This was an appeal from a decision of the Magistrate's Court. We dismissed it soon after argument and gave reasons ex tempore. The appellant has now sought written reasons.

In the court a quo, the respondent, hereafter referred to as “the purchaser” where appropriate, sued for specific performance in respect of a property that she had bought from the appellant in terms of a written agreement of sale.

She proceeded by way of a court application.

The draft order, apart from costs, sought an order directing the appellant, hereafter referred to as “the seller” where appropriate, to sign forthwith all the documents necessary to enable transfer of the property to herself, failing which the Messenger of Court should be empowered to stand in his stead and sign.

She said, in terms of the agreement, the parties had consented to the jurisdiction of the Magistrate's Court.

In his notice of opposition, the appellant took a point in limine, that, the remedy sought was not one contemplated by the Agreement of Sale. He said in terms of it, in the event of a breach by himself, the only remedy available to the respondent was cancellation of the agreement upon a prior demand to make good the breach within 14 days, and that this had not been done.

He said specific performance was a remedy alien to the written agreement.

An adjunct to the above objection was that, in terms of the Magistrates Court Act [Chapter 7:10], a Magistrates Court has no jurisdiction to grant specific performance in the absence of an alternative claim for damages. He cited section 14(1)(d) of the Magistrates Court Act.

On the merits, the appellant's basic defence was that the respondent had only paid part of the purchase price; that, as such, she was in breach of the Agreement of Sale; and that therefore she was not entitled to specific performance. He prayed for the dismissal of the application with costs.

The court a quo felt there was a dispute of fact that was incapable of resolution on the papers. It referred the matter to trial.

After a full scale trial, the court a quo found in favour of the respondent and granted specific performance.

The appellant appealed.

We felt the appeal had no merit. We dismissed it as aforesaid.

The seller's argument, that the remedy sought by the purchaser was not one contemplated by the agreement of sale was premised on clause 11. It read:

“Should the Seller breach any of the conditions of the Agreement, the Purchasers, shall, in writing, within fourteen (14) days, call upon the Seller to remedy, failure to which the Purchasers shall be entitled to cancel the Agreement and claim the return of the Purchase Price or damages.”

The point in limine was all smoke.

The approach by the seller was to skin and disembowel the agreement, yank individual clauses out, and hang them up to dry. The result was to turn an otherwise reasonably worded commercial agreement into a vain document that was an end in itself, instead of it being a means to an end.

The agreement of sale was an instrument for the seller to transfer real rights in the property sold and the purchaser to acquire them.

That was the object. That was the purpose. The court had to give effect to it. Otherwise the law would be damned.

As ROBINSON J would put it, in Intercontinental Trading (Pvt) Ltd v Nestle Zimbabwe (Pvt) Ltd 1993 (1) ZLR 21 (H):

“Let me add that to have found in this matter that there was no contract between the parties would have been artificial in the extreme and, I am sure, would have prompted any reasonable businessman to remark that if, before, he had thought the law was an ass, he now knew for certain that it was, since it had shown itself to be the domain of niggling academics out of touch with reality and to have nothing to do with the cut and thrust of the business world where one is concerned, not with the legal niceties pertaining to, but with the perceived existence of a contract.”…,.

The point is, a purchaser who buys a property and performs his side of the bargain, or is ready to perform, is entitled to take title. The seller is obliged to deliver. If he fails or neglects or refuses to do so, the purchaser is entitled to sue for specific performance.

This is quite elementary.

As long ago as 1912 INNES JA said, in Farmers Co-operative Society (Reg) v Berry 1912 AD 343…,:

“Prima facie, every party to a binding agreement who is ready to carry out his own obligation under it has a right to demand from the other party, so far as it is possible, a performance of his undertaking in terms of the contract.”

A plaintiff has the right to choose whether to hold a defendant to his contract and claim performance by him of what he bound himself to do, or to claim damages for the breach: see Haynes v Kingwilliamstown Municipality 1951 (2) SA 371 (A)…,.

The defendant has no such right of election.

He cannot claim to be allowed to pay damages instead of having an order for specific performance entered against him. In the exercise of its discretion, the court may grant or refuse specific performance. Specific performance will be refused if it will lead to an injustice, or, if it will be unduly harsh and burdensome on the defendant.

There was nothing like that in this case.

The court exercises its discretion to grant or refuse specific performance judiciously, not whimsically. The discretion is not confined to specific types of cases. It is not circumscribed by rigid rules. Each case depends on its own set of facts: see Intercontinental Trading (Pvt) Ltd v Nestle Zimbabwe (Pvt) Ltd 1993 (1) ZLR 21 (H).

In the present case, clause 11 of the agreement did not oust the purchaser's right to sue for specific performance. It merely pronounced one of the remedies available to her in the event of a breach by the seller.

A proper and holistic study of the agreement shows, that, it was the intention of the parties, that, upon her performing her side of the contract she would get transfer of the property. Otherwise why would clause 1(ii)(4) refer to the payment of capital gains tax, if not in contemplation of transfer? Or clause 1(iii) that said the balance of the sale proceeds would be released to the seller upon the registration of transfer? Or clause 5 that said risk and profit in the property would pass to the purchaser on the date of registration of transfer?

The court a quo was right to dismiss the point in limine.

Its adjunct that the claim for specific performance was incompetent because it was not accompanied by a claim for damages was equally properly dismissed.

The property situate, Stand 2468 Mkoba 7 Township in Gweru (“the property”) was at all relevant times owned by the fifth respondent, Gweru City Council.

However, one Honest Pepolo was apparently buying it from Gweru City Council in terms of one of those standard term lease to buy agreements.

Apparently, in June 2004, Honest Pepolo sold his rights and interest to one Claudio Chakanetsa, now deceased (“the deceased”). In these proceedings his estate was cited as the first respondent, duly represented by the executor.

I say “apparently” because although none of these specific issues were in contention by themselves, a great deal of the factual background was seriously disputed. And the applicant's case, with all due respect, was badly pleaded. I shall elaborate on this later on.

First, the facts that were common cause or uncontentious.

At all relevant times the deceased (Claudio Chakanetsa), or his estate, owed a sum of money to the first respondent (Chamisa Mawere). Chamisa sued, got judgment, and executed through the fourth respondent (the Messenger of Court). The property was duly advertised for a public auction. On 23 September 2016 it was sold. The buyer was the third respondent (Misheck Mizeke). On 21 October 2016 the Magistrate's Court confirmed the sale.

On 5 July 2017, Gweru City Council and Misheck Mizeke executed what was on the face of it an agreement of sale of the property. But, in reality, it was a cession. Transfer was conditional upon, among other things, Misheck erecting on the property a building, or buildings, of a certain value within a stipulated time-frame.

However, it was common cause, that, at the time of the agreement, there was already a fully developed dwelling house which had a number of occupants.

In January 2018, Misheck Mizeke sued for vacant possession and holding over damages. He succeeded. In the application before me, it was hotly contested who occupied the property at the time.

Misheck Mizeke's summons for eviction cited one Monica Maboke (Monica) and all those claiming occupation through her. Monica was one of the deceased's (Claudio Chakanetsa) surviving spouses - but she did not stay at the property.

In these proceedings, the applicant claimed it was his tenants occupying the property at the time. Both Chamisa Mawere and Misheck Mizeke disputed that.

In November 2018, the applicant instituted these proceedings.

Apart from costs, he sought an order declaring him the rightful owner of the property. He also sought an order setting aside the auction sale and a cancellation of the cession of the property from Gweru City Council to Misheck Mizeke.

At the end of argument I dismissed the application for lack of merit.

The applicant's cause of action, in paraphrase, was that prior to the attachment of the property by the Messenger of Court, at the instance of the judgment creditor, Chamisa Mawere, he had since bought it from the deceased during his lifetime in terms of a written agreement of sale dated 6 January 2013.

He attached the document.

The applicant said he had duly taken occupation of the property through his tenants. He said efforts to get transfer had been frustrated by the second respondent, the executor, who continued to duck and dive each time he made a follow-up.

The one misconception about the applicant's case was in relation to the true nature of the rights and obligations that are created by these so-called lease-to-buy agreements in respect of these types of township houses. Terms such as 'sale/purchase of rights, title and interest in' 'transfer' etc. are manifestly misguided. Yet, as long ago as 1992 the Supreme Court voiced concern over such use of wrong terminology in such situations.

In Gomba v Makwarimba 1992 (2) ZLR 26 (SC) McNALLY JA said…,:

“As so often happens, the parties have used the word 'sale' to describe what was in reality a cession of rights, since the house actually belongs to the Chitungwiza Town Council…,. It is unfortunate that legal practitioners persist in ignoring the distinctions between sale and cession of rights in these cases, both because there are many such cases and because there are many such distinctions.

In this case, the respondent was not the owner of the disputed immovable property but merely a 'lessee-to-buy'. The contract, in terms of which the respondent acquired and held her rights in the property, and which defined her rights in the property, was not before the Court. Nor was the owner cited as a party.”

Consistent with such misconception, the agreement of sale between the deceased and the applicant referred to the deceased as the owner of the property. But he was not. It was Gweru City Council that was.

The agreement went on to allege, that, the seller (the deceased) was selling and the purchaser (the applicant) was buying the property. But there could have been no such sale of such property. All that the deceased was purporting to do was to cede his rights and interest in the property. And, conversely, all that the applicant wished to do was to accept the cession.

Of course, it is perfectly normal for the cession price to equate to the market value of the property.

Significantly, the agreement said nothing about transfer. Obviously, there could be no transfer of real rights in such circumstances. Only personal rights were involved. The agreement simply said:

“The parties have been advised at the Ministry of Housing and Local Government that the house will be registered upon inspection and being given a certificate of occupation (sic).”

If the above misconception was more technical, the next one was not. It was more profound and fatal. It was the bedrock of the applicant's purported cause of action.

His suit was a rei vindicatio.

He boldly stated he was already the owner of the property by the time the Messenger of Court attached and sold it in execution. So, all he now wanted was for the court to confirm, by way of a declaratory order, that he was the owner and that Misheck Mizeke's agreement with Gweru City Council was void.

But, unfortunately for the applicant, he could not vindicate. He was not, and had never been the owner of the property.

The rei vindicatio is only available to an owner of a thing whose possession of it was taken away against his or her will. He or she is entitled to claim the thing wherever he or she finds it, and from whomsoever has got it: Chetty v Naidoo 1974 (3) 13 (A)…,. All that the owner has to prove is that he or she is the owner; that his or her thing is in the defendant's possession; and that it is still in existence and clearly identifiable: see SILBERBERG and SCHOEMAN's The Law of Property, 5th ed…, and the cases cited thereon.

Rei vindicatio is a common law remedy.

The applicant pleaded in the alternative a double sale situation. That was another misconception.

He said even if the circumstances portrayed a double sale situation in respect of the property (i.e. his and the deceased as the first one, and Misheck Mizeke's at the auction as the second one), he was entitled to regain the property on the basis that his purchase was the first in time.

The applicant further alleged that Misheck Mizeke was not an innocent purchaser.

He alleged, that, when Misheck had come to view the house, in preparation of the auction, he had been advised by one of his (applicant's) sisters, allegedly one of his tenants at the property, that the house was not on sale and that it belonged to the applicant. Misheck had allegedly been advised to go to the City Council for verification. At the City Council Misheck had been informed that he could not buy the property as the deceased had sold it off to multiple buyers. But Misheck had allegedly ignored all that.

The law on double sales, as per McNALLY JA in Guga v Moyo & Ors 2000 (2) ZLR 458 (SC)…, is as follows:

“The basic rule in double sales, where transfer has not been passed to either party, is that the first purchaser should succeed. The first in time is the stronger in law. The second purchaser is left with a claim for damages against the seller, which is usually small comfort. But, that rule applies only 'in the absence of special circumstances affecting the balance of equities': see McKerron (1935) 4 SA Law Times 178; Burchell (1974) 91 SALJ 40…,.; and in BP Southern Africa (Pty) Ltd v Desden Properties (Pvt) Ltd 1964 RLR 7 (G), MACDONALD J (as he then was) said:

'In my view, the policy of the law will best be served in the ordinary run of cases by giving effect to the first contract and leaving the second purchaser to pursue his claim for damages for breach of contract. I do not suggest that this should be the invariable rule, but, I agree with the view expressed by Professor McKerron that save in 'exceptional circumstances' the first purchaser is to be preferred.'

…,. The broad principle as set out above was acknowledged to be our law in Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S)…,. Similarly, in Charuma Blasting & Earthmoving Services (Pvt) Ltd v Njainjai & Ors 2000 (1) ZLR 85 (S).”

In the present case, my major reason for dismissing the applicant's case was that, apart from the above misconceptions, no attempt was made at all to show any special circumstances as would warrant favouring him ahead of Misheck Mizeke.

Not only had Misheck openly purchased the property at a public auction, but also he had gone on to obtain transfer of rights, through a cession, from the real owner, Gweru City Council.

If the applicant's purchase was first in time, the onus was on him to explain why so many years after the alleged purchase, his right to title had remained hidden from the world leaving the property exposed to attachment at the instance of the creditors of the deceased or his estate.

There is a long line of cases that have dealt with the situation where a party buys a property but makes no effort to obtain title or to protect their rights and interest, invariably losing it to the second time buyer: see, for example, De Villiers v Cohn 1906 TH 12; Van Niekerk v Fortuin 1913 CPD 457; Maphosa & Anor v Cook & Ors 1997 (2) ZLR 314 (H); and Sheriff for Zimbabwe v Hersel (Pvt) Ltd & Ors HH856-15.

The legal position is that a judgment creditor is entitled to attach and sell in execution the property of his debtor notwithstanding that a third party has a personal right against such debtor to the ownership or possession of such property which right may have arisen prior to the attachment or even to the judgment creditor's cause of action and of which the judgment creditor had notice when the attachment was made: see HERBSTEIN and VAN WINSEN: Civil Practice of the High Courts of South Africa, 5th ed. Vol. 2…,.

If the third parry had bought that property, but was still to take transfer, his rights were merely personal as against the judgment debtor. They were subservient to those of the judgment creditor after the attachment.

In Maphosa & Anor v Cook & Ors 1997 (2) ZLR 314 (H), the applicants had bought the half share in the property prior to its attachment by the Deputy Sheriff in pursuance of a judgment and a writ in favour of a third party, a Bank, which was owed a sum of money by one of the respondents, the owner and seller of the half share.

The applicants sought the upliftment of the caveat that had been registered on the property on attachment so that they could take transfer.

The application was dismissed.

MALABA J…, held that even though the applicants had paid the purchase price, they did not become the owners until transfer had been registered. All they had obtained had been personal rights claimable against the landowner. The judgment creditor was held entitled to have the property sold even in the face of the third party's personal rights against the judgment debtor.

The right of a judgment creditor to insist on the property being attached and sold in execution is of course, not an absolute one. The existence of special circumstances in any given situation may persuade the court to set aside the attachment to enable transfer to be registered in favour of the third party claimant.

At pp458–459 of his judgment in Van Niekerk v Fortuin 1913 CPD 457, KOTZE J said:

“It seems to me, that, the plaintiff, being a judgment creditor, and the property being still registered in the name of the defendant, prima facie the plaintiff has the right to ask that the property shall be seized in execution, unless the party interested can show that there are special circumstances why such an order should not be granted.”…,.

In casu, the applicant said he “bought” the property way back in January 2013. But, it was not until September 2016, almost three years later, that Misheck Mizeke bought it at the auction. The applicant said his efforts to get transfer from the deceased's estate were frustrated by the executor who was non-committal.

That was hardly a special circumstance. The courts were always there. There was nothing stopping the applicant from enforcing his rights.

Furthermore, and at any rate, the auction had been duly advertised in the press. That was notice to the whole world. The applicant took no action.

The law says, property sold at a properly conducted and valid judicial sale cannot, after delivery in the case of movables, or registration in the case of immovables, be vindicated from a bona fide purchaser: see SILBERBERG and SCHOEMAN's The Law of Property, 5th ed…,.

It was for the above reasons that I dismissed the application with costs.

The dispute between the parties centred on a property described as Stand 238 Phase 1 Checheche (“the property”). It is one of those council-owned township properties that local authorities sell on a rent-to-buy basis. It is under the Chipinge Rural District Council.

In the court a quo, the respondent (“Chengetai”) sued the appellant (“Mbozvi”) for eviction and holding over damages. The court granted the orders.

Mbozvi appealed. We heard argument on 27 March 2019 and reserved judgment.

This now is the appeal judgment.

In her claim, Chengetai alleged that Mbozvi “…, unilaterally entered…,” her property in January 2017 without her authority. She alleged she had acquired the property in November 2007; that she had partially developed it to window level but that the defendant was staying there illegally and without paying rentals.

The claim was poorly presented. The drafting was sloppy. For example, there was no reason why Mbozvi's name was not cited in full when all his particulars were available.

But, that is besides the point.

In his defence, Mbozvi took an objection in limine. He said Chengetai had no locus standi in judicio to evict him or to seek holding over damages because the property was his.

But, it seems this objection went nowhere. It seemed abandoned or forgotten somewhere along the way. It was not even on the list of issues at the pre-trial conference.

The objection was ill-conceived anyway, especially if regard is had to the nature of the claim and the nature of the defence.

On the merits, Mbozvi denied that he had “…, unilaterally entered…,” the property. He alleged he had lawfully acquired it from one Tafirenyika Maturo (“Tafirenyika”), to whom Chengetai had transferred her right, title, and interest.

In its judgment, the court a quo ruled, that, there had never been a transfer from Chengetai to Tafirenyika but that what had happened had all been a fraudulent scheme to strip Chengetai of her ownership. As such, since no thief or fraudster can in law transfer rights in a thing, Mbozvi's claim to the property was held to be defective. The court also ruled that Chengetai was entitled to holding over damages.

The case went like this.

Chengetai opened and shut her case with only the evidence from herself. She said the property was allocated to her by the Chipinge Rural District Council in 2007. She produced the offer letter from Council dated 29 November 2007. All this was common cause.

But, there was a subtle detail on the letter that was at war with her case.

The letter had two parallel lines drawn in long hand running diagonally across it and between which the words “Stand No.238 PHASE 1” were inscribed, also in long hand. Mbozvi said that was the evidence of the cession of the property from Chengetai, or of the original allocation to her having been cancelled. She denied it. But, she proffered no other explanation for that endorsement.

In a boxing match, that would be a point for Mbozvi.

Chengetai said she had submitted some developmental plans to the Council for the construction of a 3-roomed cottage on the property. As proof, she produced some drawings endorsed with a date stamp from the Chipinge Rural District Council in 2012.

But, again, a subtle detail on the drawings contradicted the flow of her evidence.

Mbozvi said the plans were for a different property, not Stand 238. Indeed, the drawings cited a different property. They were titled “PROPOSED COTTAGE ON STAND No.120 INFILL CHECHECHE GROWTH POINT”. Chengetai said the reference to Stand 120 was a mistake which the Council had promised to rectify but had never done.

But, again, in a boxing match, this would be another point for Mbozvi.

Beyond this evidence and these two documents, Chengetai's evidence proved nothing further. Everything else she said was a bare denial of the cogent and overwhelming evidence by Mbozvi through himself and his very relevant witnesses, namely, Tafirenyika, his wife Leona or Loren Chiona (“Leona”) and Mbozvi's friend, Collen Gapara (“Collen”) who had facilitated the sale deal between Tafirenyika and Mbozvi.

Mbozvi's case was this.

He heard the property was on sale. He went to inspect it. He liked it. Together with a sister and his wife, they went to inspect Council records. These reflected Tafirenyika as the “owner”. Tafirenyika worked and stayed in South Africa. Mbozvi called him. They agreed on a purchase price of fifty thousand Rand (R50,000).

Tafirenyika referred them to his wife, Leona, whom he said had all the authority to represent him.

The sale deal was concluded. The purchase price was paid. They went to Council offices for the usual cession. This was done.

He took occupation in 2015 and started building the partially constructed house. He completed the structure; tiled the floors; installed water and electricity; planted some trees and flowers around the yard; put up a security wall along the perimeter and started staying there from January 2016.

Until he received her summons, in March 2018, he had never heard of Chengetai and her claim to the property.

To all that, Chengetai denied ever selling the property to anyone.

She denied ever dealing with Tafirenyika or his wife, Leona. She was adamant none of them was known to her.

Mbozvi set to demolish her case. He called Collen.

Collen's evidence corroborated Mbozvi's in relation to the sale by Tafirenyika. One important aspect of that corroboration was that it was his advice to Mbozvi to clear the property first with the Council before committing himself to Tafirenyika. He was present at the Council offices when the records were pulled out and inspected. They all reflected Tafirenyika as the “owner”. Another important aspect of the corroboration was that when Mbozvi took occupation there was a partially built structure which Mbozvi completed in 2016.

Even the court a quo accepted Collen gave his evidence very well and that he remained unshaken under cross-examination.

But, the sale and transfer from Tafirenyika to Mbozvi was less contentious. Fireworks were in respect of the sale and transfer from Chengetai to Tafirenyika.

Chengetai swore she knew nothing about it or that Tafirenyika and his wife, Leona, were ever known to her.

So, Mbozvi called Leona.

She stayed at Checheche Growth Point. She said it was Chengetai herself that had come to her house, personally, on 4 February 2015, to inform her that she had sold the property to her husband, Tafirenyika. Tafirenyika had already telephoned her (Leona) about the deal. Before coming to Leona's house, Chengetai had first telephoned her for directions. The purpose of Chengetai's visit was to arrange transfer of cession at the Council offices. They agreed on a date, 6 February, i.e. two days later.

Leona's evidence, on the cession transfer at the Council's office, was quite elaborate. In brief, it was this:

She had her husband's national registration particulars. Chengetai had hers. Together, they were moving from office to office signing documents. Chengetai would sign first. She would sign in place of Tafirenyika.

After completion of the sale and transfer she and Chengetai actually became friends.

Next, Mbozvi called Tafirenyika.

His formal evidence was that he worked and lived in South Africa. He was married to Leona under customary law. They had three children together. He was the one who sold the property to Mbozvi. Everything was done through Leona, his wife, whom he had granted all the authority.

Critical aspects of Tafirenyika's evidence were these:

He met Chengetai for the first time in South Africa. He did not know her before. She had been in the company of two people, one of them Zviedzo Chipfunde (“Zviedzo”), an old school mate of his. Zviedzo was then married to Chengetai. He told him Chengetai was selling a Stand for thirty thousand Rand (R30,000). He reached an agreement with her. He paid her a deposit of twenty thousand Rand (R20,000). The balance of ten thousand Rand (R10,000) would be paid on the transfer of cession.

Tafirenyika's critical evidence continued:

Towards December, Chengetai was demanding the balance of the purchase price. He told her they needed to change ownership first. They agreed that since he was busy he would give her his wife's contact details through whom the transactions would be carried out.

Back in Zimbabwe, Chengetai did contact Leona and went to see her at home. Together, they arranged and facilitated the change of ownership. Chengetai subsequently returned to South Africa and collected the balance of R10,000 after both she and Leona had confirmed the cession at Council offices.

To all that testimony, Chengetai's position was just a bare denial.

She denied she knew Tafirenyika or his wife, Leona. She denied she had sold her property to them. She denied she had been to South Africa during the period mentioned by Tafirenyika. She denied she had received that kind of money from Tafirenyika or anyone else in connection with the property. She denied the cession at the Council offices and alleged that all the documents suggesting a cession of rights by her were forgeries or fraudulent.

Mbozvi's witnesses were forthright, straightforward, and unshaken. Cross-examination was lame.

For example, counsel for Chengetai, put it to Tafirenyika, that, Leona was a mere concubine of his since there was no registered marriage between them. He pestered Tafirenyika why he did not apply to be joined to the proceedings if ever he wanted to defend his sale of the property to Mbozvi and protect him!

This was absolutely ironic.

It was the process issued by counsel for Chengetai himself, on behalf of Chengetai, and his presentation of the case that were patently incompetent.

For example, the summons excluded very relevant parties like Tafirenyika and the Chipinge Rural District Council, the true owner of the property, and the records for which reflected Tafirenyika as the owner. Not only that, but Chengetai's case was closed with no evidence from any of the Council officials testifying on what had really transpired regarding the property and whether there had really been a fraud.

There was an aspect of Mbozvi's evidence and that of his witnesses that left Chengetai rather exposed.

They asked how on earth they could have ever guessed Chengetai's national registration particulars which were inserted on the cession documents. At first, she denied they were hers. But, she subsequently admitted them. She gave no explanation how Mbozvi and his witnesses could have got them.

Mbozvi's documentary evidence should have won him the case. In a boxing match, it would be the technical knock-out punch. It was completely in consonant with his testimony and that of his witnesses.

Firstly, he relied on Chengetai's own original offer letter from Council and highlighted the cancellation endorsed on it. Next, he discredited the drawings or building plans as belonging to a different property altogether.

The critical cession document from Chengetai to Tafirenyika was produced through Leona.

It was one of those standard cession forms used by rural district councils which are printed on council stationery. Blank spaces were completed in long hand. It had four sections: the first for completion and signing by the cedent; the second for completion and signing by the cessionary; the third for official use, and the fourth, and last, for approval by the Minister of Local Government.

Completed, the relevant portions of the cession document read as follows:

“The undersigned…,___CHENGETAI SIDHUNA___, National Reg. No: ___13–174976 A 13___ do hereby cede, assign and transfer to…,___MATORO (sic) TAFIRENYIKA___ Nat Reg No: ___13 – 200661 T 13___ All my rights and title to and interest in lease number ___238___ at ___CHECHECHE___ Business centre in Chipinge Rural District from ___6___ day of ___FEBRUARY 2015___.”

Above the word “CEDENT” was a signature, in very clear print: “C h e n g e t a i” with the letter “e” quite distinct and somewhat stylish. There were also signatures by two witnesses.

The section for the cessionary read as follows:

“I … ___MATORO (sic) TAFIRENYIKA___ Nat Reg No ___13–200661 T 13___ Address ___1107 Phase 2 CHECHECHE___ Do hereby accept transfer of the Agreement of number _____(blank)____ Business Centre in Chipinge Rural District, as from the ___6___ day of ___February 2015___”

As with the cedent, the cessionary's signature was a distinct name in print “LOREEN CHIONA”. There were also signatures by two witnesses.

The last two sections of the cession document, which were for official use and approval, were left blank.

Counsel for Chengetai latched onto this.

He said the alleged cession was incomplete and unapproved.

He said it was defective and fraudulent because Leona purported to be Tafirenyika and to sign as him. He said she had no power of attorney.

The court a quo accepted the argument. It fell into error.

There is nothing magical about a cession of rights. In Chauke & Anor v Mangena HMA09-19 in which a similar argument arose, I said there is wise Shona saying: “kupedzera miseve pamakunguwo idzo hanga dziripo!” meaning, wasting all the arrows on worthless crows when more treasured guinea fowls abound: in other words, to major in minors.

Simply put, a cession is the transfer or giving up of rights and interest by one party which the other party accepts or receives. The cession is pivoted on an agreement that is legitimate. The transferor or giver of the right is the cedent. The receiver is the cessionary.

No formalities are required for a valid cession: see R.H. CHRISTIE: Business Law in Zimbabwe, Juta & Co Ltd, 1998…,.

In Mberi v Mbewe & Anor HH420-15, after reviewing a number of cases on the point such as Gomba v Makwarimba 1992 (2) ZLR 26 (SC); Hundah v Murauro 1993 (2) ZLR 401 (SC); Pedzisa v Chikonyora 1992 (2) ZLR 445 (SC) and Magwenzi v Chamunorwa & Anor 1995 (2) ZLR 332 (S), I said, in a great number of cases of this nature, the local authority, which is the true owner of the property, is little concerned with what the tenant-to-buy does with his rights and interest in the property.

The local authority normally consents in advance of the alienation or disposal of such rights, or it subsequently ratifies. The consent can be tacit or express.

In the present case it was both.

That, when Mbozvi and his team went to inspect the Council records, before he committed himself to Tafirenyika, they found the property reflecting Tafirenyika as the owner was not challenged.

Thus, unless the Council had given tacit approval to the sale from Chengetai to Tafirenyika, there could be no explanation why the records were in Tafirenyika's name.

But, there was more.

Produced in evidence was a very detailed rent-to-buy agreement between the Chipinge Rural District Council and Tafirenyika in respect of the property. It was signed by Leona as lessee and by Chengetai as a witness.

Nothing could be better evidence of the express consent by the local authority and of the transfer of rights from Chengetai to Tafirenyika.

The court a quo said all these documents were a fraud to strip Chengetai of her ownership of the property.

It said Leona had no power of attorney to sign the documents as Tafirenyika.

It went on to quote from some authority defining a power of attorney as generally being a physical document under seal, and concluding, that, the purported power of attorney relied upon by Leona, not having been a document under a seal, all that she had done in the name of Tafirenyika had been a “farce”.

With all due respect, the court seriously misdirected itself on this aspect.

Mbozvi and his witnesses never said Leona had a power of attorney. The term 'power of attorney' was introduced into the matrix by counsel for Chengetai in cross-examination. All Mbozvi and his witnesses said was that Leona had authority from her husband to transact on his behalf, and that that authority had been given over the telephone.

Whilst a power of attorney gives authority - not all authority is given by a power of attorney.

All that the court a quo had to be satisfied with was whether Leona had her husband's authority to transact on his behalf.

These were unsophisticated people. The court had to be satisfied, by the substance of the arrangements, and not be concerned with fancy legal niceties, or with form over substance.

