended, that, the absence of irreparable harm therefore negated the finding a quo of urgency.

The appellant further impugned the finding that the first respondent had established a prima facie case for granting the provisional order.

It assailed the existence of a prima facie entitlement, though open to some doubt, to possess the original title deed pending determination of HC8113/16, on four grounds:

(i) Firstly, the absence of a debtor-creditor relationship;

(ii) Secondly, the absence of a cession between the two protagonists;

(iii) Thirdly, that the appellant had discharged its obligations in full to the Bank; and

(iv) Lastly, that possession of the original title deed was contrary to the Security Trust Deed and Assignment Agreement between the first respondent and the Bank.

The appellant also emphasized, that, as the title deed was not the subject of the claim in HC8113/16, nor encumbered, the purported tender of the bond of security countervailed the existence of actual or reasonable apprehension of harm.

It further argued, that, the balance of convenience favoured the appellant in that it had earned US$15 million from the sale of 300 stands on which third parties had invested a further US$18m, which, in aggregate, significantly eclipsed the claim of US$2.3m in HC8113/16.

It boasted of its ability to pay the claimed amount in the event liability was established.

Lastly, the appellant contended, that, the court a quo improperly granted final relief on an interim basis on a lower onus, which did not protect its rights pending HC8113/16.

Per contra, the first respondent contended, that, the court a quo had correctly found that the first respondent established both the “time and consequence” factors of urgency and all the four requirements for the grant of an interim interdict.

Counsel for the first respondent further argued, that, the provisional order was not final in form or substance as it was premised on the determination of HC8113/16, which was pending before the High Court.

THE LAW

The treatment of whether an application is urgent is a matter in the discretion of the court a quo.

This Court has very limited grounds upon which it can interfere with the exercise of that discretion. It can do so where the lower court makes a mistake on the law or the facts; acts upon a wrong principle; allows extraneous considerations to influence its decision; fails to take into account relevant facts; or, more generally, makes a decision that is irrational: see Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)…,; Barros & Anor v Chimpondah 1999 (1) ZLR 58 (S)…,; and Econet Wireless (Pvt) Ltd v Trust Co Mobile (Pty) Ltd & Anor SC43-13.

The law on what constitutes urgency is settled.

Urgency is manifested by either a time or consequence dimension: see Kuvarega v Registrar-General & Anor 1998 (1) 188 (H)…,; Document Support Centre (Pvt) Ltd v Mapuvire 2006 (2) ZLR 240 (H); Gwarada v Johnson & Ors 2009 (2) ZLR 159 (H); and Sitwell Gumbo v Porticullis (Pvt) Ltd t/a Financial Clearing Bureau SC28-14…,.

In addition, in Econet Wireless (Pvt) Ltd v Trust Co. Mobile (Pty) Ltd & Anor SC43-13…, GARWE JA,…, further suggested that an urgent chamber application in which the interim relief is similar to or has the same effect as the final relief prayed for may justifiably be found to be not urgent.

While he generally approved the position articulated in Kuvarega v Registrar General & Anor 1998 (1) 188 (H), at 193A-C, he underscored that such an application could not be regarded as a nullity and stated that:

“Whilst no hard and fast rule can be laid down, there may well be cases where a court would be justified in holding, in such a situation, that the application is not therefore urgent and that it should be dealt with as an ordinary court application. There may also be cases where the court, as it is empowered to do…, may amend the relief sought in order to grant…, interim protection (and) obviate a situation where final relief is granted by way of a provisional order.”

It is apparent, that, the consequence dimension pre-supposes that the harm sought to be protected in an impending matter would be amorphously irremediable without the interim indulgence.

In Chiwenga v Mubaiwa SC86-20…, this Court further highlighted the incongruence of noting an appeal against a finding of urgency for the basic reason that the finding of urgency is a mere procedural device used by an applicant to jump the queue of other pending matters for a consideration of the merits. This Court reasoned that:

“Looked at differently, an order granting the urgent hearing of a matter is generally not appealable. This is for the simple reason that the order has no bearing on the merits of the application or judgment. This is akin to a bank customer who is, rightly or wrongly, allowed to jump the queue. His or her transaction cannot be impugned or rendered unlawful solely on the basis that he or she has jumped the queue. By the same token, a correct judgment cannot be impugned or rendered incorrect by the mere fact that the matter was improperly heard as an urgent application.”

In Nyakutombwa Mugabe Legal Counsel v Mutasa & Ors SC28-18…, this Court held that a finding of urgency by a court, on its own, cannot constitute a substantive ground of appeal.

In our law, a pledge vests real rights of security in the property pledged to the pledgee. This was pertinently pronounced by MFALILA J in Hughes v Lotriet 1985 (2) ZLR 179 (H)…, thus:

“This valid pledge, therefore, had the effect of conferring on the applicant (the pledgee) a real right in the articles pledged and this right can only terminate when the pledge is extinguished. The pledge is extinguished only after the original or principal obligation is discharged….,. Until this is done, the respondent, as pledgor, has no right of action either for their return or damages for their loss.”

The requirements and purpose of an interim interdict are also well settled in this jurisdiction.

It seeks to protect an existing right from unlawful infringement that is either continuing or reasonably anticipated: see Mayor Logistics (Pvt) Ltd v Zimbabwe Revenue Authority CC07-14; Setlogelo v Setlogelo 1914 AD 221…,; and Tribac (Pvt) Ltd v Tobacco Marketing Board 1996 (2) ZLR 52 (S).

In the latter case, this Court stated…, that:

“An application for a mandamus or 'mandatory interdict' as it is often termed, can only be granted if all the requisites of a prohibitory interdict are established: see Lipschitz v Wattrus NO 1980 (1) SA 662 (T) at 673C-D; Kaputuaza & Anor v Executive Committee of the Administration for the Hereros & Ors 1984 (4) SA 295 (SWA) at 317E. These are:

1. A clear or definite right - this is a matter of substantive law.

2. An injury actually committed or reasonably apprehended - an infringement of the right established and resultant prejudice.

3. The absence of a similar protection by any other ordinary remedy. The alternative remedy must -

(a) Be adequate in the circumstances;

(b) Be ordinary and reasonable;

(c) Be a legal remedy; and

(d) Grant similar protection.”

In respect of an interim interdict, where the right sought to be protected is not clear “a right which 'though prima facie established, is open to some doubt'” suffices: see Eriksen Motors (Welkom) Ltd v Warrenton & Anor 1973 (3) SA 685 (A)…,.

Where a clear right is established, the applicant is precluded from establishing a well-grounded apprehension of irreparable harm, but must do so where only a prima facie right open to some doubt is established: see Pinkstone Mining (Pvt) Ltd & Ors v Lafarge Cement (Pvt) Ltd & Anor HH118-18…,.

Bankers Acceptances (BAs) meet the definition of a bill of exchange espoused in the Bills of Exchange Act [Chapter 14:02] (section 3(1)): A bill of exchange is an unconditional order in writing, addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand, or at a fixed or determinable future time, a sum certain in money to, or to the order of, a specified person, or to bearer.

The Bills of Exchange Act also defines certain correlative terms to a bankers acceptance such as 'acceptance' 'bearer' 'delivery' 'endorsement holder' and 'payment in due course'.

“acceptance” means an acceptance completed by delivery or notification;

“bearer” means the person in possession of a bill or note which is payable to bearer;

“delivery” means transfer of possession, actual or constructive, from one person to another;

“endorsement” means an endorsement completed by delivery;

“holder” means the payee or endorsee of a bill or note, who is in possession of it, or the bearer thereof;

“payment in due course” means payment made at or after the maturity of a bill to the holder thereof in good faith and without notice that his title to the bill is defective.

APPLICATION OF THE LAW TO THE FACTS

The appellant submitted, that, the court a quo mis-applied the time aspect and failed to consider the “consequence” factor.

The ratio of the court a quo on these two aspects is delineated on p13 of the appealed judgment in these words:

“Notwithstanding that the order that enabled the first respondent to procure a duplicate title deed was effectively nullified by the Supreme Court on 7 October 2019, the first respondent (appellant) is still refusing to return the replacement copy of the title deed in terms of which it subsequently subdivided and sold parts of the property as evidenced by the agreement of sale in the third respondent's (Mutumbuki) notice of opposition, hence, first respondent is effectively in the process of developing and dissipating Stands to individual purchasers.

From the papers, applicant engaged the first respondent from 7th to 17th October 2019 but first respondent has made it clear that it wants to hold onto the replacement title deed at all costs to further its apparent unlawful activities of dissipating the immovable property before resolution of case HC8113/18 (sic).

It becomes prudent for this court to intervene, on an urgent basis, to force the first respondent to return the duplicate title deed and for the duplicate title deed to be cancelled, if necessary, to prevent first respondent from alienating the property or disposing of its title in the said immovable property pending litigation between the parties before MUSHORE J.”

The above sentiments are unassailable.

Before the order of this Court of 7 October 2019, all prior urgent applications to stop the issuance and use of the replacement deed by the second respondent were hamstrung by the extant default judgment that permitted the appellant to obtain the replacement deed.

The patently erroneous default judgment had been given a lease of life by the improper appeal lodged by the appellant against the order of rescission.

Notwithstanding that the service by substitution order upon which the default judgment was based was, by consent, rescinded by this Court on 25 March 2019, the appellant brazenly utilized the replacement deed to transfer a Stand on the immovable property to Madyausiku on 12 April 2019.

And, despite the confirmation, again by this Court, of the rescission of the default judgment, on 7 October 2019, which, by operation of law, rendered the replacement deed inefficacious, the appellant perverted the default judgement and the replacement deed by concluding an agreement of sale for a Stand on the immovable property with, amongst others, Mutumbuki, on 11 October 2019.

In its opposing affidavit, the appellant persisted with its avowed intention to continue using the replacement deed to subdivide, sell, and transfer Stands on the immovable property.

We are satisfied that the court a quo properly applied both the time and consequent factors of urgency.

The exercise of its discretion, on the question of urgency, is unassailable.

Again, on the authority of this Court in Nyakutombwa Mugabe Legal Counsel v Mutasa & Ors SC28-18 and Chiwenga v Mubaiwa SC86-20, the first ground of appeal is not only ill-conceived and misplaced but also devoid of merit.

The tenor of the contentions made by the appellant in respect of the second ground of appeal disingenuously relates more to the counter application that was struck off and not appealed against rather than the provisional order that it sought to impugn.

The provisional order protected the first respondent's right to legality, which constitutes a vital aspect of the rule of law.

The consolidated matter in which, inter alia, the first respondent sought the discharge of dishonored Bankers Acceptances drawn by the appellant and secured by the title deed was pending as was the claim of vindication that was lodged by the appellant.

The case was awaiting determination in accordance with the law.

This Court had effectively disgorged the appellant of the ill-gotten duplicate deed and nullified its efficacy on 7 October 2019.

The appellant's refusal to voluntarily surrender the duplicate deed was inimical to the first respondent's real rights in the security that are awaiting determination. The provisional order could not, and did not, determine the issues pending in HC8113/16.

It was remiss of the appellant to motivate the second ground solely on the legality of the possession of the original deed by the first respondent while studiously ignoring the legality of its own stranglehold on the duplicate deed.

The failure to properly demonstrate how the court a quo misdirected itself in finding that the constituent elements of an interim interdict were established is fatal to the second ground of appeal.

The second ground of appeal lacks merit and must, therefore, fail.

The appellant further contended, that, the court a quo erred in granting a final interdict on an interim basis.

The order granted a quo was a provisional order, which restored the status quo ante pending the conclusion of the consolidated matter, HC8113/16.

Before the replacement deed was issued, the appellant could neither subdivide, sell, nor transfer any Stands on the immovable property.

That is the position that was safeguarded by the provisional order.

The order sought to be confirmed or discharged is predicated on the pending consolidated matter HC8113/16, which, at the time the provisional order was sought and granted, incorporated HC2463/18.

In addition, the court will determine the propriety of mulcting Mr Kwaramba with costs on the higher scale de bonis propriis on the return date.

The first respondent will also be obliged to show not only why the status quo ante should be confirmed pending the determination of the disputes raised by both parties in the consolidated matter, HC8113/16, but also why Mr Kwaramba should personally be mulcted with punitive costs.

The provisional order did not stop the determination of HC8113/16 nor did it pre-empt any of the issues raised therein.

The provisional order was therefore not the same as the final order sought nor did it have final effect.

Accordingly, the third ground of appeal must fail.

COSTS

It is clear to us, that, the appeal was launched for the perverse purpose of prolonging the appellant's stranglehold on the replacement deed in order to render the security held by the first respondent redundant. This is a proper case for expressing our displeasure at the conduct of the appellant by mulcting it with costs on the scale of legal practitioner and client.

DISPOSITION

Accordingly, it is ordered that:

1. The appeal be and is hereby dismissed.

2. The appellant shall pay the first respondent's costs on the scale of legal practitioner and client.

HB27-15 : MONICA DHLIWAYO vs BONGANI NDLOVU (as Executor Dative estate Late Jubane James Jack) and ESTATE LATE JUBANE JAMES JACK and CLEMENTINE JACK and DEPUTY MASTER OF THE HIGH COURT
Ruled By: MAKONESE J

The plaintiff initiated proceedings by way of an Urgent Chamber Application under case number HC1580/10 seeking an order interdicting the first and second defendants, or any beneficiaries of the second defendant's estate, from disposing of the property known as Lot 1 A of Gumtree held under Deed of Transfer number 1793/82 and Lot 3 of Gumtree held under Deed of Transfer number 1326/82C (hereinafter referred to as “the property”).

An interim order was granted in this Honourable Court but its confirmation was opposed by the defendants.

A separate court application was launched by the plaintiff, under case number HC1653/10, wherein she sought to be declared the sole surviving spouse of the second defendant's estate.

That court application was also opposed, and, eventually, by court order granted on 6 June 2012 it was ordered as follows:

“1. The two applications pending before this Honourable court under cover of case number HC1580/10 and HC1653/10 consolidated under cover of case number HC150/11 be and are hereby converted into action proceedings.

2. The papers filed of record by the parties stand as pleadings in this matter.

3. The parties file their discovery affidavits, pre-trial conference minutes, and summaries of evidence within 7 days of this order.

4. In the event of any party failing as directed in paragraph (3) above, the party having complied be and is hereby granted leave to set the matter down, without giving notice, on the unopposed roll.

5. Third respondent pay costs only if she opposed this application.”

The parties consolidated the two applications in terms of the aforesaid order and proceeded to set down the matter for trial.

A joint pre-trial conference memorandum of issues filed by the parties reflects the issues for determination as follows:

1. Whether or not plaintiff bought the immovable properties, namely, Lot 1A Gumtree held under Deed of Transfer number 1793/81 and Lot 3 Gumtree and is therefore entitled to them.

2. Whether the third defendant is the surviving spouse and therefore the lawful heir to the estate of the late Jubane James Jack.

It was resolved and agreed, at the pretrial conference, that, the onus on the first issue was on
the plaintiff and the onus on the second issue was on the third defendant.

