MUTEMA J: The
applicant's legal practitioners have noted an appeal against the order granted
on 23 February, 2011 dismissing her application. They have requested for the reasons for the
dismissal of the application. These are
they. The applicant was initially a
self-actor. She appeared in person on 2
February 2011 and applied for the postponement of the matter to enable her to
secure legal representation. I duly
granted her the indulgence which she had sought and postponed the hearing to 23
February 2011.
The gist of the dispute can be
summarized as follows:-
The applicant is
suing for an order to authorize her to place a caveat over her property called
4713 Salisbury Township of Salisbury Lands held under deed no. 2911/09 also known as No. 8 Oates Road,
Braeside, Harare. She also wants the second respondent to be
ordered to register the caveat on the said property.
Her story is that she borrowed US$12
000 from first respondent and so far she has repaid US$8 000, leaving a balance
of US$4 000. Unbeknown to her, first
respondent fraudulently effected transfer of her property into his name and has
flighted two advertisements in the Herald in a bid to resell the property. She avers that the loan repayment instalments
were done in cash at the first respondent's office from October 2009 to January
2010 but no receipt or loan documents were issued.
First respondent's story is that
applicant sold her property to it as can be gleaned from the agreement of sale
signed by parties (annexure B to its opposing affidavit) for $12 000 on 8
September 2009 and she was paid the purchase price in full. It challenged the applicant to produce the
alleged loan agreement as well as the alleged proof of repayment of the alleged loan. Applicant is literate and she signed the
agreement of sale, the transfer documents, viz
declaration by seller and power of attorney to pass transfer into first
respondent's name.
It alleges foul play between
applicant and second respondent since the attached unsigned deed of transfer
made in favour of Edward Ndete (who purchased the same property from first
respondent for $18 000) reveals the following:-
a)
on 19 July, 2010 the deed was accepted and payment for
stamp duty was made and there was no caveat in the file;
b)
the parent deed (certificate of registered title) was
stamped transferred on 20 July, 2010 and the name of the transferee is E. Ndete;
c)
a seal was put on the deed to E. Ndete
a clear indication that there was no caveat;
d)
the deed was not returned and was said to be missing
until 5 August, 2010 it was notified that there was a caveat placed on the
property; and
e)
the caveat was never served on the first respondent and
the deed in favour of
E. Ndete was given back on 17
August, 2010 unsigned by the registrar.
Following
the postponement on 2 February 2011 Messrs Kanoti & Associates assumed
agency on applicant's behalf and filed the notice of assumption of agency on 18
February 2011. On 22 February 2011
Kanoti & Associates filed applicant's answering affidavit and on 23
February 2011 – the date of hearing they filed papers amending first
respondent's citation to read Gweru Investments Limited. No heads of argument were filed resulting in
her being barred.
On 23 February 2011 Mr Muzvuzvu appeared for the applicant as amicus saying he had been requested to
do so by Mr Kanoti and to apply for a
postponement. Mr Muzvuzvu stated that Mr Kanoti said he was indisposed. Mr Mupindu
for the first respondent opposed the postponement sought arguing that he
had spoken to Mr Kanoti that morning on the phone and he was not ill and was at
work in his office. The Court saw it fit
to bend backwards to accommodate Mr Kanoti whose conduct of not coming to court
himself and sending a legal practitioner from another firm to stand in for him
while he was holed up in his office it considered unprofessional. The matter was stood down with the court
directing Mr Muzvuzvu to go and tell
Kanoti to appear in court on resumption.
Apparently both Mr Muzvuzvu and Mr Mupindu went to Mr Kanoti's office but came back to court without
Mr Kanoti. They both advised that they
saw Mr Kanoti at work and relayed the court's directive but he refused to come
to court alleging that he was ill though he was at work and that there had been
verbal exchanges between Mr Mupindi
and Mr Kanoti.
Mr
Muzvuzvu again requested for a
postponement of the matter but Mr Mupindu
again opposed it on the ground that he had seen Mr Kanoti and did not look ill
at all and was at work. He said he had
been accommodating Mr Kanoti for the past days and Mr Kanoti had even sent him
a text message that morning asking him “not to oppose us”.
The court considered Mr Kanoti as
not taking it seriously and could not condone such conduct by a legal practitioner
who is summoned to come to court and he refuses to comply. Since the postponement was declined for lack
of merit and the applicant having filed no Heads of argument, the Court treated
the matter as unopposed and dismissed the application with costs.
Kanoti & Associates, applicant's legal practitioners
Mupindu Legal Practitioners, first respondent's legal practitioners