But, whatever might have been lacking in form was given substance by the Chipinge Rural District Council itself. It gave its badge of authority to the two cessions: the first and crucial one from Chengetai to Tafirenyika, and the second and uncontentious one from Tafirenyika to Mbozvi.

The triangle was complete.

That Council itself and the Ministry of Local Government might not have signed their sections on the cession document seemed to be mere carelessness or plain inadvertence that did not in the least detract from the fact that the parties had agreed and that the Council had granted both tacit and express approval.

Everything else was subterfuge.

Counsel for Chengetai successfully persuaded the court a quo to find meaning and substance in a letter from the Chipinge Rural District Council, written to himself by the Growth Point Manager on 10 April 2018 and which he had solicited for.

Relevant portions of that letter read as follows:

“Your letter dated 25 March, 2018 refers. Ms Chengetai's Sidhuna's letter on same subject dated 18 September, 2017 also refers.

Please note that the Stand cession process is a long and arduous process which takes place at five different levels, namely, the sub-office at Checheche, then Heads of Departments have to consent to it before submitting to ZIMRA. After ZIMRA's concurrence, the matter will finally come back to the Lands and Assets Office at the Main Office before being finally presented to the Chief Executive Officer to complete the signing of a lease agreement thereto.

As you observed, there is no complete cession yet and there is no lease agreement yet between Council and the incumbent, Tawanda Mbozvi. The forms are still at the Checheche sub-office, held back because of an incomplete process. Implicitly, the first level has therefore not yet been satisfied by the parties to warrant it to move up to the second stage where the Heads of Departments will peruse the documents before they can be passed on to ZIMRA.

The Stand is therefore not yet formally…, in the buyer's or cessionary's ownership, albeit the nominated cessionary already having been clearly cited for practical functional purposes – and this we always do as instructed and agreed between the seller and the buyer. In the case of any objection by the parties, we always delay or defer process until we are granted a green light by the parties…,.

In the matter at hand, there is agreement between the incumbent, Tawanda Mbozvi, and Tafirenyika Matoro who claims to have bought the property from Chengetai Sidhuna…,. The dispute, therefore, lies between Chengetai Sidhuna and Tafirenyika Matoro who passed ownership of Sidhuna's property to Mbozvi.

Essentially, therefore, Council fully recognises Sidhuna's objection to processes that were transacted in our offices. She is the holder of the more critical Council stand documents and her consent to the process is therefore paramount.

To that effect, Council has deferred the cession process of Stand 238, given the apparent validity of Chengetai Sidhuna's formal complaint since September 2017.

By copy of this letter, we advise the three parties on our records (being Mbozvi, Matoro and Sidhuna) to convene or otherwise resolve matters and instruct us accordingly….,.”

The letter is an example of double-speak.

But, the highlighted portions are a fabulous give-away. There is an acknowledgement of the double cession.

The cession from Chengetai to Tafirenyika was complete as signified by the lease-to-buy agreement between the Council and Tafirenyika. The cession between Tafirenyika and Mbozvi was complete as signified by, firstly, a handwritten agreement between Tafirenyika and Mbozvi, and, secondly, the cession addendum from Tafirenyika to Mbozvi, both in December 2015.

All these documents were part of the Council records.

And yet neither counsel for Chengetai, nor the court, saw it fit to have Council officials called to give evidence.

Chengetai proved no fraud or any form of unlawful misrepresentation.

On the contrary, the evidence established, that, she had sold her rights and interest in the property to Tafirenyika, who, in turn, had sold his rights and interest to Mbozvi.

The court a quo failed to appreciate that the conclusion in Council's letter above, to the effect that the rights, title, and interest in the property still lay with Chengetai, was the very aspect it was being asked to adjudicate upon.

Apart from the foregoing, the court a quo failed to appreciate that there was also evidence that was not only common cause, but also aliunde to that given viva voce.

That evidence supported Mbozvi's case and contradicted Chengetai's claim. It was this.

Not only had Mbozvi been in occupation of the property for more than two years before Chengetai's summons, but, also, he had openly completed the partially built house on it from window level right up to completion and to a habitable state with not a whimper of protest from Chengetai. Chengetai conceded she saw the building going up but failed to confront Mbozvi or his builders. She claimed she feared violence. She said she went to complain to Council.

That is implausible. It is unbelievable.

Mbozvi took effective occupation in December 2015. Council's letter above suggests she only complained in September 2017 – thus, almost two years later. Her summons was in March 2018 - more than two years later. At the very least, she should have sought an interdict to bar Mbozvi from carrying out any construction.

Justice is often depicted as a lady blindfolded, holding a sword in one hand and a set of balancing scales in another. The scales are said to be for measuring the strength of a case. They represent the weighing of evidence. Before the case starts, the scales are evenly balanced. They are in a state of equilibrium. The weight of the evidence, as the case progresses, upsets the balance. As the case concludes, the court checks the way the scales are tilted.

Judgment is granted for the party in whose favour the scales are tilted.

Thus, a trial, in a civil case, involves the making of findings or inferences of facts by balancing probabilities and selecting a conclusion which seems to be the more natural or plausible one from several other conceivable ones, even though that conclusion may not be the only reasonable one: see Joel Melamed and Hurwitz v Cleverland Estates (Pty) Ltd; Joel Melamed and Hurwitz v Vorner Investments (Pty) Ltd 1984 (3) SA 155.

In this case, the scales of justice were undoubtedly tilted in favour of Mbozvi. Chengetai proved nothing. Mbozvi proved everything - even though the onus had not been on him.

The judgment in the court a quo was a travesty of justice.

Regarding holding over damages, if Chengetai had no case for eviction, concomitantly she had no case for holding over damages. Yet the court granted it. And demonstrably, even the amounts were plucked from the air. There was no basis for the rate of damages or for the quantum.

In the result, the appeal is allowed with costs. The following order is issued:

(i) The judgment of the court a quo is hereby set aside in its entirety and substituted with the following:

“The plaintiff's claim be and is hereby dismissed with costs.”

(ii) The costs of this appeal shall be borne by the respondent.

In his application, the applicant said his claim was for “specific performance” against the second respondent. This was in respect of an immovable property, a house in one of the high density suburbs administered by the second respondent.

At the end of the hearing I dismissed the application with costs and promised to deliver the reasons later.

These are they.

The applicant said he had “bought” the house from the first respondent. The first respondent was the son to his late father (“the deceased”) and the heir to the estate.

The deceased had been buying the property from the second respondent under the usual rent-to-buy agreement common among the local authorities.

The applicant's case was that the respondent was refusing to “transfer” the property to him for the most unreasonable of reasons.

The second respondent was saying it could not consent to the “transfer” because it was aware that the deceased's widow, one Mlingo Mbewe, had certain rights over the house which the son, the first respondent, was trying to override or trample upon by surreptitiously “selling” it to a third party, the applicant.

The second respondent did not exactly use such words; but, that was clearly the import of its opposition.

It said until the widow was joined to the application, and until it was satisfied that the dispute between her and the son had been resolved, it was not going to consent.

It seems that previously the son had instituted an action to evict the widow from the house. However, the action had not been proceeded with. The matter had been resolved on the basis, that, the son would have entitlement to one of the rooms at the house and another room in the outbuilding, with both of them sharing the rentals from the remainder of the rooms.

To that, the applicant said the second respondent was not raising any defence valid at law but was merely trying to protect the widow out of sympathy for her. That was corruption and an abuse of office, he said.

The first respondent, the son, supported the applicant's case.

He filed a “Consent to Judgment” in terms of which he was consenting to be ordered by this court to “…, take all the necessary steps to transfer [the] right, title, and interest in [the] property…,.), failing which the Sheriff should be authorised to do that on his behalf.

What was remarkable in this case was the misconception exhibited by all the parties in relation to the true nature of their rights and obligations.

Terms such as “sale/purchase of rights, title and interest in” 'transfer' etc. were manifestly misguided.

Only somewhere in the second respondent's heads of argument was there a fleeting reference to the true legal position. In paragraph 21 it was said:

“21 The record must be correctly set. Ownership of the property in dispute vests in the 2nd Respondent. The 1st respondent, on his own, as asserted by Application (sic) or jointly with Mlingo Mbewe, in 2nd Respondent's view, only hold personal rights in the property.”

As long ago as 1992, the Supreme Court voiced concern over the use of such wrong terminology in such situations. That was in the case of Gomba v Makwarimba 1992 (2) ZLR 26 (SC). At pp27-28 McNALLY JA said:

“As so often happens, the parties have used the word 'sale' to describe what was in reality a cession of rights, since the house actually belongs to the Chitungwiza Town Council….,. It is unfortunate that legal practitioners persist in ignoring the distinctions between sale and cession of rights in these cases, both because there are many such cases and because there are many such distinctions.

In this case, the respondent was not the owner of the disputed immovable property but merely a 'lessee-to-buy'. The contract in terms of which the respondent acquired and held her rights in the property, and which defined her rights in the property, was not before the Court. Nor was the owner cited as a party.”

In the present case, although the owner, the second respondent, was cited as a party (undoubtedly because it was the one refusing to consent), the rent to buy agreement was not produced by any of the parties.

But, it was common cause that any rights in the property had devolved to the deceased, and subsequently to the first respondent, in terms of that agreement.

None of the parties gave any coherent answer why that agreement was not produced.

The applicant was content to start and end with his own agreement with the first respondent. But, that agreement was irrelevant, particularly given that the first respondent was actually supporting his cause.

The applicant's true grievance lay with the second respondent.

If he claimed that the second respondent's refusal to consent to the cession (not transfer) was unreasonable, then, he ought to have produced that agreement and pointed out those terms that showed that such refusal was unreasonable.

That was so because, among other things, the usual rent-to-buy agreement contains clauses expressly prohibiting the cession or assignment of rights under them, or the parting of rights of occupation of the property, or the alienation or disposal of the property without the prior written consent of the local authority.

In the case of Hundah v Murauro 1993 (2) ZLR 401 (SC) McNALLY JA said…,:

“It is surely a matter of general common knowledge, at least among lawyers, that land in the high density suburbs belonged to the local authority, or, occasionally, to central government. Occupants of the houses built in these suburbs fall into three categories (ignoring the fourth category of lodgers or dependants).
They were:

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;

3. Owners, who graduated from category two, in the fullness of time.

It is astonishing that no one thought to ask [the appellant] into which of these categories he fell. Even more astonishing when one remembers that he actually alleged 'it is still property of the City of Harare'.

[The appellant] was not the owner of the property. [He] is not now the owner of the property. At the time the estate agent drew up the agreement…, he was not even a tenant-to-buy. He was just a simple tenant….,.

In this situation we regularly hear the submission: 'But Roman-Dutch law does not require a seller to own the property he sells. He can enter into a valid agreement of sale as long as he realises he may face an action for damages if he is unable to give good title to the purchaser when the time comes to hand over vacant possession, and, in the case of immovable property, give transfer.'

This answer may score well in an examination, but, it overlooks the fact, which should be common knowledge among practitioners, that, the standard agreement of lease or lease to buy used by the Harare and Chitungwiza Municipalities (and many others) contains a clause designed to prevent such agreements.”

The pronouncement by the Supreme Court, in Hundah v Murauro 1993 (2) ZLR 401 (SC), all but sums up the applicant's insurmountable problems in this case.

In a great number of cases of this nature, the local authority is little concerned with what the tenant to buy does with his rights and interest in the property. The local authorities normally consent in advance of the alienation or disposal of such rights, or they subsequently ratify. When litigation ensues, often against the double-dealing or recalcitrant lessee-to-buy, the local authorities simply indicate their willingness to abide by the order of the court.

Unfortunately for the applicant in this matter, this was not the case.

In the present matter, not only had the local authority not given its consent to the intended cession, but, it was expressly refusing to grant it.

The applicant's situation was actually worse off than any of those in similar situations, for example, in Hundah v Murauro 1993 (2) ZLR 401 (SC) and Gomba v Makwarimba 1992 (2) ZLR 26 (SC).

There were others.

In Pedzisa v Chikonyora 1992 (2) ZLR 445 (SC) GUBBAY CJ had this to say…,:

“It is trite that where a contract of lease contains prohibitions against sub-letting, cession or assignment, either absolutely or without the lessor's consent, a sub-lease, cession or assignment, entered into without title to do so, is valueless and confers no rights on the third party; for he can acquire no greater rights in the property than the lessee has….,. A further obvious consequence of the prohibition is that the court will refuse to enforce the sub-lease, cession or assignment, at the instance of the lessee. To do otherwise would be to confer a right upon the lessee not given by the lessor….,.

Plainly enough, in the present case, the content of the lease-to-buy agreement was…, invalid because of a failure of the parties to it to request and obtain the written consent of the Council – a failure that related to a contractual formality….,.”

In Magwenzi v Chamunorwa & Anor 1995 (2) ZLR 332 (S), a case only marginally different from the present one in that the tenant-to-buy had since obtained title to the property even though at the time that he had purported to sell it to the third party he had not, EBRAHIM JA said this at pp335-336:

“Once the first defendant had taken transfer of the property, he was entitled to sell it. The first defendant had agreed to sell at a time when he was not the registered owner. All the time that the City of Harare remained the owner, the agreement to sell was unenforceable, because the first defendant could not transfer ownership without the consent of the Municipality. Once the Municipality's consent was not required, however, the contract became enforceable….,.

The agreement in Pedzisa's case supra was described as 'invalid' because it had failed to comply with a contractual formality….,.”

In Jangara v Nyakuyamba & Ors 1998 (2) ZLR 475 (HC) GILLESPIE J reviewed a number of decisions of both this court and the Supreme Court on the issue of “township houses” administered by local authorities under the lease-to-buy agreements and which are disposed of in breach of the terms of such agreements.

Some of those cases that the learned judge reviewed included Pedzisa v Chikonyora 1992 (2) ZLR 445 (SC); Hundah v Murauro 1993 (2) ZLR 401 (SC); Magwenzi v Chamunorwa & Anor 1995 (2) ZLR 332 (S); Guta v Chimbunde & Anor HH194-94; and Nkomo v Mujuru 1997 (1) ZLR 155 (H).

At p481 the learned judge said:

“I am therefore of the respectful view, that, the following statement of principle is to be gleaned from the Supreme Court decisions.

A cession of a right, originally acquired subject to a pactum de non cedendo, but in breach of that reservation, creates rights as between the parties to that subsequent cession, which rights, however, cannot bind the original holder of those rights.

The court may, at the instance of the third party, enforce that contract as against the lessee-purchaser; no order, however, may be given which can bind the original holder of those rights. Thus, no order of transfer can be given against that original holder.

An order of specific performance of transfer may, at the court's discretion, be given against the lessee-purchaser; such an order has the effect of obliging that party to effect transfer if he is in a position to do so, or to take transfer of the property in order to give it, if such be necessary.

Depending on the circumstances, however, the court may confine a third party to an alternative claim against the lessee-purchaser in damages.

This statement of principle explains completely the results in all the other judgments, and was the principle expressly applied by SMITH J and ROBINSON J in Guta and Magwenzi.”…,.

In the present case, whether the second respondent withheld its consent to the cession because the widow had not been cited, and whether or not such a reason was unreasonable under the circumstances, are issues that are immaterial, especially in the absence of the rent-to-buy agreement.

If the first respondent required the prior written consent of the second respondent before he could in any way alienate or dispose of his rights in the property to somebody else, and, if the first respondent had not obtained that consent prior to selling his rights to the applicant, then, that was the end of the road for the applicant in his claim against the second respondent.

Whether or not the applicant does have a remedy against the first respondent is an issue of no concern in the present application.

As stated in Pedzisa v Chikonyora 1992 (2) ZLR 445 (SC), the agreement between him and the first respondent was invalid or unenforceable against the second respondent for want of compliance with a contractual formality.

It was for that reason, that, at the end of the hearing, I dismissed the application with costs.

This is an application for rescission of a judgment of this court entered in default in favour of the first respondent on 26 June 2008 in terms of which the eviction of the applicant and those claiming occupation through him from premises known as 1495 Chiwaridzo Township Bindura was ordered together with costs of suit.

On 4 February 2008, the first respondent issued summons out of this court in case number HC642/08 alleging that the house in question had been leased to the applicant by written lease agreement signed by the parties on 20 December 2003, which lease could be terminated by the first respondent in the event that the applicant left employment with the first respondent.

The first respondent further averred, that, the applicant's employment having been terminated on 31 March 2007, a point which is now hotly disputed by the applicant who claims having retired from the first respondent's employ in October 2005, the lease had been terminated.

The first respondent then sought an order for eviction as a consequence of the applicant's failure to vacate the house following such termination.

According to the Deputy Sheriff's (second respondent herein) return of service filed of record in that matter, the summons was “served on defendant Enock Govha” on 29 February 2008.

On 12 May 2008, the first respondent submitted an application for default judgement which was granted on 26 June 2008 aforesaid. In due course, a writ of ejectment was issued and the applicant's eviction was sought.

It is that default judgment which the applicant seeks to have rescinded arguing that he was not in wilful default as he was never served with the summons.

The applicant has cited the Deputy Sheriff in this application as second respondent and attacked his return of service as being “false and misleading” given that on the day the second respondent alleges he served the summons personally upon him, he (the applicant), was enjoying the fruits of his retirement in his communal home, he having relocated there in January 2006 following his retirement either in October or December 2005.

It is not clear when, as he mentions two (2) different months in 2005 as his retirement date.

It is not clear whether this application was served upon the second respondent as no proof of such service was filed.

What is clear though is that the second respondent has not challenged the serious allegations made against him regarding service of the summons. His failure to do so may be due to the fact that he did not have notice of the application.

The applicant states, in his founding affidavit, that, he only became aware of the existence of the default judgment when the second respondent sought to evict his daughter from the house on 1 November 2008.

He goes on to say, that, he should be allowed to contest the eviction because he bought the house from the first respondent and he paid the full purchase price.

In support of that claim, he has filed documents showing that the first respondent, as employer, offered houses to its employees, including the applicant. Those documents also show that the housing units were valued, their values determined and what each employee was expected to pay as the purchase price assessed and agreed.

The applicant also submitted his payslip showing that deductions were made by the first respondent from his salary under the caption “rent to buy”. The same payslip also reflects the balance after each deduction of the said 'rent to buy' showing that the amount charged was being progressively reduced. In addition, he filed receipts issued by the first respondent for further lump sum payments marked “payment of House 1495.”

For that reason, the applicant is of the firm view, that, having paid the full purchase price for the house, he cannot be evicted from it and has prospects of success on the merits.

The first respondent strongly opposes the application on the basis that the applicant has not shown good and sufficient reasons for the rescission of the judgment entered in default.

It has been argued on behalf of the first respondent, that, as the owner of the house, with title, it is entitled to vindicate against the applicant and that there was never an agreement of sale between the parties involving the house in question.

Counsel for the first respondent insisted that the relationship between the parties was governed by the written lease agreement signed in December 2003, which document the applicant says only recorded the financial arrangement between the parties for the conveyance, to the first respondent, of the purchase price. He vehemently argued, that, in terms of that lease agreement, the applicant would only be eligible for consideration to purchase the house at the expiration of 60 months from the date of the signing of that lease agreement.

Regrettably, counsel for the first respondent did not explain what governed the relationship between the parties before the lease agreement of 29 December 2003 was signed.

He took the view, that, as the applicant retired in March 2007, before the 60 month period had expired, he was not eligible to purchase the house and the first respondent was entitled to reclaim it.

There is a dispute as to when the applicant retired and two (2) different letters purporting to inform him of his resignation have been produced.

The first respondent produced a letter dated 14 November 2007 recording the applicant as having resigned on 31 March 2007.

Counsel for the applicant insists that letter is a recent fabrication by the first respondent, and has produced a letter written by the applicant's Human Resources Manager, M. Nyamadzawo, on 22 June 2005, giving the applicant notice of his retirement on 31 December 2005.

The first respondent has not explained the circumstances under which that letter was written if the applicant had not resigned.

Rule 63 of the High Court of Zimbabwe Rules 1971 provides:

“(1) A party against whom judgment has been given in default, whether under these rules or under any other law, may make a court application not later than one month after he has had knowledge of the judgment, for the judgment to be set aside.

(2) If the court is satisfied, on an application in terms of subrule (1), that there is good and sufficient cause to do so, the court may set aside the judgment concerned and give leave to the defendant to defend or to the plaintiff to prosecute his action, on such terms as to costs and otherwise as the court considers just.”

Subrule (2) of Rule 63 was interpreted succinctly in the seminal case of Stockill v Griffiths 1992 (1) ZLR 172 (S)…, as follows:

“The factors which a court will take into account in determining whether an applicant for rescission has discharged the onus of proving 'good and sufficient cause' as required to be shown by Rule 63 of the High Court of Zimbabwe Rules 1971 are well established. They have been discussed and applied in many decided cases in this country: see, for instance, Barclays Bank of Zimbabwe Ltd v CC International (Pvt) Ltd SC16-86 (not yet reported); Roland and Anor v Donnell 1986 (2) ZLR 216 (S) at 226E-H. Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S) at 211C-F. They are:

(i) The reasonableness of the applicant's explanation for the default.

(ii) The bona fides of the application to rescind the judgment; and

(iii) The bona fides of the defence on the merits of the case which carries some prospects of success.

These factors must be considered not only individually but in conjunction with one another and with the application as a whole.”…,.

The explanation given by the applicant, for failure to respond to the summons, is not
convincing, especially as it does not appear that the second respondent, who claims to have served the summons personally on the applicant, has been served for him to responded to the accusations levelled against him.

I agree with counsel for the first respondent, who relies on the authority of Gundani v Kanyemba 1988 (1) ZLR 226 (S), that, the second respondent's return of service is prima facie proof of service and can only be rebutted by concrete evidence being placed before the court.

However, that is not the only factor to be considered in deciding whether the applicant for rescission of judgement has discharge the onus of showing “good and sufficient cause” for the rescission.

I had occasion, in Mazuva v Simbi and Ors HB155-11, a matter in which an applicant for rescission had not given a good explanation for failure to act, to comment…, that, even in such a situation such applicant can still discharge the onus if all the factors are taken together. In that matter, I stated:

“While the explanation for the first respondent's failure to respond to the application in HC905/10 is what MAKARAU JP (as she then was) referred to in Mwanyisa v Jumbo & Ors HH03-10 as 'a dog's breakfast' if the factors to be taken into account in deciding a rescission of judgment application, as set out in Stockill v Griffiths (supra), are taken in conjunction with one another, the applicant has discharged the onus of proving 'good and sufficient cause' for the rescission of the judgment entered on 1 July 2010. It simply cannot stand.”

Here is a company which avails to its employees an opportunity to purchase houses they are leasing from it. It signs an understanding with the employees representatives which has, appended to it, a list of beneficiaries which list sets out the value of each housing unit and the monthly instalment to be paid by each beneficiary - the applicant included. It goes on to deduct the equivalent of such instalment from the applicant's salary clearly stating that it is rent to buy the house and to also show the balance outstanding after such deduction.

The same instalment is reflected on a written lease agreement.

It must be understood, that, in an application of this nature, the applicant is not required to prove his case but merely to show a bona fide defence carrying prospects of success.

Counsel for the first respondent referred me to the case of Ashanti Goldfields Zimbabwe Ltd v Clement Kovi SC07-09 (unreported) in which the Supreme Court ruled, that, the agreement signed between the first respondent and its employees, on 1 December 2003, which the applicant relies upon, was not a sale.

That issue was considered by MAKARAU JP…, in: 1. Antonio v Ashanti Goldfields Zimbabwe Ltd & Anor; 2. Mujati v Ashanti Goldfields Zimbabwe Ltd & Anor; 3. Ashanti Goldfields Zimbabwe Ltd v Bonde 2009 (2) ZLR 371 (H); which matters involved the same arguments as in casu.

She distinguished that case and concluded…, as follows:

“I am bound by all decisions of the Supreme Court on points of law. Where, however, the facts that were placed before the Supreme Court are different from the facts before me, I believe I am at liberty to interpret those facts in light of the law handed down by the Supreme Court. The doctrine of stare decisis applies to points of law and not to factual disputes.”

I find myself in agreement with that postulation.

I am not aware if that judgment has been challenged, but, until such time that it is overturned, I am entitled to use it as I am persuaded by it.

Following the guidance given in Stockill v Griffiths 1992 (1) ZLR 172 (S), to consider the factors not only individually but in conjunction with one another and with the application as a whole, I am of the view, that, the applicant has discharged the onus resting on him to show 'good and sufficient cause' for the rescission of the default judgment.

Justice demands that the issues raised ought to be interrogated fully in a trial and that the applicant should not be shut out, as it were, on the technicality of default judgment.

In the result, I make the following order; that

1. The default judgement entered on 26 June 2008 be and is hereby rescinded.

2. The applicant should file his notice of appearance to defend in HC642/08 within ten (10) days of the date of this order.

3. The costs of this application shall be costs in the main action.

On 23 July 2018, Mr Forward Kapiya (the respondent) of Stand 254 Headlands Location issued summons at Rusape Magistrate's Court against the appellant, Stella Masunga, where he was seeking eviction of the appellant from a commercial Stand No.193, Headlands known as Kapiya General Dealer.

In the summons, he averred that the appellant was his ex-wife and he had since separated with her, and, since she was then co-habiting with other men, she ought to move out of the property.

The defendant filed her appearance to defend, and, on 3 August 2018 she filed her plea. In her plea she contended that the respondent herein was not the owner of the property. She is the one who bought Stand 193 in 2004 and started constructing it alone before customarily marrying the respondent in 2006.

When she married the respondent, in 2006, the shop was about to be roofed.

In 2010, she admitted changing the name from her name to that of the respondent since the respondent was going to marry her. When the appellant changed the names, she did not know that the respondent wanted to grab her shop.

On 12 September 2018, the matter proceeded to trial and both parties led evidence to prove their cases and called witnesses.

After hearing, the court granted eviction against the appellant and ordered her to vacate the premises by 31 December 2018. The order was granted on 19 November 2018.

On 30 November 2018, the appellant noted an appeal against the whole judgment of the magistrate and outlined the grounds of appeal as follows:

“1. The learned Magistrate erred in ordering the eviction of the appellant by 31 December 2018 on Stand No.193 Headlands, despite the following:

(a) The Stand in question belongs to the appellant.

(b) That responsible authority, which is in Makoni Rural District Council, through its representative, Fungai Misi, having been given subpoena, confirmed that appellant is the one who had purchased the said Stand.

2. The learned Magistrate misdirected herself by failing to appreciate the evidence of the responsible authority to the effect that the Stand is registered in appellant's name.

3. The learned magistrate erred and misdirected herself by failing to consider the evidence of the responsible authority to the effect that indeed there was an attempt to do a cession but that was not done because there were issues which needed to be ironed out first.

4. The court failed to appreciate that indeed appellant has a clear right over the Stand hence could not be evicted.

5. The court failed to appreciate that respondent was lying and sought to rely on his evidence.

6. The court erred and misdirected itself in relying with the evidence of a brick moulder.

7. The judgment imposed by the trial magistrate is shocking and should be set aside.

WHEREFORE appellant prays that an order for eviction imposed by the trial magistrate be set aside with costs that she be allowed to carry out her business as the owner of Stand 193 Headlands.”

I have cited the prayer of the appellant to show that it is defective. However, we condoned that defect in the interests of justice and allowed the appellant to argue its appeal.

For the record, the prayer in an appeal should be framed as follows:

“(a) The appeal is upheld with costs.

(b) The judgment of the court a quo is set aside and substituted by the following:

The claim for eviction of the defendant from Stand 193 Headlands is dismissed with costs.”

The appellant's legal practitioner, on the date of hearing, sought the leave of the court to consolidate grounds of appeal 1, 2 and 3 to be represented by ground 1. Effectively, the appellant chose to abandon ground 2 and 3.

The appellant also abandoned ground of appeal 7, though, in counsel's submission, he smuggled it back whilst seeking an order allowing the court to take into account the proprietary right of the appellant over Stand 193 Headlands.

We allowed the consolidation and refinement of the grounds of appeal for there was no prejudice on the respondent.

The grounds of appeal to be dealt with by this court were then 1, 4, 5 and 6.

The appellant submitted, that, Stand No.193 Headlands belonged to her because it is still registered in her name on the papers held by Makoni Rural District Council.

In the appellant's own pleadings filed of record, she unreservedly and voluntarily contended, that, although she is the one who bought the Stand (a fact which is disputed by the respondent herein) she changed ownership in 2010 when she was about to wed the respondent.

To consolidate that commitment towards change of ownership, there are copies of affidavits signed by both the appellant and the respondent and submitted at Headlands District office.

Whether those papers were forwarded to Makoni Rural District Council offices for cession remains, in our view, academic.

The evidence of Fungai Misi was of no effect because the appellant, in her own papers, concedes, that, in 2010, she changed ownership of the Stand to that of the respondent.

The affidavits of cession signed by the appellant were not revoked nor set aside, they remain extant up to this date.

This is an application for summary judgment wherein the applicant seeks the eviction of the respondent and all those claiming occupation through him from House Number 1131, Chipadze Township, Bindura and costs of suit.

The facts of this matter are largely common cause:

The respondent was employed by the applicant. With the passage of time, the apparently benevolent employer, being the applicant, decided to sell some of the houses to some employees who were sitting tenants.

Some sort of agreement was entered between the applicant, represented by its General Manager and Financial Director, and the employees, represented by the Workers Committee members being the Chairman and two Committee members.