Plaintiff's Case

The plaintiff gave evidence in support of her case. She testified, that, she is ordinarily resident at 61 Queensbrooks, Slough in the United Kingdom. She is a State Registered Nurse and also qualified as a Mental Health Nurse.

She was customarily married to the late Jubane James Jack who died on 21 February 2006 in the United Kingdom.

Her evidence was that the deceased and herself commenced living together around December 1980 and formalized the union a year later in 1981 when her husband was customarily accepted as a son-in-law by her family. At the same occasion, she was accepted as a daughter in law by members of the late Jubane James Jack's family.

The plaintiff stated, that, at the time of their marriage, the deceased was working for National Railways of Zimbabwe and then based at Hwange. The deceased disclosed to the plaintiff that he was once married to the third defendant and that the marriage had broken down and he was in the process of legally divorcing the third defendant with whom he was married in terms of the then Marriage Act [Chapter 37].

She was also informed, that, the third defendant had one child with the deceased by the name Violet Jack.

At the time the plaintiff met the deceased, the third defendant was not living with him. They were on separation.

The plaintiff stated, that, in or around 1981 she was looking for a property to buy. She was advised that there was a plot for sale just outside the city of Bulawayo. She said that she negotiated for the purchase of the property, being Lot 1 A Gumtree and Lot 3 Gumtree, situate in the District of Umguza.

The property was registered in the names of the late Jubane James Jack because she did not have a payslip and there was need to have a Bond registered against the title deed for the payment of the balance.

She paid an initial deposit of $3,000 and the balance was paid in monthly instalments of $250. Payments were made at the offices of Messrs Ben Baron and Partners. She indicated, that, on certain occasions, the late Jubane James Jack would pay the instalments.

The total purchase price for the property was $15,000.

The second property, being Lot 3 of Gumtree was sold for $10,000. A second bond was registered over the property.

The plaintiff testified, that, she received part of the deposit for the purchase of the second property from a Mr Joshua Malinga.

After the purchase of the two properties, the plaintiff said she left for the United Kingdom in or around February 1999.

The deceased and the plaintiff had three children, namely, Neville Thamsanqa Jack (born on 26 October 1981, Brian Bekithemba Jack (born on 3 October 1985) and Denise Thembeka Jack (born on 18 January 1990).

The deceased and the children relocated to the United Kingdom in December 1999 where they remained until the demise of the deceased in 2006.

It was the plaintiff's evidence, that, problems started in June 2010 when she received a message on Facebook, from Violet Jack (her husband's only child out of his marriage with the third defendant), advising her that she and her mother were going to be the beneficiaries in the estate of the late Jubane James Jack.

In July 2010, the plaintiff travelled to Zimbabwe to attend the funeral of her sister, Faith Mazaiwana. Whilst at the funeral, she was alerted that the property at Gumtree had been put up for sale.

The plaintiff filed an urgent Chamber Application for an order interdicting the executor of the Estate of late Jubane James Jack and the third defendant from disposing of the immovable properties, being Lot 1A of Gumtree and Lot 3 of Gumtree in the District of Umguza.

The Registrar of Deeds and the Master of the High Court were cited, in those proceedings, as nominal respondents.

Upon the granting of the Provisional Order, the confirmation of such order was resisted by the third defendant. A subsequent court application, under case number HC1653/10, was filed by the plaintiff.

Both applications have now been consolidated.

The plaintiff abandoned her claim that she be declared the sole surviving spouse in the Estate Late Jubane James Jack when it became apparent that the third defendant was still legally married to the deceased at the time of his death.

In summary, the plaintiff avers, that, the property in dispute belongs to her for these reasons:

(a) She bought the property using her own funds. She saved the money whilst she was working in the United Kingdom and she was responsible for the repayments on the mortgage bonds.

(b) The deceased did not contribute anything towards the purchase of these properties.

(c) The third defendant never set a foot on these properties and never contributed towards their purchase -, directly or indirectly.

(d) The property never belonged to the Estate Late Jubane James Jack inspite of the property being registered in the names of the deceased.

The plaintiff's evidence is difficult to accept.

The plaintiff was unable to adequately explain why the property was registered in the names of Jubane James Jack and not in their joint names if indeed they had acquired the property together.

It is inconceivable that the deceased who was then employed by the National Railways of Zimbabwe would have contributed nothing whatsoever towards the purchase of the property.

At the time the plaintiff commenced living with the deceased, she was well aware the third defendant was still legally married to him. She was aware that divorce proceedings had not been instituted.

The plaintiff would not have invested all her entire life savings in a property registered in the names of a man married to another woman.

The plaintiff claims that all her documents proving the purchase of the property were lost or destroyed.

The court must, therefore, according to the plaintiff, believe her version of events on her mere say so.

Under cross examination, when a direct question was put to her as to why the property was registered in the names of the deceased, the plaintiff's response was that she was heavily pregnant at the time and she did not possess a payslip.

She could not say for certain who signed the agreement of sale. However, she could not deny that the agreement of sale was signed by the deceased who eventually had his names on the title deed.

The plaintiff conceded, that, at the time of the death of the deceased, the legal owner of the property was reflected on the title deed as Jubane James Jack, although she insisted that she was the financier.

It is my view, that, the evidence of the plaintiff was not convincing. She did not strike as a credible witness.

She failed to produce a single document to prove that the funds used to pay for the property were raised from her savings. Her initial attempt to claim to be the sole surviving spouse of the late Jubane James Jack puts her in very bad light.

There can be no other conclusion except that her intention was to mislead the court.

The second and only witness for the plaintiff was Flora Dhliwayo, a sister to the plaintiff.

Her evidence was largely unhelpful to the court. She repeated that the plaintiff had, through her own endeavours, purchased the property in dispute. She averred, that, she had gone to view the property with her sister before its purchase. She however played no further part in the transaction. She did not witness the signing of the agreement of sale between the seller and the purchaser. She informed the court, that, the reason the property was registered in the names of the deceased was because the plaintiff was pregnant at the time, and, further, the plaintiff was not employed at the time.

The plaintiff's witness did not assist the plaintiff's case in any meaningful way.

The Defendant's Case

The defendant gave evidence and did not call any witnesses in support of her case. She testified, that, on 22 September 1972 she was married to the late Jubane James Jack in terms of the Marriage Act [Chapter 37] (as it was called then).

The defendant said, that, when they were married, they moved into a house belonging to the National Railways in Thorngroove. Between 1974 and 1980 they were living at West Sommerton, Bulawyo. She stated, that, her husband was posted to various places of work around the country and outside Zimbabwe. The late Jubane James Jack fathered eight children from different mothers. She had one child with the deceased, Violet Jack (born in 1978).

The defendant's evidence was essentially, that, the properties in Gumtree were purchased by the late Jubane James Jack.

He raised the funds to acquire the property through a loan raised through his employer. The balance was secured by a mortgage bond registered over the property.

She said by virtue of their marriage, and as his legal wife, she was a beneficiary in the estate of her husband as a surviving spouse.

She firmly advised the court that she was always aware of the illicit relationship between her husband and the plaintiff.

Her version was that the plaintiff stole her husband and persuaded him to move over to the United Kingdom with her.

The deceased never went through the divorce proceedings because he was aware that they would have to share the property at Gumtree.

The defendant further stated, that, when her late husband indicated that he wished to divorce her she reminded him of their type of their marriage and that they would have to sell the immovable property and share the proceeds.

The defendant informed the court that the deceased never commenced the divorce proceedings until he met his death.

The defendant said she registered the Estate of the late Jubane James Jack under DRB773/06. A First and Final Liquidation and Distribution Account was filed with the Master of the High Court as follows:

“FIRST AND FINAL LIQUIDATION AND DISTRIBUTION ACCOUNT IN THE ESTATE OF THE LATE JAMES JUBANE JACK WHO DIED AT JOHN RADCLIFFE, OXFORD RADCLIFFE HOSPITAL, UNITED KINGDOM ON THE 21ST FEBRUARY 2006

DRB 773/06
LIQUIDATION ACCOUNT

ASSETS $US

IMMOVABLE PROPERTY

1. Certain piece of land being lot 1A Gumtree Situate in the District of Bulawayo measuring 2,7323 hectares $50,000

2. Certain piece of land being Umguza 100 Acre Lot 3 situate in the District of Bulawayo measuring 40,4684 hectares $25,000

MOVABLE PROPERTY

1. Household goods and effects $ 1,000

2. Five (5) herd of cattle $ 500

3. Grinding Mill $ 100

TOTAL ASSETS $76,600

ADMINISTRATION EXPENSES

12. ADVERTISING DEBTORS AND CREDITORS

(a) Chronicle: see attachment
(b) Government: see attachment

ADVERTISING THIS ACCOUNT

(a) Chronicle $10

(b) Government gazette $ 5

13. MASTER'S FEES

4% on $76,600 $3,064

Edict fees: see attached statement

TOTAL LIABILITIES $ 6,372-80

Balance to Distribution $70,227.20

$76,600-00

DISTRIBUTION ACCOUNT

Balance brought down to Distribution Account $70,227.20

Assets awarded in terms of Deceased Succession Act [Chapter 6:02] Section 3A:

TO CLEMENTINE JACK

1. 1/9 share of certain piece of land being lot 1A Gumtree Situate in the District of Bulawayo measuring 2,7323 hectares $5,555.56

2. 1/9 share of certain piece of land being Umguza 100 Acre Lot 3 situate in the District of Bulawayo measuring 40,4684 hectares $2,777.78

3. Five (5) herd of cattle $ 55.56

4. Grinding mill $ 11.11

TO DANISO JACK

1. 1/9 share of certain piece of land being lot 1A Gumtree Situate in the District of Bulawayo measuring 2,7323 hectares $5,555.56
2. 1/9 share of certain piece of land being Umguza 100 Acre Lot 3 situate in the District of Bulawayo measuring 40,4684 hectares $2,777.78
3. Five (5) herd of cattle $ 55.56
4. Grinding mill $ 11.11

TO CHIPO JACK

TO VUYISILE PATRICK JACK

TO VIOLATE JACK

TO THAMSANQA JACK

TO BRIAN JACK

TO GUGU JACK

TO DENNIS JACK

$70,227.00

Cash contribution to avoid sale of assets $ 6,372.00

$76,600.00

EXECUTORS CERTIFICATE

I, Bongani Ndlovu, hereby certify to the best of my knowledge and belief that the foregoing accounts are true and correct, that there are no further assets and that no liability exists in respect of income tax.

Dated at Bulawayo this day 28th day of January 2010.

FOR ESTATE LATE JAMES JUBANE JACK AKA JUBANE JAMES JACK

________________________________
EXECUTOR DATIVE”

What can be gleaned from a perusal of the Distribution Account is that the defendant took into account all of the deceased's children - including the plaintiff's children.

The totality of the defendant's evidence was that she was married to the late Jubane James Jack, such marriage being monogamous. She established, that, at the time the late Jubane James Jack died, she was the surviving spouse at law. She asserted that she was entitled to inherit from the deceased estate. She contended that in spite of their separation, the property was acquired by the parties during the marriage.

Her evidence was that her late husband secured a loan from the National Railways of Zimbabwe.

She stuck to her evidence, that, the plaintiff could not inherit the property in dispute because she was not the surviving spouse, and, in any event, she could not prove that she used her own funds to purchase the property.

From the defendant's testimony, her version remained uncontroverted.

It cannot be denied, that, if she was the lawful surviving spouse of the deceased, she would ordinarily be entitled to inherit the immovable property in dispute. The defendant went further to show, that, the property was shared amongst all the children of the deceased - including herself. It is my view, that, her attitude clearly shows that she did not seek to deprive all the lawful beneficiaries to the estate. She did not seek to allocate the property to herself to the exclusion of the children of the deceased.

The Legal Position

I have already set out the disputed and undisputed facts of the matter. I must now examine the law on the subject.

I have shown, that, the plaintiff failed to prove that she purchased the property in question. If she did contribute directly towards the purchase of the property, she failed, on a balance of probabilities, to show that she made any financial contributions. Nothing was placed before the court by way of evidence to show that the plaintiff purchased the property except her mere say so.

In the case of Sibanda v Sibanda and Another 2002 (1) ZLR 622 (H) SMITH J stated…, as follows:

“Since I have found that Josephine was not aware, in March 1994, that Joseph was a married man, that means that their 'marriage' is in fact a putative marriage.”

The judge held, in that case, that, the plaintiff was only entitled to what was a fair share in the matrimonial estate. She was not entitled to a half share.

The matter went on appeal to the Supreme Court, and, in Sibanda and Another v Sibanda 2005 (1) ZLR 97 (S), the Appeal Court upheld the decision of the High Court. The Supreme Court agreed with the lower court, that, where a man enters into a marriage with another woman whilst a previous monogamous marriage subsisted, the second marriage is a nullity.

The court, however acknowledged, that, it was the correct approach to take into consideration the contribution of the 'wife' in order to determine what amounts to an equitable distribution of matrimonial property.

See also Makovah v Makovah 1998 (2) ZLR 82 (S).

In casu, however, the court is not being called upon to determine what is an equitable distribution of matrimonial property. The court is also not called to consider the direct or financial contributions of the plaintiff, in the second 'marriage' which was undoubtedly a nullity.

The plaintiff in this action is claiming Lot 1A and Lot 3 Gumtree, alleging that she purchased the said property using her own funds.

I have already concluded that the plaintiff's evidence falls short of proving that she purchased the property. If anything, the totality of the evidence shows, that, the late Jubane James Jack had a substantial part to play in the acquisition of the said property.

In my view, the said property remained matrimonial property up to the time of the decease's death.

The property therefore quite clearly fell for distribution in the estate of the deceased.

I am satisfied, that, on the evidence led, the third defendant managed to prove that she is the surviving spouse of the estate of the late Jubane James Jack, and, therefore, the lawful heir to his estate.

I must observe, that, where a party cohabits with a married man or woman with full knowledge of the existence of a prior marriage, he or she takes a calculated risk when they acquire property together. In the event of either party's death, the property automatically falls into the estate of the deceased. The beneficiaries of such estate have valid and lawful claims against the deceased estate. A surviving spouse who produces proof of marriage with the deceased will have a prima facie claim as a beneficiary in the estate.

In the result, I am not satisfied that the plaintiff succeeded in proving her case on a balance of probabilities.

It is accordingly ordered as follows:

The plaintiff's claim is hereby dismissed with costs.

View Appeal
SC130-21 : PHILIPPA COUMBIS vs RONALD COUMBIS and DOVES FUNERAL ASSURANCE (PVT) LTD
Ruled By: GARWE JA, GOWORA JA and UCHENA JA

This is an appeal and cross-appeal against parts of the judgment of the High Court dated 4 September 2014 granting a decree of divorce and ancillary relief for and against the appellant (the plaintiff in the court a quo and the appellant in this appeal) and the cross-appellant (the defendant ...

FACTUAL BACKGROUND

The facts of the case can be summarised as follows:

On 1 September 1990, the appellant and the first respondent were married in terms of the then Marriages Act [Chapter 37].

During the subsistence of the marriage, the parties were blessed with three children, namely, Murray John Coumbis, who was already an adult at the commencement of divorce proceedings, and the twins, Julian Ronald Coumbis and Anton Phillip Coumbis. Julian and Anton were minors when divorce proceedings were instituted.

