The evidence…, from both parties brings to the fore such issues as:-a) Whose rights and interests did the 1st defendant buy in Stand 8237 Unit K, Seke, Chitungwiza?b) Did that person have such rights and interests in the property to sell?From the pleadings filed of record and evidence adduced, it ...
The evidence…, from both parties brings to the fore such issues as:-
a) Whose rights and interests did the 1st defendant buy in Stand 8237 Unit K, Seke, Chitungwiza?
b) Did that person have such rights and interests in the property to sell?
From the pleadings filed of record and evidence adduced, it is clear that whilst the parties seemed to believe that the property was owned by the person in whose name it was registered this is not so. The Memorandum of Agreement that the plaintiff entered into with the Chitungwiza Municipality and the Government clearly shows that this was a case of cession and not ownership or title in the property.
Ownership lay in the Government.
The issue of such properties has been commented upon by these courts on several occasions. Parties and their legal practitioners have been called upon to take heed of the fact that properties in High Density suburbs fall into different categories. These include:-
1) Simple tenants under a lease agreement with the Local Authority or Central Government;
2) Tenants–to-buy, under an agreement which permitted them to take title once the property was surveyed and the full price paid; and
3) Owners, who graduated from category two, in the fullness of time.
See Hundah v Murauro 1993 (2) ZLR 401 (S).
Each category has aspects that need to be considered. The need for legal practitioners, magistrates and estate agents dealing with such properties to be alive to the categories alluded to above cannot be overemphasised. The capacity of parties to dispose of the property is sometimes dependant on the category of rights and interests held.
In casu, the agreement between the plaintiff, on the one hand, and Chitugwiza Municipality and Central Government, on the other hand, fell into Category Two, which, upon payment of full purchase price, would graduate to Category Three.
In that regard, Clause 19 of the Agreement states that:-
“The purchaser shall not part with possession of the property or any part thereof nor cede nor assign nor hypothecate without the previous consent in writing of the Council.”
There is no denial that when the first defendant purported to buy the property from the fourth defendant no consent, whether in writing, as required, or in any manner, had been obtained from the Council. When the first defendant obtained cession it was because the Council felt compelled by a Court Order and not that Council was giving its consent.
In Hundah v Murauro 1993 (2) ZLR 401 (S), Council found itself having to accede to cession in order to comply with a Court Order. The Honourable McNALLY JA…, had this to say regarding such scenario:-
“But Mr. Biti, for Mr. Murauro, argues that the Municipality has cured the invalidity. He has produced a letter dated the day before the postponed hearing of the appeal on 25 November 1993. The letter contains the following relevant sentence:
'Please be advised that Council will abide by the Supreme Court's decision just as it has done with the High Court's Order.'”
The honourable judge of appeal went on to say this letter and the fact that Council had gone on to consent to an agreement of cession between Hundah and Murauro with the Deputy Sheriff signing in place of Mr Hundah, was not a waiver of rights by Council but a compliance with a Court Order.
Such act of compliance did not validate the cession at all.
In casu, it is clear Council acceded to cession in order to comply with a court order. This is evident from the fact that in May 2009 the Council, through is Director of Housing, purported to apply for the reversal of the cession. In the founding affidavit, the Director of Housing Chitungwiza stated in paragraph 5, inter alia, that:-
“2nd respondent (Nancy Kutyauripo) apparently had sold the said property, which is registered in the name of Stephen Vhavha, her ex-husband,- to 1st respondent (MSIZI DUBE) relying on judgement in case Number CC13/07 which judgment the Municipality had also relied on in approving cession until we got another judgment CC13/08 (sic) which ordered non-disposal of the property.”…,.
It is common cause that case CC13/07 did not cite the Chitungwiza Municipality or the Government of Zimbabwe as a party and neither had the Council's consent been obtained for this property to be sold as ordered by the court.
It is my view that at the time the fourth defendant purported to sell the property she had no property to sell. The judgment she paraded as granting her authority to sell, at the most, only granted her personal rights against her ex-husband. It is nevertheless the judgment the Director of Housing said Council relied on in consenting to cession.
The High Court Order in HC6685/08, which the first defendant said he utilised to obtain cession, was not against the holder of rights and interests in the property, but against the fourth defendant who had given out herself as owner of the property when she was not.
That Order –
(i) Calls upon the 4th respondent to make herself available for change of ownership when, as is common cause, she was not the owner;
(i) It orders the 4th defendant to cede all her rights title and interest over House No.8237 Unit K, Seke, Chitungwiza to the 1st defendant when, as has been shown above, she had neither title nor rights and interests to cede.
The Order further compels the Council to consent to transfer when there was no transfer to be effected.
It is apparent to me that the order in HC6685/08 was obtained after serious misrepresentations were made. These included that the fourth defendant was the owner and thus holder of title, registered rights and interests in the property in question which she could transfer when, in fact, and in truth, this was false.
The first defendant's housing application form, exhibit 8, has an endorsement dated 5 February 2009 stating that:
“Cession approved per Court Order No.6685/08.”
At p56 of the defendant's bundle of documents is a Chitungwiza Council document dated 5 February 2009 apparently reflecting a discussion within Council culminating in the decision to allow cession. The document reads:
“Upon consultation with the Director of Housing, it has been agreed that cession to Mr. Dube proceed since Order for disposal of property still stands. Mr.S.Vhavha can proceed against Nancy for any recourse.”
This, in my view, confirms that Council was merely complying with a Court Order. This should not be seen as validating the sale agreement between the fourth defendant and the first defendant. The consent to dispose could only be sought by the person with rights and interests in the property; that is the plaintiff. Had it been the plaintiff who had purported to sell it could be said that as a holder of rights under a suspensive agreement of sale with Chitungwiza Municipality, he could sell his rights under the agreement but he could not pass transfer/ title as he had none. The fourth defendant, not being a holder of rights in the property, is far removed from the plaintiff's scenario.
She clearly had nothing to sell.
The first defendant contended that since he has been granted title he should retain it as the owner.
I am, however, of the view that he sought and obtained title well after he had become aware that the person who had purportedly sold the property to him was neither the owner nor the holder of rights and interests in the property. He was then aware of the correct registered holder of rights and interest in the property but chose not to cite that party. It is my view he acted in bad faith in proceeding as he did. He clearly acted dishonestly in proceeding to obtain cession and then title when he had become aware of the truth regarding the holder of rights and interests in the property.
The above adequately answers the issues referred to trial.
It is clear that in terms of the Memorandum of Agreement between the plaintiff and Council, the property in question was not owned by the plaintiff but by the Government of Zimbabwe, the Central Government as owner of the land, and the Local Government as owner of the dwelling on that Stand. (See the 2nd and 3rd paragraphs on pages 1 of the Agreement). The plaintiff was a holder of rights and interests in the property at the time of the sale to the first defendant.
I also make a finding that the second and third defendants acceded to the cession purely to comply with a Court Order. Unfortunately, the Court Order referred to rights, title and interest of the fourth defendant in the property and she had none of that in the property. The second and third defendants therefore acted unlawfully in ceding the plaintiff's rights and interests in the property when what was sought were rights, title and interests of the fourth defendant. They ought to have indicated that according to their records the fourth defendant had no rights, title and interest in the property….,.