The said agreement or memorandum is dated 1 December 2003 and is in the following terms;

“MEMORANDUM OF AGREEMENT BETWEEN ASHANTI GOLD FIEDS MANAGEMENT AND EMPLOYEES

Ashanti Goldfield Zimbabwe agrees to dispose of its housing units situated in Chiwaridzo, Grey Line Flats, and Low Density to its employees, who are sitting tenants, effective 01 December 2003. Find the agreed prices attached.”

The said agreement is attached to the applicant's founding affidavit as Annexure F1 to F4.

Attached to this agreement is a schedule which has a list of the employees involved, the house they occupy, the value of each house (in Zimbabwe dollars) and the monthly instalments or repayment each employee was to pay.

The respondent occupied House No.1131 which was then valued at Zimbabwean dollars $1,200,000 and was to pay a monthly instalment of Zimbabwe $20,000.

Pursuant to the signing of the Memorandum of Agreement explained above, and on 12 December 2003, the applicant and the respondent entered into what is called “Agreement of Lease” in which the applicant agreed to lease House No.1131 Chipadze, Bindura (the house) to the respondent for a period of 60 months (5 years) commencing 1 January 2004 at the monthly rentals of Zimbabwean $20,000 which was reviewable in accordance with Annexure 'A' to that lease agreement (which provided for revaluation of the property whenever employees are awarded a salary increment).

These monthly rentals were deducted from the respondent's salary.

Clause 3 of the lease agreement provided for the option to buy the house. It provides as follows;

“3. OPTION TO PURCHASE

3.1. The lessee shall have the option to purchase the property after sixty months.

3.2. The rentals paid by the Lessee to the Lessor in terms hereof shall be taken and be deducted from the amount due in respect of the purchase price determined in accordance with the provisions of Clause 3.1. (above).”

The lease agreement is signed by a representative of the applicant and the respondent.

From other decided cases I have been referred to, dealt with by this court, it is common cause that a number of employees entered into such a lease agreement.

It would appear to my mind, that, the dispute in this case, and other cases already dealt with by this court, relates to interpretation to be accorded to the “Memorandum of Agreement” dated 1 December 2003 and the lease agreement dated 12 December 2003 and the relationship between the two documents.

I shall revert to this point later.

After the issuing of the Memorandum of Agreement, on 1 December 2003, and before the signing of the lease agreement, on 12 December 2003, the Workers Committee, through what was now called the Housing Committee, issued out a Memorandum to all employees of the applicant copied to the applicant.

This Memorandum explained the Agreement reached on 1 December 2003. Most importantly, it invited the employees who were sitting tenants to take up the offer to buy the houses.

The relevant part of this Memorandum, dated 2 December 2003, reads as follows;

“Please note that you have until February 29, 2004 to decide whether to purchase the house you are living in or not, after which date the offer will be extended to an employee who is willing to purchase the property. The offer is now open, therefore, employees who are ready can see the Members to formalise the purchase.”…,.

It was after this invitation that the respondent entered into the lease agreement with the applicant on 12 December 2003.

In addition to that, the respondent has attached as Annexures A1 to A3 his payslips which reflect that money was deducted from his salary which money is reflected as “rent to buy”.

The payslips are as follows;

A1, dated 31 October 2004, has a deduction indicated as “Bal rent to buy $52,755”

A2, dated 25 March 2004, has a deduction indicated as “Bal rent to but $116,000”

A3, dated 25 June 2004, has a deduction reflected as “Bal rent to buy $56,895”

The respondent has also attached to his opposing affidavit a memorandum from the applicant, written by the applicant's Financial Controller to the respondent and copied to the Housing Committee dated, 14 March 2004. Its contents are as follows;

“This memo serves as an acknowledgement that we have received $1,100,000 (one million one hundred thousand dollars) as payment towards yours house. The outstanding balance is now $60,000 (sixty thousand dollars).”

It is common cause that the respondent, who was employed by the applicant, and was the sitting tenant in this house as at 1 December 2003, was summarily dismissed on 15 July 2009 following a disciplinary hearing held in terms of their Code of Conduct.

This means, that, as at the date of his dismissal, the respondent has been in occupation of the house for a period of sixty seven (67) months - which is in excess of the sixty months stipulated in the Lease Agreement dated 12 December 2003.

After the dismissal, on 15 July 2009, the respondent, on 4 September 2009, was advised to vacate the house on the basis that the lease agreement which entitled him to occupy the house had lapsed due to the termination of the respondent's contract of employment (see Annexure D to the applicant's founding affidavit).

The respondent refused to vacate the house.

This prompted the applicant to issue summons out of this court in HC4395/09 (main matter) seeking the eviction of the respondent and all those claiming occupation through him and costs of suit.

The respondent entered an appearance to defend and filed a plea, which plea had been dismissed by the applicant as not raising a good prima facie defence, culminating in this application for summary judgement.

It is useful, at this stage, to deal with the respondent's plea (Annexure E to E4 to the applicant's founding affidavit).

In his plea, the defendant stated, that, prior to 1 December 2003, he was occupying the house in issue on the basis of the contract of employment and that since 1 December 2003 he was now occupying the house on the basis of a sale agreement.

The respondent said he has since fully paid for the house and awaits the transfer of the house into his name.

It is the respondent's contention, that, the lease agreement dated 12 December 2003 was the vehicle through which the respondent, and other employees, purchased the houses as they paid for the houses through the process of rent to buy with the monthly repayments deducted from their salaries.

The respondent, in his plea contends, that, he has now acquired rights and interest in the same house hence the applicant cannot evict him from the house.

In fact, the respondent proceeded to file a counter-claim seeking an order to compel the applicant to transfer its rights, interest, and title in the said house to the respondent within 30 days of the grant of such an order and costs of suit.

The question to be addressed in this matter is whether, given the facts I have painstakingly outlined, the applicant is entitled to this extraordinary remedy in the form of a summary judgment?

An application for summary judgment is made in terms of order 10 Rule 64 of the High Court Rules 1971 in circumstances where the applicant is of the belief that the respondent has no bona fide defence to his action.

The respondent may oppose such an application in terms of Order 10 Rule 66(1)(b) of the High Court Rules by showing that he has got a prima face defense to this action.

The law, in relation to the requirements for granting a summary judgment, is clear.

The old case of Roscoe v Stewart 1937 CPD 138 which is cited by the celebrated authors HERBSTEIN and Van WINSEN – Civil Procedure of The Superior Courts In South Africa, 2nd Edition…, makes the point, that, summary judgement is a remedy designed to eliminate or dispose of bogus defences and defences which are bad at law.

The mischief which is curbed by this drastic remedy is to prevent unscrupulous litigants seeking to delay a clear and just claim by raising frivolous defences: see Nedlaw Investments & Trust Corporation Limited v Zimbabwe Development Bank SC05-00 in which it was clearly stated that;

“…, the quintessence of the drastic remedy is that a plaintiff, whose belief is that the defendant's defence is not bona fide and entered solely for dilatory purposes should be granted immediate relief without the expense and delay of a trial.”

In order to successfully fend off an application for summary judgment, a defendant has to show that he has a good prima facie defense to the action.

Our courts have had the opportunity to define what constitutes a good prima facie defence.

In the case of Hales v Doverick Investments (Pvt) Ltd 1998 (2) ZLR 235 (H)…, MALABA J…, has this to say;

“…, he must at least disclose his defense, and material facts upon which it is based, with sufficient clarity and completeness to enable the court to decide whether the affidavit discloses a bona fide defence: Haharaj v Barclays National Bank Ltd 1976 (1) SA 418 at 426D…, the statement of material facts (must) be sufficiently full to persuade the court that what the defendant has alleged, if proved at trial, will constitute a defense to the plaintiff's claim.”

Having laid out these principals of law applicable to this case, I now proceeded to apply these principles to the facts of this case.

The applicant believes, that, the appearance to defend entered by the respondent, and his subsequent plea, do not disclose a bone fide defence but was solely entered for purposes of delay.

In argument, the applicant submitted, that, there was never an agreement of sale between the applicant and the respondent.

It is the applicant's view, that, the memorandum of agreement, dated 7 December 2003, cannot be construed as an agreement of sale, and, reliance was placed on the case of Ashanti Goldfields Zimbabwe Ltd v Clement Kovi SC07-09 in which CHEDA JA had to interpret this same document and clearly stated, that, it cannot be said to be an agreement of sale.

Similarly, the applicant submitted, that, the lease agreement, dated 12 December 2003, cannot be construed also on an agreement of sale as it merely provides, in Clause 3, that, an option to purchase this property would be offered to the respondent after sixty months.

The applicant's case, therefore, is that the agreement of lease, having been terminated after the respondent left the employ of the applicant, the respondent has no right, whatsoever, to remain in the house as the applicant remains the registered owner of the house.

While it is correct, that, the pronouncements of the Supreme Court are binding to this court, I believe the case in which the applicant seems to have reposed all his faith in, of Ashanti Goldfields Zimbabwe Ltd v Clement Kovi SC07-09, can be distinguished from the facts of this case.

In fact, MAKARAU JP…, in a number of cases involving the applicant and its employees, in Antonio v Ashanti Goldfields Zimbabwe & Anor; Mujati v Ashanti Golfields Ltd & Anor; Ashanti Goldfieds Zimbabwe Ltd v Bonde 2009 (2) ZLR 371 (H)…, distinguished Ashanti Goldfields Zimbabwe Ltd v Clement Kovi SC07-09 as follows;

“I am bound by all the decisions of the Supreme Court on points of law. Where, however, the facts that were placed before the Supreme Court are different from the facts before me, I believe I am at liberty to interpret their facts in light of the law handed down by the Supreme Court. The doctrine of stare decisis applies to points of law and not to factual disputes.”

A number of my brother and sister judges who have been seized with matters involving the applicant and its employees, in relation to these houses, have adopted the approach enunciated by MAKARAU JP…, in arriving at a different conclusion, on the facts presented in each particular case, despite the sentiments expressed in Ashanti Goldfields Zimbabwe Ltd v Clement Kovi SC07-09 in relation to the Memorandum of Agreement, dated 7 December 2003, and the Lease Agreement dated 12 December 2003.

Few examples are sufficient to illustrate this point.

In the case of Ashanti Goldfields Zimbabwe Ltd v Jhafati Mdala HC5664/07 CHATUKUTA J, after a protracted trial, did find, that, on the facts presented before her, inclusive of the Memorandum of Agreement dated 7 December 2003 and the Lease Agreement dated 12 December 2003, indeed, Ashanti Goldfields Zimbabwe Ltd had sold the house to the defendant.

In the case of Ashanti Goldfields Zimbabwe Limited t/a Freda Rebecca Mine v Shingirai Matimura & Ors HH54-11, GOWORA J…, declined to grant a summary judgment wherein the applicant had sought the eviction of the respondents; whilst the respondents had advanced a similar argument like in the instant case. Indeed, the Memorandum of Agreement dated 7 December 2003 and the Lease Agreement, similar to one dated 12 December 2003, were some of the documents in issue in that case.

Lastly, in the case of Govha v Ashanti Goldfields Zimbabwe t/a Freda Rebecca Mine & Anor HH48-12, and, in Ashanti Goldfields Zimbabwe Limited t/a Freda Rebecca Mine v Ephraim Pfidze HH347-12 MATHONSI J, in both cases, faced with facts almost on all fours with the present case, declined to grant a summary judgement in both cases for the eviction of the respondents (employees).

It is clear from the facts of this case that the respondent has raised a good prima facie defence to the action for eviction.

The Memorandum of Agreement, dated 1 December 2003, which I have alluded to in my introductory remarks, shows, that, the respondent was one of the sitting tenants who were eligible to purchase the house in issue. The respondent contends, that, he acted in terms of the Memorandum, dated 2 December 2013, which invited all employees who were sitting tenants to exercise the offer to purchase the houses as at 29 February 2004.

In fact, the respondent argues, that, he proceeded, in exercising this option, to enter into a lease agreement, dated 12 December 2003, which he described as the vehicle with which the employees were to purchase the houses, as they all started to pay what was called “rent to buy”.

Indeed, the respondent attached some of his payslips, for 2004, which show that monthly deductions in various amounts were made as “rent to buy”.

In addition to that, the respondent has included a memorandum from the applicant, addressed to him, acknowledging receipt of $1,100,000 towards the purchase of house, and indicating that outstanding balance as $60,000 only.

As already stated, the respondent was in occupation of this house (as a sitting tenant) for a period in excess of 60 months (Clause 3 of the lease agreement) before he was dismissed from work and the lease agreement purportedly terminated.

Considering all these the factors placed before the court by the respondent, one cannot say, with certainty, at this stage, that the respondent did not exercise the option to purchase the house in issue.

The applicant has not been able to meaningfully explain why, after a period of 60 months, and in view of the proof of monthly deductions and confirmation by the applicant of such payment as part of the purchase price, in March 2004, the applicant is still of the view that the respondent did not purchase the house.

I am satisfied that the respondent has presented an arguable case.

It cannot be said that the defence raised by the respondent is simply raised for purposes of delaying the inevitable. It would therefore be unfair and improper, and this stage, to close the door to the defendant and deny him the opportunity to defend the claim.

On the facts before me, it cannot be said, that, the applicant's case is unanswerable and unassailable.

The parties should be allowed to have their day in court and present evidence on whether the respondent exercised the right to purchase the house in issue and paid the full purchase price.

The claim for eviction, at this stage, is premature.

The application for summary judgment is therefore without merit. In the result, the summary judgement application is dismissed with costs.

The plaintiff issued summons against the defendants for the following relief:

“1. That the plaintiff be and is hereby declared the rightful owner of Stand number 454 Unit Seke, Chitungwiza;

2. That the transfer of Stand 454 Unit C Seke, Chitungwiza into Gideon Musendo's name be and is hereby nullified;

3. That the 2nd defendant cede rights, title and interest in the property aforementioned back to the plaintiff within seven (7) days of this order failure of which the Sheriff be and is hereby empowered to sign documents necessary to effect cession to the Plaintiff;

4. That the 1st defendant and all those claiming occupation though her be evicted from House No.454 Unit F Seke Chitungwiza; and

5. That the 1st and 2nd defendants pay costs of suit on an attorney client scale.”

The first respondent filed an appearance to defend and opposed the order sought.

Before trial, the parties agreed that the matter proceed by way of a Stated Case. The facts agreed by the parties are as follows:

House Number 454 Unit F Seke, Chitungwiza (hereinafter referred to as the property) is owned by and belongs to the second defendant as it has no title to date.

The second defendant gave occupation of the property to one Moses Mutandwa, under a lease to buy agreement. Moses Mutandwa died and his heir, Gordon Madzima, assumed occupation of the property under the same terms and conditions the house was held by the late Moses Mutandwa.

In 1992, Gordon Madzima sold the property to the first defendant's deceased husband, Gideon Musendo.

The said late Gideon Musendo, pursuant to the agreement, took occupation of the property.

On 13 March 1993, Gordon Madzima entered into another sale agreement with the plaintiff - for the sale of the same property. Gordon Madzima alleged to have cancelled the earlier agreement of sale with the late Gideon Musendo.

Gordon Madzima failed to give vacant possession of the property to the plaintiff.

The second defendant also refused to enforce the sale agreement between Gordon Madzima and the plaintiff on the basis that it had not consented to the sale of the property; it being the owner of that property.

The plaintiff, under HC case number 9232/93, approached this court seeking the agreement of sale between him and Gordon Madzima to be declared valid and to compel Gordon Madzima to transfer the right, title and interest in the property to herself.

The order was granted in default by the High Court on 27 April 1994.

The second defendant was not cited as a party to the proceedings.

In compliance with the court order, the second defendant, on 7 June 1994, issued the plaintiff with a certificate of occupation and ownership card for the property. Rates and water bills were transferred into the plaintiff's name.

The plaintiff sought to evict the first defendant from the property in the Magistrates Court, under case number 155/94.

The order was granted.

The first defendant appealed to the Supreme Court and the order was set aside and the first defendant's deceased husband was granted leave to defend the eviction proceedings.

The first defendant's deceased's husband was also advised to seek rescission of HC case number HC9232/93.

The matter before the Magistrate Court was later dismissed.

The first defendant's deceased husband remained in occupation of the property.

On 11 December 2002, the first defendant's deceased husband 'applied' to the second defendant for allocation of the property.

In September 2006, a lease to buy was entered into between the second defendant and the first defendant's deceased husband for the property. On 4 September 2006, the second defendant issued the first defendant's deceased husband with a certificate of occupation of the property.

The plaintiff persists in its claim as per summons.

The first defendant opposed the claim on the basis, that, Gordon Madzima could not have legally sold the property to the plaintiff without the second defendant's consent.

Both parties are claiming costs on a higher scale.

The issues referred for determination are;

(1) Whether the matter is res judicata; and

(2) Who between the plaintiff and the first defendant is the rightful owner of Stand 454, Unit F Seke....,.

I shall move on to determine who, between the plaintiff and the first defendant, is the true owner of the property.

It is common cause that the first defendant was the first purchaser. The late Gordon Madzima sold the property to the first defendant's husband in 1992. The sale agreement with the plaintiff was only entered into in 1993.

There has been placed before me no proof of the cancellation of the agreement of 1992.

The inescapable conclusion is that there was a double sale.

I agree with the legal position enunciated by the parties in respect of the double sales found in Chimphonda v Rodriques and Ors 1997 (2) ZLR 63 ZLR 63 (H) that:

“In a double sale situation, where the second buyer had knowledge of the first sale of the property, either at the time of the sale or at the time it took transfer of the property, then, unless there are special circumstances affecting the balance of equities, the first buyer can recover the property from the second buyer. In such instance, the second buyer's only remedy is an action for damages against the seller. In deciding whether there are special circumstances affecting the balance of equities, the court must bear in mind, that, the primary right of the wronged buyer is the remedy of specific performance which will be granted unless there is some equitable reason disqualifying him from obtaining such relief.”

See Crundall Brothers (Pvt) Ltd v Lazarus NO & Anor 1991 (2) ZLR (S); Guga v Moyo 2000 (2) 458 (S); that, once the second purchaser has knowledge of the prior sale, then, the first purchaser, in the absence of special circumstances affecting the balance of equities, is entitled to recover the property from the second purchaser.

The second purchaser's rights are limited to claiming damages from the seller.

Applying the above principles to the present case, the first defendant's late husband was the first purchaser. The plaintiff, at the time of the purchase of the property, knew of the existence of the sale agreement between the seller and the first defendant's late husband.

It is clear, that, from 1992 to date, the first defendant and her family have been in occupation of the property. The plaintiff has not been able to get vacant possession of the property.

The plaintiff even attempted to evict the first defendant from the property. The plaintiff failed in that regard as far back as 1994.

The evidence tends to point to the fact, that, the plaintiff has been aware, all along, that the first defendant was also claiming ownership of that property.

The plaintiff did nothing, then, to have the parties rights determined by a competent authority.

It is common cause, that, the plaintiff, in 1994, sued the seller and got judgment to have the property transferred to her. Later on, it is also common cause, that, the first defendant got certificate of occupation to the property.

The doctrine of notice decrees, that, if the latter purchaser, at the time it took transfer, knew that the property had been sold to another, then, the property must be transferred back to the other.

Herein, it is apparent, that, the plaintiff knew, at the time she applied to court for rights in the property, that the property had been sold to the first defendant's late husband.

The plaintiff conceded that point in the Statement of Agreed Facts.

It follows, then, that, when the plaintiff attempted to take transfer, it was a form of fraud.

In the case of Riley v Sliep NO [2008] ZANHC 22, the court quoted with approval an earlier judgment which held that “it is a species of fraud to attempt to secure a res (an item of property) which is known to have been promised to another.”

The same applies with full force in the present matter.

The plaintiff fraudulently obtained an order, under HC9233/93, having known that the property had earlier on been sold to another: see also Grundal Brothers (Pvt) Ltd v Lazarus N.O. and Anor 1991 (3) SA 812.

Having found as above, it is obvious there are no special circumstances affecting the balance of equities.

The first purchaser ought to succeed to be declared the true owner of the property.

The plaintiff bought the property when the first defendant was already in occupation of the property. The balance of equities cannot weigh in her favour.

This court has not been favoured with any evidence showing that the late Gordon Madzima cancelled the agreement of sale between himself and the late Musendo.

Without such evidence, the agreement of sale between the late Madzima and late Musendo is valid.

Consequently, the late Musendo is the first purchaser, and, there being no special circumstances favouring the plaintiff, it is my finding that the first defendant is the true owner of the property.

The plaintiff can always adopt the option of suing for damages.

Consequently, the plaintiff's claim is dismissed with costs.

The applicants applied for a decree of perpetual silence against the respondents.

They submitted, that, these constituted a nuisance to them. The respondents, they said, took them to the Magistrates courts, this court, and the Supreme Court with no end in sight. They stated, that, the respondents took them to court on not less than forty (40) occasions. They averred, that, they have been subjected to a series of abusive criminal and civil proceedings. They said, despite repeated dismissal of their claims by the courts, the respondents maintained the position, that, the judgments which were entered against them were ineffectual. They complained that the respondents were harassing and vexing them. They insisted that the court should protect them as well as itself from the abusive conduct of the respondents. They moved the court to grant them the decree.

The respondents opposed the application.

They moved the court to examine the cases which formed the basis of the application in relation to their cause.

They denied that they were always in the driving seat when the cases which the applicants made reference to found their way to the court(s). They stated, that, the applicants filed some of the cases with the court(s). They said all the cases upon which the current application rests had a bearing on a mine tribute agreement which the fourth applicant (John Richard Needham Groves) concluded with the second respondent (Base Mineral Zimbabwe (Pvt) Ltd). The fourth applicant, they said, concluded the tribute agreement with them through his Chiroswa Minerals (Pvt) Ltd [“the company”].

They submitted, that, they should not be silenced for their effort to assert their right in the tribute agreement. They moved the court to dismiss the application with costs.

At the centre of the parties dispute is Dodge Mine [“the mine”]. It lies in Shamva District under Mashonaland Central Province. It has six claims. These are lucrative, according to the evidence filed of record.

The fourth applicant and his partner used to own and work the mine. They worked it under the name Chiroswa Syndicate. The fourth applicant later sold the mine to the first applicant (Mabwe Minerals (Pvt) Ltd). This was after his partner had left the syndicate. The first applicant is currently the owner of the mine.

The issue of the mine has seen the parties take each other to court on thirty (30), and not forty (40) occasions.

The applicants filed actions and/or applications against the respondents on nine (9) occasions. The respondents filed actions and/or applications on sixteen (16) occasions. The following five (5) cases were not accounted for: HC233/13, HC5669/13, HC5460/13, HC6842/14 and HC308/12.

The court could not tell which party filed what action or application in respect of the mentioned five (5) cases. What it could tell, however, was that the parties have been in and out of courts on thirty (30) occasions.

The relief which the applicants moved the court to grant to them is not new to the jurisdiction of this court.

In Mhini v Mupedzamombe 1999 (1) ZLR 561…, GARWE J…, had the occasion to deal with an issue which was similar to the present one. The learned judge quoted with approval what CURLEWIS J said in Brown v Simon 1905 TS 311…, wherein he remarked that the procedure:

“…, affords a useful means of bringing to a conclusion all threatened actions, and, in our opinion, it is applicable under due safeguards not only to cases where a claim has been made or an action threatened publicly, but, to every case where by demand or threatened action there has been a disturbance of, or interference with, the quiet enjoyment of another's rights.”…,.

In Corderoy v Union Government [Minister of Finance] 1918 AD 512, which GARWE J was pleased to make reference to in Mhini v Mupedzamombe 1999 (1) ZLR 561, the South African Appellate Division held, that, when there has been repeated and persistent litigation between the same parties, in the same cause of action, and in respect of the same subject–matter, the court can make a general order prohibiting the institution of such litigation without the leave of the court, but, that power extended only to prevent abuse of its own process without being concerned with the process of other courts.

The paucity of case authorities on the current subject is ample evidence of the fact that the relief, whilst recognised at law, is seldom resorted to.

It is only granted where a party succeeds in showing the court, that, the defendant or respondent is a serial litigator who has the tendency to abuse not only the court but also its process and his adversary.

It is important for the court to examine and establish the fact of whether or not the respondents fall into the category of serial litigators who abuse the applicants, the court(s), and their processes.

The dispute of the parties has its origin in the judgment of PATEL J…,.

The learned judge had the occasion to hear and determine the matter in which Chiroswa Minerals (Pvt) Ltd [“the company”] and the second respondent (Base Mineral Zimbabwe (Pvt) Ltd) brought before him under case number HH2612/11. The company and the second respondent had sued the following three parties – the Minister of Mines, one Morris Tendayi Nyakudya and the latter's company, Vambo Mills (Pvt) Ltd. They succeeded in having Mr Nyakudya and Vambo Mills (Pvt) Ltd evicted from the mine where they were operating in terms of an expired tribute agreement. They successfully moved the court to order the Minister of Mines to refer the tribute agreement, which they had concluded between them, to the Commissioner of Mines for approval and registration.

A reading of PATEL J's judgment, under HH261-11, tends to suggest, that, it was Chiroswa Minerals (Pvt) Ltd which entered into the tribute agreement with Morris Tendayi Nyakudya and his Vambo Mills (Pvt) Ltd. It is also not a far-fetched suggestion, that, Chiroswa Mills (Pvt) Ltd moved to enter into the second tribute agreement of the mine with the second respondent.

The abovementioned observations find support from the fact, that, it is Chiroswa Minerals (Pvt) Ltd, and not Chiroswa Syndicate, which moved for the eviction of Mr. Nyakudya and his Vambo Mills (Pvt) Ltd from the mine. The company worked hand-in-glove with the second respondent to achieve its desired end-in-view.

The impression which the company created in the mind of the respondents, at the time, was that it owned the mine. It could not successfully evict those from the same if it was not the owner of the mine. It would have had no locus standi to do so.

It is common cause, that, the fourth applicant (John Richard Needham Groves) owned Chiroswa Minerals (Pvt) Ltd. He, in appreciation of his good working relationship with the first respondent (Peter Valentine), donated 50% of his shares in the company to the first respondent. The first respondent, it is not in dispute, was or is the Managing Director of the second respondent (Base Mineral Zimbabwe (Pvt) Ltd).

The above observed matters do, in the court's view, account for the misunderstanding which later ensued between the fourth applicant (John Richard Needham Groves) and the respondents (Peter Valentine and Base Mineral Zimbabwe (Pvt) Ltd).

These, the first respondent in particular, must have laboured under the genuine but mistaken belief that they, or he, as a 50% holder of shares in Chiroswa Minerals (Pvt) Ltd, had a substantial interest not only in the company but also in the mine which the company owned.

The first respondent's belief in the mentioned regard finds support from a reading of MATANDA-MOYO J's judgment under case number HH557-14.

The first respondent (Peter Valentine) had, in the case, sued the first, second and fourth applicants (Mabwe Minerals (Pvt) Ltd, Tapiwa Gurupira and John Richard Needham Groves). He moved the court to set aside the agreement of sale of the mine which the fourth applicant had concluded with the first and the second applicants. He claimed that he owned 50% of the mine. He challenged his omission from participating in the sale of the mine. He insisted that the sale was, on the mentioned basis, null and void and had, therefore, to be set aside.

It is such belief, as has been stated in the foregoing paragraphs, which caused the respondents to file one suit after another with the courts.

They worked on the impression which had been created. They believed that they, or one of them, owned 50% of the shares in the company which owned the mine. They, therefore, made every effort to assert what they believed belonged to them.

The respondents belief was shattered when MATANDA-MOYO J ruled, to their disappointment, that, Chiroswa Syndicate, and not Chiroswa Minerals (Pvt) Ltd, owned the mine.

The respondents could not, under the stated circumstances, be said to have engaged themselves in a wild goose chase, as it were. They honestly believed, in the court's view, that, they were pursuing a genuine cause. They believed, further, that, the fourth applicant (John Richard Needham Groves) and the company were treating them unfairly. They, therefore, made effort to have their case determined by the courts.

The respondents unrelenting effort to assert their right, in what they believed belonged to them, took their case to a higher level in 2013.

In a matter which Chiroswa Minerals (Pvt) Ltd and the second respondent filed under case number HC5208/13, TAKUVA J remained alive to the judgment which PATEL J delivered under HH261-11.

The learned judge ordered the Minister of Mines, one Obert Mpofu, and the Commissioner of Mines, a Mrs E Kahonde, to process the tribute agreement which Chiroswa Minerals (Pvt) Ltd and the second respondent (Base Mineral Zimbabwe (Pvt) Ltd) concluded as at the time of PATEL J's judgment and to have the same registered at the offices of the Mining Commissioner.

The order contained a stiff sanction which the Minister and the Commissioner would suffer if they did not comply with it. They would each be held to have been in contempt of court and be committed to thirty (30) days imprisonment.

It was as a result of TAKUVA J's order that the Mining Commissioner did, on 13 February 2014, register a tribute agreement in favour of the second respondent (Base Mineral Zimbabwe (Pvt) Ltd).

The fourth applicant represented the company and Chiroswa Syndicate in the tribute agreement which the parties registered with the Mining Commissioner. The first respondent represented the second in the same. The tribute was or is to endure for a period of three years. It would, therefore, expire on 13 February 2017.

Given the above described set of circumstances, it would be difficult, if not impossible, for one to suggest, as the applicants did, that the respondents were or are a nuisance to them.