They are now adults, but, Julian remains a perpetual minor on account of his mental incapacity.

On 5 August 2010, the appellant instituted divorce proceedings against the first respondent. As Julian and Anton were minors, the appellant claimed their custody and maintenance. She also claimed personal maintenance and a share of the assets of the parties.

The appellant also claimed €10,400 from the respondent which she had advanced as a loan to Stir Crazy (Pvt) Ltd, a family business. She contended that the money was part of her inheritance. She claimed to have loaned it to the first respondent through Stir Crazy (Pvt) Ltd. She claimed the money from him alleging that the aforementioned company was an alter ego of the first respondent.

The first respondent opposed the appellant's claims and made a claim in reconvention wherein he claimed the custody of the minor children and their maintenance. He contested the appellant's claim for personal maintenance and matrimonial property. He alleged that some of the properties claimed by the appellant did not form part of their matrimonial estate.

The matter proceeded to a joint pre-trial conference where the following issues were identified and referred to trial:

“(a) The custody of Julian and Anton;

(b) What amount of maintenance was to be paid to the plaintiff if custody is awarded to her;

(c) Whether the plaintiff could be awarded the right to reside in the matrimonial home until both children became self-supporting;

(d) Whether the defendant was obliged to pay personal maintenance to the plaintiff;

(e) Which properties constituted the matrimonial estate;

(f) What appropriate order the High Court was supposed to make for the sharing of property.”

PROCEEDINGS IN THE HIGH COURT

When the trial commenced, Julian and Anton were no longer minors. However, the parties agreed that Julian was to be treated as a perpetual minor due to his mental incapacity.

The parties claim for custody and maintenance, therefore, only related to Julian.

The parties adduced a lot of documentary evidence to support their respective claims.

During examination-in-chief, the appellant admitted that she had a broken relationship with Julian. She admitted that she had exchanged nasty emails with him. The appellant also admitted to smoking marijuana. The fact that she smokes marijuana was confirmed by Dr Chibanda who pointed out its adverse effect on her health and especially on her recovery from temporal lobe epilepsy.

After hearing the evidence, the judge a quo interviewed Julian in his chambers.

The court a quo found that Julian was closer to the first respondent and took into consideration the fact that the two had been staying together after the parties separation.

It also found, that, the appellant needed to start a new life independent from the first respondent but still needed financial assistance to cushion her from the effects of the divorce.

The court a quo found that the first respondent was dishonest and not credible in respect of evidence relating to the matrimonial estate.

The order granted by the court a quo, quoted verbatim, reads as follows:

“Accordingly, it is ordered as follows:

1. A decree of divorce be and is hereby granted.

2. Custody of the perpetual minor child, Julian Ronald Coumbis, born on 3 July 1994, be and is hereby awarded to the defendant.

3. The plaintiff be and is hereby granted reasonable access rights to the said perpetual minor child which shall be exercised as follows:

3.1 She shall have the right to stay with the said perpetual minor child on alternate weekends.

3.2 She shall have the perpetual minor child on any other special occasions, including, but not limited to, each alternate Easter holidays and Christmas holidays.

4. The defendant shall solely be responsible for the upkeep of the said perpetual minor child.

5. The defendant shall pay maintenance in respect of the plaintiff in the sum of US$2,000 per month, as per the order granted by the Magistrate's Court, for a period of six (6) months from the date of granting of this order inclusive of the month of September 2014.

5.1 Payments shall be made directly into the plaintiff's Bank Account whose details shall be provided forthwith to the defendant by the plaintiff.

6. The plaintiff is awarded as her sole and exclusive property all household furniture, contents and effects, inclusive of all her personal items and jewellery, at the matrimonial house, No.6 Northwood Rise, Mt Pleasant Harare, excluding the TV set, dinning suite, and lounge suite which are awarded to the defendant.

7. The defendant shall transfer into the plaintiff's name a motor vehicle, Nissan Navara Registration Number ABD 6847, presently being used by the plaintiff, at his sole cost, within thirty (30) days of the grant of this order.

8. The defendant is awarded, as his sole and exclusive property, immovable property known as No.6 Northwood Rise, Mt Pleasant, Harare currently registered in the names of the plaintiff and the defendant.

8.1 The defendant shall transfer, against payment by him of all transfer costs, the said property into his names and the plaintiff shall sign all relevant papers to effect such transfer within 30 days of being requested, failure of which the Sheriff shall sign all the documents.

8.2 The defendant shall be solely responsible for any encumberances, mortgages, or other obligations duly existing or registered by law over the said property.

9. The defendant shall transfer all shares of OPIUM INVESTMENTS (PVT) LTD, a property-owning company whose sole asset is an immovable property known as No.13 Bates Street, Milton Park, Harare to the plaintiff within thirty (30) days of the grant of this order at his cost.

9.1 The defendant shall be solely responsible for any encumberancies or obligations duly existing or duly registered by law over the said property.

9.2 The defendant shall sign all the relevant documents to effect such transfer failure of which the Sheriff is authorised to sign all such documents.

10. The plaintiff is awarded, as her sole and exclusive property, an immovable property known as No.6 Rosefriars, Avondale, Harare.

10.1 The plaintiff shall transfer, against payment by her of all transfer costs, the rights, title, and interest in the said property, No.6 Rosefriars, Avondale Harare.

10.2 The defendant, shall, within thirty (30) days of being requested to, sign all relevant documents to effect such transfer, failure of which the Sheriff is authorized to sign all such documents.

11. The plaintiff's claim for cash, in the sum of US$100,000, be and is hereby dismissed.

12. Absolution from the instance be and is hereby granted in respect of the distribution of the following assets:

(a) 94 Matumi Sands Lonehill (Pty) Ltd.

(b) 112 Matumi Sands, Lonehill (Pty) Ltd.

(c) 182 Shingara (Pty) Ltd.

(f) Theright Investments (Pvt) Ltd.

(g) Stir Crazy (Pvt) Ltd.

(h) Incavat Enterprises (Pvt) Ltd.

(i) Telehic Investments (Pvt) Ltd.

(j) Natsbury Trading (Pvt) Ltd.

(k) Plaintiff's claim of £10,400.

13. The defendant shall bear the costs of suit.”

Aggrieved by parts of the court a quo's decision, the appellant and the first respondent noted the present appeal and cross-appeal respectively.

GROUNDS OF APPEAL

The appeal involved an appeal and a cross-appeal, but, the cross appeal was withdrawn during the hearing of the appeal.

The appellant's grounds of appeal attack the court a quo's decision on the following issues:

1. Custody and maintenance of Julian, the perpetual minor;

2. Her claim for inheritance money loaned to a company from the respondent;

3. The propriety or otherwise of the decision handed down by the court a quo concerning the distribution of the assets of the parties;

4. Her claim for a lump sum maintenance payment in the sum of US$100,000;

5. The granting of absolution from the instance mero motu by the court a quo at the end of the defence case; and

6. Whether or not the respondent should be heard in view of his contemptuous conduct against proceedings in this Court, the court a quo, and its orders.

APPLICATION BY THE APPELLANT

In September 2018, the appellant made an application to adduce further evidence to prove that the respondent had, pending the determination of the appeal, interfered with and defied the High Court's orders.

We, in terms of section 22(1)(b)(ii) and (v) of the Supreme Court Act [Chapter 7:13], ordered that the matter be remitted to MAWADZE J (the trial judge), for him to conduct an enquiry into the appellant's allegations and submit a report to us.

On 3 April 2019, after holding an enquiry, in compliance with our order, MAWADZE J submitted to us his report in which he made the following factual findings:

FINDINGS OF FACT MADE BY MAWADZE J

“1(a) The perpetual minor, Julian Ronald Coumbis (born on 3 July 1994), was removed from Zimbabwe by the respondent and taken to South Africa in 2013 well before the judgment of the court on 4 September 2014.

(b) The respondent has not placed any credible evidence before this Court for such conduct.

(c) Julian remains in South Africa to date.

(d) The appellant, Philippa, has not been able to exercise any access rights in respect of Julian (the perpetual minor) as awarded to her in terms of para 3 of this Court's order.

2(a) The respondent sold two immovable properties in South Africa, being No.94 Matumi Sands and No.112 Matumi Sands and transferred them to third parties.

(b) The only available immovable property in South Africa is No.182 Shingara against which the appellant successfully placed a caveat.

3. The respondent removed all movable household goods which had been awarded to the appellant, Philippa, in terms of para 6 of this Court's order from No.6 Northwood Rise, Mt Pleasant, Harare and took them to South Africa without the appellant's knowledge or consent.

The respondent has not explained his conduct.

4. The motor vehicle, a Nissan Navara, Registration Number ABD 6847, awarded to the appellant, Philippa, in terms of para 7 of this Court's order, was taken by the Vehicle Theft Squad as it was deemed to be subject to criminal investigations for which the respondent is allegedly accountable.

5. The respondent has not done anything to remove the encumbrances on immovable properties either awarded to him or the appellant as per this Court's order.

6. After the order of this Court, the respondent transferred about USD$2.8 million from Stir Crazy (Pvt) Ltd to Incavat Enterprises (Pvt) Ltd.

7. The respondent has not complied with the maintenance order granted in favour of the appellant, Phillipa, in terms of para 5 of this Court's order and has not paid a single cent.

8. Lastly, the following assets are still available;

(a) No.6 Northwood Rise, Mt Pleasant, Harare, Zimbabwe but is still encumbered.

(b) Belgravia House, Harare but is still encumbered.

(c) No.6 Rosefrias, Avondale, Harare, Zimbabwe.

(d) No.13 Bates Street, Milton Park, Harare but is still encumbered.

(e) No.182 Shingara in South Africa.”

APPELLANT'S SUBMISSIONS ON APPEAL

In submissions before this Court, counsel for the appellant argued, that, the report to the Supreme Court, following due inquiry by MAWADZE J, dated 3 April 2019, confirmed that the first respondent was in contempt of the court a quo's order. He further submitted that such disobedience went to the root of the matter.

Counsel for the appellant further submitted, that, the court a quo's decision, on custody, was influenced by the first respondent's alienation of Julian against the appellant and that the decision does not promote a bond between the appellant and the perpetual minor.

Counsel for the appellant submitted, that, from 4 September 2014 to the last date of the hearing, the appellant had not enjoyed access to the perpetual minor because he had been removed from the jurisdiction of this court. He submitted, that, it was in the best interests of the perpetual minor that he be in the custody of the appellant.

In respect of the court a quo granting the first respondent absolution from the instance mero motu, counsel for the appellant submitted, that, the court a quo erred in view of the fact that the first respondent had made offers which were equivalent to an admission. He also submitted, that, the first respondent had given evidence of his shareholding in some of the companies which could have enabled the court a quo to distribute those shares between the parties.

Counsel for the appellant submitted, that, the distribution of the matrimonial assets was limited to three properties.

He contended that evidence led before the court a quo on these assets established that the assets belonged to companies owned by the parties. He further submitted, that, the properties had been encumbered by the first respondent, and, consequently, the appellant was disabled from acquiring any title in them in spite of their having been awarded to her by the court a quo.

In relation to the appellant's inheritance funds loaned to Stir Crazy (Pvt) Ltd, counsel for the appellant argued, that, the latter, being the respondent's alter ego, they had to be returned to the appellant by the first respondent.

He prayed that the appeal succeeds with costs.

THE FIRST RESPONDENT'S SUBMISSIONS ON APPEAL

Counsel for the first respondent submitted, that, even though the first respondent had breached the order of the court a quo, he had a right to be heard in terms of section 69 of the Constitution of Zimbabwe 2013 (the Constitution).

Counsel for the first respondent argued, that, it was in the best interest of the perpetual minor that the first respondent be heard.

He contended, that, even if it was found that the first respondent had no right of audience before this court, there were no documents relating to the companies proving that the court a quo was handicapped in making its determination.

Regarding the issue of the court a quo granting absolution from the instance mero motu, counsel for the first respondent argued, that, the court a quo came to that conclusion because there was no evidence on the ownership of the companies as the appellant failed to present it to the court a quo.

In concluding his submissions, counsel for the first respondent submitted, that, the first respondent was withdrawing his cross-appeal.

APPELLANT'S RESPONSE

In response, counsel for the appellant contended, that, the enjoyment of the constitutional right to be heard comes with an obligation to obey court orders. He argued, that, the first respondent is in court to protect something yet he disobeys court orders.

Counsel further argued, that, the court has inherent jurisdiction in terms of section 176 of the Constitution to determine who can or cannot be heard.

He submitted, that, the perpetual minor's best interests remained with the court as the first respondent's contempt dis-entitles him from saying anything that benefits him.

Counsel for the appellant submitted that an Appellate Court does not only deal with the direct dictates of the judgment but also deals with its effects.

FURTHER SUBMISSIONS

By letter dated 31 January 2020, Musekiwa and Associates, Legal Practitioners for Doves Funeral Assurance (Pvt) Ltd, informed the Registrar of this Court that its client had bought a half share of No.6 Northwood Rise, Mt Pleasant, Harare (the matrimonial home) from a sale in execution conducted by the Sheriff and that that half share of the property had been transferred to their client on 20 February 2019.

As a result of this information, which had not been placed before us when we heard the appeal on 23 January 2020, parties were invited to appear before us on 24 June 2020 to give them an opportunity to address us on this issue. At that hearing we granted the following order:

“IT IS ORDERED BY CONSENT THAT:

1. Doves Funeral Assurance be and is hereby joined as a party to these proceedings as 2nd Respondent with Ronald John Coumbis becoming the 1st Respondent.

2. Mr Musekiwa, for Doves Funeral Assurance, is to avail documentation confirming the transfer of the half share in the property to itself and file heads of argument in connection therewith by the 30th June 2020 and serve the same immediately on the appellant and first respondent's legal practitioners.

3. Advocate Mpofu is to file additional heads of argument in response to the heads of argument filed by Doves Funeral Assurance by Friday 3rd July 2020.

4. Mr Ndlovu, for the 1st Respondent, Ronald John Coumbis, is to file his additional heads of argument, if any, by Wednesday 8 July 2020.”

In his additional heads of argument, counsel for the appellant submitted, that, the matrimonial home, which was jointly owned by the appellant and the first respondent, be awarded to the appellant who will thereafter institute proceedings in the High Court to claim back the half share sold to Doves Funeral Assurance (Pvt) Ltd.

He submitted, that, Doves Funeral Assurance (Pvt) Ltd took a risk when it bought the half share without the consent of the appellant.

The first respondent, whose conduct caused the sale of his half share to Doves Funeral Assurance (Pvt) Ltd, did not file additional heads.

In their heads, Musekiwa & Associates, for Doves Funeral Assurance (Pvt) Ltd, submitted, that, it bought the respondent's half share through the Sheriff's sale in execution after due notice had been given to the appellant. They submitted, that, the half share is no longer part of the appellant and first respondent's matrimonial assets and is no longer available for distribution to either of them.