The applicants, the fourth applicant in particular (John Richard Needham Groves), conveyed an impression to the respondents. These believed him, only to discover, at a later stage, that, he was hunting with the hounds and running with the hares, so to speak.

He dined and wined with them, as it were. He later switched his allegiance from them and proceeded to work with the applicants against them.

The fourth applicant was undoubtedly the main cause of the parties misunderstanding.

He, through his Chiroswa Minerals (Pvt) Ltd, worked with the second respondent (Base Mineral Zimbabwe (Pvt) Ltd) to evict persons who were at the mine from the same. He agreed to enter into a tribute agreement of the mine with the second respondent. He sold the mine to the first applicant (Mabwe Minerals (Pvt) Ltd). He sold his 50% shareholding in Chiroswa Minerals (Pvt) Ltd to the third applicant (Tag Minerals Zimbabwe (Pvt) Ltd).

He consulted no one in this complicated matrix which he created, not for himself, but for the respondents.

The court was not amused by the fourth applicant's manner of dealing with his business partners.

It viewed the applicants effort to conceal certain matters from it with serious disquiet.

They attached to the application a wrong tribute agreement. The agreement showed its life span as commencing on 14 December 2011 and expiring on 14 December 2014. They did not make any reference to the correct tribute agreement which was registered at the Mining Commissioner's offices on 13 February 2014. They plucked off the last page of PATEL J's judgment i.e. the page on which the learned judge's order was recorded. They made an effort not to disclose the existence of TAKUVA J's order under HC5208/13.

In acting as they did, the applicants aim and object were to paint the picture which showed, that, the respondents were a rogue element which must be placed under leash all the time, so to speak.

They, unfortunately for themselves, over-did their trick to a point where their story remained difficult, if not impossible, to believe.

They were ably legally represented in this and other actions or applications. Their legal practitioner should have been more candid with the court than he did. The court, therefore, viewed the conduct of the applicants and their legal practitioner with displeasure.

The respondents could not be faulted for having made an effort to assert their right in what they believed belonged to them. They cannot be blamed for asserting their right in the tribute agreement which was registered in the second respondent's favour on 13 February 2014.

That agreement is still extant. It will only expire on 13 February 2017.

The application cannot, on the basis of the foregoing, be allowed to stand.

This is an appeal against the whole judgment of the High Court of Zimbabwe handed down on 14 July 2022 under judgment number HB188-22.

After hearing the parties, the court dismissed the appeal with costs. The reasons therefor appear hereunder.

The parties filed a statement of agreed facts before the court a quo. The statement was reproduced by the court a quo in its judgment and may be summarised, materially, to the following effect:

(a) Sometime in November 2014, the first respondent and the appellant entered into a written agreement of sale over Stand Number 6505 Bulawayo Township of Stand 6541 Bulawayo Township, situate in the district of Bulawayo.

In their papers, the parties refer to it as “the initial agreement”.

The appellant took occupation of the property immediately upon the signing of the agreement in accordance with the terms thereof. The terms of the agreement also provided that the appellant was to pay the purchase price of the property in the sum of USD105,000 as follows:

(i) A deposit in the sum of USD25,000 upon the signing of the agreement.

(ii) The balance of USD80,000 by way of three equal instalments commencing on the 28th of February 2015, and, subsequently on or before 28 April 2015 and finally on or before 31 July 2015.

(b) The said purchase price was as per the then prevailing fair market value of the property.

The appellant paid a deposit of USD37,000 “by 12 March 2015.”

The appellant however breached the agreement of sale by failing to pay the balance of the purchase price of USD68,000 in the manner stipulated in the agreement.

The notice of termination of the initial agreement of sale, authored by the first respondent, was, according to the Sheriff's return of service, served upon the appellant at No.43 Aberdeen Road, Fortunes Gate, Bulawayo on 12 August 2015, by handing a copy thereof to the appellant's worker.

In terms of the notice of termination, the initial agreement was cancelled on 4 September 2015.

(c) An action was instituted by the first respondent on 16 February 2017, under case number HC446/17, seeking the following relief:

(i) An order confirming the cancellation of the initial agreement.

(ii) An order evicting the appellant and all those claiming occupation from the property in question.

(iii) An order that the appellant pays “occupational damages” to the first respondent in the sum of USD800 per month or USD26.67 per day from the 4th of September 2015, being the date of the cancellation of the initial agreement to the date of eviction.

(d) A default judgment was granted on 19 May 2017, confirming the cancellation of the initial agreement and granting the relief as prayed for in the summons in HC446/17. In terms of the writ of execution and ejectment issued on 8 February 2018 pursuant to the default judgment, the appellant was evicted from the property in question.

(e) On 22 November 2018, the default judgment under HC446/17 was rescinded and set aside under HC1576/18. On 26 November 2018, the appellant entered an appearance to defend the action under HC446/17. On 18 February 2019, he filed a special plea but had not (as at the time of the filing of the statement of agreed facts) pleaded over to the merits.

(f) During the period when the order (in default) in HC446/17 was extant, the first respondent entered into a written agreement of sale over the same property (second agreement) with the second respondent. In terms of the second agreement, the second respondent was to pay the full purchase price in respect of the property being the sum of USD130,000 as follows:

(i) A deposit in the sum of USD70,000 upon the signing of the agreement.

(ii) The balance of USD60,000 to be paid between 31 April 2018 and 31 July 2018.

(g) The purchase price prescribed in respect of the property in terms of the second agreement was also per the then prevailing fair market value. In accordance with the terms of the second agreement, and by the 18th of July 2018, the second respondent had paid the full purchase price in the sum of USD130,000 to the first respondent.

(h) The third respondent was made aware of the second agreement of sale in terms of a report by the first respondent and he duly recorded such sale in his minutes in respect of a creditors meeting held on 21 June 2018. The minutes of the said meeting are contained in the third respondent's final liquidation file under CRB2/10.

I interpose at this juncture, for the sake of clarity, to explain that the first respondent acts in his official capacity as the liquidator of a company, Tabs Avon Lighting (Pvt) Ltd (in liquidation), the seller of the property in issue, hence the involvement of the third respondent.

(i) On 21 March 2018, the only secured creditor of Tabs Avon Lighting (Pvt) Ltd (in liquidation), being NMB Bank Limited, approved of the second agreement of sale and the third respondent was duly made aware of such approval. The letter by this sole creditor is also filed in the third respondent's final liquidation file under CRB2/10.

(j) In the aftermath of the granting of the order under HC1576/18, and after the conclusion of the second agreement of sale and the payment by the second respondent of the full purchase price in respect of the property, the appellant took steps aimed at remedying his breach of the initial agreement of sale. He did so by depositing USD68,000 into the first respondent's legal practitioners trust account, being the balance of the purchase price.

(k) The steps taken by the appellant, aimed at remedying his breach of the initial agreement, were not accepted by the first respondent. The first respondent's legal practitioners tendered back to the appellant the said amount of USD68,000 that had been paid into its trust account.

(l) By way of an order granted under HC3144/18, the second respondent (being the purchaser in the second agreement) was joined to the main proceedings. He duly entered an appearance to defend the action and filed his plea thereto.

(m) As at the date of the Statement of Agreed Facts, and following the appellant's eviction therefrom in terms of the writ of execution and ejectment issued against him under HC1576/18, neither of the parties were in physical or lawful occupation of the property nor had any party taken transfer thereof.

In the Statement of Agreed Facts, the parties listed the following as the issues for determination by the court a quo:

(i) Whether the initial agreement of sale over Stand 6505 Bulawayo Township of Stand 6541A Bulawayo Township, situate in the District of Bulawayo, between the plaintiff (appellant) and first defendant (first respondent), was lawfully terminated.

(ii) Whether there existed any legal impediment to the conclusion of the second agreement of sale entered into between the plaintiff (first respondent) and the second defendant (second respondent) at the material time.

(iii) To whom should the property, being Stand 6505 Bulawayo Township of Stand 6541A Bulawayo Township, situate in the District of Bulawayo be transferred.

On the first issue, the appellant argued, that, the notice was not delivered in compliance with section 8(3) of the Contractual Penalties Act [Chapter 8:04] ('the Act') in that it was not delivered to him personally or by registered post to his chosen address.

On the other hand, the first respondent submitted, that, the appellant was notified of the breach in a manner that complied with the provisions of section 8 of the Contractual Penalties Act, and that the agreement was lawfully cancelled.

The second respondent, on his part, contended that the agreement between the appellant and the first respondent was lawfully terminated. According to him, the question that arose was whether the service of the notice on the appellant, by way of handing it to his worker, was valid service in terms of section 8 of the Contractual Penalties Act.

In determining the matter, the court a quo found that it was “required to tease out the intention, purpose or context of section 8(3)(b)” of the Contractual Penalties Act.

It found, that, its purpose is to make provision for effective service of a written notice of breach of an instalment sale agreement. It stated that service of the notice of the termination of the agreement was served at the appellant's given address of service and concluded that service on the appellant's worker amounted to effective service of the notice.

The said court noted, that, the notice of cancellation clearly specified that the appellant had breached the agreement of sale by failing to pay the instalments. The appellant was given thirty days notice to remedy the breach by settling the amount due. The notice specified that failure to settle the amount within thirty days would lead to an automatic cancellation.

The appellant unilaterally deposited into the first respondent's legal practitioners trust account the balance of the purchase price almost three years after the deadline of 1 September 2015.

Therefore, the issue whether the agreement between the appellant and the first respondent was lawfully terminated, was settled accordingly.

On the second issue, the first respondent contended, that, the second agreement was concluded after the cancellation of the first agreement and also at the time the default judgment confirming cancellation was extant. It was also submitted, on his behalf, that, the fact that the default judgement confirming the cancellation was later rescinded was of no moment.

Per contra, the appellant argued that the preamble to the agreement between the first respondent and the second respondent described the property as Stand 6512 Bulawayo Township. It was submitted, that, it therefore followed that the parties in the second agreement had in mind Stand 6512 and not Stand 6505, the subject matter of the initial agreement. Furthermore, that there was thus no privity of contract between the first respondent and second respondent concerning the property the subject of this appeal.

The second respondent contended, that, the appellant breached the agreement by failing to pay the balance of the purchase price. Subsequently, the appellant was notified of the breach and failed to rectify the breach. He stated, that, the sale to him (second respondent) was conducted during the period when the order confirming the cancellation of the initial sale was extant and that there were therefore no legal impediments to the conclusion of the said (second) agreement of sale.

The court found, that, the property referred to in the agreed facts was Stand Number 6505 Bulawayo Township, situate in the District of Bulawayo. It found that there was no factual dispute as to the identity of the property in issue, the subject matter of the agreement between the first and second respondents.

Further, that, in any event, the validity of the agreement of sale between the first and second respondents was not an issue that the appellant should have concerned himself with. His matter did not turn on whether the second agreement was valid or not. His matter turned on whether he had breached the agreement of sale with the first respondent and whether his agreement was lawfully cancelled.

The court ultimately found that the agreement of sale between the appellant and the first respondent was lawfully cancelled.

With regard to the third issue for determination, the first respondent submitted, that, since the agreement of sale was lawfully terminated, and that the only valid agreement was the one between the first and second respondents, it followed that the property ought to be transferred to the second respondent.

It was further argued, that, ordering a transfer of the property to the appellant would be tantamount to creating a contract between the appellant and the first respondent where none existed.

It was also contended, that, such an order to transfer to the appellant would be tantamount to ordering specific performance, which remedy was not available to the appellant because he had failed to fulfil his contractual obligations, a factor which eventually led to the cancellation of the agreement.

The appellant argued that the court ought to order transfer of the property to him, coupled with an order for specific performance as the appellant had paid the purchase price by depositing the balance into the account of the first respondent's legal practitioners trust account.

The court found, that, by his own admission, the appellant breached the sale agreement and was not entitled to specific performance. It noted, that, the appellant's attempt at remedying the breach was not accepted by the first respondent and that a party cannot, after a breach, make a unilateral payment way outside the stipulated time frame, hoping to remedy the breach. It found, that, the second respondent was entitled to specific performance for the reason, that, in terms of the agreed facts he (the second respondent) agreed and undertook to pay the full prescribed purchase price and proceeded to do so in compliance with the terms of the agreement. Therefore, transfer of the property was to be done in favour of the second respondent.

In the result, the court a quo issued an order in the following terms:

1. The cancellation of the agreement of sale entered into between the plaintiff (first respondent in this appeal) and the first defendant (appellant in this appeal) in respect of a property known as Stand Number 6505 Bulawayo Township of Stand 6541A Bulawayo Township situate in the District of Bulawayo measuring 3109 square metres, D.T 2749/84 is confirmed.

2. The plaintiff shall transfer the property, being Stand Number 6505 Bulawayo Township of Stand 6541A Bulawayo Township situate in the District of Bulawayo measuring 3109 square metres, D.T. 2749/84 to the second defendant (second respondent in this appeal) within thirty (30) days of this order.

3. First defendant pays the costs of suit for plaintiff and second defendant on a party and party scale.

Aggrieved by the decision of the court a quo, the appellant has noted this appeal on the following grounds of appeal:

“GROUNDS OF APPEAL

1. The court a quo erred in law in finding that the agreement of sale in instalments over Stand 6505 Bulawayo township of Stand 6541A Bulawayo Township (the property) between appellant and first respondent was lawfully terminated.

2. The court a quo misdirected itself in law in finding that service of notice to remedy a breach in the instalment sale of land over the property on one Mr.Ncube, a gardener, was competent service as contemplated in section 8(2)(3) of the Contractual Penalties Act [Chapter 8:04].

3. A fortiori, the court a quo erred in law in finding that the appellant was properly placed in mora by the respondent.

4. The court a quo erred in law in finding, that, the first respondent, as seller in the instalment sale, clearly and unambiguously communicated its election to cancel the sale to the appellant as purchaser.

5. The court a quo erred in law in finding that the rescission of judgment granted in appellant's favour, in HC1576/18 on the 22nd of November 2018, was of 'no moment'.

6. The court a quo erred in law in finding that the appellant was not entitled to the relief of specific performance.

7. The court a quo erred in law in ordering transfer of the property into the second respondent's name in circumstances where a clear material dispute of fact existed as to the identity of the property sold to him by the first respondent.

WHEREFORE the appellant prays for the following relief:

1. The instant appeal succeeds.

2. The judgment of the court a quo is set aside in its entirety and in its place substituted the following -

(a) The plaintiff's claims be and are hereby dismissed.

(b) The plaintiff is ordered to transfer into first defendant's names Stand Number 6505 Bulawayo Township of Stand 6541A Bulawayo Township situate in the district of Bulawayo measuring 3,109 square meters held under Deed of Transfer 2749/84 within 30 days of this order.

(c) The plaintiff and second defendant are to pay the cost of suit, jointly and severally the one paying the other to be absolved on an attorney and client scale.

3. The first and second respondents are to pay the costs of this appeal, jointly and severally the one paying the other to be absolved.”

Counsel for the appellant submitted before this Court, inter alia, that, it is now accepted that courts interpret the provisions of section 8 of the Contractual Penalties Act strictly, and, in that regard, cited Washaya & Anor v Makebreak Trading (Pvt) Ltd SC163-21 where a shortfall of one day in the notice period was ruled to amount to non-compliance with the requirements of the section.

He further submitted, that, the Contractual Penalties Act requires personal service on the purchaser, and that, in casu, there was no personal service on the appellant as the purchaser. The appellant's gardener was not a nominated person and service on him was therefore not in compliance with section 8 of the Contractual Penalties Act.

He further submitted, that, section 40 of the Interpretation Act only becomes relevant and applicable where the provisions of an Act are not clear or the Act does not stipulate how service of documents is to be effected.

Section 8 of the Contractual Penalties Act, being clear in its provision, it follows that section 40 of the Interpretation Act has no role to play.

It was also contended by counsel for the appellant, that, there was “a serious dispute of fact” in that the initial and the second agreements related to two different properties. Thus, the appellant purchased a different property from that purchased by the second respondent.

Counsel conceded that the appellant did not make payments in accordance with the agreement of sale. To be specific, counsel's response to the court's question as to whether the appellant had paid in accordance with the agreement, was:

“He defaulted. That is why he was given the notice, but, subsequently, he tendered the payment.”

Note may be taken, at this juncture, that, the notice given to the appellant to remedy the breach was in August 2015 and that it afforded him 30 days to do so.

Counsel also conceded, that, the appellant did not rectify the breach within the given period.

He further confirmed, that, the appellant had subsequently received the summons issued by the first respondent for the confirmation of the cancellation of the agreement of sale and for his eviction.

When asked whether the appellant had “reacted” to the summons, counsel made reference to the payment of the outstanding balance that the appellant purported to make in 2018 and stated that the said payment was rejected.

Notably, the summons was issued on 16 February 2017 while the purported payment was made in December of 2018.

It was also counsel's submission, that, the reflected or implicit position in the Statement of Agreed Facts, that the property the subject matter of the initial agreement was the same property sold in the second agreement, was agreed to by mistake on the appellant's part because the two agreements related to two different properties.

He submitted, that, the issue of the two agreements relating to two different properties was brought to the attention of the court a quo which ought to have asked for an explanation why it was being asked to award to the second respondent property that had been bought by the appellant. He submitted that the court a quo ought to have advised that the matter should go to trial.

Counsel for the first respondent submitted, that, section 8 of the Contractual Penalties Act should not be read to be doing away with the provisions of section 40 of the Interpretation Act. He submitted, that, this was so because section 8(3) of the Contractual Penalties Act states clearly that it is “without derogation from section 40…,” and specifically provides as follows:

“Without derogation from section 40 of the Interpretation Act [Chapter 1:1], a notice shall be regarded as having been duly given to the purchaser for the purposes of subsection (1) -

(a) If it has been delivered to the purchaser personally or to an agent chosen by the purchaser for the purpose of receiving such notices; or

(b) If it has been posted by registered post to the address chosen by the purchaser for the delivery of correspondence or legal documents relating to the instalment sale of land concerned, or, in the absence thereof, to the purchaser's usual or last known place of residence or business.”

Counsel for the first respondent submitted, that, Washaya & Anor v Makebreak Trading (Pvt) Ltd SC163-21, cited by the appellant, was distinguishable because in that case service was by registered mail and such service is provided for in section 8 of the Contractual Penalties Act; there was thus no need to consider section 40 of the Interpretation Act.

He also submitted, that, it was incorrect to say, as submitted for the appellant, that section 8 of the Contractual Penalties Act should be read alone to the exclusion of section 40 of the Interpretation Act.

It was counsel's contention, that, in casu, there was effective service and that section 8 of the Contractual Penalties Act was complied with.

With regard to the alleged dispute of fact, counsel argued, that, the appellant's argument would only carry the day where, as in Leathought Investments (Pvt) Ltd v Chirangano and Others SC60-21, such dispute of fact appears on the face of the Statement of Agreed Facts itself and in the pleadings.

He submitted that in casu, the parties decided to forgo preliminary issues and that the real issue that they placed before the court was the question: “who is entitled to take transfer of the property?”

Furthermore, the appellant should have followed the proper channels to resile from the Statement of Agreed Facts.

Without having done so, the appellant must be held to the facts as reflected in the Statement of Agreed Facts.

The issue of the Stand Number is thus overridden by the Statement of Agreed Facts which the parties signed.

Further to that, after so signing, the appellant had, as agreed, filed a plea in which the issue of the Stand Number did not arise.

The issue only arose during the hearing.

He argued, that, the parties were bound to the facts in the Statement of Agreed Facts and that the court only assists the parties by determining issues of law that arise therefrom. The appellant cannot therefore start alleging disputes of fact at the stage where the parties are addressing the court on issues of law.

Counsel for the second respondent contended, that, the question for determination is whether or not the service of the notice of termination on the appellant's employee was proper service in terms of the law. She referred to Nenyasha Housing Co-op v Violine Sibanda 2019 (3) ZLR 9 (H)…, where the court stated as follows, inter alia:

“The notice (to) (sic) must be in writing as stipulated in section 8(2)(a) of the Act. The procedure to be followed by the seller entails him giving notice to rectify, discontinue, or remedy the breach, followed by the institution of proceedings. The mischief behind this provision is to offer protection to purchasers in instalment sales.”

Counsel highlighted that the appellant conceded that he saw the notice of termination. Counsel also observed that the appellant was subsequently served with summons for cancellation but did not do anything about it.

Counsel for the second respondent argued, that, section 8 of the Contractual Penalties Act does not require personal service on the purchaser. She contended that section 8(3) of the Contractual Penalties Act gives the seller the option to either deliver personally or on a nominated agent of the purchaser or to post by registered post. She contended that, in casu, the appellant was served effectively in that the notice was served on a responsible person at his usual address in accordance with the terms of section 40(2)(c) of the Interpretation Act.

On the alleged dispute of fact, counsel submitted, that, there was no merit in the allegation as the parties are all in agreement that the Stand in issue is Stand No. 6505. She further highlighted, that, the court a quo held that the validity of the agreement of sale between the first respondent and the second respondent is not an issue that the appellant should concern himself about; his matter does not turn on whether the second agreement was valid or not.

Counsel contended, that, the appellant was not genuine in pursuing the appeal but was merely frustrating the other parties and causing unnecessary delay in the finalisation of the matter. She further highlighted that the appellant had re-occupied the property and was benefitting from it and urged the court to dismiss the appeal with costs.

Considering the grounds of appeal, as well as the submissions made before this Court, the following issues emerge for determination:

1. Whether or not service on the appellant's gardener, of the notice to remedy the breach, was proper service.

2. Whether or not the appellant was entitled to specific performance.

In his sixth ground of appeal, the appellant contends, that, the court a quo erred in law in finding that he was not entitled to the relief of specific performance.

The law on specific performance is settled.

By claiming specific performance, the innocent party is asking the court to order the defaulting party to do exactly what he contracted to do, or, put differently, to fulfil his contractual obligations. However, specific performance cannot be granted to a party who has not fulfilled or is unwilling and is not ready to fulfil his contractual obligations.

This point was emphasized by this Court in the case of Intercontinental Trading (Pvt) Ltd v Nestle Zimbabwe (Pvt) Ltd 1993 (1) ZLR 21 (S) as follows:

“Before I deal with this matter, I think it prudent for the court to remind itself of the correct manner in which the remedy of specific performance should be approached.

Historically, it was KOTZE CJ in Cohen v Shrines, McHattie & Kind [1882] 1 SAR 41 at 45, who, after consulting authorities, held that Roman-Dutch law clearly recognised the right to a specific performance of a contract, and, it is interesting to note that the classic exposition of the rule on specific performance was expressed in a case which arose in the High Court of this country and which came before the South African Appellate Division, namely, Farmers Co-operative Society (Reg) v Berry 1912 AD 343. In that case, INNES JA stated, at 350;

'Prima facie, every party to a binding agreement who is ready to carry out his own obligation under it has a right to demand from the other party, so far as it is possible, a performance of his undertaking in terms of the contract. As remarked by KOTZE CJ in Thompson v Pullinger 'the right of a plaintiff to the specific performance of a contract, where the defendant is in a position to do so, is beyond all doubt.'”

An order for specific performance lies in the discretion of the court.

In Benson v South Africa Mutual Life Assurance Society 1986 (1) SA 776 (A)…, it was held that the discretion of the court is:

“[not]…, completely unfettered. It remains, after all, a judicial discretion, and, from its very nature arises the requirement that it is not to be exercised capriciously, nor upon a wrong principle (Ex parte Neethling (supra at 335)). It is aimed at preventing an injustice, for cases do arise where justice demands that a plaintiff be denied his right to performance, and the basic principle thus is that the order which the court makes should not produce an unjust result which will be the case, e.g. if, in the particular circumstances, the order will operate unduly harshly on the defendant.”

In exercising its discretion, and in coming to the conclusion that it did, the court a quo stated that the general rule is that, prima facie, every party to a binding agreement, who is ready to carry out his own obligation under it, has a right to demand the other party, so far as it is possible, to perform its undertaking in terms of the contract.

It found, that, the second respondent was entitled to specific performance because in terms of the agreed facts, the second respondent agreed and undertook to pay the full prescribed purchase price in respect of the property and he met his side of the bargain.

On the facts of this matter, as reflected in the Statement of Agreed Facts, the court a quo correctly exercised its discretion in awarding the second respondent specific performance.

On the facts, to deny the second respondent specific performance would cause him undue hardship as he has already paid the full purchase price, and he did so in accordance with the agreed terms of the sale agreement. The court a quo correctly exercised its discretion in finding, that, the second respondent was entitled to specific performance.

Such discretion cannot be lightly interfered with.

In Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S) the court held that:

“If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account relevant some 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 so doing. In short, this Court is not imbued with the same broad discretion as was enjoyed by the trial court.”...,.

It follows from the above analysis, that, the court a quo having correctly exercised its discretion, the appellant's sixth ground of appeal lacks merit and ought to be dismissed.

This is an appeal against the whole judgment of the High Court wherein the court a quo dismissed the appellant's appeal with costs.

The background to this matter is that sometime in 2006, the first respondent purchased five commercial stands in Nyazura from the second respondent and paid for them in full.

Upon commencement of development on the allocated Stands, one Mr Mukada indicated to the first respondent that he had been allocated a portion of the same Stands, thereby essentially constituting a double sale.

Upon enquiry, the second respondent admitted that it had erroneously made a double sale.

In a bid to cure the error, the second respondent allocated new Stands to the first respondent in 2014.

Just as the first respondent was about to commence development, the second respondent persuaded him to allow Total Zimbabwe to take over the Stands with the promise that he would be allocated replacement Stands next to Total Zimbabwe.

As a result, the first respondent averred that he was allocated five commercial Stands (numbers 1497, 1498, 1499, 1500 and 1501 of Nyazura Township) (hereinafter called “the Stands”) by the second respondent sometime in 2014 which are the subject matter of this appeal.

The allocation was done through a letter written to him by the second respondent advising him that he had been allocated the five Stands as replacement for the 2006 allocation.

Once the first respondent made plans to develop the Stands, he contacted the employees of the second respondent who assured him that he was the sole owner of the Stands.

However, on 9 January 2020, the second respondent's legal practitioners wrote to the first respondent demanding proof of confirmation of ownership.

Having been instructed about the letter, the first respondent's legal practitioners contacted the second respondent's legal practitioners for a round table conference. At the round table conference, it was highlighted to the first respondent that the second respondent had done a double allocation of the Stands.

On 21 January 2020, the first respondent became aware of a third party (the appellant) who had already initiated developments on the Stands.

Upon enquiry at the second respondent's offices, it was indicated that the second respondent had leased the Stands to the appellant for a truck hire business until 2024.

It is against this background that the first respondent filed an application for an interdict in the Magistrates Court.

The first respondent first filed an ex parte application in which the appellant was interdicted from occupying or effecting any development or construction on the Stands. The application was made on the grounds that the appellant was infringing on the first respondent's right to occupation of the Stands. He also sought that the appellant, and all those claiming occupation through it, be ordered to vacate the aforementioned Stands.

In seeking confirmation of the provisional order, the first respondent contended that there were no material disputes. He submitted that the real dispute of fact was whether a holder of rights to unsurveyed land cannot protect such rights through an interdict. He also contended, that, since he was allocated the Stands ahead of the appellant, he was entitled to an interdict.

In opposing the confirmation of the provisional order, the appellant averred that it had a valid lease agreement with the second respondent. The appellant further contended, that, it had already commenced developing the Stands and that the developments could not be interfered with since they were bona fide in terms of the lease.

The appellant also argued, that, the first respondent was not entitled to an interdict since he had not tendered adequate proof of ownership.

It further stated, that, the first respondent, by not approaching the second respondent for redress, had not exhausted all domestic remedies available to him.

The Magistrates Court held, that, the second respondent received the purchase price from the first respondent. It further held that after receiving the purchase price, the second respondent proceeded to allocate the Stands in question to the appellant on a lease basis. It found that notwithstanding the absence of title deeds there was proof that the first respondent paid the purchase price thus establishing a clear right over the land. It further found that the first respondent could not have sought redress from the second respondent as the second respondent had interfered with the first respondent's right over the land in favour of the appellant.

In the result, the Magistrates Court was of the view that the requirements for an interdict had been satisfied and thus the application was granted.

The effect of the order was to prohibit the appellant, its agents, employees, contractors, and all those claiming through it from occupying or making any developments on the Stands. It also ordered the appellant to remove its equipment and materials and to restore vacant possession to the first respondent.

Dissatisfied by the decision of the Magistrates Court, the appellant noted an appeal with the court a quo. The grounds of appeal were as follows:

1. The Magistrates Court erred in holding that there were no material disputes of fact.

2. The Magistrates Court erred in holding that the requirements for an interdict had been met despite the evidence.

3. The Magistrates Court erred in holding that the first respondent had proved his rights to the property despite evidence to the contrary.

4. The Magistrates Court erred in holding that there was a double sale despite the fact that the Stands constituted State land.

Before the court a quo, the appellant contended that there was a material dispute of fact regarding which Stands were in contention. Hence, there was need to lead viva voce evidence. Thus, the first respondent could not claim to have a clear right in respect of land he did not own.

The first respondent contended, that, there were no material disputes of fact warranting the leading of viva voce evidence. Thus, the first respondent argued that he had produced evidence proving that he had been allocated the Stands. He further argued that the second respondent had not produced any evidence pointing to the existence of different Stands from those it had allocated to the first respondent. Thus, he argued that the requirements for the granting of an interdict had been met.

The court a quo found no basis for interfering with the findings of the Magistrates Court.