ISSUES FOR DETERMINATION BY THIS COURT

The appellant raised several grounds of appeal, but, the material issues for determination are as follows:

1. Whether or not the first respondent should be heard in view of his contempt of proceedings of the court a quo and its orders and proceedings before this Court.

2. Whether or not the court a quo erred in awarding custody of Julian to the first respondent.

3. Whether or not the court a quo erred in granting absolution from the instance against part of the appellant's claims.

4. Whether or not the appellant is entitled to claim her monetary inheritance from the first respondent.

5. Whether or not the court a quo erred in distributing the immovable property without taking into account the value of the properties.

6. Whether or not the distribution of the immovable property was fair.

7. Whether or not the appellant's claim for a lump sum maintenance payment in the sum of US$100,000 was correctly dismissed....,.

Whether or not the court a quo erred in granting absolution from the instance against part of the appellant's claims

The court a quo granted the first respondent absolution from the instance in respect of the appellant's claims to a share in the South African properties, namely, 94 Matumi Sands Lonehill (Pty) Ltd; 112 Matumi Sands Lonehill (Pty) Ltd; and 182 Shingara (Pty) Ltd as well as a number of Zimbabwean assets.

The court a quo stated:

“…,. I have also alluded to the various companies in which the plaintiff did not lay any claim but were alleged to be owned by the defendant and that I should consider that fact in the distribution of the assets of the parties.

These include:

(i) Telehec Investments (Pvt) Ltd;

(ii) Natsbury Trading (Pvt) Ltd;

(iii) Bywork Intermedia;

(iv) Incavat Enterprises (Pvt) Ltd;

(v) Stir Crazy (Pvt) Ltd;

In respect of all the above properties, inclusive of the companies, I am inclined to grant absolution from the instance.

I have already alluded to the fact that neither the plaintiff nor the defendant have been able to place evidence before the court to show the shareholding of these companies, I have dealt, at length, with the evidence of the parties and explained why I believed the defendant is an untruthful and incredible witness. I, however, hold the view that the plaintiff has not been able to make out a case in respect of these assets. I am also persuaded to grant absolution from the instance because of the fact, that, as the trial commenced, but before its completion, Stir Crazy was placed under provisional liquidation and is currently under liquidation…,.

Absolution from the instance would enable the plaintiff, if she so desires, to deal with the defendant's interests in Stir Crazy and other related companies after a full public inquiry…,.

The only viable and just option is to leave the door open for the plaintiff to approach the court after a decree of divorce is granted, if she wishes, with sufficient evidence on the shareholding of both the trading and property-owning companies in Zimbabwe and South Africa…,.

Since evidence had been led in respect of these companies, I cannot leave the matter hanging but to grant absolution from the instance…,.”

The first respondent made offers to the appellant in respect of some of the properties included in the order of absolution from the instance and disclosed his shareholding in some of the companies.

Evidence on record established, that, the first respondent offered the appellant 10 percent of the Belgravia House owned by Stir Crazy (Pvt) Ltd; 10 per cent of Theright Investments (Pvt) Ltd; 20 per cent shareholding in Stir Crazy (Pvt) Ltd.

The first respondent further confirmed some of these offers during oral evidence before the court a quo where he had the following exchange with the court a quo:

“Q. I am not worried about that document you are talking about, I am worried (sic) the list of all these companies we have dealt with. You know what proof can be placed at any forum to prove ownership of a company?

A. And yet I have offered 40 percent to her my Lord.”…,.

During the same oral evidence, the first respondent conceded that he owns 80 percent shares in Stir Crazy (Pvt) Ltd; 80 percent shares in Opium Investments (Pvt) Ltd; 80 percent shares in the Theright Investments (Pvt) Ltd; 50 percent shares in 112 Matumi Sands Lonehill (Pty) Ltd; and 50 percent shares in 94 Matumi Sands Lonehill (Pty) Ltd.

It is trite, that, when insufficient evidence is led when the plaintiff closes his case, or when there is insufficient evidence at the end of a full trial, the court can grant the defendant absolution from the instance.

Absolution from the instance, in both these instances, simply means the defendant is freed from being held liable under that litigation but the plaintiff remains free to pursue his/her suit against the defendant through another suit on a subsequent occasion.

The factors to be considered in an application for absolution from the instance were discussed in the case of Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR 1 (A)…, where it was held that:

“At the close of the case for the plaintiff, therefore, the question which arises for the consideration of the court is: is there evidence upon which a reasonable man might find for the plaintiff? The question therefore is, at the close of the case for the plaintiff, was there a prima facie case against the defendant…,. In other words, was there such evidence before the court upon which a reasonable man might, not should, give judgment against the defendant?”…,.

Further, in United Air Charters (Pvt) Ltd v Jarman 1994 (2) ZLR 341 (S)…, it was held that:

“The test in deciding an application for absolution from the instance is well settled in this jurisdiction. A plaintiff will successfully withstand such an application if, at the close of his case, there is evidence upon which a court, directing its mind reasonably to such evidence, could or might (not should or ought to) find for him.”…,.

In casu, though absolution was granted by the court a quo mero motu after a full trial, the test of whether or not there was evidence to justify granting it still applies.

Absolution should not be granted if there is evidence on which the court can find for the plaintiff.

Absolution from the instance can be granted by a court at the close of the case for the defendant.

That this is the position at law is confirmed by HERBSTEIN & Van WINSEN's, The Civil Practice of The High Courts of South Africa, Fifth Edition, Vol 1…, where they say:

“Although there is no express provision in Rule 39 for an order of absolution from the instance at the conclusion of the whole case, the practise to grant absolution when a plaintiff has not established the facts in support of his case to the satisfaction of the court, has been extended to cases in which evidence for the defendant had also been given.”

In this case, there was an offer upon which a court, exercising its mind reasonably, could find for the appellant.

The offers made by the first respondent to the appellant are sufficient evidence to justify such a finding.

When these offers were made, it became apparent that what was offered could be awarded to the appellant.

It also became clear that the appellant had a case against the respondent in respect of the offered assets and that absolution from the instance could not be granted in cases where there was evidence of the first respondent's ownership of shares in companies the appellant had made claims against.

While it is not permissible to claim distribution of assets of companies, it is permissible to claim shares owned by a spouse in a company.

An offer is a form of an admission. The thing offered need not be proved by leading evidence.

In Mining Industry Pension Fund v DAB Marketing (Pvt) Ltd SC25-12…, it was held that:

“A formal admission made in pleadings cannot be ignored by the Court before whom it is made. Unless withdrawn, it prevents the leading of any further evidence to prove or disprove the admitted facts. It becomes conclusive of the issue or facts admitted. Thus, where liability in full, as in casu, is admitted, no evidence is permissible to prove or disprove the defendant's admitted liability.

The importance of the admission is that it is thus seen as limiting or curtailing the procedures before the Court; in that, where it is not withdrawn, it is binding on the Court and the Court cannot allow any party to lead or call for evidence to prove the facts that have been admitted.

See also Rance v Union Mercantile Co Ltd 1922 AD 312; Gordon v Tarnow 1947 (3) SA 525 (AD); Van Deventer v De Villiers 1953 (4) SA 72 (C); Moresby-White v Moresby-White 1972 (1) RLR 199 (AD) at 203E-H; 1972 (3) SA 222 (RAD) at 224; DD Transport (Private) Limited v Abbot 1988 (2) ZLR 98; and Liquidator of M & C Holdings (Pty) Ltd v Guard Alert (Pty) Ltd 1993 (2) ZLR 299 (HC).”

In light of the above, I find that the court a quo erred in granting absolution from the instance when the respondent had made offers to settle in respect of some of the companies and when there was evidence of the first respondent's shareholding in some companies which could be used to distribute those shares between the parties.

It was not correct for it to hold, that, the appellant had failed to prove her case in properties in respect of which the first respondent had made offers and there was evidence of the first respondent's shareholding.

The court a quo's decision, on the affected assets, should be set aside as it was premised on a misdirection.

As there is evidence on record, in the form of the first respondent's offer to the appellant and the first respondent's admitted ownership of shares in those companies, this Court is able to distribute the assets of the parties in respect of which offers were made.

This Court can distribute between the parties assets and shareholdings offered by the first respondent and his admitted shareholding in the stated companies.

In respect of Stir Crazy (Pvt) Ltd, the court a quo granted absolution because it had, while the trial was in progress, been placed under provisional liquidation and was subsequently placed under liquidation.

In my view, the court a quo correctly granted absolution from the instance in spite of the first respondent having led evidence to the effect that he held 80 percent of that company's shares and had offered to the appellant 10 percent of a property owned by it as well as 20 percent of his shareholding in it, because liquidation placed it under the control of a liquidator who was entitled to make decisions in respect of that company.

Distributing assets of a company in liquidation would be contrary to the provisions of the then section 213 of the Companies Act [Chapter 24:03] which provided as follows:

“213 Action stayed and avoidance of certain attachments, executions and dispositions and alteration of status

In a winding up by the court —

(a) No action or proceeding shall be proceeded with or commenced against the company except by leave of the court and subject to such terms as the court may impose;

(b) Any attachment or execution put in force against the assets of the company, after the commencement of the winding up, shall be void;

(c) Every disposition of the property, including rights of action of the company and every transfer of shares or alteration in the status of its members, made after the commencement of the winding up, shall, unless the court otherwise orders, be void.”…,.

The court a quo was therefore correct when it said:

“I am also persuaded to grant absolution from the instance because of the fact, that, as the trial commenced, but before its completion, Stir Crazy was placed under provisional liquidation and is currently under liquidation.”…,.

The court a quo, therefore, correctly granted absolution from the instance against the appellant's claim on shares and assets owned by Stir Crazy (Pvt) Ltd.

It also correctly ordered absolution from the instance in respect of properties where no offers had been made and in respect of companies in which there was no evidence of the parties shareholding.

No.182 Shingara should remain on the list of properties against which absolution from the instance was granted because it is alleged to belong to a third party (Murray, the parties first child). It can therefore only be distributed between the parties if it is proved to be an asset of the parties....,.

Whether or not the court a quo erred in distributing immovable properties without taking into account their values

The appellant contends, that, the court a quo erred in distributing some of the immovable property without taking into consideration the values testified to by the appellant.

A perusal of the record establishes, that, the first respondent was awarded, as his sole and exclusive property, the immovable property known as No.6 Northwood Rise, Mt Pleasant, Harare. The appellant was awarded, as her sole and exclusive property, the immovable property known as No.6 Rosefriars, a flat in Avondale, Harare. She was also awarded No.13 Bates Street, Milton Park, Harare which is owned by Opium Investments (Pvt) Ltd in which the respondent admitted that he holds 80 percent of its shares.

I am inclined to agree with the appellant that the court a quo erred in proceeding to distribute immovable properties without the benefit of a valuation, because, one immovable property of high value can be equal to several immovable properties of lower value.

It is therefore essential to distribute properties in terms of their values to achieve an equitable distribution of the assets of the parties.

In Gonye v Gonye 2009 (1) ZLR 232…, MALABA JA…, remarked:

“It is important to note, that, a court has an extremely wide discretion regarding the granting of an order for the division, apportionment, or division of the assets of the spouses in divorce proceedings. Section 7(1) of the Act provides, that, the court may make an order with regard to the division, apportionment or distribution of the assets of the spouses including an order that any asset be transferred from one spouse to the other. The rights claimed by the spouses under section 7(1) are dependent upon the exercise by the court of the broad discretion.”

It must however be added, that, the court's wide discretion can only be exercised on the basis of the evidence led by the parties.

In exercising its wide discretion, a court must determine the proportions on which it intends to distribute the assets to the parties. It should thereafter rely on the values of the assets to ensure that each party is awarded assets equal to the ratio it will have allocated to him or her. If, for example, the court allocates each party a 50 percent share of the value of the assets of the parties, it will then use the value of the assets to distribute them at the determined ratio.

It is settled law, that, in matters which involve the exercise of discretion by a lower court, the Appellate Court should not be quick to interfere with such an order. It can only do so in extraordinary circumstances where there is evidence of gross misdirection, unreasonableness, and illogicality.

The position was enunciated in the case of Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S)…, where the court stated as follows:

“These grounds are firmly entrenched. It is not enough that the Appellate Court considers, that, if it had been in the position of the primary court, it would have taken a different course. It must appear that some error has been made in exercising the discretion. If the primary court acts upon a wrong principle; if it allows extraneous or irrelevant matters to guide or affect it; if it does not take into account some relevant consideration; then, its determination should be reviewed and the Appellate Court may exercise its own discretion in substitution provided always it has the materials for doing so.

In short, this Court is not imbued with the same broad discretion as enjoyed by the Trial Court.

See also The Civil Practice of the Supreme Court of South Africa (HERBSTAIN and Van WINSEN) 4th ed by L Van Winson, AC Cilliers and C Loots at pages 918-9; TjospomieBoedey (Pvt) Ltd v Drakensberg Bottliers (Pvt) Ltd & Anor 1989 (4) SA 31 (T) at 40A-J; and Ex-parte Neethling & Anor 1951 (4) SA 331A.”…,.

It is my respectful view, that, overlooking the values of properties in the distribution of matrimonial property is an improper exercise of discretion which warrants interference by this Court. This is because it goes against the principle of equitable distribution upon divorce envisaged in the Constitution and the Matrimonial Causes Act.

The Constitution, under section 26(c) and (d), provides, that, the State must ensure that there is equality of rights and obligations of spouses during marriage and at its dissolution, and, in the event of dissolution, whether through death or divorce, provision must be made for the necessary protection of spouses.

This means there must be a fair division and distribution of property which is just and equitable in the circumstances.

The division and distribution of assets of the spouses at divorce is governed by section 7(1)(a) of the Matrimonial Causes Act.

It is trite, that, in matters involving the distribution of property, the court has to exercise its discretion to reach a decision which can be deemed to be a just and equitable distribution between the parties.

Case law authorities, in construing the provisions of section 7 of the Matrimonial Causes Act as a whole, refer to the need to achieve an equitable distribution of the assets of the spouses consequent upon the grant of a decree of divorce.

Equitable distribution does not mean equal division but a fair division in relation to the circumstances of the case.

The court may consider such factors as the extent of a party's contribution to the accumulation of the property, the market and emotional value of the assets, the duration of the marriage, the economic consequences of the distribution, the parties needs, and any other factors relevant to an equitable outcome.

Fairness is the prevailing guideline the court must use.

In Chombo v Chombo SC41-18…, commenting on the role of values of property in the distribution of matrimonial assets, the court held:

“…,. In terms of section 7(4)(f), the court is entitled to consider the value of 'any benefit' a spouse will lose on divorce in distributing the matrimonial property of the spouses. The court a quo failed to consider and distribute the value of the benefits which flow from a registered long lease which confers real rights. It is the value of those benefits and advantages which are distributable in terms of section 7(4) of the Matrimonial Causes Act…,.”…,.

In casu, it is my respectful view, that, the court a quo erred by improperly exercising its discretion without taking into consideration the values of the properties it distributed.

It is important to note, that, shares of different companies cannot be of the same value hence the need to value all shares where more than one company is involved, to enable the court to effect an equitable distribution of the assets of the parties.

What is required is a fair distribution of the shares.

This Court can exercise its own discretion in view of the misdirections of the court a quo as there is evidence it can exercise its discretion on the issues.

According to the report by MAWADZE J the only properties left are;

(i) No.6 Northwood Rise, Mt Pleasant, Harare, Zimbabwe;

(ii) The Belgravia House, Harare owned by Stir Crazy (Pvt) Ltd, (which is also still encumbered and is affected by the liquidation of the company);

(iii) No.6 Rosefrias, Avondale, Harare;

(iv) No.13 Bates Street, Milton Park, Harare owned by Opium Investments (Pvt) Ltd and is still encumbered; and

(v) No.182 Shingara in South Africa.

According to evidence on record, No.182 Shingara is alleged to be owned by Murray, the parties first born child.

As already indicated, properties owned by companies in which the spouses have interests, whose shareholding has not been disclosed, cannot be distributed in terms of section 7(1)(a) of the Matrimonial Causes Act which authorizes the distribution of assets of the parties.

It is therefore not possible for this Court to distribute the houses owned by companies in which the parties shareholding is unknown.

In view of the court a quo's distribution of the assets of the parties, without taking into consideration their values, the affected orders must be set aside and substituted with orders distributing their shares in companies where the parties shareholding in the companies is on record.

This will however not affect No.6 Northwood Rise, Mt Pleasant in which it has become clear that the parties had a half share each.

It will also not affect the order of the Court a quo that the respondent transfer all his shares in Opium Investments (Pvt) Ltd, which owns No.13 Bates Street, Milton Park as the distribution of shares owned by one of the parties is legally competent.

It is also lawful to order the transfer of a spouse's property to the other spouse.

The award of No.6 Rosefriers, which is an asset of the parties not owned by any of their companies, will also not be affected.

No.6 Northwood Rise, Mount Pleasant, Harare is no longer fully available because the first respondent caused the sale of his half share in it. A half share of this property now belongs to Doves Funeral Assurance (Pvt) Ltd, the second respondent, under Deed No.909/2019.

Counsel for the appellant, in his additional heads, urged this Court to award the whole property to the appellant who intends to thereafter litigate over the respondent's sold half share in the High Court.

It is my view, that, the issue of the said half share should be left to the appellant to take whatever action she deems appropriate as this Court cannot, on appeal, make a decision on an issue the court a quo did not consider as it was not raised before it.

The court a quo awarded the matrimonial home to the first respondent because it had granted him custody of the perpetual minor (Julian). It was therefore for the convenience of the perpetual minor that the matrimonial home was awarded to him.

The circumstances have changed.

The minor was taken out of the country and no longer needs the use of that house. The first respondent, and the rest of the family, also left the matrimonial home and now live in South Africa.

The first respondent demonstrated lack of interest in that property, because, in spite of his apparent means, he did not save his half share in it from being sold in execution.

He sold two South African properties, No.94 Matumi Sands Lonehill (Pty) Ltd and No.112 Matumi Sands Lonehill (Pty) Ltd in each of which he held 50 percent of the shares, when their distribution was pending before the court a quo as they were part of the appellant's claim.

He, in defiance of the court a quo's order, took the household property which had been awarded to the appellant to South Africa without her knowledge or consent.

He clearly demonstrated an intention to frustrate the distribution of their assets by the courts.

In view of the circumstances discussed above, the respondent's unlawful and contemptuous interference with court processes and orders does not entitle him to retain the appellant's half share in No.6 Northwood Rise, Mt Pleasant.

The appellant's appeal should succeed, in part, in respect of the remaining half share of that property.

The report by MAWADZE J proves that the first respondent has resorted to self-help.

He has made it impossible for the court to effect an equitable distribution of their property. He sold the two properties in South Africa. He has not done anything to remove encumbrances on immovable properties awarded to the appellant. He has stripped assets of Stir Crazy (Pvt) Ltd by transferring US$2.8 million from it to Incavat Enterprises (Pvt) Ltd.

It must be emphasized, that, where a spouse acts in contempt of court orders distributing their assets, hides some of the assets, lies about his or her ownership of some of the property, and deliberately resorts to self help, the court is entitled to award, to the other spouse, the remaining property proved to be assets of the spouses.

It is my view, that, the properties in which the first respondent has disclosed his shareholding should be awarded to the appellant on the basis of his ownership of those shares.

It is also important to note, that, the first respondent's sale and stripping of assets during the pendency of this appeal, in defiance of the court a quo's order, entitles the appellant to compensation for the losses she has suffered as a result of the respondent's conduct.

In the circumstances of this case, the court must endeavour to do justice between the parties.

The appellant must be awarded what is left of the properties since most of them have been disposed of by the respondent. The appellant must be awarded shares of property holding companies in respect of which the respondent's shareholding is on record.

Stir Crazy (Pvt) Ltd, which owns the Belgravia house, cannot be distributed on account of it having been liquidated and there is no evidence of its current status.

The appellant should be awarded the respondent's 80 percent shares in Theright Investments (Pvt) Ltd.

The respondent must remove all encumbrances on the properties awarded to the appellant.

It has been established, that, the respondent held 50 percent shares in No.94 Matumi Sands Lonehill (Pty) Ltd and No.112 Matumi Sands Lonehill (Pty) Ltd. The court a quo could therefore have used that evidence to distribute the shares between the parties.

The properties were sold to third parties by the respondent.

The appellant is entitled to a portion of the proceeds.

The portion she is entitled to cannot be established without leading evidence on the purchase price and how it relates to the respondent's 50 percent shares in each property.

This Court does not therefore have material to enable it to make an order substituting the court a quo's order of absolution.

It is, in my view, in the interest of the appellant, to uphold the court a quo's order to enable her to, through subsequent litigation, pursue her interests in these properties.

The court a quo's decision, of absolution from the instance, in respect of properties on which there was no evidence should be upheld.

No.94 Matumi Sands Lonehill and No.112 Matumi Sands Lonehill should remain on the list of properties in respect of which absolution was granted for the reasons stated above.

The properties and claims to remain on the list of cases for which absolution from the instance was granted are as follows:

(a) No.94 Matumi Sands Lonehill (Pty) Ltd;

(b) No.112 Matumi Sands Lonehill (Pty) Ltd;

(c) 182 Shingara (Pty) Ltd;

(d) Stir Crazy (Pvt) Ltd;

(e) Incavat Enterprises (Pvt) Ltd;

(f) Telehic Investments (Pvt) Ltd;

(g) Natsbury Trading (Pvt) Ltd; and

(h) Plaintiff's claim of £10,400.

DISPOSITION

I find that the appellant's appeal has merit on the following issues:

(a) The respondent's lack of the right of audience due to his being in contempt of court.

(b) The erroneous granting of absolution from the instance by the court a quo in respect of properties in respect of which the first respondent had made offers and properties on which the first respondent had given evidence on his shareholding in specified companies.

(c) The court a quo's distribution of properties without taking into consideration their values and the parties shareholding in some companies.

The court a quo correctly found, that, the appellant should claim her inheritance money from the company she loaned it to.

The court a quo correctly granted custody of the perpetual minor to the first respondent as this was in the best interests of the perpetual minor.

The appellant's claim for a once-off payment of maintenance in the sum of US$100,000 was correctly dismissed by the court a quo.

The appellant is entitled to an award of costs on the higher scale against the respondent, who is responsible for the prolonged hearing of the appeal due to his contempt of court, which resulted in an enquiry by MAWADZE J being ordered and the re-hearing of the parties in respect of his having caused the sale of his half share of the matrimonial home.

It is accordingly ordered as follows:

1. The appeal against the court a quo's decision on the perpetual minor's custody, the appellant's claim for inheritance money she loaned to Stir Crazy (Pvt) Ltd from the first respondent, and her claim for a lump sum maintenance payment of USD$100,000 be and is hereby dismissed.

2. The appeal against the awarding of the matrimonial home, to the respondent, partially succeeds to the following extent:

Paragraph 8 of the court a quo's order be and is hereby set aside and is substituted as follows:

“8. The plaintiff's half share in the matrimonial home, No.6 Northwood Rise, Mt Pleasant, Harare be and is hereby awarded to the plaintiff.”

3. The appeal against the court a quo's order of absolution from the instance, on the distribution of immovable properties partially succeeds to the following extent:

3.1 Paragraph 12(d) of the court a quo's order is amended by the deletion therefrom of the words “Theright Investments (Pvt) Ltd.”

3.2 “The respondent shall transfer his 80 percent shareholding in the “Theright Investments (Pvt) Ltd” to the plaintiff and sign all relevant documents to effect transfer of his shares to the plaintiff within 30 days of this order failing which the Sheriff be and is hereby authorised to sign such documents.”

4. The first respondent shall pay the appellant's costs at the legal practitioner and client scale.

SC138-21 : DIVVYLAND INVESTMENTS (PRIVATE) LIMITED vs DAVID CHIWEZA
Ruled By: PATEL JA, GUVAVA JA and BHUNU JA

This is an appeal against the whole judgment of the High Court which was handed down on 10 April 2019. The gripe of the appellant is that the court a quo dismissed its claim and granted an order in favour of the respondent's counter-claim.BACKGROUND FACTSThe facts of the matter which ...

BACKGROUND FACTS

The facts of the matter which have a bearing on the dispute may be summarised in the following manner:

The appellant is a private limited company duly registered in accordance with the laws of Zimbabwe. The respondent is a private individual and resides at 12 Le Roux Drive, Hillside, Harare.

On 19 July 2017, the appellant issued summons against the respondent and sought an order in the following terms:

“(a) Ejectment forthwith of the defendant and all those claiming occupation through him from the property at Number 12 Le Roux Drive, Hillside, Harare.

(b) Payment of damages in the sum of US$58,000 to plaintiff;

(c) Payment of holding over damages in the amount of US$700 per month calculated from the 01st June 2017 to date of eviction;

(d) Costs of suit on the higher scale of legal practitioner and client.”

The basis of the claim followed a purported breach of contract by the respondent.

In its declaration to the summons, the appellant averred, that, sometime in September 2009, the parties entered into a verbal agreement for the sale and purchase of a portion of immovable property known as Number 12 Le Roux Drive, Harare ('the property'). The sale was facilitated by an estate agents company known as Property Plus Realtors (Private) Limited which was acting on behalf of the appellant.

The agreement of sale stipulated, that, the respondent would pay the purchase price of US$75,000 by paying a deposit of US$15,000 upon agreement. The balance of US$60,000 was to be paid at the rate of US$5,000 per month for 12 consecutive months with interest on the purchase price being calculated at the rate of 1 per cent per month. The full purchase price was to be paid on or before 30 August 2010.

The parties further agreed, that, the respondent would take immediate occupation of the property upon payment of the deposit.

The appellant alleged, that, the respondent failed to pay the full instalments by the due date, and, as such, breached the verbal agreement of sale. It was the appellant's evidence, that, the respondent failed to pay the sum of US$39,100 which comprised the principal debt and interest.

The appellant further stated, that, the respondent acknowledged, in writing, on 30 March 2017, that he had not paid the full purchase price.

On 17 May 2017, the appellant served the respondent with a notice to rectify its breach within 30 days. Despite the notice, the respondent failed or neglected to comply. As a result of the respondent's breach, the appellant cancelled the agreement of sale on 23 June 2017 and demanded vacant possession of the property.

Following the issuance of summons, the respondent entered an appearance to defend.

In his plea, he averred, that, the agreed purchase price for the property was US$68,000 and that he was to pay a deposit of US$15,000, and, thereafter, instalments of US$5,000 until the balance was paid in full.

The respondent further averred, that, he paid the deposit and a further US$37,000 and that the remaining balance, as at 1 May 2010, was US$16,000.

The respondent averred, that, he failed to continue with the payments as the appellant refused to come up with a written Agreement of Sale which would enable him to obtain a mortgage loan to pay for the outstanding balance for the property.

The respondent further averred, that, both parties, as a compromise to their verbal agreement, agreed, that, upon payment of US$300 by the respondent, the appellant would draft the Agreement of Sale.

The respondent paid the US$300 but no agreement was drafted.

The respondent further stated, that, the appellant, without his knowledge and consent, sought to subdivide the property.

In reaction to the subdivision, the respondent, through his legal practitioners, wrote a letter, on 30 March 2017, to the appellant, informing it to refrain from the illegal sub-division and for it to provide a written agreement of sale.

The respondent stated, that, the appellant did not comply with his notice.

The appellant decided to give him notice to rectify a non-existent breach of the verbal agreement. It was the respondent's averment that the notice by the appellant was a legal nullity and of no force and effect.

The respondent thus denied the appellant's entire claim, and, consequently, filed a counter-claim against the appellant seeking the following order:

“(a) An interdict restraining the Plaintiff from subdividing the property known as Stand 10830 Salisbury Township of Salisbury Township Lands Held Under Deed of Transfer Number 11900/2005.

(b) An order that the Plaintiff take all necessary steps to prepare an agreement of sale within 10 days of the granting of judgment reflecting the terms of the verbal agreement as set out in paragraphs 16 and 17 of this Declaration including the amount paid as of date and the balance outstanding in the sum of US$16,000.

(c) Costs of suit on a Legal Practitioner and client scale.”

In its plea to the counterclaim, the appellant maintained, that, the agreement between the parties was for the sale and purchase of a portion of the property.

The appellant further denied the payments and outstanding balance which the respondent purportedly made to it.

The appellant also denied that it had an obligation to draw up an Agreement of Sale.

It was the appellant's argument, that, the agreement of sale did not have a term which provided that the balance of the purchase price would be paid through a Bank loan.

Following a pre-trial conference before a Judge, in chambers, the parties entered into a joint pretrial conference minute which read as follows:

“ISSUES

1. What were the initial and later compromise terms of the agreement?

2. Whether or not the defendant breached any of the terms of the agreement.

3. Whether or not the plaintiff should not be interdicted from subdividing the property?

ONUS

4. On both parties in respect of issue number 1.

5. On the plaintiff in respect of issue 2.

6. On defendant in respect of issue 3.

ADMISSIONS

7. Plaintiff admits to receiving US$300 for the purposes of drafting an agreement of sale.

8. Defendant is presently in possession of the property.”

EVIDENCE BEFORE THE COURT A QUO

At the trial, the appellant led evidence through a single witness, one Brian Machengo (Machengo), a Sales Manager at Property Plus Realtors (Private) Limited.

Brian Machengo testified, that, the advertisement of the property was published through The Herald newspaper. It did not indicate that only a portion of the property was being sold. It simply made reference to 'one acre of panoramic views'.

He further stated, that, he was given a mandate by the appellant to sell the property for US$90,000 but published the advertisement with an offer price of $70,000.

His mandate was to sell land with a residential property measuring plus or minus 1,500 square meters. It was part of the whole property that comprised 12 Le Roux Drive.

The respondent was one of the persons who responded to the advertisement and made an offer to purchase the property for US$68,000. This offer was rejected by the appellant.

He could, however, not explain how the purchase price changed from US$90,000 to US$70,000, and, subsequently, to US$75,0000. It was his evidence, that, as the agreement was verbal there was no paper trail explaining what had taken place.