It noted that what is required when a final interdict is sought is that the right must be established clearly on a balance of probabilities. The court a quo held, that, the first respondent had established the requirements for an interdict as he had a clear right.

In the result, the appeal was dismissed with costs.

Aggrieved by the decision of the court a quo, the appellant noted the present appeal on the following grounds:

1. The court a quo erred in law and misdirected itself in finding that the appellant's first ground of appeal, on material disputes of fact, was meaningless and invalid.

2. The court a quo erred in law and misdirected itself in finding, that, there was no misdirection in the magistrates court's ruling that the first respondent was the owner of the land in question and had thus established a clear right entitling him to the final interdict granted in his favour.

3. The court a quo erred in law and misdirected itself in finding that there was no misdirection in the magistrates court's ruling that the first respondent had established the second requirement for a final interdict, namely 'the absence of an alternative remedy'.

4. The court a quo erred in law and misdirected itself in not finding that the magistrates court had wrongly granted a final interdict in favour of the first respondent without an analysis of, an application of its mind to, the third requirement for a final interdict, namely 'irreparable harm actually committed or reasonably apprehended'.

5. The court a quo erred in law and misdirected itself in not finding that the final interdict granted by the magistrates court in favour of the first respondent was an eviction order against the appellant in circumstances where no eviction proceedings had been properly instituted in that court.

In oral submissions, counsel for the appellant focused on the second ground of appeal.

In urging the Court to find for the appellant, counsel argued that the court a quo erred in upholding the Magistrates Court's ruling when the first respondent had not established a clear right to the land.

He submitted, that, with regards to land rights, only a party with a real right is entitled to an interdict against a third party.

Counsel further argued, that, the court a quo had misdirected itself in holding that the respondent had established the requirements for an interdict, particularly a clear right, and that being the case such a finding could not stand.

Per contra, counsel for the first respondent argued that the first respondent had established a clear right, on a balance of probabilities, which entitled him to an interdict.

The fact that the appellant had paid the purchase price and was allocated the Stands was not disputed before the court a quo.

In addition to that, the second respondent did not deny that the Stands had been sold to the first respondent.

The acceptance of the purchase price by the second respondent meant that its rights to the land were now limited. Thus, the second respondent could not lease the Stands to the appellant.

The issue arising for determination in this appeal, in the Court's view, is the following:

The purpose of an interdict is to prohibit unlawful conduct, to compel the doing of a particular act or to remedy the effects of unlawful conduct: in this respect, see HERBSTEIN and Van WINSEN in The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa 5th Ed…,.

The requirements for a final interdict are settled in this jurisdiction. These are:

(a) A clear right;

(b) Irreparable harm actually committed or reasonably apprehended; and

(c) The absence of an alternative remedy.

See Econet Wireless Holdings and Others v Minister of Finance and Others 2001 (1) ZLR 373 (S); Setlogelo v Setlogelo 1914 AD 221…,.

As regards a clear right, again, the authors HERBSTEIN and Van WINSEN in The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa 5th Ed…, define the meaning of clear right as it relates to interdicts as:

“…, the word 'clear' relates to the degree of proof required to establish the right and should strictly not be used to qualify 'right' at all…,. A clear right must be established on a balance of probabilities.”

From the authorities, it is clear that where a final interdict is sought, a clear right as opposed to a prima facie right must be established. Thus, the word “clear” in the context of right in an interdict does not qualify such right but rather expresses the extent to which the right must be established by evidence on a balance of probabilities.

HERBSTEIN and Van WINSEN in The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa 5th Ed also state, that, a right that is sought to be protected by an interdict arises from substantive law. The right can derive from any branch of substantive law to which one must have recourse in order to resolve the dispute involved.

It was the appellant's case, that, for the first respondent to be entitled to a final interdict, he ought to have proved ownership of the Stands in question, failure of which the application for the interdict ought to have been dismissed.

I was not persuaded by counsel for the appellant's argument, that the first respondent was required, in terms of the law, to have real rights to the Stands in order to establish a clear right for purposes of an interdict.

This is because the real dispute between the parties is not related to ownership rights.

In this respect, account must be taken of the purpose of an interdict; which, among other things, is to prohibit unlawful conduct.

It is noted, that, the first respondent sought to prohibit the appellant from occupying and developing the Stands because he had purchased them. The first respondent produced proof of the purchase and allocation of the Stands to him - and neither the appellant nor the second respondent were able to rebut that assertion.

For purposes of protecting his interest in the Stands, the first respondent did not need to prove ownership of real rights as argued by counsel for the appellant.

I am inclined to agree with the first respondent's counsel.

From the evidence placed before the Magistrates Court, and the court a quo, it is evident that the right of the first respondent is clear.

The second respondent issued a letter to the first respondent allocating to him the Stands in question. In addition, the first respondent offered the second respondent a purchase price which it accepted as was proven by the receipt produced before the Magistrates Court.

Therefore, on these facts, the first respondent managed to establish the existence of a clear right in respect of the Stands.

On this basis, I find no reason to attack the findings of the court a quo.

On 22 April 2015, the plaintiff issued summons out of this court seeking the following order against the defendant:

“(1) An order confirming null and void the purported agreement of sale signed by the plaintiff and defendant on the 12th January 2010 in respect of Umguza 100 Acre Lot 5A for want of a subdivisions permit at the material time, and, in any event, and in the alternative, for defendant's breach of the terms and conditions of the agreement of sale.

(2) An order for the eviction of the defendant and all those claiming rights after him from Umguza 100 Acre Lot 5A currently occupied by the defendant on the basis of a null and void agreement of sale.

(3) Payment of the sum of US$18,000 being reasonable rental and unjust enrichment arising from defendant's occupation of Umguza 100 Acre Lot 5A from March 2010 to April 2015.

(4) An order for holdover damages at the rate of US$10 per day being reasonable rental for the portion of Umguza 100 Acre Lot 5A currently occupied by the defendant calculated from the 1st May 2015 to date of vacation, both days included.

(5) Costs of suit on a higher scale.”

Upon being served with the summons, and after indicating his intention to defend the action, the defendant, in his plea, flatly denied any form of liability and sought the dismissal of the plaintiff's claim with costs at a punitive scale.

In addition, the defendant counter claimed on the basis of unjust enrichment and sought an order against the defendant in the following terms:

“1. Payment in the sum of US$19,000 together with such payment as will be sufficient to enable the defendant to purchase a property of comparable value including all the improvements he had effected.

2. A refund of all the money used by the defendant in drawing electricity to the plaintiff's homestead and applying for a subdivision permit.

3. Interest on all sums at the prescribed rate of 5% per annum with effect from the date of issue of summons to date of payment in full.

4. Costs of suit at an attorney and client's scale.”

The following facts are not in dispute in this case:

By a Deed of Sale signed by both parties on 26 January 2010, the plaintiff sold to the defendant 10 acres of land being part of 100 Acre of Lot 5A, Umguza District on certain terms and conditions outlined in the deed.

At the time the parties signed the agreement of sale, there was no subdivision of the land in question as required by section 40 of the Regional, Town and Country Planning Act [Chapter 29:12], thus rendering the agreement null and void from its inception.

As fate would have it, the parties ran into problems with their agreement, with allegations and counter allegations mounted against each other.

Under cases referenced HC491/11 and HC2828/12 both parties initiated civil action against each other over the invalid agreement.

Confusion reigned.

Both parties ended up withdrawing the civil suits against each other leaving the instant case to resolve their differences and provide some direction.

The evidence in this trial centred on the testimonies of the two protagonists aided by some documentary exhibits to strengthen each other's position. I proceed to deal with that.

The plaintiff, who was aged 94 years at the time he gave evidence in court, was in full control of his faculties and did not seem to show any sign of struggling due to his advanced age.

The witness gave a detailed narrative of his relationship with the defendant, whom he regarded as his “child”. He chronicled how he entered into an agreement of sale (exhibit 1 of Annexure 1) on 26 January 2010. The witness told the court, that, pursuant to the signing of the agreement and the payment of the initial US$10,000 (ten thousand) dollars, he allowed the defendant to commence construction on the purchased property.

He said it was part of the agreement that the defendant would pay expenses related to the processing of the subdivision permit.

The witness said he wanted the defendant to pay him $350 per month as rentals for staying and conducting his farming activities at the plot which was the subject of the sale agreement.

He said when they ran into problems with their agreement, owing to the defendant's failure to comply with their agreement, he wanted him to be evicted from the plot and the defendant's response was to report him to the police.

When the witness's attention was drawn to the fact that the defendant was alleging to have made improvements for which he had been enriched and therefore wanted to be compensated, he said that the improvements had not benefited him and that the defendant was free to destroy such improvements.

The witness confirmed the improvements consisted, inter alia, of two dwelling houses, the second one of which the defendant had constructed against his will. The witness further told the court, that, in installing electricity, the defendant had used substandard poles which got rotten, and, he concluded his evidence in chief by suggesting that the defendant had cheated him.

Under cross-examination from the defendant's counsel, the plaintiff confirmed that he and the defendant had signed the sale agreement in 2010 and that as a result of that, the defendant had carried out visible improvements on the purchased property.

The witness also confirmed, that, other than the sale agreement, he had not signed any lease agreement with the defendant.

When questioned about the borehole on the property, the witness was emphatic that it was him who had sunk it and that all the defendant did was merely to have it flushed.

On further cross-examination, the witness could not dispute that the houses built by the defendant had electricity installed by the defendant.

When the valuations of the improvements done by the defendant were brought to his attention, the plaintiff was unable to challenge same. The best the plaintiff could say on the valuations was;

“He did that on his own volition. I did not tell him to make such developments. There is a letter which says there should be no development until the case is over.”

The plaintiff's cross examination was concluded by an admission, that, when he concluded the agreement of sale with the defendant, he was fully aware that he did not have a sub-division permit.

When his attention was drawn to his arbortive attempt to obtain a subdivision permit in 2000, almost 10 year before signing the agreement with the defendant, the plaintiff denied having applied for such permit, and sought to argue that the only permit he had applied for was for the southern side of his plot.

The defendant commenced his evidence by highlighting the cordial relationship which he had enjoyed with the plaintiff prior to entering into this agreement of sale with him.

He indicated, that, in order to raise the money to buy this particular plot, he had to dispose of his smaller 6 acre piece of land. The defendant told the court, that, after paying the initial agreed sum of US$10,000 (ten thousand United States Dollars), he embarked on the construction of his cottage which was subsequently followed by the main house and electrification of same.

The defendant testified on the difficulties that he had with the plaintiff which were centred on the latter's refusal to receive part of the payment owing to delay.

The defendant, said, owing to the frustrations which he faced as a result of the refusal by the plaintiff to accept payment, he ended up initiating legal proceedings against the plaintiff for breach of contract.

The plaintiff also confirmed the civil suit commenced against him by the defendant and its ultimate withdrawal.

The defendant testified, that, all in all he paid the plaintiff a total of US$19,550 (nineteen thousand five hundred and fifty United Stated Dollars) toward the agreement.

The defendant's further evidence was that he only became aware of the absence of the subdivision permit much later, and when he was well into the agreement, as a result of which he gave the plaintiff US$80 for the facilitation of the permit.

The defendant further stated, that, when he eventually got the subdivision permit, through the plaintiff's legal practitioners, it turned out to be a fake or not authentic document.

He insisted that other than paying for its processing, he had no input into its production and flatly denied ever being involved in the fraudulent acquisition of the sub-division permit.

In his further evidence in chief, he gave a detailed account of the various improvements he made at the “purchased” property and the numerous demands for his eviction made against him by the plaintiff.

The witness said he was prepared to move out of the property as long as he was fully compensated for the improvements made. In his own words, the defendant stated the following as regards his counter claim;

“May the court order that the plaintiff compensates, the reason being that I constructed my house after he had given me permission to do so. I constructed two houses and he was watching me do so. If he says I should vacate the piece of land I will do so by removing what I put there to enable me to construct again at a different place. If he does not end up a destitute or a person of no fixed abode.”

When questioned during his evidence in chief to indicate the improvements he made, the following is what he stated:

“First and foremost, I built a three-bedroomed house (cottage), and, secondly, a three bedroomed main house. I pulled electricity to the house. On that Stand was a dry borehole. I got a company which flushed the borehole. I then bought the pump and the jojo tank which I fixed for the storage of water. That is the water that we are using. The rest of the things have their valuation.”

The witness went further to give the three valuations of the improvements he carried onto the property which he averaged to come up with a figure of US$97,833=33.

The witness emphasized that he had invested all his resources on the property and maintained that if he did not get compensated for such improvements he would end up having no fixed abode.

The defendant was taken through cross examination, part of whose thrust was to challenge him why his (defendant's) lawyer had not suggested to the plaintiff that he was lying, if at all he was misleading the court during his testimony. Part of the exchanges which caught the court's attention and require emphasis went along the following:

“Q: You accept now that this land has always belonged to plaintiff until today?

A: Yes.

Q: You appreciate that the plaintiff's claim is based on you being unjustly enriched and him being unjustly impoverished?

A: I realize he was unjustly enriched. I paid some money towards the property to the plaintiff following our sale agreement.

Q: What do you want from the plaintiff?

A: I want him to reimburse me for the expenses I incurred on that piece of land so that I am able to get another place to stay with my children since he pretended as if he was selling me that piece of land, he knew I would never get any title deed in respect of that land…,.

Q: Your claim is based on unjust enrichment?

A: Yes.

Q: You heard him say he has no use of such improvements?

A: Yes, I heard him say so but he is going to use them. The structures are on his piece of land which he pretended to be selling. There is electricity which he will use. If he did not want the houses, he could not have allowed me to construct them….,.

Q: Your bundle, you have put in several receipts from pages 90-102 to support your expenditure. All these are from September 2010. These were incurred at a time plaintiff told you to stay away from his land and to keep your money?

A: We had entered into an agreement of sale.”

When it was suggested to the witness that he was supposed to be paying rentals to the plaintiff, the defendant denied ever entering into a lease agreement with the plaintiff, but rather a sale agreement.

In conclusion, the defendant said that the valuation reports that he submitted had collectively dealt with the improvements he made and for which he was claiming to be paid.

At a joint pre-trial conference (record pp56-58), held by the parties, the parties narrowed their contentious issues to the following:

(1) Whether or not the plaintiff is entitled to a reasonable rental arising from the defendant's unauthorized/authorized occupation of the property in dispute.

(2) Whether or not the defendant has been unjustly impoverished and the plaintiff unjustly enriched as a result of the alleged developments made by the defendant upon the disputed part of the land, and, if so, the quantum thereof.

It is with these issues in mind that I proceed to consider the evidence tabled in this court.

The evidence which is not in dispute is that the defendant took occupation of the property in issue pursuant to a sale agreement, which sale turned out to be null and void or invalid owing to its non-compliance with the mandatory provisions of sections 39(1)(b)(i) and 40 of the Regional, Town and Country Planning Act [Chapter 29:12].

The sale agreement entered into by the parties is self-explanatory and it is too ambitious, if not too generous, to read into the agreement that it could, at any stage, be turned into a lease agreement to provide for a basis for the plaintiff to claim rentals.

It cannot possibly be the correct position, as stated by the plaintiff in his declaration, that:

“In or about March 2010, Defendant forcibly occupied a portion of Umguza 100 Acre Lot 5A….,.”

This averment is clearly not borne out by the overwhelming evidence in this court which speaks to the defendant's occupation as informed by the agreement of sale.

The fact that under case HC2828/12 the plaintiff initiated a civil suit against the defendant to force compliance with the sale agreement cements the existence of the agreement of sale between the parties.

The argument is simply, that, if in 2010, the defendant had forced himself onto the plaintiff's property, there would have been no need for the plaintiff to try and enforce compliance with some agreement in 2012 - two years down the line.

The plaintiff, in his own testimony, confirmed that the defendant only took occupation of the plot pursuant to an agreement.

What cannot be disputed is that subsequent to the defendant's occupation, the agreement ran into challenges. Despite this, these challenges did not in any way change the defendant from being a purchaser to a tenant.

The parties were fully conscious of what they wanted when they entered into this agreement.

It is not for this court to re-write the contract for the parties.

As was observed by the Supreme Court in the case Magodora and Others v Care International Zimbabwe 2014 (1) ZLR 397 (S)…,:

“It is not open to the courts to write a contract entered into between the parties or to excuse any of them from consequences of the contract that they freely and voluntarily accepted, even if they are shown to be onerous or oppressive. This is so a matter of public policy. Nor is it generally permissible to read into the contract some implied or tacit term that is in direct conflict with its express terms.”

For these reasons, the court is not prepared, for whatever reasons, to convert or to read into a simple sale agreement, a lease agreement.

One gets the obvious impression that reference to the defendant's alleged forced occupation of the property was slotted in as a desperate attempt to justify a claim for rentals by the plaintiff.

The averment clearly lacks merit and it is not sustainable.

This enquiry is intricably linked to the existence or non-existence of a lease agreement.

I have already made my position clear, that, the plaintiff is not entitled to any rentals flowing from a lease agreement because no such agreement ever existed or can be inferred from the evidence led in this court. If anything, the evidence shows, beyond doubt, that, it is in fact the plaintiff who has been unjustly enriched and the defendant impoverished in the process.

It is not in dispute, that, pursuant to the sale agreement the defendant paid a total of $19,550 towards the fulfillment of that agreement. The $19,000 was for the purchase of the land and $550 was paid towards the facilitation of the subdivision of the sold piece of land when the defendant realized that he had been sold the land in violation of the mandatory provisions of the Regional, Town and Country Planning Act.

The defendant's evidence in support of this payment was not challenged by the plaintiff.

In fact, in his declaration filed in this court on 22 April 2015, the plaintiff made an unsolicited offer to refund the defendant US$19,000 on monthly instalments of US$395.

The defendant's claim is built in his counterclaim filed in this court on 24 June 2015.

In that counter-claim, the defendant states that he made a number of improvements which would prejudice him if they were to accrue to the plaintiff without him being compensated.

In his closing submissions, the plaintiff's counsel criticized the defendant's pleadings and commended as follows:

“Of significance is that in paragraph 5 above defendant did not specifically allege that the alleged improvements have resulted in plaintiff being enriched.”

I accept the position taken by the plaintiff's counsel, that, the defendant's pleadings, especially in the counter claim, were poorly drafted. They lacked elegance. They could have been drafted in a much better way.

However, I do not accept that when the defendant's case is looked at holistically, the alleged defects in the pleadings can be raised to the level of fracturing his case. This is because the defects were cured by the overwhelming evidence in support of the defendant's case.

The defendant's uncontroverted evidence was that pursuant to the agreement of sale (which turned out to be invalid), he had poured substantial resources on the plaintiff's property. In the process, the plaintiff ended up being enriched and the defendant impoverished and that the defendant wanted to be compensated for this.

This was the basis of the defendant's claim, and even the plaintiff's counsel fully understood this as demonstrated by the tone and nature of his cross-examination of the defendant.

It is therefore not sustainable for counsel to argue that the defects in the pleadings must lead to the collapse of the defendant's case.

I now proceed to consider the defendant's case.

The plaintiff's case was largely built around the alleged breach of the agreement of sale. However, as the evidence led in this court has shown, there was no agreement to talk about for lack of compliance with the statutory requirements of the Regional, Town and Country Planning Act which prohibits any agreement of sale in respect of land which is not yet subdivided in accordance with a permit granted under section 40 of the Regional, Town and Country Planning Act.

In the case of X-Trend–A Home (Pvt) Ltd v Hoselaw (Pvt) Ltd 2000 (2) ZLR 348 (SC), the Supreme Court had occasion to deal with the law as regards the kind of sale which the plaintiff and defendant purported to enter into in this case. The court had this to say:

“Section 39 forbids an agreement for the change of ownership of any portion of a property except in accordance with a permit granted under section 40 allowing for a subdivision. The agreement under consideration was clearly an agreement for the change of ownership of the unsubdivided portion of a Stand. It was irrelevant whether the change of ownership was to take place on signing or on an agreed date fulfilled. The agreement itself was prohibited.”

This Supreme Court decision was subsequently followed by the High Court in the case of Tsamwa v Hondo and Others 2008 (1) ZLR 401 (H)…, where the court remarked as follows:

“The plaintiff's claim must be dismissed, as, at the time the parties entered into the agreement, there was no subdivision permit in existence. An agreement made in such circumstances is forbidden by section 39(1)(b)(i) of the Act. Any purported agreement for the change of ownership of a portion of a property is a nullity and no effect can be given thereto.”

In the preceding portions of this judgment, I have already dealt with the fallacy of the plaintiff's claim for rentals and it is not my intention to revisit same save to emphasize that when the plaintiff gave evidence in this court, he repeatedly stated that he allowed the defendant to take occupation of the portion of the land pursuant to the signing of the deed of sale.

Indeed, clause 3.1 of the agreement fully supports this averment.

It therefore follows that the plaintiff has dismally failed to plead a valid cause of action for rentals.

The defendant was taken to task by the plaintiff's counsel on why his lawyer did not specifically tell the plaintiff that he was lying on certain aspects of his evidence which the defendant disputed in his evidence in chief or in his own cross-examination.

Over my years on the Bench, I have always been marveled by this way of reasoning.

In the first place, a litigant can be a lay person (as in this case), and, when he gives instructions to his counsel he/she does no more than tell a simple story in his own simple understanding. In court, such a litigant has no capacity to frame appropriate questions for his legal practitioner. The legal practitioner, who is properly trained in the field of law, is assumed to know better how to frame his questions for cross-examination.

A simple, untrained litigant has absolutely no control over that process.

More importantly, a court does not require the cross-examination of a party in pointed terms labeling him a liar to make a finding that such a party is indeed a liar. The ultimate decision of finding someone to be a liar is not for the cross-examiner but it is a prerogative of the trier of fact after taking into account all the evidence in that trial.

In fact, in my view, a cross examiner must be slow to label a witness a liar because the trier of fact might see things differently and arrive at a completely different conclusion, which, by implication, might then project the cross-examiner as a liar himself.

As I will demonstrate later in this judgment, contrary to the effort made in this trial to portray the defendant as not worth believing, I found his credibility to be beyond reproach.

The plaintiff was clearly far from convincing.

Let me deal first with the legal position in as far as it impacts on the agreement entered into by the parties in casu.

It has already been spelt out that the contract entered into by the parties was null and void, and, therefore, unenforceable. As observed by R.H. Christie, in Business Law in Zimbabwe, published by Juta and Company Ltd 1998…,:

“The law cannot be expected to lend its aid to the enforcement of a contract which the law itself prohibits: City of Gweru v Kombayi 1991 (1) ZLR 333 (S). Unenforceability means that, as in York Estates Ltd v Wareham 1949 SR 197; 1950 (1) SA 125, specific performance will not be granted.”

Taken to its logical conclusion, the plaintiff cannot sue for breach of contract in this case.

But, our law recognizes that quite often, in the process of engaging in an illegal or unenforceable contract there may be other “collateral or connected transactions that do not amount to indirect attempts to enforce the illegal contract:” see R.H. Christie, Business Law in Zimbabwe, published by Juta and Company Ltd 1998.

In general terms, our law will not enforce an illegal or an invalid contract unless public policy demands that such approach be relaxed: see Jajbay v Cassim 1939 AD 537 which created the guiding rules.

Where someone has been unjustly enriched, in circumstances where the victim's innocence is beyond question, the court will come to the aid of such a party.

The defendant's case is a clear example of the need to relax the rule.

In what is probably the leading case in this country on unjust enrichment, in Industrial Equity Ltd v Walker 1996 (1) ZLR 269 (H)…, the court affirmed the position that a general enrichment action is recognized in our law and that the pre-requisites of such an action are:

“(a) The defendant must be enriched;

(b) The enrichment must be at the expense of another, in that the plaintiff must be impoverished and there must be a causal connection between the defendant's enrichment and the plaintiff's impoverishment;

(c) The enrichment must be unjustified;

(d) The enrichment must not come within the scope of one of the classical enrichment actions;

(e) There should be no positive rule of law which refuses an action for the impoverished person.”

See also the recent case of Charles Nyathi v Estate Late Philemon Ncube Mabuza and Tandie Mabuza N.O. and the Master of High Court N.O. HB54-19.

It is noted that, the defendant, in his counter claim has established all the requirements for unjust enrichment which call for his compensation.

In an attempt to resist the defendant's claim, the plaintiff raised basically three arguments, viz:

(i) That the counterclaim was not properly framed;

(ii) That he did not authorize the improvements; and

(iii) That the improvements are not useful to him, and therefore does not need them.

I have earlier own dealt with the alleged defects in the pleadings and made a specific finding that any such defects were cured by the overwhelming evidence in support of the defendant's claim.

As correctly argued by counsel for the defendant, the contention that the plaintiff did not authorize the improvements effected on the plaintiff's land is untenable because of clause 3.1. of the Deed of Sale which authorized construction to commence upon payment of a deposit of $10,000.

The plaintiff's own evidence confirmed that this initial payment was made and the defendant confirmed same.

In his evidence in chief, the plaintiff made a stout effort to convince the court that at the time the Deed of Sale was signed he did not know that there was no subdivision.

Compare this with the defendant's position that the plaintiff had been made to believe the whole transaction was above board. Unfortunately, the letter dated 17 August 2000 from the Land Surveyor's office…, which was copied to the plaintiff, exposed the plaintiff and threw his credibility into the dustbin.

The letter showed the extent to which the plaintiff was prepared to go in misleading the court.

Even the averment that the plaintiff made in his declaration, that the defendant had forced himself on his piece of land, projected the plaintiff in bad light because when he gave evidence in court, he conceded that the defendant's occupation of the land in issue was as a result of the agreement of sale.

The plaintiff's position got worse when he admitted that he had at one time sued the defendant to force him to comply with the sale agreement.

Such witnesses cannot claim to be credible witnesses.

The defendant gave a lucid testimony on the various improvements he made on the land in issue and the plaintiff was unable to controvert that evidence.

Under cross-examination, the plaintiff conceded that he did not bother to monitor the improvements the defendant was making because the latter had bought the portion of the land in issue.

To show that his credibility was beyond reproach, the defendant was able to back up his evidence with documentary exhibits.

The Deed of Sale signed by both parties fully supported the circumstances surrounding the defendant's occupation of the piece of land and the improvements he made.

The improvements made by the defendant were supported by sworn valuation reports from three different real estate agents: see exhibits 9, 10 and 11….,.

The third contention by the plaintiff in casu, that the improvements effected by the defendant are not useful to him, was clearly a misconceived view of the law given that the inescapable conclusion was that such improvements had added value to his property.

In throwing out the plaintiff's contention, this court is guided by the view taken by McNALLY JA in the case of Reza v Nyangani 2001 (1) ZLR 202 (S)…, where the court remarked as follows:

“…, usefulness of improvements must be measured in terms of added value, and not on the basis of whether the plaintiff would require the structure for his own use.”

It cannot be seriously contended, that, in casu, the improvements made have not added some value to the plaintiff's land, and, that in the process of doing so, and as correctly stated by the defendant, the defendant has been impoverished.

The valuation reports given by the defendant, which were not challenged by the plaintiff, give an estimation of the cost of obtaining a piece of land of the same size as purchased by the defendant as the sum of $35,000.

In coming up with a figure which he deemed to be fair and reasonable compensation, the defendant simply averaged the three valuation reports and added the price of similar land to get $132,833=33.

The proposed approach seems to be alien to well known principles of computation of such compensation.

I propose to accept the lowest valuation of $90,000 plus $35,000 being the estimated costs of purchasing a similar piece of land which would give the amount of $125,000 as fair compensation for the improvements.

The defendant's uncontroverted evidence in court was that he had virtually invested all his resources on the “purchased” piece of land thinking that it would be his permanent home, and that he has no financial resources to secure alternative accommodation for himself and his family.

He was very emphatic that if evicted without compensation his family would be rendered homeless and become destitute.

There is no doubt that the defendant and his family is in a serious predicament and that unless protected by this court, may end up as destitutes.

As argued by his counsel, the defendant is a bona fide possessor of the portion of land in issue and that he effected useful improvements thereon in good faith believing that he had purchased the piece of land.

The defendant therefore has a lien entitling him not to be evicted without being compensated.

As further noted by his counsel, in Rubin v Botha 1911 AD 568…, INNES J…, had this to say:

“The equitable relief given by Roman Dutch Law to a person who had made improvements upon the land of another was the outcome of the modification of the maxim that whatever is affixed to the soil belongs to it, by maxim that no man should be allowed to enrich himself at the expense of another….,.”

I might add and say the courts must endeavour to do justice between man and a man, and, further, that the decisions made must not encourage parasitic tendencies.

This court firmly believes that this is a proper case to exercise its discretion in the interest of equity and fairness by ordering that the defendant be evicted only upon payment of the full compensation ordered by the court per the defendant's counter-claim.

This is mainly because the defendant has a real lien over the portion of the land in issue.

Consequently, it is ordered as follows:

1. That the purported Deed of Sale concluded by the parties on 26 January 2010 in respect of a portion of Umguza 100 Acre, Lot 5A, be and is hereby confirmed to be null and void for want of compliance with the mandatory provisions of the Regional, Town and Country Planning Act [Chapter 29:12].

2. That the plaintiff's claim for payment by the defendant of reasonable rentals and holding over damages be and is hereby dismissed with costs.

3. That the plaintiff be and is ordered to pay to the defendant the sum of $125,000 being compensation for improvements effected by the defendant on the plaintiff's property.

4. That the prescribed interest be levied on the amount (under 3) (supra) with effect from 24 June 2015 to date of full payment.