Brian Machengo further accepted, that, at the time when the sale was concluded, there was no subdivision permit as the permit was only granted on 10 February 2015.

He further accepted, that, the respondent paid about US$52,000 towards the purchase of the property and that he paid US$300 for the drafting of an Agreement of Sale.

He confirmed that the respondent filled in an offer to purchase form.

He also highlighted, that, the form did not make any reference to the respondent accessing mortgage finance to pay off the purchase price.

He denied that he was obliged to give the respondent a written agreement.

He further stated, that, the appellant was within his rights to sub-divide the property as he had only sold a portion of it to the respondent.

The respondent testified on his own behalf and led evidence from two other witnesses.

The respondent testified, that, he saw an advert for the property which had a purchase price of US$70,000. He made an offer for US$68,000 on an Offer Form provided to him by Brian Machengo.

He indicated that it was never mentioned to him that only a portion of the property was being sold and that from the description of the property on the advertisement he believed he was purchasing the whole property.

He denied that the purchase price of the property was agreed as US$75,000 as alleged by the appellant.

The respondent admitted that he had not paid the full purchase price for the property.

He attributed his failure to meet the terms of the agreement to the fact that his company was facing economic hardships and that he failed to acquire a Bank loan as the appellant had refused to give him a written Agreement of Sale.

He explained, that, since he failed to get a written agreement he was unable to obtain a loan to offset the outstanding balance.

The respondent testified, that, in 2010, he met Mr Van Hoogstraten, whom he believed to be the seller, for the first time, who informed him that he never signs written contracts in his business dealings.

He then formed the opinion that he was dealing with “crookey, dodgy, people” and decided not to pay the balance of the purchase price.

He testified, that, he later received a report that there were people subdividing the property.

He wrote to the appellant protesting the subdivision as he believed he had purchased the whole property. When he did not get a response, he made a report to the police. Following the report to the police, he then received a letter informing him that he was in breach of the agreement.

The respondent denied that he owed the sum of US$58,000 as damages for rentals calculated at the rate of US$700 per month.

In 2014, he again met Mr Van Hoogstraten, and, this time, he agreed to have a written Agreement of Sale, provided the money for drafting such agreement was paid. It was on this basis that he paid the $300 for drafting the Agreement of Sale.

However, in spite of paying the $300, no agreement was drafted by the appellant.

The evidence of Patrick Mapfumo, the respondent's second witness, was admitted with the consent of both parties.

Patrick Mapfumo's evidence, as stated in the respondent's summary of evidence, confirmed, that, in 2014, the witness and his wife had gone with the respondent to see one Mr. Nicholas Van Hoogstraten along Mazowe Road. Their party also included Brian Machengo. It was Patrick Mapfumo's evidence, that, at the meeting, the parties agreed that an Agreement of Sale be drawn up upon payment of US$300 (being made) by the respondent for drafting the agreement.

The respondent's third witness was Patrick Nyamugama, a registered estate agent, who appeared to give expert evidence in support of the respondent's case.

Patrick Nyamugama testified, that, around the year 2009 the property in dispute would have been valued at about US$70,000 – US$80,000. He also stated, that, if the property was to be subdivided, the value of the property would be about US$50,000.

At the conclusion of the trial, the court a quo found, that, the respondent purchased the entire property and not a subdivision as alleged by the appellant.

The court disbelieved the evidence of Brian Machengo and found him to be an evasive witness. The court also found that Brian Machengo made a number of concessions in favor of the respondent.

The court a quo thus found that the appellant had failed to prove its claim.

It noted, that, there were gaps in the evidence given by Brian Machengo and that the appellant ought to have called its directors.

The court further noted, that, as the subdivision of the property had already been granted it could not make any order interdicting the operation of the subdivision permit.

However, the court found, that, the subdivision permit number SD/CR/15/14, dated February 2015, was null and void as it had been granted six years after the whole property had been sold to the respondent.

In the result, the court made the following order:

“1. The plaintiff's claim is dismissed.

2. The defendant's counter-claim is granted.

3. The plaintiff shall take all the necessary steps to prepare an Agreement of Sale within ten (10) days of the handing down of this judgment reflecting the terms of the verbal agreement entered into on 30 August 2009 including the following:

3.1 That plaintiff sold to the defendant certain piece of land situate in the district of Salisbury called Stand 10830 Salisbury Township of Salisbury Township Lands measuring 3,033 square metres held under Deed of Transfer number 11900/2005 in favour of Divvyland Investments (Private) Limited.

3.2 That the agreed purchase price for the immovable property was the sum of US$68,000 (sixty eight thousand United States dollars).

3.3 That the defendant paid a deposit in the sum of US$15,000 (fifteen thousand United States dollars) on 04 September 2009.

3.4 That the defendant has paid a total of US$56,900 (fifty six thousand nine hundred United States dollars) to date towards liquidating the purchase price inclusive of interest.

3.5 That the defendant shall pay the outstanding balance of $14,384-01 (fourteen thousand three hundred and eighty four United States dollars and one cent) through a Bank loan.

4. The plaintiff shall pay the defendant's costs of suit, in respect of both the main claim and the counter-claim, on the legal practitioner and client scale.”

Aggrieved by the judgment of the court a quo, the appellant noted the present appeal on the following grounds:

1. The court a quo erred and misdirected itself in granting relief not sought by the parties, and, in consequence, by creating a non-existing contract for the parties.

2. The court a quo erred and misdirected itself in setting aside a valid subdivision permit when no such relief had been sought before it.

3. The court a quo erred and misdirected itself in failing to find, that, once the respondent was in willful default/breach for a period in excess of five years, and contrary to the agreement, the appellant was entitled to cancellation of the agreement and to the consequential relief of eviction and holding over damages.

4. Furthermore, the court a quo erred in its failure to find, that, the absence of a written agreement is no bar to payment of the purchase price and that the respondent was not absolved from performing his side of the agreement as he could still tender into court or have made payment as he had previously done.

5. The court a quo further erred and misdirected itself in failing to find, that, an advertisement is an invitation to treat and does not create a binding contract. Furthermore, it misdirected itself in failing to find, per the evidence led, that, the respondent's offer had not been accepted by the appellant.

6. The court a quo further erred in imposing a contractual obligation of loan/mortgage financing which did not form part of the agreement between the parties and which did not exist at the time of contracting as per the evidence led.

7. The court a quo further erred and misdirected itself in failing to find, that, the admissions made by the respondent entitled the appellant to succeed on its case and have the counterclaim dismissed. These were:

(a) The property is registered in the name of the appellant who still possesses all rights of ownership in terms of the title deed.

(b) The respondent had not paid the full purchase price, whether for the half portion or for the full portion. It doesn't matter which portion he has not paid and persists in breach beyond the contracted time period (sic).

(c) The appellant, like any other party, had a right to cancel the agreement and claim eviction and holding over damages consequent to cancellation.

8. The court a quo further erred and misdirected itself in disregarding the uncontroverted evidence that the land in issue was a half-acre portion as opposed to a full acre, regard being had to the mandate to sell letter and to the advertisement placed by the appellant.

9. The court a quo further erred and misdirected itself in failing to find, that, the agreement to sell a portion of land, absent a subdivision permit, was, in any event, unlawful and could consequently not be enforced.

The appellant's grounds of appeal, in my view, raise the following issues for determination:

1. Whether or not the court a quo granted relief not sought by either of the parties.

2. Whether or not the court a quo erred in dismissing the appellant's claim.

3. Whether or not the court a quo erred in granting the respondent's counterclaim.

I will proceed to deal with these issues seriatim.

APPELLANTS SUBMISSIONS BEFORE THIS COURT

Counsel for the appellant argued, that, the court a quo fell into error when it granted relief which was not sought by either of the parties.

It was counsel's submission, that, the court a quo's finding, that the subdivision permit was null and void, was made in error as the issue of its legal effect was never an issue for determination before the court.

Counsel argued, that, the court found that it could not interdict the operation of the sub-division permit as the permit had already been granted and yet the court a quo went on to grant the respondent's counterclaim - including the part which sought to interdict the appellant from subdividing the property.

It was also counsel's submission, that, paragraph 3 of the order granted by the court a quo was made in error as the court enforced a non-existent agreement made on 30 August 2009 when the verbal agreement was in September 2009.

The appellant submitted, that, the court a quo erred in granting a computation of figures which were to be included in the Agreement of Sale. In support of the point, counsel argued, that, the court misdirected itself when it ordered that the respondent was to pay US$14,384=01 through a Bank loan when the respondent, by his own admission during trial, maintained that he owed US$16,000.

In relation to the issue of whether or not the respondent proved his counterclaim, counsel for the appellant argued, that, the respondent, by his own admission, stated, that, in a period of over nine years he failed to pay the full purchase price of the property. He thus had no valid claim to the property which remained under the ownership and title of the appellant.

It was the appellant's further argument, that, the respondent's claim, that he was to obtain a Bank loan to pay off the outstanding amount, was never agreed to as between the parties and therefore the court a quo should not have granted an order allowing the respondent to pay the outstanding balance through a Bank loan.

Counsel concluded by submitting, that, it was a basic principle of law, that, where a person occupies another person's property he or she must pay rent.

Counsel thus argued, that, the respondent, having been in occupation of the property for over nine years without being able to satisfy the purchase price, was liable to pay the appellant damages of US$58,000 and holding over damages of US$700 per month calculated from 1 June 2017 to the date of eviction.

RESPONDENT'S SUBMISSIONS BEFORE THIS COURT

Per contra, counsel for the respondent submitted, that, the court a quo did not misdirect itself in its findings as it dealt with all the issues which were raised in the pre-trial conference minutes.

Counsel submitted, that, the court had to resolve whether there was a breach by the respondent.

Counsel further submitted, that, the events that led to the appellant issuing summons only arose after the respondent wrote to it informing it to stop the subdivision of the property as this was a breach of the agreement of sale.

It was counsel's argument, that, the court correctly believed the respondent's version of how the purchase price was paid. He also submitted, that, the respondent made efforts to pay off the outstanding balance by paying the US$300 for a written contract which would help him secure a loan.

The appellant's witness, Brian Machengo, made concessions during the trial which destroyed the appellant's claim. Counsel thus argued, that, the appellant's case was full of improbabilities and inconsistencies.

He therefore submitted, that, the judgment of the court a quo was unassailable and prayed for the dismissal of the appeal.

APPLICATION OF THE LAW

Whether or not the court a quo erred in granting the respondent's counterclaim

Before the court a quo, the appellant sought an order for the eviction of the respondent and all those claiming occupation through him, damages in the sum of US$58,000, holding over damages at the rate of US$700 per month calculated from 1 June 2017 to the date of eviction, and costs of suit on a higher scale.

The respondent, in his counter claim, sought an interdict restraining the appellant from subdividing the property and an order that the appellant take all necessary steps to prepare a written Agreement of Sale which would reflect the terms of the verbal contract and the outstanding balance of US$16,000....,.

As discussed above, the respondent did not motivate or satisfy the requirements of an interdict. The court, in turn, found that it could not grant the interdict sought although it went on to make a contrary finding that the permit was null and void.

The respondent was equally in breach of the agreement of sale, and, as such, could not be granted the relief he sought for the appellant to provide a written Agreement of Sale, as the appellant had already exercised its right to cancel the Agreement of Sale.

There was therefore no basis upon which the court could grant the respondent's claim as it did.

The court made factual findings in arriving at the decision to allow the respondent's claim.

It is a settled principle that this Court will not easily interfere with factual findings made by a lower court unless the findings are grossly unreasonable: see ZINWA v Mwoyounotsva 2015 (1) ZLR 935 (S); Hama v NRZ 1996 (1) ZLR 664 (S); Reserve Bank of Zimbabwe v Corrine Granger and Another SC34-01.

I find that the findings of the court a quo, in granting the respondent's claim, when he was in breach of the Agreement of Sale, were so unreasonable as to warrant interference by this Court.

SC141-21 : WISE GARIRA and SHEPHARD MASHINGAIDZE and BAYAI BAYAI vs NATIONAL ENGINEERING WORKERS UNION and FIRST CAPITAL BANK
Ruled By: GUVAVA JA, BHUNU JA and KUDYA AJA

This is an appeal against the whole judgment of the High Court (the court a quo) which ordered the removal of the three appellants from being signatories to the first respondent's Bank account with the second respondent.The appeal is opposed by the first respondent....,.BRIEF BACKGROUND OF THE CASEThe first respondent ...

This is an appeal against the whole judgment of the High Court (the court a quo) which ordered the removal of the three appellants from being signatories to the first respondent's Bank account with the second respondent.

The appeal is opposed by the first respondent....,.

BRIEF BACKGROUND OF THE CASE

The first respondent is a duly registered trade union representing the interests of employees in the Engineering, Iron and Steel sector (hereinafter referred to as “the Union”). The Union opened and maintains a Bank Account Number 6327897 with the second respondent Bank.

On the other hand, the first and second appellants were employed by the Union as its President and Secretary General, respectively, whereas the third appellant was its Trustee.

At the inception of the Bank account, the three appellants were appointed by Union resolution, dated 15 February 2019, as signatories to the said Bank account in their respective capacities as Union officials. The union then sought to remove the appellants from the panel of signatories to its Bank account on the basis that they had ceased to be union officials.

In its founding affidavit, deposed to by Ben Mambara, the Union averred, that, the first and second appellants were dismissed from employment following disciplinary proceedings on 22 April 2019 and 14 June 2019, respectively. The third appellant's trusteeship had expired through the effluxion of time.

The Union provided documentary evidence of the appellants dismissal from office.

The appellants however resisted their removals from being Bank account signatories on the basis that they were still Union officials.

They also challenged the authenticity of the Union resolution that authorised their removal as signatories to the Union bank account.

They challenged the legitimacy of Ben Mambara as the incumbent President of the Union and deponent to its founding affidavit.

In that vein, they refused to relinquish their respective mandates as signatories to the Union's bank accounts hence the application for their removal as Bank signatories in the court a quo.

The case has been the subject of various conflicting judgments in the court a quo which are now pending in this court on appeal.

On 23 January 2020, MUSHORE J issued a lengthy order in favour of the appellants under case number HC8111/19. The order basically declared that the three appellants were the legitimate office holders entitled to run the affairs of the first respondent without let or hindrance. On the other hand, the order declared Ben Mambara to be an illegitimate President of the first respondent.

In short, the judgment restored the status quo ante prior to the appellants dismissal from office.

The judgment is now a subject of appeal and it triggered a series of other appeals under appeal case numbers SC27/2020, SC32/2020, and SC34/2020.

Following the restoration of the status quo ante by MUSHORE J's order the respondents were aggrieved by the manner in which the appellants were handling the first respondent's funds.

Resultantly, the first respondent, represented by Ben Mambara, approached the court a quo under case number HC6844/19 seeking their removal from office as signatories of its Bank account.

The first respondent was successful in this respect.

The current appeal challenges the judgment on the basis that MUSHORE J's order had barred Ben Mambara and six others from acting as the Union's officers. The appellants claim to have been declared the legitimate signatories to the Bank account by the judgment which is still extant.