5. That the plaintiff pays costs of suit.

This is an appeal against the entire judgment of the High Court delivered on 5 February 2020.

The court a quo held that eighty-five percent (85%) of Number 16 Hawkshead Drive, Borrowdale, also known as Lot 1 of Lot 4 of Lot FA Quinnington situate in the District of Salisbury, measuring 1,2770 Morgen held under Title Deed 3999/96 be awarded to the respondent as her sole and absolute share with the appellant being awarded the remaining 15 per cent share.

The appellant and the respondent married in terms of the Marriage Act [Chapter 5:11] in 1996. Both parties were business partners involved in the property sector. The appellant was into property development and the respondent was into real estate management. Both were directors of a company called Bern-win Development Company.

This company was liquidated, and the parties lost everything.

They were advised, by their lawyers, to separate their business properties from their family assets by forming Trusts.

Consequently, Mai-Kai Property Development Trust was formed in January 2000 and Paradza Trust in July 2000. The beneficiaries of both Trusts were Tsitsi Mutanga, Bernard Tanatsa Mutanga, Lucinda Ropafadzo Mutanga, and Rusiya Mutekenya, who is the appellant's mother.

It was the intention of both parties that Paradza Trust be the asset holding Trust while Mai-Kai Property Development Trust would be the property selling Trust.

The proceeds of the business were pooled together and used to buy assets for the family which were registered under Paradza Trust.

Unfortunately for the parties, their marital relationship broke down and the respondent issued summons for divorce in which she cited irretrievable breakdown of the marriage as the cause for divorce. She further sought an order for distribution of the assets of the parties.

During the proceedings in the court a quo, the parties agreed on all ancillary issues including custody and maintenance of their children save for the distribution of one immovable property which is No.16 Hawkshead Drive, Borrowdale (hereinafter referred to as the property).

According to the appellant, the property was not an asset of the spouses.

He claimed, that, the property belonged to a private company called Brabourn Investments (Private) Ltd and that the company was wholly owned by Brabourn Trust of which the respondent was neither a trustee nor a beneficiary.

The appellant further claimed, that, the reason why the property could not be distributed in terms of section 7 of the Matrimonial Causes Act was that Paradza Trust had failed to raise the purchase price and hence the sale was not perfecta.

He also claimed that it was at that point that Brabourn Trust purchased the shares in Brabourn Investments (Private) Limited.

He however failed to produce evidence to the effect that Paradza Trust had failed to raise the purchase price and that the contract had been cancelled.

According to the evidence adduced by the respondent during the trial, the property was acquired through the purchase of shares in Brabourn Investments (Private) Limited by Paradza Trust.

Paradza Trust purchased 100 per cent paid up shares in Brabourn Investments (Private) Limited which represented ownership of the property. The effect of such acquisition was that the property now vested in Paradza Trust in which the appellant, the respondent, their children, and the appellant's mother were beneficiaries.

The respondent claimed that the property in dispute was an asset owned by both parties, and, as such, was distributable in terms of section 7 of the Matrimonial Causes Act [Chapter 5:13].

The respondent further testified, that, Brabourn Trust which was purported to own Brabourn Investments (Private) Limited, was fraudulent.

She highlighted to the court, that, the Trust Deed creating Brabourn Trust was null and void as it did not have the mandatory protocol number; that the dates in the Deed were inconsistent with the sequence of events; and, lastly that the legal practitioner who purported to have drafted and registered the Trust Deed was still at law school at the time of such registration, and, as such, was not yet practicing law.

Basing on the evidence placed before it, the court a quo held that No.16 Hawkshead Drive, Borrowdale was an asset that belonged to Paradza Trust.

It further held that the property was distributable in terms of section 7 of the Matrimonial Causes Act.

It also held that Brabourn Trust was a stratagem by the appellant to thwart the respondent's claim to the property.

The property was then distributed, with the respondent being awarded an 85 per cent share in the property while the appellant received the remaining 15 per cent share.

Aggrieved by the decision of the court a quo, the appellant noted an appeal to this Court on the following grounds:

1. The court a quo misdirected itself in finding that number 16 Hawkshead Drive, Borrowdale was a family asset and registered in Paradza Trust that could be distributed, a finding which is contrary to the evidence presented.

2. The court a quo misdirected itself in finding that the Brabourn Trust Deed was null and void.

3. The court a quo erred at law when it concluded that Paradza Trust was the original purchaser of Brabourn Investments (Private) Limited with 100 per cent paid up shares, being the only one with a claim to number 16 Hawkshead Drive, Borrowdale.

4. The court a quo erred at law when it concluded, that, the respondent was entitled to a share of number 16 Hawkshead Drive, Borrowdale, not just as a spouse but as a beneficiary of Paradza Trust, when there was no evidence that Paradza Trust acquired the property.

5. The court a quo misdirected itself in granting an order that number 16 Hawkshead Drive, Borrowdale also known as Lot 1 of Lot 4 FA Quinnington situate in the District of Salisbury held under title deed number 3999/96 measured 1,2770 Morgen instead of 1,0938 hectares.

The appellant's counsel argued, that, the property in dispute did not belong to the appellant individually, and that it had not been purchased by and was not owned by Paradza Trust. He submitted, that, it did not fall under the ambit of property that was distributable under section 7 of the Matrimonial Causes Act as it was owned by a third party, which is Brabourn Investments (Private) Limited.

He further argued, that, besides the agreement of sale of the 100 per cent shares in Brabourn Investments (Private) Limited, there is no proof of transfer to Paradza Trust, which further clarifies the position that the property belonged to Brabourn Trust.

Counsel for the respondent, per contra, argued that the property belongs to Paradza Trust.

She submitted that the parties lived on the premises until the time they decided to lease it out.

She further submitted that to date, the property belongs to Paradza Trust and all monies derived from that property go to the beneficiaries of the Trust, who, at the time of registration were Rusiya Mutekenya (appellant's mother), their two children, Bernard Tanatsa Mutanga, Lucinda Ropafadzo Mutanga, and the respondent herself.

As will become apparent shortly, both counsels were asked to address this Court on the non-joinder of the trustees of Paradza Trust.

Counsel for the appellant submitted, that, the trustees of Paradza Trust should have been joined in the proceedings a quo. On the other hand, counsel for the respondent submitted that the issue of joinder was defeated by the appellant's claim that the property belonged to Brabourn Trust. That is why the chairman of the Trust was subpoenaed to testify before the court a quo.

Counsel for the respondent also placed reliance on section 7 of the Matrimonial Causes Act which provides that a court can direct that property of one spouse be transferred to another spouse.

In view of the non-determination by the court a quo of an issue that was argued before it, this appeal stands to be disposed of on that very issue.

It therefore becomes unnecessary to advert to the appellant's grounds of appeal.

At the onset of trial in the court a quo, counsel who appeared for the appellant highlighted to the court a quo that it was now seized with an issue in relation to whether or not the trustees who administered the property should be ordered to transfer property to either of the parties, when the trustees had not been cited in the proceedings.

He further submitted, that, there had been a material non-joinder of interested parties in the proceedings in that the court a quo was being asked to distribute the property of other people who were not parties to the proceedings.

Counsel who appeared for the appellant a quo went further to submit, that, while in terms of the rules a Trust can be cited in its own name, it does not hold property in its own name, but it does so for the benefit of the beneficiaries. Hence, the trustees should have been cited.

Lastly, he submitted that it would be more convenient, just, and proper for the administration of justice for the Trust to be joined to the proceedings to enable it to protect the interests of the beneficiaries.

Counsel for the respondent a quo drew the court a quo's attention to the joint pre-trial conference minute in which one of the issues was whether any trustees should be ordered to transfer assets to the parties. She further submitted that, that was why the joint pre-trial conference minute had been crafted in such a fashion.

She also submitted, that, there had been difficulties in establishing the identities of the trustees.

The appellant was also blamed for not furnishing the respondent with all the documentation that had been requested.

One of the issues in the joint pretrial conference minute was:

“Whether it would be fair and equitable to order any Trustees to transfer any of the Trust assets to either of the parties.”

The court a quo resolved to proceed with the matter notwithstanding that the issue of joinder had been raised.

In its judgment at the conclusion of the proceedings, the court a quo did not address the issue of joinder of the trustees.

I agree with counsel for the appellant a quo's submissions regarding the non-joinder of interested parties to the proceedings - especially the trustees. This is the same submission made by counsel for the appellant on appeal following questions from the Bench.

The duty of an Appellate Court is to determine whether a trial court came to the correct conclusion of the case that was placed before it. In this respect see the cases of Goto v Goto 2001 (2) ZLR 519 (S) and Cole v Government of the Union of South Africa 1910 AD 263.

A court is enjoined to determine all issues placed before it unless the issue that it determines to the exclusion of other issues is dispositive of the dispute before it: see the case of Longman Zimbabwe (Pvt) Ltd v Midzi and Others 2008 (1) ZLR 198 (S).

According to the decision in Arafas Mtausi Gwaradzimba v C.J. Petron and Company (Proprietary) Limited SC12-16 failure by a court to consider an issue placed before it amounts to gross irregularity.

Therefore, the failure by the court a quo to determine whether the trustees should have been joined to the proceedings amounts to gross irregularity.

In terms of section 25 of the Supreme Court Act [Chapter 7:13], the Supreme Court has certain powers that are vested in it which include the power to review proceedings and decisions of lower courts.

Of particular importance is subsection (2) which provides, that, the powers to review can be exercised whenever it comes to the attention of a judge or the Supreme Court that an irregularity has occurred in any proceedings notwithstanding that such proceedings or decision is not the subject of appeal.

It has come to this Court's attention, that, there was an irregularity in the proceedings of the court a quo, and, such irregularity is not the subject of appeal. The irregularity pertains to the court a quo's omission to determine the issue of joinder despite the fact that such issue was argued before the court a quo.

In light of the disposition of the appeal on a ground not raised in the notice of appeal, the appellant will not be awarded costs.

The matter will have to be remitted to the court a quo for hearing afresh before another judge since the trial judge is no longer on the Bench.

This will be subject to joinder of other interested parties.

In the result, it is ordered as follows:

(1) The appeal be and is hereby allowed.

(2) The judgment of the court a quo be and is hereby set aside.

(3) The matter is remitted to the court a quo for hearing afresh before another Judge.

(4) Each party shall bear its own costs.

This is a chamber application for condonation of the late filing of an appeal and extension of time within which to appeal launched in terms of Rule 43(1) of the Supreme Court Rules 2018.

The application is opposed.

The applicant and the respondent are joint owners of an immovable property, Stand 24 Philadelphia Township of Philadelphia, Harare held under Deed of Transfer 4986/02.

On 16 February 2017, they executed a Deed of Settlement on the disposal of the immovable property in question, whose terms were incorporated in consent orders granted by the High Court in other cases that were pending between them.

The parties agreed to engage two estate agents, Guest and Tanner and Dawn Properties, to value the immovable property. The mean of the two valuations was to be the value of the property. If, however, any party was dissatisfied with any of the two valuations, the parties legal practitioners would jointly choose a third estate agent, whose valuation would be final.

Thereafter, the applicant had the right to buy out the respondent's one-half share in the property within six (6) months of receipt of the acceptable valuation, failing which the respondent had the same right to buy out the applicant's one half share within a further period of six (6) months.

In the event that the parties failed to exercise their respective rights, the property was to be sold by private treaty, with the parties sharing the net proceeds equally.

The parties jointly instructed the two estate agents to value the property. Dawn Properties valued it at US$250,000 while Guest and Tanner valued it at US$292,000.

The two valuators submitted their respective reports on 28 March 2017 and 30 March 2017 to the parties respective legal practitioners.

The applicant's legal practitioners failed to appreciate the valuation methodology applied by Guest and Tanner. Consequently, on 26 May 2017, they sought the estate agent's comments on these aspects without copying their correspondence to the respondent's legal practitioners.

In response, the estate agent cryptically asserted that the valuation amount constituted a typographical error and proceeded to rectify the earlier amount by substituting it with the lower figure of US$192,000.

The respondent's legal practitioners were oblivious of the communication between the applicant's legal practitioners and Guest and Tanner. They simply filed away the original valuation report without much thought.

The respondent's legal practitioners forwarded the corrected Guest and Tanner valuation report to the applicant's legal practitioners. Apparently, the respondent's legal practitioners, again, simply filed away the rectified report.

Thereafter, the respondent's legal practitioners computed the value of the property at US$221,000 being the mean of the lower Guest and Tanner figure and the Dawn Properties figure.

The respondent exercised his right of first refusal, and, on the directions of the applicant's legal practitioners, deposited, within the prescribed payment period, on 5 January 2018, the one-half share due to the applicant in the sum of US$110,500 into her nominated bank account and transmitted proof of payment.

Thereafter, he sought transfer of the property into his name, but, the applicant refused to co-operate.

He applied to the High Court for an order compelling the applicant to make transfer. She contested it on the basis, that, the respondent's legal practitioners were guilty of material fraudulent non-disclosure of failing to copy the inquiry letter to Guest and Tanner to her legal practitioners, which induced her to accept payment of US$110,500.

She averred that the material non-disclosure influenced Guest and Tanner to reduce the value of the property to her prejudice.

The court a quo accepted that the respondent's legal practitioners had acted unethically, but, dismissed the objection and granted the application for the transfer of the applicant's one-half share in the property to the respondent.

The applicant appealed to this Court on two grounds of appeal in case number SC909/2018. The appeal was heard on both the preliminary point raised by the respondent and on the merits, on 30 June 2019.

The preliminary point raised was that the two grounds of appeal were prolix and argumentative.

Judgment was reserved and handed down on 24 October 2019, as Judgment No. SC85-19. The appeal was determined on the preliminary point.

The two grounds of appeal were found to be “prolix and argumentative.” The appeal was accordingly struck off the roll on the basis that the Notice of Appeal was fatally defective.

On 13 November 2019, the applicant's legal practitioners of record wrote to the Registrar of this Court seeking the correction of the judgment in terms of Rule 73 of the Supreme Court Rules as read with Rule 449(1)(b) of the High Court Rules.

Out of an abundance of caution, the applicant filed the present application on 21 November 2019.

It was opposed on 28 November 2019.

The answering affidavit was irregularly filed on 6 December 2019, outside the period prescribed in Rule 43(5) of the Supreme Court Rules 2018.

The matter was set down in chambers on 20 December 2019 and removed from the roll for the reason, that, the letter of 13 November 2013, seeking correction of the judgment of this Court, constituted lis pendens.

The applicant managed to save her application by withdrawing the letter of 13 November 2019, on 27 January 2020.

Consequently, the respondent filed his heads of argument on 30 January 2020, while the applicant did so on 4 February 2020.

The application is silent on the events between that date and 2 October 2020, when the matter was placed before me - without the heads of argument.

I set it down for hearing on 9 October 2020, on which date the parties handed copies of their heads of argument from the bar....,.

I heard argument on both the preliminary points and on the merits.

I indicated to the parties that I would not proceed to determine the matter on the merits if I upheld any of the preliminary points raised, and reserved judgment....,.

The broad factors to be taken into account in an application of this nature have been stated in a number of cases and are now well established. They are:

(i) The extent of the delay;

(ii) The reasonableness of the explanation for the delay; and

(iii) Prospects of success.

See De Kuszaba-Dabrowski et Uxor v Steel NO 1966 RLR 60 (A)…,.; 1966 (2) SA 277 (RA); HB Farming Estate (Pty) Ltd & Anor v Legal and General Assurance Society Ltd 1981 (3) SA 129 (T)…,.; Kombayi v Berkhout 1988 (1) ZLR 53 (S)…,.

Other additional, but not exhaustive, factors are:

(i) The importance of the case;

(ii) The respondent's interest in the finality of the case;

(iii) The convenience of the court; and

(iv) The avoidance of unnecessary delays in the administration of justice.

See K.M. Auctions (Pvt) Ltd v Adenash Samuel & Anor SC15-12…,.; Mutizhe v Ganda & Ors SC17-09…,.; and Maheya v Independent African Church SC58-07…,.

In Bishop Elson Madoda Jakazi & Anor v The Anglican Church of the Province of Central Africa & Ors SC10-13…, ZIYAMBI JA held, that, the delay in filing an application for condonation for non-compliance with the Rules was inordinate.

In that case, the impugned judgment was delivered on 19 May 2010. Two days later, the fatally defective Notice of Appeal was filed. The appeal was heard on 22 October 2012 and struck off the roll on the ground that the Notice of Appeal was fatally defective. The appellant, thereafter, filed an application for condonation on 1 November 2012.

The delay for filing condonation was reckoned from the date of the High Court judgment and adjudged inordinate.

In the present matter, the judgment appealed against was delivered on 14 November 2018. The initial Notice of Appeal, which was found to be fatally defective on appeal, was filed timeously on 28 November 2018. The appeal was heard on 30 June 2019 and struck off the roll on 24 October 2019 by reason of the defective Notice.

The present application was filed on 21 November 2019 and prosecuted in October 2020.

On the authority of the analogous Bishop Elson Madoda Jakazi & Anor v The Anglican Church of the Province of Central Africa & Ors SC10-13, I find that the delay in filing the present application was inordinate.

The applicant is required to state, in her founding affidavit, the reasons for the delay. This is because her application stands or falls on the averments deposed to in the founding affidavit: see Fuyana v Moyo SC54-06…,.

The applicant should not expect the court to ferret in cross-reference files or to surmise from the circumstances of the case what the reasons for the delay are. This is for the simple reason, that, it is not the duty of the court to make up a case for a litigant but for litigant to make out her case and persuade the court on the propriety of granting the indulgence sought.

This position is affirmed by UCHENA JA in Nzara & Ors v Kashumba & Ors SC18-18…, in these words:

“A court is not entitled to determine a dispute placed before it wholly based on its own discretion, which is not supported by the issues and facts of the case. It is required to apply the law to the facts and issues placed before it by the parties.”…,.

See also Kauesa v Minister of Home Affairs and Others 1996 (4) 965 (NmS)…,.

In the present application, despite the intimate and active involvement of Mr Paul in this case and the existence of all the relevant information in the cross reference files pertaining to this matter, Mr Paul, as the deponent to the founding affidavit, did not proffer any explanation for the delay in noting the appeal, seeking condonation, and prosecuting this application: see Saloojee and Anor, NNO v Minister of Community Development 1965 (2) SA 135 (A)…,.

He conceded as much at the hearing.

He, however, argued that as the applicant had reasonable prospects of success on appeal, the failure to provide the reasons for the delay in the application was not fatal.

He was wrong.

The contention is contrary to what this court said in the Director of Civil Aviation v Hall 1990 (2) ZLR 354 (S)…, where GUBBAY CJ cited with approval MULLER JA in Bosman Transport Works Committee & Ors v Piet Bosman Transport (Pty) Ltd 1980 (4) SA 794 (A)…, that:

“Where there has been a flagrant breach of the Rules of this Court in more than one respect, and, where in addition, there is no reasonable explanation for some periods of delay, and, indeed, in respect of other periods of delay, no explanation at all, the application should…, not be granted - whatever the prospects of success may be.”

See also Makonye v Barclays Bank Ltd SC10-07 and Marange v Chiroodza SC29-12 where failure to give an explanation, let alone a reasonable one, was fatal to analogous applications.

In Zimslate Quartzize (Pvt) Ltd & Ors v CABS SC34-17…, it was held that:

“An applicant, who has infringed the rules of the court before which he appears, must apply for condonation, and, in that application, explain the reasons for the infraction. He must take the court into his confidence and give an honest account of his default in order to enable the court to arrive at a decision as to whether to grant the indulgence sought.

An applicant who takes the attitude that indulgences, including that of condonation, are there for the asking does himself a disservice as he takes the risk of having his application dismissed.”

I was inclined to dismiss the application for this fatal flaw, but, for the case of Katsande v Katsande SC49-19 wherein this Court still considered the prospects of success, in the absence of an explanation for the delay in filing a similar application, and actually granted the application.

This court appears to have adopted a liberal approach to still consider the prospects of success in cases where the delay has been inordinate and the explanation thereof either lacking or unreasonable as underscored in Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1998 (2) ZLR 249 (S)…, which stated that:

“Where the explanation for the delay is far from satisfactory, the court will still exercise its discretion in favour of granting the indulgence of condonation, provided the proposed appeal is arguable. The role of the judge in an application of this nature is to stand sentinel at the gates of the court, guarding against those desirous of making a grand entrance into the court with un-arguable appeals. In respect of those, the gate must be firmly shut.”

The approach to follow was also delineated in Mutizhe v Ganda & Ors SC17-09…, where it was stated that:

“One looks at the founding affidavit for evidence of the facts stated as grounds of appeal. Considering these facts, together with the reasons for the judgment appealed against, and applying the relevant law, one can decide whether there are good prospects of success on appeal.”

The facts upon which the applicant seeks to impugn the judgment of the court a quo were that the mean valuation of the immovable property upon which the applicant was bought out by the respondent was partly based on an inexplicable US$100,000 reduction of the initial valuation report prepared by one of the parties valuators of choice, Guest and Tanner.

The first report, of 30 March 2017, placed an open market value of the property at US$292,000.

That report was received by the respective legal practitioners of the parties.

The property consisted of the land, various outbuildings in a state of disrepair, and a one-storey incomplete brick and mortar and concrete un-roofed superstructure.

The applicant's legal practitioners filed the report away without much ado.

The respondent's legal practitioners scrutinized it, and, by letter of 26 May 2017, sought certain clarifications on the methodologies used to value the property.

Even though they insinuated that the enquiry was from both parties, they did not copy the letter of enquiry to the applicant's legal practitioners.

In the response of 23 June 2017, Guest and Tanner sincerely apologized “for the typographical error in the valuation certificate that erroneously reflected the open market value as US$292,000 instead of US$192,000.”

They enclosed the second valuation report with the corrected values and highlighted that they had used the composite method of valuation.

Guest and Tanner further affirmed, that, the sum of US$192,000 would continue to reflect the reasonable realisable open market value of the property in the upcoming six (6) month periods contemplated in the consent orders of the High Court.

On 26 July 2017, the respondent's legal practitioners dispatched the corrected valuation report, without the related correspondence, and the valuation from Dawn Properties, to the applicant's legal practitioners.

The applicant, thereafter, consented to the mean value of the property.

She purported to have acted in blissful ignorance of the existence of the first Guest and Tanner report, which carried the higher value.

She provided her legal practitioners with her bank account on or about 19 September 2017. The respondent deposited her half-share therein, within the prescribed six (6) months, on 5 January 2018.

She did not voluntarily transfer her half-share to the respondent.

The respondent sued her for transfer on 5 March 2018, and obtained judgment on 14 November 2018.

It was in those proceedings that she disclosed the basis for her attempted repudiation of the agreement to transfer her half-share on payment of the agreed purchase price.

She suspected that the respondent had, in the undisclosed letter of 26 May 2017, influenced Guest and Tanner to reduce the value of the property.

The letter in question formed part of the attachments to the pleadings filed a quo.

The court a quo made certain findings of fact. These were that:

(i) The contents of the letter could not have influenced Guest and Tanner to rectify the value of the property, as the seven questions sought explanations of how the valuation was done and was therefore not prejudicial to the applicant.

(ii) The avowed typing error was genuine.

(iii) She had not established that the corrected value was incorrect.

(iv) The applicant's legal practitioner had received the initial and subsequent valuation reports from Guest and Tanner, which had noticeable differences in the market value of the property.

(v) When the applicant became aware of the higher value, through her legal practitioner, on 22 July 2017, she could have sought a third valuation and dispensed with the mean average value, but failed to do so.

(vi) She accepted a one off payment, and not part payments, with knowledge of the two Guest and Tanner valuations.

(vii) She was estopped from rejecting transfer after misleading the respondent that her acceptance was with full knowledge of the facts pertaining to the two Guest and Tanner valuations.

(viii) The consent court order, upon which their respective actions were based, had to be obeyed or enforced.

At the hearing, counsel for the applicant conceded, that, in the circumstances of this case, the failure by the respondent's legal practitioners to copy the letter of 26 May 2017 to the applicant's legal practitioners could not constitute fraudulent non-disclosure but argued that it constituted material non-disclosure.

Counsel for the respondent strongly argued, that, it did not constitute either fraudulent or material non-disclosure as the contents of that letter did not question the initial value provided by Guest and Tanner but sought to understand the manner in which the valuation had been done.

One of the pertinent questions pertained to whether the comparative method of valuation related to analogous incomplete superstructures in comparable localities or completed houses.

This, and the other questions, were relevant in view of the caveat in both reports that there were insufficient comparable sales of analogous properties.

The valuator apparently applied the residual method estimate formula to cross-check the value of the property against those of similar but completed houses.

The court a quo reasoned, that, as the seven questions were innocuous, banal, and general, they could not conceivably have influenced Guest and Tanner to rectify the value of the immovable property.

In my view, that finding is un-impeachable.

In Attorney-General v Paweni Trade Corp (Pvt) Ltd & Ors 1990 (1) ZLR 24 (S)…, KORSAH JA defined fraud as follows:

“Generally speaking, fraud consists in knowingly making a false representation of fact with the intention to defraud the party to whom it is made, and such false representation actually causes prejudice or is potentially prejudicial to another.”

See also Wamambo v General Accident Insurance Co. of Zimbabwe Ltd 1997 (1) ZLR 299 (H)…, and S v Dzawo 1999 (2) ZLR 303 (H)…,.

The letter was clearly not calculated to induce Guest and Tanner to lower the value of the property.

She also patently failed to establish that the conduct of the respondent's legal practitioner materially induced her to accept the purchase price offered by the respondent.

In any event, the applicant's legal practitioner was served with both valuations from the same valuer - with different dates and values.

The duty of a legal practitioner to his client was articulated in M M Pretorious (Pvt) Ltd & Anor v Mutyambizi SC39-12…, in these words:

“A legal practitioner is not engaged by his client to make omissions and to commit 'oversights'. He is paid for his professional advice and for the use of his skills in the representation of his client. He is not paid to make mistakes. These could be costly to his client. He is professionally, ethically, and morally bound to exercise the utmost diligence in handling the affairs of his client.”

The supporting affidavit of the applicant's legal practitioner at the time demonstrated that he acutely failed to handle his client's mandate with probity.

A diligent legal practitioner would keep the documents pertaining to the applicant in one file from which he would constantly refer before acting on information received from other legal practitioners. He would also be expected to constantly appraise his client on the progress of her case.

It is inconceivable that the applicant's legal practitioner would have failed to observe the initial valuation report and compared it with the rectified version.

His main business at hand, on receipt of the letter and attachments from the respondent's legal practitioner suggesting the amount of the applicant's half-share, was to satisfy himself that the suggested amount was backed by the valuation reports and thereafter advise his client accordingly.

In any event, as was pronounced by this Court in Apostolic Faith Mission in Zimbabwe & Ors v Titus Innocent Murefu SC28-03, which cited with approval the sentiments of STEYN CJ in Saloojee & Anor NNO v Minister of Community Development 1965 (2) 135 (A)…, there is a limit beyond which the client cannot escape the consequences of the conduct of his legal practitioner, and, where the limit has been exceeded, the sins of the legal practitioner will visit his client.

It was also common ground, that, the legal practitioner in question was not only the legal practitioner of the applicant but also her agent.

It is trite, that, the actions of an agent, in the exercise of his mandate, are attributed to and bind his principal.

In the present matter, the receipt of the two valuation reports by her legal practitioner cum agent, and his sworn shortcomings, are ascribed to and do bind her: see Rhodes Motors (Pvt) Ltd v Pringle-Wood, NO 1965 (4) SA 40 (SRA)…, and the cases cited therein.

It was on this twin basis that the court a quo correctly held, at p6 of the cyclostyled judgment, that:

“It is not enough for Chijara, or indeed the respondent (applicant in the present application), to say that after receiving the 2 reports they did not scrutinize them in order to see that they were different. That is their fault; and, in the process, the applicant (respondent in the present case), prejudicially acted on the strength of their actions.”

In the light of the limitations to the power of an Appeal Court on the discretion exercised by a court of first instance on findings of fact, espoused in such cases as of Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)…, it is unlikely that the factual findings of the court a quo would be successfully impugned on appeal.

I also do not find, that, the applicant would successfully impeach the add weight sentiments of the court a quo on estoppel and the inviolability of the principle of obedience of court orders, such as the consent orders of February 2017, upon which the payment of the applicant's half-share was based.

I am satisfied, that, the applicant does not have an arguable case based on either fraudulent misrepresentation or material non-disclosure upon which an Appeal Court could find that she was induced by the conduct of the respondent, or his legal practitioner, to accept the mean value of the property in question.

There are, therefore, no reasonable prospects of success on appeal.

In the end, there must be finality to litigation and the concomitant protection of the interests of the respondent who has been unable to execute his judgment.

Some 30 years ago, in Ndebele v Ncube 1992 (1) ZLR 288 (S)…, McNALLY JA remarked that:

“It is the policy of the law that there should be finality in litigation. On the other hand, one does not want to do injustice to litigants. But, it must be observed that in recent years applications for rescission, for condonation, for leave to apply or appeal out of time, and for other relief arising out of delays either by the individual or his lawyer, have rocketed in numbers. We are bombarded with excuses for failure to act. We are beginning to hear more appeals for charity than for justice.

Incompetence is becoming a growth industry. Petty disputes are argued and then re-argued until the costs far exceed the capital amount in dispute.

The time has come to remind the legal profession of the old adage, vigilantibus non dormientibus jura subveniunt: roughly translated, the law will help the vigilant but not the sluggard.”