Notwithstanding the appeal, the first respondent sought leave of the court a quo to execute the order removing the appellants from being signatories to its Bank account under case number HC444/20.

CHIKOWERO J dismissed the application.

Another application, for the re-activation of the Union's bank account was dismissed by MUSITU J on 15 September 2020.

DETERMINATION OF THE COURT A QUO

The court a quo found, that, Ben Mambara had the requisite authority to represent the Union.

In coming to that conclusion, the learned judge a quo reasoned that the Union, being a legal persona, could only be represented by a natural person duly authorised thereto by a valid Union resolution.

Consequently, upon the removal of the first appellant from office as Union President, the Union, by resolution, dated 15 February 2019, replaced the first appellant with Ben Mambara. The resolution also conferred him with authority to represent the respondent in these proceedings.

The resolution reads in part:

“IT WAS RESOLVED:

2. That the President, Ben Mambara, shall sign documents and represent the Union and at NEC level.

SIGNED AT BULAWAYO this 15th February 2019.

Signed
……………………………………
(SECRETARY).”

Having found that Ben Mambara was properly appointed as the Union President and Union representative, the learned judge a quo proceeded to hold, that, the appellants were no longer Union officials. That being the case, they could no longer continue to be signatories to the Union's bank account.

On the basis of such finding, he proceeded to issue the following order:

“IT IS ORDERED THAT:

1. The first respondent be and is hereby ordered to delete or remove Shepard Mashingaidze, Wise Garira, and Bayayi Bayayi from being signatories of applicant's Account No.6327897 held with the 1st respondent.

2. The 2nd to 4th Respondents jointly and severally one paying the others to be absolved, pay costs at the legal practitioner and client scale.”

Counsel for the first respondent has not, however, sought to sustain and enforce the above order.

She has, in fact, implored the court to exercise its review jurisdiction under section 25 of the Supreme Court Act [Chapter 7:13] on account of perceived irregularity.

Wherefore she prayed for an order in the following terms:

“Having utilised the powers granted to it under section 25 of the Supreme Court Act [7:13], the following is ordered:

(a) Appeals under S-27-2020, S–32–2020, S–34-2020 and S222-20 be and are hereby set consolidated.

(b) The judgment of the High Court under HC8111/2019 granted by MUSHORE J on 23rd January 2020 be and is hereby set aside.

(c) The judgment of the High Court under HC6844/20 by TAGU J on 20th May 2020 be and is hereby set aside.

(d) The judgment of the High Court under HC444/20 granted by CHIKOWERO J on 8th July 2020 be and is hereby set aside.

(e) The judgment of the High Court under HC594/20 by MUSITHU J on 15th September 200 be and is hereby set aside.

(f) HC8111/19 is remitted back to the High Court for a hearing de novo before a different judge.

(g) Pending the determination of HC8111/19, 2nd Plaintiff, third plaintiff, 3rd-9th Defendants Plaintiff shall not take any steps that will interfere with the operations of the 1st Defendant.…,.

2. It is thus prayed.”

It is plain that the above relief sought is premised on the ill-conceived assumption that the court would grant the request for consolidation.

Paragraph 'g' of the draft order, however, seems to have some merits because it seeks to protect the Bank account from abuse by persons who are, for the time being, no longer its officials pending the final determination of the parties competing rights.

The Court, having dismissed the prayer for consolidation, paragraphs (a) to (f) of the first respondent's prayer cannot stand as they are premised on the envisaged consolidation which never materialised.

For that reason, the Court cannot interfere with appeals which are not before it.

I will therefore focus on the instant appeal before this Court.

No application for review can be brought in terms of section 25 of the Supreme Court Act. The court acts mero motu. Thus, counsel for the first respondent was merely raising the court's attention to exercise its discretion in this regard....,.

Paragraph (g) of the first respondent's prayer seeks to downgrade the order granted by the court a quo in HC8111/20 to a temporary interdict pending the determination of the main dispute on appeal.

There is need to interrogate that proposal on the merits.

It is common cause that the first and second appellants were employed by the Union. They were dismissed from employment following disciplinary proceedings. They have since appealed against their dismissal.

That much is not in dispute.

In terms of section 92E(2) of the Labour Act [Chapter 28:01] an appeal shall not suspend the decision appealed against.

In interpreting the section, in CFI Retail (Pvt) Ltd v Manyika SC08-16…, MALABA DCJ…, observed that:

“Section 92E(2) provides, that, the noting of an appeal to the Labour Court against a determination or decision does not have the effect of suspending the operation of the determination or decision appealed against.

The purpose of the section is to provide for the effect of the noting of an appeal in terms of the Act on the enforcement of the determination or decision.

The provision is the reversal of the common law principle that the noting of an appeal against a judgment or decision of a tribunal or lower court suspends the execution of the judgment or decision pending the determination of an appeal.”

The same applies to appeals against the judgments or decisions of the Labour Court.

This is because there is no statutory provision for the suspension of its judgments or decisions pending appeal. The common law rule, that an appeal suspends the decision appealed against, only applies to superior courts of inherent jurisdiction.

In Founders Building Society v Mazula 2000 (1) ZLR 529 the court held that:

“The rule that an appeal suspends the operation of the decision appealed against applies only to superior courts. It does not apply to other tribunals unless the relevant statute so provides.”

In the absence of statutory authorisation, the common law rule that an appeal suspends the judgment or decision appealed against does not apply to any appeals in terms of the Labour Act.

Had the appellants wanted to remain in office, despite their dismissal from employment, they should have successfully applied for an interim order staying execution pending appeal in terms of section 92E(3) of the Labour Act: see Greenland v Zimbabwe Community Health Intervention Research Project (ZICHIRE) HH93-13.

This they did not do.

What this means is that whether or not they have appealed against their dismissals in terms of the Labour Act, it does not matter whether or not the dismissals were correct at law. It is therefore an exercise in futility for both appellants, at this stage, to impugn or cast aspersions on the decision of the inferior tribunal that dismissed them from employment.

They stand dismissed from employment until their respective appeals have been reversed on appeal.

As regards the third appellant, it is common cause that he was appointed as Trustee by Union resolution and was removed from office by Union resolution on account of the expiration of his term of office.

Following his removal from office, he is de facto out of office.

The net result is that all the three appellants are de facto out of office as Union officials.

Although they have appealed against their removal from office, in the interim, the balance of convenience favours the respondents.

It is highly undesirable, and a recipe for disaster and irreparable harm, that a person dismissed from office, whether rightly or wrongly, continues to be a signatory to his/her principal's Bank account pending appeal.

Having come to the unassailable conclusion, that, the appellants are currently no longer officials of the first respondent, the court a quo cannot be faulted for holding, that, the appellants are unsuited to be signatories to the first respondent's Bank account as things stand.

The court a quo, however, fell into error in making a final order before the parties competing rights have been conclusively determined on appeal.

The mere fact that there were numerous conflicting decisions on the same matter emanating from the same court on various aspects of the matter meant that there was uncertainty on the appellants prospects of success on appeal.

Despite that knowledge, they chose not to obey judicial and administrative processes that removed them from office and ultimately from being signatories to the first respondent's Bank account.

It is always wrong for a person to insist on being a signatory to another's Bank account without that person's consent. Even assuming for one moment that the appellants had been wrongfully removed from office, they had no right to fasten onto being signatories to the Union's bank account without its consent.

Given the unsavoury chaotic state of affairs created by the various conflicting judgments emanating from the court a quo, this is, in my view, an appropriate case where the Court must resort to its inherent jurisdiction to restore order pending appeal.

In Williams & Anor v Msipha NO & Ors 2010 (2) ZLR 552 (S) this court held that:

“Once the Supreme Court is seized with a matter, it has inherent jurisdiction to control its process. That jurisdiction includes the power to control the process of the court, including the prevention of execution of a judgment pending the hearing of an application. It thus has the power to restrain the magistrate and the Attorney-General from relying on the magistrate's decision…,.”

What this means is that the court, in this case, can achieve justice without recourse to its review jurisdiction as requested by counsel for the first respondent.

In my view, it is always preferable for the Court to use its original inherent jurisdiction where it is possible to do justice without recourse to borrowed jurisdiction under section 25 of the Supreme Court Act.

I say borrowed jurisdiction because the section clothes this court with the jurisdiction of the High Court where there is a lacuna in its own jurisdiction.

COSTS

The courts always frown upon failure to obey court orders.

The appellants moral turpitude in this case was however ameliorated by the fact that theirs was not a naked disobedience of a court order as they appear to have been ill-advised to act on the basis of a court order that had been overtaken by events.

For that reason, punitive costs were not warranted.

The fact, however, stands, that, TAGU J's order, being a later order to that of MUSHORE J's order ought to have been obeyed.

This is however not to detract from the fact that there is need to preserve order and the Bank account from abuse pending the final determination of the dispute on appeal.

DISPOSAL

In the result, it is ordered that:

1. The appeal partially succeeds with each party bearing its own costs.

2. The order of the court a quo is set aside and substituted with:

“(a) Pending the determination of HC8111/19, 2nd, 3rd plaintiff and 3rd to 9th defendants shall not take any steps that will interfere with the operations of the first respondent pending.

(b) The applicants shall bear the costs of the application jointly and severally the one paying and the other to be absolved.”

SC145-21 : SARAH CARTER vs KATHLEEN MACINTOSH (Represented by Edward Warhurst, Executor of Estate Late Kathleen McIntosh) and ANOTHER
Ruled By: MAVANGIRA JA, BHUNU JA and CHATUKUTA AJA

During happier times, the first respondent leased her bird and game sanctuary to the appellant.Upon termination of the lease, the appellant lost the contest for ownership and possession of animals at the sanctuary in the High Court (the court a quo).She now appeals to this Court for relief.FACTUAL BACKGROUNDAt the ...

During happier times, the first respondent leased her bird and game sanctuary to the appellant.

Upon termination of the lease, the appellant lost the contest for ownership and possession of animals at the sanctuary in the High Court (the court a quo).

She now appeals to this Court for relief.

FACTUAL BACKGROUND

At the 22 kilometre peg along the Harare-Shamva Road lies Bally Vaughan Bird and Game Sanctuary. The first respondent and her late husband established the sanctuary sometime in 1990 mainly for the care of birds and animals in need of care.

At the time of litigation in the court a quo she was the sole surviving owner of the sanctuary.

The primary source of animals for the sanctuary was through donations from members of the public. Funding was mainly derived from donations and sale of animals at the sanctuary.

Owing to a conglomeration of advanced age and injuries sustained in a road traffic accident, the first respondent was wheelchair-bound and unable to represent herself in a court of law. She was, however, lawfully represented by one Gordon Rees Putterill, the deponent to the opposing affidavit, duly authorised thereto by power of attorney.

She is now deceased and was duly substituted, according to law, by the executor to her estate, one Edward Mark Warhurst.

It is common cause, that, on 1 June 2010, the appellant and the first respondent concluded a written lease agreement. The contract was to endure for a period of three (3) years expiring on 31 May 2013.

The material terms of the contract provide as follows:

“AGREEMENT OF LEASE entered into by and between Mrs K N McIntosh (Hereinafter “called The Lessor” on the one part and Miss S. A. L. Carter (Herein after called the tenant)

Whereas, the lessor is the registered owner of the operation known as Bally Vaughan Bird and Game Sanctuary situated in the Arcturus [CA District of Goromonzi].

And whereas the Lessor has agreed to let to the Tenant the aforesaid immovable property, as more fully set out in Annexure 'A' which also includes details of immovable property being kitchen and catering equipment, restaurant furnishings and fittings of the two restaurants known as the 'Duck or Grouse restaurant' all birds and animals that were resident within the area known as the Bally Vaughan Bird and Game Sanctuary on one October, 2005 water pump, cold room motor and Mazda B2500 pick-up truck.'…,.

NOW THEREFORE IT IS AGREED AS FOLLOWS:

'Subject to the provisions of this lease, the lessor hereby lets to the Tenant who in turn hires from the lessor the leased premises and equipment specified in Annexure 'A'.

2….,.

3….,.

4. Income derived from the sale of animals resident on the farm on 1 October 2005 shall be divided equally between the Lessor and the Tenant, and income from the sale of birds resident on 1 October 2005 shall be divided as follows:
45 per cent to Lessor, 45 per cent to Tenant and 10 per cent to staff as a bonus.

5….,.

6….,.

7….,.

8….,.

9….,.

10….,.

11. In the event of the death of the Lessor or the Tenant, during the currency of this lease, this lease agreement shall be binding on the legal representative of the Lessor or the Tenant until the date provided for the expiry thereof.

12….,.

13. In the event of the Tenant failing to pay the rent or committing any breach of this agreement and failing to remedy such breach within fourteen days after receipt from the Lessor of written notice requiring the Tenant to so remedy such breach, the Lessor shall be entitled to cancel this lease without any prejudice to any action for the recovery of rent or any loss or damage arising from such lease.”

Following disagreements, the first respondent lawfully evicted the appellant from her sanctuary by court order in November 2013 on grounds of breach of contract.

Upon her eviction, the appellant sought to relocate the disputed animals to Twala Trust Sanctuary in the same district. The disputed animals are listed as:

Domestic Animals

(ii) 3 cows;

(iii) 3 pigs;

(iv) 11 sheep;

(v) 16 donkeys;

(vi) 4 goats;

Wild Animals

(i) 3 male lions;

(ii) 4 female lionesses;

(iii) 1 female spotted hyena;

(iv) 2 serval (male and female);

(v) 1 male meekat;

(vi) 1 male genet;

(vii) 1 male zebra;

(viii) 2 female common duikers;

(ix) 1 male bush baby;

(x) 3 female baboons;

(xi) 13 marmoset monkeys;

(xii) 13 vervet monkeys;

The appellant's claim was premised on a vindicatory or possessory order.

The first respondent objected to the translocation of the animals from Bally Vaughan Sanctuary claiming ownership of the same animals.

To protect her title and interest in the animals, she applied for and obtained a temporary interdict from the Magistrates Court blocking the appellant from removing the animals from the sanctuary pending determination of ownership of the disputed animals by the courts.

The temporary interdict is in the form of a rule nisi dated 3 July 2015 crafted in the following terms:

“IT IS ORDERED THAT:

1. A rule nisi issue…, in the following terms:

(i) That, pending a court determination on the ownership of the birds, animals, equipment, and motor vehicles on Bally Vaughan Bird and Game Sanctuary, 22km peg, Shamva road, first and second respondents be and are hereby temporarily interdicted from removing any birds, animals, equipment, and motor vehicles from the said premises.

(ii) In the event of the Respondents failing to comply with this order, or any part thereof, that the Zimbabwe Republic Police, Juru or any attested member of the Zimbabwe Republic police be and are hereby authorised to enforce the Order, and, for so doing, this shall be their warrant.

(iii) First and second respondents shall pay costs of suit on a legal practitioner and client scale.”

The appellant did not violate the terms of the above temporary interdict but properly took the dispute to the court a quo claiming the right to relocate the animals by virtue of being the rightful owner and possessor of the animals.