These perceptive words ring true to the present matter.

I am satisfied that there are no reasonable prospects of success in the appeal envisioned by the applicant. I agree with counsel for the respondent, that, the applicant's persistence in flogging a dead horse is not only an abuse of the court system but unnecessarily put the respondent out of pocket in opposing the futile and ill-fated application.

This is a proper case for mulcting the applicant with punitive costs.

Accordingly, the application is dismissed with costs on the scale of legal practitioner and client.

The interest clause, clause 5, prescribed the payment of interest on the default amount from the due date.

In this respect, the interest payable by the appellant accrued from 26 November 2004 and continued to do so at the rate of seven and a half per cent until the unpaid instalment was liquidated in full.

The computation of the interest payable from the effective date to the last date of the payment of the purchase price in full required expert evidence.

I have in mind such organizations as the Interest Bureau of Zimbabwe, whose expertise would have unraveled the total interest payable by the appellant.

It may very well be, that, as the principal amount paid in local currency was equivalent to US$242,624=25 the purchase price in respect of the Agreement of Sale was paid in full.

Perhaps this explains why the respondent did not sue on the Agreement of Sale.

The currency and method of payment, in respect of the Deed of Sale, were different. These were, in the main, governed by clauses 4 and 5, which stipulated:

“4. That, the Purchaser shall pay to the Seller the amount of US$481,000 (Four Hundred and Eighty-One Thousand United States Dollars) for the Property (hereinafter referred to as 'the Purchase Price').

That, for the purpose of conversion into Zimbabwe Dollars, if necessary, the rate shall be calculated at the auction rate prevailing in terms of the Zimbabwe Reserve Bank Auction Scheme as at the date of payment….,.

5. That, the Purchaser shall pay the Purchase Price, free of interest, to the Seller in Harare, free of bank commission and any bank special clearance charges or other such charges, as set out in Annexure 'A' hereto. Provided, however, that should the Purchaser fail to effect payment of any one instalment on due date, interest shall accrue on such amount at the rate of seven and a half per cent per annum from date of default to date of payment.”

Annexure A apportioned payment at the rate of 45 percent in United States dollars and the balance of 55 per cent in local currency.

The due dates were on the month-end of January, February, April, June, September, October, November and December, and on 29 March, May, July and August 2005.

It is apparent from the way the agreement was structured, that, the respondent intended to hedge the purchase price against the inevitable deterioration of the local currency during the lifespan of the agreement.

The appellant, in turn, was in total agreement with the arrangement.

The text of these two clauses, viewed in the prism of both the context and purpose of the agreement, reveal a consensual intention of the parties to maintain and preserve the overall value of the purchase price at US$481,000 over the 12-month tenure of the agreement.

The import of these clauses was that the appellant was obliged to simultaneously pay the static instalment of US$18,182 in United States dollars currency and an equivalent amount at the prevailing auction rate in Zimbabwe dollars, on each due date.

The conditional conjunction “if necessary” connotes the payment, in the last resort, of the static United States dollar component in local currency. In other words, the appellant would, in the event that the appellant was, for good cause, unable to pay the hard currency component in United States dollars, pay it in Zimbabwe dollars, at the applicable conversion rate, on the due date.

The effect being, that, the appellant would pay both the United States and the local currency component in local currency.

It would essentially make a double payment in local currency, but, at the rate of conversion obtaining on the due date.

In the event that the appellant failed to make payment on the due date, interest would commence to run from that date to the date of payment of the requisite instalment in full.

The consummation of an agreement by two incolas to make payment in Zimbabwe in foreign currency was not, at the time, prohibited by law.

The contention by counsel for the appellant, that such an agreement fell afoul the Exchange Control Regulations is incorrect.

It runs against the pronouncements of GUBBAY JA…, in Makwindi Oil Procurement (Pvt) Ltd v National Oil Company of Zimbabwe 1988 (2) ZLR 482 (S)…, that:

“I am firmly of the opinion, that, in the absence of any legislative enactments which require our courts to order payment in local currency only, the innovative lead taken both in Miliangos v George Frank (Textiles) Ltd [1975] 3 All ER 801 (HL) and the subsequent extensions to the rule there enunciated, and in the Murata Machinery Ltd v Capelon Yarns (Pty) Ltd 1986 (4) SA 671 (C) at 673C-674B and 674E case in South Africa, is to be adopted.

This will bring Zimbabwe into line with many foreign legal systems.

See Mann, The Legal Aspect of Money 4ed at pp339-340.

Fluctuations in world currencies justify the acceptance of the rule, not only that a court order may be expressed in units of foreign currency, but, also that the amount of the foreign currency is to be converted into local currency at the date when leave is given to enforce the judgment.

Justice requires, that, a plaintiff should not suffer by reason of a devaluation in the value of currency between the due date on which the defendant should have met his obligation and the date of actual payment or the date of enforcement of the judgment.

Since execution cannot be levied in foreign currency, there must be a conversion into the local currency for this limited purpose, and, the rate to be applied, is that obtaining at the date of enforcement.”

The contention is also contrary to the pertinent remarks made by this Court in Macape (Pty) Ltd v Executrix Est Forrester 1991 (1) ZLR 315 (S) at 320C-D that:

“The essential point to be noted is that there is a clear difference between ss 7 and 8. The former proscribes only the actual payment. The latter proscribes both the payment and the underlying agreement to pay. In other words, when one is concerned with payments inside Zimbabwe, it is perfectly lawful to enter into the agreement to pay, but, without authority from the Reserve Bank, the actual payment may not be made. By contrast, when dealing with payments outside Zimbabwe, it is unlawful even to enter into the agreement to pay without first obtaining the authority of the Minister whose powers have been delegated to the Reserve Bank.”

And further at 321A:

“The contract to pay is lawful. Actual payment in pursuance of the contract is unlawful, without permission. There is no reason why the court should not order payment, subject to the condition that authority is obtained.”

Clearly, the payment clause in the Deed of Sale cannot be assailed on the basis of unlawfulness.

It was a valid clause.

It was common cause, that, at the time of litis contestatio, the three immovable properties were owned by the respondent. The respondent established, on a balance of probabilities, that, at the time pleadings closed, the appellant was in possession of these properties.

The onus, in the form of the evidentiary burden, shifted to the appellant to show, on balance, that it had a right to retain possession of the properties.

Instead, it dismally demonstrated that it had not paid the equivalent of the principal sum of US$457,375=75 towards the purchase price of the immovable properties. The tendered cheque payment of ZW$2.5m was only equivalent to US$83,333=33.

It was wholly inadequate.

The appellant therefore failed to justify possession of the properties in question at the time pleadings closed....,.

The court a quo rightly granted the order of eviction against the appellant.

In the circumstances, the fifth and sixth grounds of appeal must fail for lack of merit....,.

1. The appeal be and is hereby dismissed.

This is an application for direct access to this Court made in terms of Rule 21 of the Constitutional Court Rules 2016 ("the Rules").

The applicant is Tendai Mashamanda. The first respondent is Bariade Investments (Pvt) Limited, a company duly incorporated in terms of the laws of Zimbabwe. It was the appellant in SC09-20. The second respondent, Puwai Chiutsi, was one of the respondents in SC09-20.

The third respondent, the Registrar of Deeds is a public official appointed in terms of section 4 of the Deeds Registry Act [Chapter 20:05]. The fourth respondent is the Sheriff of the High Court cited as the officer responsible for executing judgments of the High Court.

The fifth respondent, Eliot Rogers, was the fifth respondent in SC09-20.

It is the applicant's case that the Supreme Court, in its determination in SC09-20, infringed several of his constitutional rights. These rights are the following;

(i) The right to the protection of the law which he says is enshrined in section 56(1) of the Constitution;
(ii) The right to a fair hearing in terms of section 69(2) of the Constitution; and
(iii) The right of access to the courts enshrined in terms of section 69(3) of the Constitution.

Sometime in 2012, the fifth respondent (Elliot Rogers) obtained judgment in the High Court under HC3331/14 against the second respondent (Puwayi Chiutsi). The court ordered the sale in execution of the second respondent's property known as the remainder of Subdivision C of Lot 6 of Lots 190,191,192,193,194 and 195, Highlands Estate of Welmoed (hereinafter referred to as “the property”).

On 18 September 2017, the first respondent participated in the Sheriff's sale by public auction of the property and was declared the highest bidder after offering to pay USD$270,000.

Thereafter, the second respondent lodged an objection to the confirmation of the sale by the fourth respondent (Sheriff of the High Court) in terms of Rule 359(1) of the High Court Rules 1971 (hereinafter referred to as “the High Court Rules”) and the objection was dismissed.

Subsequently, the second respondent filed a court application under case number HC11349/17 in which he sought the setting aside of the confirmation by the Sheriff of the sale of the disputed property, to the first respondent.

MATHONSI J..., dismissed the application on the basis that the second respondent had conducted himself in a dishonourable and unworthy manner by mis-appropriating trust funds, and that “he had employed every trick in the book to avoid paying his debt” to the fifth respondent.

The second respondent then proceeded, unsuccessfully, to file an urgent chamber application for an interdict against the transfer of the property pending the outcome of the appeal that he had filed.

Notwithstanding the fact that the second respondent had failed to secure an interdict against transfer of the property in question to the first respondent, the latter (Bariade Investments (Pvt) Ltd) submitted it became aware that the second respondent had not only sold the property in question, but had also transferred it into the applicant's name on 8 February 2019 under Deed of Transfer No.708/19.

The fifth respondent (Elliot Rogers) then filed an urgent chamber application under HC1444/19 in which he sought the cancellation of Deed of Transfer No.708/19.

This was on the basis, that, the second respondent's conduct was fraudulent since he had knowingly sold the property which was under judicial attachment without the knowledge of the fourth and fifth respondents (Sheriff of the High Court and Elliot Rogers).

As a result, the fifth respondent argued, the sale in question was null and void.

The court a quo dismissed the application, not on the merits, but on the basis that it could not grant a final order in an urgent chamber application which sought a provisional order.

The fifth respondent went on to appeal to this Court against that decision, and the appeal was heard jointly with the second respondent's appeal.

Thereafter, the first respondent filed an application for the cancellation of Deed of Transfer No.708/19 under HC2620/19.

The court a quo dismissed the application holding that the matter was res judicata because it had already been decided by MANZUNZU J in HC1444/19, a circumstance that rendered the court functus officio.

The court also held, that, a pignus judiciale could not conclusively be considered to have been created over the property in question since the first respondent had not proved the existence of a caveat registered against the title deed in the first respondent's name.

Aggrieved, the first respondent noted an appeal to the Supreme Court ('the court a quo') under case number SC9-20. The argument advanced by the first respondent was that the High Court had erred in coming to the conclusion that the material and live issue of the second respondent's fraud and forgery was not relevant to the just determination of the matter which was before it.

It was the first respondent's further argument, that, the High Court had erred when it came to the conclusion that the judgment of the High Court, per MANZUNZU J, concerned the same subject matter as the application before it.

The first respondent also argued, that, the High Court had erred in not coming to the conclusion that the question of equities was not a live issue before it and that it (the Court) had to determine, instead of, the question of the validity of the sale and transfer to the appellant in view of the pignus judiciale brought about by the attachment in execution.

In disposing of the matter, the court a quo held that the original judgment by MATHONSI J..., had been competently made and that it was an order against the transfer of the property in question otherwise than through the process ordinarily followed after a sale in execution is duly confirmed.

The court a quo went further to hold, that, although the property was still in the second respondent's name, it had ceased to be his to deal with as he wished from the moment that it was attached in execution, and, thereafter, sold to the appellant because of the pignus that was operating against the property.

The court a quo then dealt extensively with the judgment by CHITAPI J under judgment number HH477-21.

In analysing the judgment, the court a quo found that the processes leading to the default judgment granted by CHITAPI J, as well as the order itself, were irregular. That judgment was subsequently reviewed by the court a quo in terms of section 25 of the Supreme Court Act [Chapter 7:13]. The result was that the order of CHITAPI J was vacated.

The applicant was aggrieved and has approached this Court for direct access in terms of section 167(5)(a) of the Constitution of Zimbabwe.

The applicant submits, that, three of his fundamental rights enshrined in Chapter 4 of the Constitution were infringed by the Supreme Court in SC09/20 through judgment number SC24-22.

As already noted, the three rights that the applicant alleges were infringed are the right to the protection of the law as enshrined in terms of section 56(1) of the Constitution, the right to a fair hearing enshrined in section 69(2) of the Constitution, and the right of access to the courts as enshrined in section 69(3) of the Constitution.

The first respondent (Bariade Investments (Pvt) Ltd) has opposed the application and has argued that the applicant lost the appeal on a non-constitutional matter.

The first respondent further argues, that, the court a quo determined the appeal that was before it, prior to dealing with the irregular judgment by invoking section 25 of the Supreme Court Act.

None of the applicant's rights were therefore infringed either by the Supreme Court or by any other person.

It is further argued, that, the provisions of section 25 of the Supreme Court Act are constitutional and that the Supreme Court's action, of invoking that section, are valid.

The fifth respondent (Elliot Rogers) has also opposed the application and his first argument is that the present application is an abuse of court process because the Supreme Court did not infringe any of the applicant's rights in its determination.

He further contends, that, the court a quo acted within its jurisdiction, and that it exercised its review powers according to section 25(2) of the Supreme Court Act.

He further submits, that, a pignus judiciale is a recognized part of our law.

Counsel for the applicant argued, that, it is now trite in this jurisdiction that a party cannot challenge a decision of the Supreme Court on the basis that it was wrong. However, a Supreme Court decision can infringe a party's rights in the manner in which it determines the matter.

He submitted, that, the Supreme Court infringed the applicant's right to equal protection of the law in terms of section 56(1) of the Constitution, the right to a fair hearing in section 69(2), and the right of access to the courts as enshrined in section 69(3) of the Constitution.

Counsel for the applicant further argued, that, the Supreme Court acted without jurisdiction when it set aside the High Court's decision under judgment number HH477-21. He argued that the effect of CHITAPI J's judgment rendered the appeal moot.

According to the applicant, the setting aside of the High Court's decision was unprocedural as the Supreme Court acted outside the record.

It was the applicant's further argument, that, the Supreme Court had erroneously invoked its review authority under section 25(2) of the Supreme Court Act [Chapter 7:13] in reviewing a default judgment.

This, it was submitted, is contrary to its review powers.

It was the applicant's argument that a default judgement cannot be reviewed under the limited review powers granted to the Supreme Court.

Counsel for the applicant further argued, that, the Supreme Court applied a non-existent law.

Whilst the law holds that the Supreme Court cannot be wrong; it cannot, however, invent a law and must always seek to apply an existing law.

Per contra, counsel for the first respondent raised a preliminary point, that, the applicant did not have locus standi to challenge the section 25(2) of the Supreme Court Act portion of the judgment of the Supreme Court.

It was his argument that the judgment dealt with a long-standing dispute regarding execution which had started in 2017 and was completed in 2018. Counsel for the first respondent submitted, that, the applicant only came into the picture in 2019. He further argued, that, in the circumstances, having a financial interest did not endow the applicant with the necessary locus standi.

In response to the point in limine raised by the first and fifth respondents, counsel for the applicant submitted that such an argument was a misdirection. He submitted that the applicant had locus standi on the basis that the Supreme Court infringed his rights in terms of section 56(1), section 69(2) and (3) of the Constitution.

On the merits, counsel for the first respondent submitted that there were no prospects of success in this matter.

He argued that there was no law that was raised by the applicant that would have protected the allegedly infringed rights. Counsel for the first respondent further argued, that, the Supreme Court provided ample authority for the view that a property subject to a pignus judiciale could not be sold.

He argued that the decision made by the Supreme Court was therefore not novel, and, accordingly, the argument by the applicant lacked merit.

He further argued, that, the applicant's submission that a default judgment cannot be reviewed was based on an entirely misplaced principle.

He stated that there was no principle that disabled the review of a default judgement.

Counsel for the first respondent further stated, that, section 25 of the Supreme Court Act gave the Supreme Court the jurisdiction to act in the manner it did. It was his contention that the question of review was addressed and that none of the parties in the Supreme Court were willing to defend the default judgment granted by CHITAPI J.

Counsel for the fifth respondent associated herself with the preliminary point raised by the first respondent in relation to the applicant's locus standi to bring the application.

On the merits, she submitted that the application could not succeed as articulated by the first respondent.

However, she added that the content of the right in section 18(1) of the old Constitution now appears and is subsumed in and under numerous other provisions of the current Constitution which are, for example, section 68, section 69 and section 70. She argued that it is these sections that continue to give life to the right previously protected in section 18(1) of the old Constitution.

She further argued, that, very minimal submissions had been made by the applicant in impugning section 25(2) of the Supreme Court Act.

She submitted, that, the impugned provision would remain valid until declared unconstitutional. She submitted that it was trite in this jurisdiction, that, a court will not readily declare a provision unconstitutional.

It was her argument, therefore, that, if there is an alternative interpretation that avoids declaring a provision invalid, the Court ought to follow that approach.

In the circumstances, she argued that there needed to be more substantial arguments made than a mere reference to constitutional invalidity contained in two paragraphs....,.

The sole issue that arises for determination in this application is whether or not it is in the interest of justice to grant direct access to this Court.

Applications of this nature are regulated by the rules of this Court. The applicant therefore has to first satisfy the requirements as set out in Rule 21(3) of the Constitutional Court Rules.

It was stated in Liberal Democrats & Ors v The President of the Republic of Zimbabwe E.D. Mngangagwa N.O. & Ors CC07-18…, as follows:

“…, direct access to the Constitutional Court is an extraordinary procedure granted in deserving cases that meet the requirements prescribed by the relevant Rules of the Court.”

Rule 21(3) of the Constitutional Court Rules contains the requirements that ought to be satisfied in an application of this nature. It states the following:

“(3) An application in terms of subrule (2) shall be filed with the Registrar and served on all parties with a direct or substantial interest in the relief claimed and shall set out —

(a) The grounds on which it is contended that it is in the interests of justice that an order for direct access be granted; and

(b) The nature of the relief sought and the grounds upon which such relief is based; and

(c) Whether the matter can be dealt with by the Court without the hearing of oral evidence, or, if it cannot, how such evidence should be adduced and any conflict of facts resolved.”…,.

CURRIE I and De WAAL J in “The Bill of Rights Handbook” 6th edn, Juta & Co (Pty) Ltd, Cape Town, 2013…, discuss the importance of the requirement that an applicant should show that it is in the interest of justice that the application be granted. They state as follows:

“Direct access is an extraordinary procedure that has granted by the Constitutional Court in only a handful of cases….,.

The Constitutional Court is the highest court on all constitutional matters.

If constitutional matters could be brought directly to it as a matter of course, the Constitutional Court could be called upon to deal with disputed facts on which evidence might be necessary, to decide constitutional issues which are not decisive of the litigation and which might prove to be of purely academic interest, and to hear cases without the benefit of the views of other courts having constitutional jurisdiction.

Moreover, it is not ordinarily in the interests of justice for a court to sit as a court of first and last instance, in which matters are decided without there being any possibility of appealing against the decision given.”

It is settled law that the appellate jurisdiction of the Constitutional Court is triggered only where a constitutional matter arose in the court a quo and was decided by that court: see Sadziwani v Natpak (Private) Limited & Ors CC15-19…,.

Section 332 of the Constitution defines a constitutional matter as “a matter in which there is an issue involving the interpretation, protection or enforcement of this Constitution.”

The jurisdictional effect of the definition of a constitutional matter was discussed in Moyo v Sergeant Chacha and Ors CC19-17…, as follows:

“The import of the definition of 'constitutional matter' is that the Constitutional Court would be generally concerned with the determination of matters raising questions of law, the resolution of which require the interpretation, protection, or enforcement of the Constitution.

The Constitutional Court has no competence to hear and determine issues that do not involve the interpretation or enforcement of the Constitution or are not connected with a decision on issues involving the interpretation, protection or enforcement of the Constitution.”

It also ought to be noted, that, the mere citation of constitutional provisions or alleged infringements of constitutional rights does not mean that a constitutional issue has been raised.

In Magurure and Ors v Cargo Carriers International Hauliers (Pvt) Ltd t/a Sabot CC15-16 the Court had occasion to deal with this aspect. It stated as follows…,.:

“Have the applicants brought to the Court for determination a matter in which there is an issue involving the interpretation, protection or enforcement of the Constitution?

The fact that the applicants allege that the respondent has, by the conduct it is alleged to have committed, infringed their fundamental right to fair and safe labour practices enshrined in section 65(1) of the Constitution does not mean that they have raised a constitutional matter.

It is for the Court to decide whether the determination of the legality of the conduct of the respondent, if proved, would require the interpretation and application of section 65(1) of the Constitution.”

The applicant in casu merely challenges the correctness of the findings made by the court a quo but no constitutional issues arise therefrom.

In The Cold Chain (Pvt) Ltd t/a Sea Harvest v Makoni 2017 (1) ZLR 14 (CC)…, the Court discussed the test to be applied in determining whether or not the court a quo determined a constitutional matter. It held as follows:

“The principles to be applied in the determination of the question whether the Supreme Court determined a constitutional matter are clear. It is not one of those principles that the court against whose judgment leave to appeal is sought should have referred to a provision of the Constitution.

There ought to have been a need for the subordinate court to interpret, protect or enforce the Constitution in the resolution of the issue or issues raised by the parties. The constitutional question must have been properly raised in the court below. Thus, the issue must be presented before the court of first instance and raised again at or at least be passed upon by the Supreme Court, if one was taken.”…,.

The applicant alleges, that, his right to equal protection of the law, in terms of section 56(1) of the Constitution, was violated by the manner in which the court a quo disposed of the matter.

In the court a quo was an appeal from the decision of the High Court, which decision was not based on the enforcement or interpretation of the Constitution.

The court a quo determined, that, it was clear that the second respondent could not dispose of the property whose sale the court, under HC604/18, had confirmed [which, in our view, was correct].

Once the Sheriff's sale was confirmed by the High Court, the second respondent could no longer deal with or dispose of the property as he wished. The decision under HH604-18 was competently made and should remain extant.

It was further determined by the court a quo, that, the second respondent, being a senior legal practitioner, could not have failed to appreciate that he was acting contrary to law.

It was further determined, that, because there was a pignus judiciale over the property, the second respondent did not have the legal competency to dispose of the property after it was attached.

The decision of the court a quo was made in accordance with the law. I find nothing to fault in the reasoning of the court a quo on this point. The court a quo acted within the confines of the law, and, as determined in Denhere, supra, the Court remarked thus at p24 of the judgment:

“When the Supreme Court, like any other court, sits to decide an appeal, all it is required to do is to dispose of the matter in a manner which is consistent with the law. A judicial decision is the end result of a process that is regulated by law. In other words, a person has a right to a fair judicial process.”

Such determination by the court a quo cannot be said to have been irregular.

I find no basis for the suggestion that the applicant's rights, under section 56 of the Constitution, were violated by the court a quo.

There is no indication as to how the court a quo could have violated the applicant's right to equal protection of the law.

The allegations by the applicant are meritless and thus it is not in the interest of justice to grant an order of direct access to this Court.

This is a matter rising out of the trial of one Anderson Tagara at the Magistrates Court, Harare on a charge of fraud as an accessory after the fact in contravention of section 206 as read with section 136 of the Criminal Law Code [Chapter 9:23].

At the conclusion of that trial, Anderson Tagara was found guilty and sentenced to a fine of $4,000 or, in default of payment, 12 months imprisonment. In addition, he was sentenced to 12 months imprisonment wholly suspended for five years on condition of future good behaviour.

Anderson Tagara is not a party to the present application, and probably does not want to in light of his recent brushes with the law.

The facts themselves, if this was not an extremely unfortunate matter involving loss of huge sums of money and the use of the name of God in vain, would have been comic indeed.

What the trial court found to have been proven is that Ndabazinengi Shava purchased a Bentley Continental motor vehicle registration number AVO 1759 from Anderson Tagara for a sum of $230,000 after the latter had imported the luxury wheels from the United Kingdom. Shava did not execute a change of ownership of the vehicle into his name but it remained in the name of Tagara.

Firmly believing in the power of the Almighty which can bring abundant blessings to God-fearing people, Ndabazinengi Shava took the Bentley to a well known “prophet” one Eubert Angel Mudzanire who promised him abundant blessings if he “seeded” the Bentley to the man of God.

They agreed, that, if Ndabazinengi Shava's fortunes multiplied three-fold within eight months of “seeding” the Bentley to the prophet, the prophet would assume ownership; but, if such did not eventuate, the Bentley would be returned to Shava.

As is usual with anything human, Ndabazinengi Shava's fortunes remained rooted in the same position at the expiration of the eight months period, and, when he sought to recover the Bentley, he discovered to his shock, that, the prophet had purported to sell the Bentley to the first respondent for a paltry sum of $76,000.

Ably assisted by Anderson Tagara, they had signed a sale agreement to facilitate change of ownership.

The prophet made good his escape leaving Anderson Tagara at the mercy of the long arm of the law.

Even the help of a couple of the prophet's relatives, who testified in his favour, could not save Anderson Tagara who was convicted and sentenced aforesaid.

The trial magistrate was requested by State counsel to issue a disposal order relating to the Bentley, in terms of section 61(1) of the Criminal Procedure and Evidence Act [Chapter 9:07], as it had been exhibit 4 during the trial.

He skated the issue and ruled as follows at p29 of his judgment:

“I have also considered whether I should order that the Bentley motor vehicle should be returned to the complainant. I have noted, that, the motor vehicle is currently in the hands of an innocent purchaser, and that, by handing the registration book over to Eubert Angel Mudzanire, the complainant made it possible for Eubert Angel to represent himself and (sic) the owner. The innocent part (sic) can easily raise a defence of stoppel (sic) against the complainant, because of this it is best to leave the issue of the motor vehicle to the Civil Court. In any case, it was clear that the issue of the motor vehicle is already before the High Court; it will be best to leave it to be finalised there.”

Whatever it is that the magistrate was saying, the bottom line is that he was washing his hands of the Bentley, Pilate style, and in the process abdicating his adjudicating duties.

It is either Ndabazinengi Shava was entitled to the Bentley or the first respondent was. There can be no middle road - never mind the existence of a Civil Court.

The applicant, who is the prosecuting authority in this country, has since challenged the decision of the magistrate by way of review application made in this court, and that application is yet to be determined.

Meanwhile, the first respondent continues to enjoy the use of the Bentley, a situation which riles the applicant who has now come to court, on an urgent basis, seeking the following relief:

“TERMS OF THE FINAL ORDER (SOUGHT)

1. The 1st respondent be and is hereby ordered to surrender a motor vehicle, a Bentley Continental registration number ACO 1759, engine number CKH002121, chassis number SCBDN 23WOBC68378 to Ndabazinengi Shava (complainant in case CRB R 104/15) within 24 hours of the granting of this order pending the outcome of the main application for review.

2. The respondents to bear costs of this suit if they oppose this application.

3. The first respondent is directed not to use or dispose of the motor vehicle Bentley Continental registration number ACO 1759, engine number CKH003121, Chassis number SCDDN 23 WOBC 68378.”...,.

The applicant states, that, the magistrate was required, by section 61 of the Criminal Procedure and Evidence Act [Chapter 9:07], to issue a disposal order in favour of Ndabazinengi Shava, upon an application being made before him to do so, because he had made a finding that the Bentley belonged to Shava.

I agree.

Section 61(1) of the Criminal Procedure and Evidence Act provides:

“Subject to this Act, and, except as otherwise provided in any other enactment under which any matter shall or may be forfeited, the judge or magistrate presiding at criminal proceedings may, at the conclusion of the proceedings, unless the article is further required as an exhibit at a trial, make an order that any article referred to in section 60, or produced in evidence –

(a) If the person from whose possession it was obtained may lawfully possess such article, be returned to that person; or

(b) If the person from whose possession it was obtained is not entitled to the article, or may not lawfully possess the article, be returned to any other person entitled thereto, if such person may lawfully possess the article; or

(c) If no person is entitled to the article, or if the person who is entitled thereto cannot be traced or is unknown, be forfeited to the State.”

In my view, the section reposes upon a trial court the discretion to proceed in terms of three available options set out therein.

The Bentley formed the subject of the criminal prosecution and was produced as evidence, and, therefore, in the custody of the court. At the conclusion of the trial, the magistrate should have issued a disposal order in terms of section 61(1) of the Criminal Procedure and Evidence Act: see S v Muzvaba HH360-13.

The magistrate made clear findings, that, the vehicle belonged to Ndabazinengi Shava and his decision to become ambivalent at the end was not helpful at all. At p12 of his judgment he stated:

“I therefore believe the accused when he say(s) he imported the Bentley motor vehicle on his own, and, when the motor vehicle was finally delivered in Harare, the complainant stated that he was interested in the motor vehicle and accused sold the motor vehicle to the complainant for US$230,000 and complainant paid in full the money and accused gave him the Bentley in question together with all the documentation and the number plates which were not yet fixed in the motor vehicle, but the two did not reduce anything to writing.

However, the issue of whether the complainant gave the accused money to import the motor vehicle in question or not is neither here nor there. It is not very important because the moment when accused sold the motor vehicle to the complainant, and through their verbal agreement, the accused passed ownership to the complainant of the motor vehicle in question. What is important is to decide what happened after mid-May 2012 when the complainant was now the true owner of the Bentley motor vehicle in question.”