HB134-15 : STANLEY NANZOMBE vs SICINGILE MASUKU (NEE MOYO) and THE SHERIFF OF ZIMBABWE and THE REGISTRAR OF DEEDS
Ruled By: MAKONESE J

The applicant purchased the immovable property known as Stand 4022 Khumalo Township of Stand 4125 Bulawayo (commonly referred to as 36 Ellington Avenue, Khumalo, Bulawayo) at a public auction conducted by the second respondent on 19 July 2013.

The property is registered in the name of Raphael Masuku (the first respondent's husband).

The sale was confirmed by the second respondent on 17 October 2013.

The applicant complied with all the terms and conditions of the sale and duly paid the purchase price.

The transfer of the property cannot, however, be effected into the names of the applicant as the first respondent obtained a Provisional Order against her husband, Raphael Masuku, on 20 September 2000 under case number HC3089/2000. The interim order provides, in paragraph 4, that, pending an order of this court, the third respondent be and is hereby interdicted from transferring the property to a third party.

A caveat was registered against the title deed of the property in terms of that interim order.

The applicant has filed this application seeking an order for the discharge of paragraph 4 of the provisional order under case number 3089/2000 and for the upliftment of caveat number 808/2000 registered in pursuance of the interim order.

This is to enable the third respondent to effect transfer of the property from Raphael Masuku into the applicant's names.

In essence, the relief being sought by the applicant is to give effect to the judicial sale which has been stalled by the terms of the interim order granted by this court on 20 September 2000.

The first respondent has opposed the relief sought by the applicant primarily on the grounds, that, the judgment/order under case number HC1938/12 which led to the attachment and subsequent sale of the property in dispute is being challenged in court by her husband, Raphael Masuku.

In that matter, Raphael Masuku has filed an application for condonation for leave to apply for rescission of judgment under case number HC1938/12 which led to the attachment and auctioning of the property by the second respondent....,.

Background

The first respondent is married to Raphael Masuku and there is a divorce action which is pending under case number 3089/2000. On 20 September 2000, the first respondent obtained, against her husband, interim relief interdicting the sale of the property in dispute to a third party pending an order of this court.

The first respondent duly registered a caveat against the title deed bearing number 808/2000.

The divorce action, instituted some 15 years ago, has not been finalized. No proper explanation for the delay in finalization of this matter has been proffered by the first respondent.

Sometime in May 2012, Raphael Masuku was served with summons under case number HC1645/12.

At that time, Raphael Masuku was at Khami Prison on charges of theft of motor vehicle.

The plaintiff in that matter obtained judgment, and, subsequently, this led to the sale of the property known as 36 Ellington Road, Khumalo, Bulawayo in satisfaction of the judgement debt.

Under case number 1398/12, Raphael Masuku has attempted to seek a rescission of judgment.

Once again, as in the divorce matter, there seems to be no urgency in having that matter brought to finality. No sensible and plausible explanation has been advanced to explain the failure to have the application for condonation, and for rescission of judgement, resolved.

The first respondent and her husband seem content with maintaining the status quo.

It suits the first respondent to cling to the caveat registered in the year 2000. This is so because the property cannot be transferred to the applicant for as long as the caveat is not uplifted. As things stand, the first respondent is not proceeding with the divorce action and Raphael Masuku is not pursuing the application to rescind the default judgment that led to the sale of the immovable property.

Established Facts

It is not in dispute, that, the applicant purchased the property through a public auction conducted by the second respondent.

The applicant complied with all the terms and conditions of the sale and paid the full purchase price for the property.

The applicant is essentially an innocent purchaser.

It is further not in dispute, that, the property is registered in the names of Raphael Masuku, who is the registered owner of the real rights over the property.

The first respondent's opposition to the upliftment of the caveat is premised on the fact, that, the judgment which led to the property being auctioned is being challenged in court.

That judgment, which led to the sale in execution, is still operative and has not been set aside by a competent court.

It is beyond dispute, that, the immovable property was placed under attachment and sold to the applicant in terms of a valid court order.

I have already indicated, that, both the first respondent and Raphael Masuku have shown no interest in bringing to finality, firstly, the divorce matter, and, secondly, the application for rescission of judgment.

I also note, that, there is nothing in the papers to suggest, that, there was an attempt to challenge the confirmation of the sale.

The first respondent has taken no action at all to obtain an order setting aside the sale in execution.

There is therefore no basis to oppose the upliftment of the caveat registered in the year 2000, simply on the grounds, that, Raphael Masuku has not finalized his application for rescission of judgment.

As matters stand, the first respondent has remained in the property in dispute from 17 October 2013. The first respondent and her husband enjoy the use of the property - rent free.

Analysis of the Law

The onus is on the applicant to satisfy the court, that, there are special circumstances why an order uplifting the caveat should be granted: see the case of Maphosa and Another v Cook and Others 1997 (2) ZLR 314 (H).

In this matter, the learned judge goes further to state, at page 317, as follows:

“It is clear from the authorities, that, in the exercise of its discretion, the court will consider the fact that the attached property had been sold to the applicant, but, that, the applicant must show, in addition to that factor, the existence of facts or circumstances which satisfy it that it would be just or equitable to grant the relief sought.”

In the case of Bulle v Merchant Bank of Central African and Others HH02-96, it was held, that, a caveat recorded against a title deed does not confer on the judgment creditor real rights.

In the same vein, in this instance, the caveat placed against the title deed does not confer any real right on the first respondent.

In her heads of argument, the first respondent makes the following averments in paragraph 2.2:

“The first respondent stands to be prejudiced if the caveat is lifted since the said property forms part of the matrimonial property upon which a divorce matter is still pending under case number 3889/2000. This property cannot then be disposed of at the detriment of the first respondent who also happens to be an interested party. Lifting the caveat will be contrary to public policy since first respondent's husband's indebtedness cannot prejudice her interest in the property.”

I hold the view, that, the first respondent only holds personal rights against the registered owner of the real rights, Raphael Masuku.

The first respondent's opposition to the upliftment of the caveat, on the grounds that it would be against public policy, lacks merit as she may claim damages against the registered owner of the property, Raphael Masuku.

In the instant case, what the first respondent is in effect protecting is her 50% claim of the proceeds of the sale of the property upon the granting of a divorce.

That divorce, sadly, has not been resolved for 15 years, and there seems to be no interest on the part of the first respondent, or her husband, to bring the matter to a final conclusion because the issue of the caveat will then simply fall away.

The issue of the caveat is being used, in my view, as a shield against the enforcement of the applicant's rights arising from the sale of the property.

The position was aptly stated by HERBSTEIN and VAN WINSEN in Civil Practice and Procedure of the Superior Courts in South Africa, 3rd Ed…, where it is stated as follows:

“…,. A judgment creditor is entitled to attach and have sold in execution the property of his debtor notwithstanding that a third party has a personal right against such a debtor to the ownership or possession of such property, which right arose prior to the attachment or even the judgment creditor had notice when the attachment was made. An attachment in execution acts as a judicial mortgage or pignus judiciali.”

I make the further observation, that, the caveat, which has been in place for close to 15 years now, has been overtaken by events.

Since the caveat was placed on or about the time of institution of divorce proceedings, its real purpose was to prevent a sale which her husband could conclude with a third party without her knowledge, thus prejudicing her personal rights in and to the property.

The property has since been sold in terms of a sale in execution, and the first respondent can enforce her personal rights for her fair share of the proceeds of the sale against her husband.

The first respondent's opposition to the removal of the caveat lacks substantive and well-grounded basis at law.

In the result, I am satisfied, that, the applicant has made out a good case justifying the upliftment of the caveat.

In the exercise of my discretion in applications of this nature, the applicant is entitled to the relief sought.

I, accordingly, make the following order:

1. Paragraph 4 of the Provisional Order granted under case number HC3089/2000 be and is hereby discharged and caveat number 808/2000 registered over Stand 4022 Khumalo Township of Stand 4125 Bulawayo under Deed of Transfer number 3137/2000, more commonly known as Number 36 Ellington Road, Khumalo, Bulawayo be and is hereby set aside.

2. Third respondent be and is hereby authorized and directed to uplift the aforesaid caveat and allow transfer of the said property from Raphael Masuku into the names of the applicant.

3. Second respondent be and is hereby authorized to sign any relevant documents to enable transfer on behalf of the said Raphael Masuku.

4. First respondent shall bear the costs of this application.

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Res Litigiosa, Caveats, the Anti-Dissipation Interdict and Liability for Disposal of Encumbered Property

HH842-19 : BARIADIE INVESTMENTS (PVT) LTD vs PUWAYI CHIUTSI and TENDAI MASHAMHANDA and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O. and ELLIOT ROGERS
Ruled By: CHITAPI J

HMT12-21 : EMMANUEL RENSBURG vs KENNEDY NGIRAZI and NAN JIANG MINE (PVT) LTD and MEGAMANIA AUCTIONEERS and THE HIGH COURT SHERIFF (N.O.)
Ruled By: MUZENDA J

SC101-21 : EQUITY PROPERTIES (PVT) LTD vs ALSHAMS GLOBAL BVI LIMITED and REGISTRAR OF DEEDS
Ruled By: BHUNU JA, UCHENA JA and KUDYA AJA

HB27-15 : MONICA DHLIWAYO vs BONGANI NDLOVU (as Executor Dative estate Late Jubane James Jack) and ESTATE LATE JUBANE JAMES JACK and CLEMENTINE JACK and DEPUTY MASTER OF THE HIGH COURT
Ruled By: MAKONESE J

View Appeal
SC130-21 : PHILIPPA COUMBIS vs RONALD COUMBIS and DOVES FUNERAL ASSURANCE (PVT) LTD
Ruled By: GARWE JA, GOWORA JA and UCHENA JA

SC138-21 : DIVVYLAND INVESTMENTS (PRIVATE) LIMITED vs DAVID CHIWEZA
Ruled By: PATEL JA, GUVAVA JA and BHUNU JA

SC141-21 : WISE GARIRA and SHEPHARD MASHINGAIDZE and BAYAI BAYAI vs NATIONAL ENGINEERING WORKERS UNION and FIRST CAPITAL BANK
Ruled By: GUVAVA JA, BHUNU JA and KUDYA AJA

SC145-21 : SARAH CARTER vs KATHLEEN MACINTOSH (Represented by Edward Warhurst, Executor of Estate Late Kathleen McIntosh) and ANOTHER
Ruled By: MAVANGIRA JA, BHUNU JA and CHATUKUTA AJA

HB134-15 : STANLEY NANZOMBE vs SICINGILE MASUKU (NEE MOYO) and THE SHERIFF OF ZIMBABWE and THE REGISTRAR OF DEEDS
Ruled By: MAKONESE J

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Law Portal Zimbabwe

Res Litigiosa, Caveats, the Anti-Dissipation Interdict and Liability for Disposal of Encumbered Property

HH842-19 : BARIADIE INVESTMENTS (PVT) LTD vs PUWAYI CHIUTSI and TENDAI MASHAMHANDA and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O. and ELLIOT ROGERS Ruled By: CHITAPI J

HMT12-21 : EMMANUEL RENSBURG vs KENNEDY NGIRAZI and NAN JIANG MINE (PVT) LTD and MEGAMANIA AUCTIONEERS and THE HIGH COURT SHERIFF (N.O.) Ruled By: MUZENDA J

SC101-21 : EQUITY PROPERTIES (PVT) LTD vs ALSHAMS GLOBAL BVI LIMITED and REGISTRAR OF DEEDS Ruled By: BHUNU JA, UCHENA JA and KUDYA AJA

HB27-15 : MONICA DHLIWAYO vs BONGANI NDLOVU (as Executor Dative estate Late Jubane James Jack) and ESTATE LATE JUBANE JAMES JACK and CLEMENTINE JACK and DEPUTY MASTER OF THE HIGH COURT Ruled By: MAKONESE J

View Appeal SC130-21 : PHILIPPA COUMBIS vs RONALD COUMBIS and DOVES FUNERAL ASSURANCE (PVT) LTD Ruled By: GARWE JA, GOWORA JA and UCHENA JA

SC138-21 : DIVVYLAND INVESTMENTS (PRIVATE) LIMITED vs DAVID CHIWEZA Ruled By: PATEL JA, GUVAVA JA and BHUNU JA

SC141-21 : WISE GARIRA and SHEPHARD MASHINGAIDZE and BAYAI BAYAI vs NATIONAL ENGINEERING WORKERS UNION and FIRST CAPITAL BANK Ruled By: GUVAVA JA, BHUNU JA and KUDYA AJA

SC145-21 : SARAH CARTER vs KATHLEEN MACINTOSH (Represented by Edward Warhurst, Executor of Estate Late Kathleen McIntosh) and ANOTHER Ruled By: MAVANGIRA JA, BHUNU JA and CHATUKUTA AJA

HB134-15 : STANLEY NANZOMBE vs SICINGILE MASUKU (NEE MOYO) and THE SHERIFF OF ZIMBABWE and THE REGISTRAR OF DEEDS Ruled By: MAKONESE J

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HH842-19 : BARIADIE INVESTMENTS (PVT) LTD vs PUWAYI CHIUTSI and TENDAI MASHAMHANDA and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O. and ELLIOT ROGERS
Ruled By: CHITAPI J

HMT12-21 : EMMANUEL RENSBURG vs KENNEDY NGIRAZI and NAN JIANG MINE (PVT) LTD and MEGAMANIA AUCTIONEERS and THE HIGH COURT SHERIFF (N.O.)
Ruled By: MUZENDA J

SC101-21 : EQUITY PROPERTIES (PVT) LTD vs ALSHAMS GLOBAL BVI LIMITED and REGISTRAR OF DEEDS
Ruled By: BHUNU JA, UCHENA JA and KUDYA AJA

HB27-15 : MONICA DHLIWAYO vs BONGANI NDLOVU (as Executor Dative estate Late Jubane James Jack) and ESTATE LATE JUBANE JAMES JACK and CLEMENTINE JACK and DEPUTY MASTER OF THE HIGH COURT
Ruled By: MAKONESE J

View Appeal
SC130-21 : PHILIPPA COUMBIS vs RONALD COUMBIS and DOVES FUNERAL ASSURANCE (PVT) LTD
Ruled By: GARWE JA, GOWORA JA and UCHENA JA

SC138-21 : DIVVYLAND INVESTMENTS (PRIVATE) LIMITED vs DAVID CHIWEZA
Ruled By: PATEL JA, GUVAVA JA and BHUNU JA

SC141-21 : WISE GARIRA and SHEPHARD MASHINGAIDZE and BAYAI BAYAI vs NATIONAL ENGINEERING WORKERS UNION and FIRST CAPITAL BANK
Ruled By: GUVAVA JA, BHUNU JA and KUDYA AJA

SC145-21 : SARAH CARTER vs KATHLEEN MACINTOSH (Represented by Edward Warhurst, Executor of Estate Late Kathleen McIntosh) and ANOTHER
Ruled By: MAVANGIRA JA, BHUNU JA and CHATUKUTA AJA

HB134-15 : STANLEY NANZOMBE vs SICINGILE MASUKU (NEE MOYO) and THE SHERIFF OF ZIMBABWE and THE REGISTRAR OF DEEDS
Ruled By: MAKONESE J