After indulging himself a lot about matters of religion and how the prophet was required to intercede between Ndabazinengi Shava and God for the former to be showered with blessings, the magistrate again pronounced at p18 of the judgment:

“What this mean(s) is that when the complainant handed over the car and the registration book, he did not pass ownership because he never formulated that intention. Ownership was only going to pass to Eubert Angel after realisation of blessings, and Eubert Angel knew that ownership had not passed to him and that necessary ownership transfer document was to be done upon complainant receiving blessings. Eubert Angel was also aware, that, in the event of no blessings by complainant, complainant was to get his car back. To this end, Eubert Angel, though well aware that he had not acquired ownership, proceeded to dispose of the motor vehicle as if he was the owner. The motor vehicle had been placed under the custody of Eubert Angel pending the fulfilment or otherwise of the condition precedent to him getting ownership.”

I have stated, that, section 61(1) of the Criminal Procedure and Evidence Act permits the trial court to order the return of the article to the person from whom possession was obtained if that person may lawfully possess the article.

The court found, that, Ndabazinengi Shava was the owner and that ownership did not pass to Eubert Angel. Prior to that, ownership had passed from Anderson Tagara to Shava - even though documentation had not been done.

Clearly, therefore, by its findings, the trial court should have ordered the return of the vehicle to Ndabazinengi Shava.

It did not, contenting itself with passing the buck to some other court.

It matters not that the first respondent was not a party to the criminal proceedings. He could not be as he was not an accused person.

What remains is that section 61(1) of the Criminal Procedure and Evidence Act allows for the return of the article to the lawful owner at the conclusion of the trial.

In his opposing affidavit, the first respondent has stated a lot of things not relevant to the present inquiry.

He has also made the point, that, the relief being sought by the applicant, in the main, is not competent because this court, per ZHOU J, in HC11372/14, has already settled the issue of possession of the Bentley in his favour which provisional order was confirmed by MAKONI J on 28 January 2015.

He has also annexed to his affidavit the judgment of MANGOTA J, in, In re: The National Prosecuting Authority HH152-15 delivered on 16 February 2015, in which the learned judge ordered the first respondent not to dispose of the Bentley “until all proceedings which relate to the car have been finalised.”

In my view, those decisions will certainly become relevant when deciding whether to grant the final order being sought or not.

It is significant, that, they were made before the conclusion of the criminal trial, and before the trial magistrate had made findings to the effect that ownership of the Bentley resides with Ndabazinengi Shava.

Those findings triggered the application of section 61(1) of the Criminal Procedure and Evidence Act which I have cited.

I am not sitting to decide the propriety or otherwise of the review application but whether to grant the applicant interim relief in the face of the trial court's inability to issue a disposal order.

Interim relief is granted on the mere proof of a prima facie case: Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 (H)…,.

In my view, the applicant has indeed established a prima facie case for the relief sought.

I am mindful of the fact that MANGOTA J did issue an order similar to the one sought by the applicant in this matter. However, the relevant part of the order is rather general and does not specify which proceedings are affected.

As it is, criminal proceedings have been completed where the magistrate did not issue a disposal order in respect of the exhibit. That order also does not relate to the use of the Bentley which the present application intends to prevent.

In the result, I grant the provisional order in terms of the draft order, the interim relief of which is as follows:

That, pending the determination of this matter, the applicant is granted the following relief:

1. The first respondent is directed not to use or dispose of the motor vehicle Bentley Continental, registration number ACO 1759, engine number CKH002121, Chassis number SCBDN 23 WOBC 68378 until the review application filed by the applicant has been finalised.

One of the critical maxims of property law is nemo plus iuris transfer e protest quam ips habet – translated as meaning, that, an owner cannot, as a general rule, be deprived of his property against his will.

Therefore, where an owner's property is sold and delivered without his consent, his right to ownership can be vindicated from any person.

SILBERBERG and SCHOEMAN in their second edition of 'The Law of Property'…, make it clear that the maxim stands firm even where the third party acquires the property in good faith, having paid a fair market value, and acted in all innocence.

Our law calls for ruthless vindication and protection of the right of ownership....,.

The case of Mashave v Standard Bank of South Africa 1998 (1) ZLR 436 (S) is instructive. In that case, McNALLY JA…, said:

“…,. Roman-Dutch law protects the right of an owner to vindicate his property, and, as a matter of policy favours him as against an innocent purchaser: see for instance Chetty v Naidoo 1974 (3) SA 13 (A) at 20A-C. The innocent purchaser's only defence is estoppel. Estoppel depends upon an allegation that a representation was made by the owner or claimant.”

Therefore, having found that Dzingai Kashumba was not entitled to transfer, the sale to the fourth respondent was rendered void ab initio.

The defendants (Estate Late Mischeck Tapomwa, Shingirayi Tapomwa, CB Richard Ellis (Pvt) Ltd and Dawn Properties Ltd) have excepted to the summons in this action.

These applications were consolidated by consent of all the parties.

All the plaintiffs (Ignatious Musemwa, The Muvuri Investment Trust, Bismarck Mupundu, Farai Musarurwa, Adaarewa Mandibaya, Susan Matura, Madenya Family Trust, William Samanyandwe and Gwinyai Family Trust) are represented by the same firm of legal practitioners.

The facts of the plaintiffs claims are based on the same set of circumstances. The legal issues raised by the exceptions and the relief sought is similar.

Central to these exceptions are agreements of sale entered, separately, with the various plaintiffs for the sale of Stands at Glen Lorne Township in the District of Salisbury.

The agreements with the plaintiffs were entered into by the first defendant represented by the second defendant.

The third defendant received payments for the Stands and was required to keep the money in trust for the first defendant. The third defendant was also to manage the project.

The fourth defendant, another estate agent, took over the role of the third defendant.

The plaintiffs claim, that, after they bought the Stands from the defendants, they paid for them in full.

The plaintiffs assert, that, there has not been any subdivision of the Stands resulting in title not passing to them.

The plaintiffs have issued summons, separately, seeking that the four defendants be ordered to finalize the sub-division and transfer title of the Stands to the plaintiffs; alternatively, an order for reimbursement of the purchase price for each Stand.

In response to the summons, the defendants excepted to the summons.

The third and fourth defendants (CB Richard Ellis (Pvt) Ltd and Dawn Properties Ltd) take issue with what they argue is a failure by the plaintiffs to allege in their summons and declaration that the third and fourth defendants are parties to the contract on which the plaintiffs sue.

They contend, that, the allegations made by the plaintiffs establish that the third and fourth defendants are, at best, agents and that there was no cause for joinder of these defendants to the proceedings.

They assert further, that, the plaintiffs claim for restitution can only be made pursuant to a claim for rescission of the agreement, which claim has not been brought by the plaintiffs.

The defendants maintained, that, any claim for specific performance and restitution can only lie against parties to the contract and not against an estate agent.

An additional point arose with respect to matters under HC5223/15 (Gwinyai Family Trust), HC5626/15 (The Muvuri Investment Trust) and HC7215/15 (Madenya Family Trust).

The defendants assert that the plaintiffs in those claims, who are Trusts, have no locus standi to bring proceedings in their own names.

The defendants submitted, that, it is only the trustees of those Trusts that can sue in the name of the Trust....,.

The second point raised relates to the claim against the third and fourth defendants (CB Richard Ellis (Pvt) Ltd and Dawn Properties Ltd).

This court was asked to determine the role played by the third and fourth defendants and decide whether they are liable in contract for their actions.

In The Law of Agency in South Africa 2nd ed, the authors J.E. De VILLIERS and J.C. MacINTOSH describe an agent as:

“…, a person who has been authorised to act for and on behalf of another (called the principal) in contracting legal relations with third parties; the agent represents the principal and creates, alters, or discharges legal obligations of a contractual nature between the latter and third parties.”

Put simply, an agent is a person who is authorized to act on behalf of another, being his principal.

The concept of agency is based on the common law principle “qui facit per alium, facit per se” which translates to mean that “he who acts through another, acts personally.”

This concept is no different from the vicarious liability concept which makes another party liable for the acts and omissions of another.

The law of agency regulates a situation where an agent deals with a third party and performs an act on behalf of a principal. Where one tasks another to sell his property on his behalf, an agency is created.

The facts, without doubt, disclose that the third and fourth defendants were agents of the first and second defendants and facilitated the sales of the Stands to the plaintiffs.

They were to hold the purchase price of the Stands for the first defendant. They were not party to the contact of sale and remained purely agents of the first defendant.

The subject regarding the liability of an agent to a third party in a contract is trite.

The position was dealt with in Lens Agencies (Pvt) Ltd v Knight Frank Beverly and Anor 1997 (2) ZLR 167 (SC) where the court remarked as follows:

“In my view, however, the privity of contract is clearly between the landlord and tenant. The estate agent holds the deposit on behalf of his principal, the landlord, and is accountable to him alone. It is the landlord who is accountable to the tenant. The landlord does not claim interest on the deposit from the estate agent. Nor do I think it has been shown that he has a duty to do so, and then, to account to the tenant; if that were the position, the whole structure of the tripartite relationship would be affected.”

AMI Zimbabwe (Pvt) Ltd v Casalee Holdings (Pvt) Ltd 1997 (2) ZLR 77 (SC) is authority for the proposition, that, he who does an act through an agent does it himself: see also Maketo and Anor v Wood and Ors 1994 (1) ZLR 102 (HC).

In Nordis Construction (Pvt) Ltd v Theron, Burke and Isaac 1972 (2) SA 535 (D)…, the court held that an agent can only be accountable in his personal capacity where he has purported to represent a non-existent principal or where he has pledged responsibility for his actions.

The law is clear, that, where an agent executes a mandate on behalf of a known principal, he carries out the mandate on behalf of the principal and binds his principal. An agent who has actual or apparent authority is not liable for acts committed during the course of his employment. The principal remains accountable to the third party. The agent becomes liable only in instances where he has no authority to act and/or has not disclosed his principal or the principal is un-identified.

The principle laid down in Lens Agencies (Pvt) Ltd v Knight Frank Beverly and Anor 1997 (2) ZLR 167 (SC) is equally applicable here.

The position of a seller of a property, who entrusts an estate agent with the responsibility to sell a property and keep the proceeds in trust, is no different from that of a landlord who entrusts an estate agent to hold a deposit for rentals paid in respect of a leased property.

The agent holds the money in trust for his principal and is accountable to him alone.

The agent, in both scenarios, remains purely an agent.

There has been no allegation that the two defendants acted for a non-existent principal or without authority. The principal in this case is known.

It has also not been alleged, that, the third and fourth defendants were parties to the contracts of sale.

The acts performed by the estate agents were done for and in the name of the principal. Essentially, the acts performed by the agents were done by the principal.

The third and fourth defendants sold the Stands on behalf of the first defendant and on its authority. The agents held the money in trust for the first defendant. The estate agents were only accountable to the seller whilst the seller was accountable to the buyers.

The third and fourth defendants are not parties to the agreement of sale entered into. No privity of contract exists between the estate agents and the plaintiffs, but between the seller and the buyers.

In the absence of any non-disclosure of the principal, and any pledge by the agents taking responsibility for their actions, the agents cannot be held accountable for their actions in their personal capacities.

The agents are not accountable to the plaintiffs for acts committed during the acts of their employment. The third and fourth defendants remain essentially agents, and cannot be held accountable for the acts of their principal.

No cause of action has been established against the third and fourth defendants.

The defendants have excepted to the plaintiffs order for specific performance and reimbursement of the purchase price of the Stands against all the defendants.

The plaintiffs sue in contract.

The remedy of specific performance is one claimable in contract only, and for breach of contract. The remedy of specific performance is an order of court that compels another party to perform a specific act in satisfaction of its part of the contract, and, in effect, perform the contract. The claim for specific performance can only be brought against a defendant who was a party to the contract and who can legally perform the acts complained against. The remedy is awarded when an order for damages is not an adequate remedy.

Specific performance is a remedy based on equity.

An analysis of the facts reveals no basis for an order for specific performance against the third and fourth defendants.

Firstly, the summons does not contain any allegation that the two estate agents were parties to the real estate contract or that the agents breached their duties in any manner.

In any claim that is brought against an agent, or estate agent, it has to be shown that the agent was not a mere agent and that the real estate agent breached his duties in terms of the contract.

There is an averment that the fourth defendant took over the role of the third defendant.

No basis has been shown for joining the fourth defendant to these proceedings as there is no complaint in the summons against him.

Above all, there is no allegation that the fourth and third defendants were parties to the contract.

The court has already found, that, the third and fourth defendants were not parties to the real estate contract which is the subject of these proceedings, and, hence, the remedy of specific performance is not available to the plaintiffs.

The court has also considered that the order sought entails transfer of property rights.

A claim for transfer of title can only be brought against a party who has title to the property: see Takafuma v Takafuma 1994 (2) ZLR 103 (S).

This approach is based on the principle of “nemo dat quod non habet.” The principle translates to mean, that, no-one can transfer a better right than he himself possesses.

No allegations have been made to the effect that the third and fourth defendants hold title in the Stands in issue, are able to perform the contract, or that they are obliged to tender transfer of title to the plaintiffs.

Title can only be conveyed in terms of section 2 of the Deeds Registries Act and by the holder of such title.

To this end, the third and fourth defendants cannot legally oblige to the claim for transfer.

These claims for specific performance or reimbursement, based on breach of contract, cannot succeed against a real estate agent unless it can be shown, that, the estate agent was a party to the real estate contract and that the estate agent breached his duties under the contract.

Reimbursement of monies paid, and specific performance, can only be demanded against a party to a contract.

The rationale of ordering reimbursement is to replace parties to the position they would have been in had the contract been performed.

This cannot be required of the third and fourth defendants who are not parties to the contract that forms the subject of the dispute.

Where a real estate agent acts only to facilitate a contact for a named principal, he cannot be liable for breach of that contract. An agent may not be held accountable to a third party for acts that he committed within the scope of his authority, for as long as he disclosed that he acted as an agent and disclosed his principal.

The defendants acted on behalf of a known principal and are not liable for acts committed during the agency and on behalf of the principal.

The summons does not disclose a valid claim against the estate agents.

No proper basis has been shown for the joinder of the third and fourth defendants to this claim.

The defendants are entitled to the order sought. In the result, it is ordered as follows:

1. The third and fourth defendants exception is upheld. The plaintiffs claims against the third and fourth defendants are hereby dismissed.

2. The plaintiffs are jointly and severally, the one paying the other to be absolved, to pay the third and fourth defendants costs.

This is an appeal against the entire judgment of the High Court sitting at Harare which directed cancellation of Deed of Transfer Number 2541/14 issued in the name of the appellant, Guoxing Gong, with costs at the punitive scale of legal practitioner and client.

The order appealed against is couched in the following terms:

“In the result, I make the following order:

1. Deed of Transfer No.2541/16 in the name of Guoxing Gong be and is hereby deemed cancelled and the Registrar of Deeds be and is hereby directed to effect such cancellation.

2. The first respondent shall surrender the said Deed of Transfer to the Registrar of Deeds within 48hrs of service of this order to enable the Registrar of Deeds to endorse such cancellation.

3. The first and second respondent shall bear the costs of this application on a legal practitioner and client scale.”

There is no material dispute of facts as most facts giving rise to the legal disputes on appeal are, by and large, common cause.

The undisputed facts are that, Mathonsi Family Enterprises (Pvt) Ltd, who was the second respondent in the court a quo, is the registered owner of a certain immovable piece of property commonly known as Number 9 Simon Mazorodze Road, being the Remainder of Subdivision B of Delft Hopely.

Mathonsi Family Enterprises wished to subdivide and sell a portion of the property but apparently lacked the financial capacity to effect the necessary subdivision and related costs to facilitate the sale and transfer of the envisaged sub-division.

Eventually, it negotiated and entered into a conditional verbal agreement, sometime in 2010, where the first respondent would finance the whole subdivision process, payment of capital gains tax and related costs to facilitate its purchase of the resultant subdivision.

The verbal agreement culminated in Mathonsi Family Enterprises (Pvt) Ltd making the following resolution on 8 December 2010:

“RESOLVED

1. That, the company applies for the subdivision of the property commonly known as No.9 Simon Mazorodze being the Remainder of subdivision B of Delft of Hopely into two properties.

2. That, Mayor Logistics (Pvt) Ltd be and is hereby authorised to provide assistance and to make all such payments as may be necessary to facilitate the subdivision, all of which will be taken into account when disposing of the subdivision to it.

3. That, once the subdivision is approved, half or the smaller of the two subdivided portions shall be sold to Mayor Logistics (Pvt) Ltd for not more than US$35,000 per acre of the prime portions and at a negotiated lower price for any swampy portions in recognition of assistance in the subdivision process.

4. That, the payment terms be discussed with Mayor Logistics (Pvt) Ltd once the subdivision is approved.

5. That, Cliff Mathonsi be and is hereby authorised to sign any documents and to do all such things as may be necessary, on behalf of the company, to facilitate the subdivision and proposed disposal to Mayor Logistics (Pvt) Ltd.”

According to the first respondent, the parties eventually settled for the price of US$50,000 which is yet to be paid.

The sale was, however, subject to a suspensive condition that it would only come into effect upon the first respondent successfully facilitating the subdivision in terms of the above resolution.

It is common cause, that, the first respondent financed and facilitated the acquisition of the necessary subdivisional permit thereby partially fulfilling its part of the bargain.

Although a draft written agreement was prepared in terms of the verbal agreement and company resolution, Cliff Mathonsi refused to sign the draft on behalf of Mathonsi Family Enterprises (Pvt) Ltd claiming that his father wanted more money than previously agreed.

It is plain that the verbal agreement was lawful and binding.

The intended reduction of the verbal agreement to writing was a mere formality not forming part of the contractual agreement.

It is trite, that, in the absence of any prohibition or agreement to the contrary, a verbal agreement is lawful and binding. This explains why by far the majority of contractual agreements are verbal. There is no legal requirement in our jurisdiction that every contractual agreement be reduced to writing.

Despite the verbal agreement, and the first respondent having partially fulfilled its part of the bargain, Mathonsi Family Enterprises (Pvt) Ltd resold the disputed property, at a higher price, to the appellant, unbeknown to the first respondent, on 4 April 2011.

The above facts clearly establish beyond question, that, Mathonsi Family (Pvt) Ltd sold the same property twice, firstly, to the first respondent, and, secondly, to the appellant.

The court a quo was therefore correct in treating the matter as a double sale dispute. There is absolutely no substance in the appellant's argument to the contrary.

A dispute having arisen, and, in a bid to protect and enforce its contractual rights, the first respondent successfully sued Mathonsi Family Enterprises for specific performance in the High Court, under case number HC218/12, in which it obtained the following default order on 5 June 2012:

“IT IS ORDERED THAT:

1. The defendant (Mathonsi Family Enterprises (Pvt) Ltd) be and is hereby directed to transfer Stand 102 Grobbie Township of Subdivision B of Delft of Hopely to the plaintiff (1st respondent) against payment of US$50,000.

2. Should the defendant refuse or neglect or fail to sign the documents facilitating the said transfer, the Deputy Sheriff be and is hereby authorised to sign them in defendant's stead.

3. The defendant shall pay the costs of suit on an attorney and client scale.”

Counsel for the appellant raised the point, that, the above default judgment was unenforceable because it has superannuated at common law through the effluxion of time as it was issued more than three (3) years ago.

He however later abandoned the objection, conceding that superannuation was not in issue as the first respondent was not seeking execution.

In view of that concession, it shall not be necessary to determine that issue.

I now turn to consider the appeal on the merits.

It is trite, that, save in special circumstances, which do not concern us here, no appeal lies to this court against a default judgment which is normally reversed by rescission of judgment or a declaration of nullity.

It therefore follows, that, in the absence of special circumstances, no valid ground of appeal can be laid at the door of this court concerning the propriety or otherwise of a default judgement.

Whether or not there was non-joinder, or any other irregularity, pertaining to the default judgment, that is a complaint to be laid at the court a quo's door and not this court.

There being no special circumstances pleaded in this case, this court will not entertain any argument calculated to impugn the validity of the default judgment at hand.

Despite the appellant's concerted efforts to have the default order reversed, the order is still extant, valid, and binding. That being the case, it is not tainted by any form of illegality or impropriety. It stands on equal footing with any other lawful court order capable of enforcement at the instance of the judgment creditor.

For that reason, in a concerted effort to fortify itself against illicit transfer of the disputed property, the first respondent followed up by placing caveat No. 263/12 on the property on 20 June 2012.

Notwithstanding the existence of a valid court order and a caveat barring transfer of the disputed property to any third party, the appellant, in apparent connivance with Mathonsi Family (Pvt) Ltd, somehow deviously managed to beat both judicial and administrative safeguards and obtained transfer of the property under Deed of Transfer 2541/14.

The facts show, that, the applicant, far from being an innocent purchaser, was complicit in the irregular purchase and transfer of the property to himself under Deed of Transfer 2541/14.

It is common cause, that, the appellant's then legal practitioner, Mr Tavenhave, was apprised by Mr Tsivama, counsel for the first respondent, of the existence of both the court order and caveat barring transfer of the disputed property.

The appellant was equally aware of the existence of the court order, as amply articulated by the learned judge in the court a quo, at p3 of her cyclostyled judgment, where she says:

“Furthermore, the facts of this matter, which have not been disputed, point to the fact, that, the first respondent was aware of the order in HC218/12 when he took transfer. On 23 May 2014, Mr Tavenhave, for the first respondent, telephoned Mr Tsivama, for the applicant, seeking confirmation regarding the existence of the order. Mr Tsivama confirmed the existence of the order. Mr Tavenhave then informed Mr Tsivama that he had been approached by the 1st respondent who produced the order and was in a state of panic since he had purchased the same property from the second respondent. He went on to advise Mr Tsivama that he had re-assured his client not to panic as he had already obtained transfer some time back. He had retorted that it was a clear case of double sale and enquired as to the applicant's position.

On 26 May, Mr Tsivama conducted a deeds search which confirmed that the property was still registered in the second respondent's name and there was caveat 263/12 in place.”

From the above summation of the undisputed facts, it is plain that both the appellant and its legal practitioner, Mr Tavenhave, were patently aware of the existence of both the court order and caveat barring transfer of the property in question.

Despite such knowledge, they connived and deviously obtained transfer of the disputed property.

Procuring transfer under such circumstances can only amount to acquiring defective title which, at law, is a nullity and an exercise in futility.

At this juncture, it does not seem to matter to me whether or not the appellant was the first purchaser as he alleges. What is material, at this stage, is that he obtained defective, invalid title in defiance of a valid court order and caveat.

It is an established principle of our law, that, anything done contrary to the law is a nullity.

For that reason, no fault can be ascribed to the learned judge's finding in the court a quo, that, the conduct of the appellant and his lawyer, in obtaining registration of the disputed property in the face of a court order and caveat to the contrary, was reprehensible.

On the basis of such finding, the appeal can only fail.

The appellant and his lawyer's unbecoming and deplorable conduct, in resorting to criminality in a bid to preserve their ill-gotten gains, cannot go unpunished.

It is accordingly ordered, that, the appeal be and is hereby dismissed with costs at the legal practitioner and client scale.

This is an opposed chamber application in terms of Rule 43 of the Supreme Court Rules 2018, for condonation and extension of time within which to note an appeal.

The applicant and the first respondent entered into an agreement of sale of land belonging to the first respondent. The land is held under Deed of Transfer 1989/08. The first respondent proposed a subdivision of the piece of land. The proposed subdivisions were never taken out of the original land identified under Deed of Transfer 1989/08.

The proposed subdivisions were made the subject of a sale agreement between the applicant and the first respondent.

It was a term of the agreement, that, in the event of a dispute, the parties would refer the matter for arbitration.

The merx of the sale were the proposed subdivisions, as depicted on the map.

The said map was later found to be invalid as it identified wrong portions of the land. A new map was produced which identified land which is different from the land identified in the agreement of sale itself.

A dispute arose concerning the number of Stands or sub-divisions bought by the applicant.

The dispute was brought before an arbitrator, who is the second respondent in this matter. The arbitrator's award held, that, there was a binding agreement between the parties.

The first respondent was aggrieved by the arbitrator's award.

It filed an application for the setting aside of the arbitrator's award before the court a quo, on the basis that the arbitral award is contrary to public policy.

At the hearing of the matter, the first respondent raised a point in limine to the effect, that, the arbitrator failed to keep a complete record of proceedings with regards to the matter.

It also averred, that, the applicant's counter application was incompetent as it was lodged through an opposing affidavit.

It averred, that, an application in the High Court is made in the form of a founding affidavit and under Form 29.

On the merits, the first respondent argued, that, the award given by the arbitrator is a brutum fulmen in that the disposition of the award is incapable of enforcement as it did not make an enforceable order.

It argued, that, the arbitrator did not give a formal order directing either party to do anything.

It further argued, that, the arbitrator failed to comply with the provisions of Article 31 and 33 of the Arbitration Act. It further argued, that, the arbitral award is contrary to public policy because the order interfered with the sanctity of the parties agreement and the agreement is contrary to mandatory provisions of the law.

On the contrary, the respondent, who is the applicant in this case, raised a point in limine to the effect, that, the application for the setting aside of the arbitral award could not be heard before its application for dismissal for want of prosecution is heard and completed.

On the merits, it argued that there was no basis for the setting aside of the arbitral award as the findings of the arbitrator were factually and legally correct. It disputed that the first respondent bought individual Stands. It contended, that, it bought the whole subdivision through an addendum to the Main Agreement.

The court a quo ruled, that, in the absence of the arbitrator's record, it would not be possible for it to scrutinize the proceedings in terms of Article 34 and 36. It held, that, at law, any tribunal whose proceedings may be challenged before another tribunal ought to keep and maintain a record of proceedings.

Regarding the applicant's counter-application, the court struck it off on the basis that it was not filed in the prescribed form.

It found, that, the arbitral award was contrary to public policy in that it made additions to the express terms of the parties agreement which was itself made contrary to mandatory provisions of the law.

The court a quo therefore set aside the arbitrator's award.

The applicant wishes to appeal against the decision of the court a quo but it is out of time, hence, the application for condonation and leave to note the appeal out of time.

At the hearing of this application, on 14 November 2023, counsel for the applicant submitted, that, the applicant failed to note an appeal on time because he was not advised of the handing down of the judgement which the applicant seeks to appeal against. He submitted, that, in the circumstances, a delay of a period of not more than 22 days is not inordinate. He further submitted, that, the fact that he was not advised of the handing down of the judgment proves that the applicant was not in willful defiance of the rules of this Court and that the explanation for the delay is reasonable.

Regarding the issue of prospects of success, he submitted that the application has good prospects of success.

Counsel for the first respondent agreed, that, the parties were not notified of the handing down of the judgment which the applicant seeks to appeal against and that it was handed down in the absence of the parties.

He submitted, that, the intended grounds of appeal enjoy no prospects of success as real rights to land can only be sold after a subdivision permit has been issued. He further submitted, that, there was no approved diagram. He submitted, that, the contract entered into by the parties is unenforceable because it does not comply with mandatory provisions of the law.

Counsel further averred, that, without a record of proceedings by the arbitrator, it is impossible for the court to make an informed decision.

After hearing submissions from both parties, I postponed the matter to 20 November 2023 and directed the parties to file supplementary heads on the interpretation of section 39(1) and (2) of the Regional Town & Planning Act [Chapter 29:12] (hereinafter referred to as the RTP Act”) and section 152(1)-(4) of the Urban Councils Act [Chapter 29:15] (hereinafter referred to as the UC Act”).

In his supplementary heads, counsel for the applicant submitted, that, in terms of section 39(2) of the Regional Town & Planning Act, section 39(1) does not apply to the subdivision of land which is owned by an urban council or town council. He averred, that, the first respondent owned the piece of land in dispute and it could sell it before the sub-division. He submitted, that, the first respondent took all necessary steps to comply with the provisions of section 152(1)–(4) of the Urban Councils Act.

Counsel for the first respondent submitted, that, the consideration of these mandatory statutory provisions are for purposes of determining whether or not the contract entered into by the parties was lawful and enforceable.

He submitted, that, the provisions of section 152(1)–(4) of the Urban Councils Act requires Council to publish a Notice of Intention to sell the land in a Newspaper, and, in terms of subsection (4), Council cannot dispose of land without an approved Town planning scheme. He further averred, that, non-compliance with the mandatory provisions of section 152 of the Urban Councils Act renders the agreement a nullity.

In support of his argument, counsel cited the cases of Bruce v Econet Wireless (Pvt) Ltd & Anor 2009 (1) ZLR 284 (H); Ndemera v The State HH528-23 (HACC 15/23); and Pinnacle Property Holdings (Pvt) Ltd v Municipality of Redcliff & Another SC14-23.

Counsel for the first respondent further submitted, that, the turquand rule, which counsel for the applicant submitted was applicable, does not apply to the circumstances of this case. In addition, counsel for the first respondent contended, that, an arbitral award founded on an agreement that does not comply with mandatory provisions of statute law is contrary to public policy.

An application for condonation and extension of time within which to note an appeal must satisfy specified requirements before the court can grant the indulgence sought. In the case of Bessie Maheya v Independent Africa Church SC58-07, MALABA JA..., said:

“In considering applications for condonation of non-compliance with its Rules, the court has a discretion which it has to exercise judicially in the sense, that, it has to consider all the facts and apply established principles bearing in mind that it has to do justice. Some of the relevant factors that may be considered and weighed one against the other are: the degree of non-compliance, the explanation therefore, the prospects of success on appeal, the importance of the case, the 1st respondent's interests in the finality of the judgment, the convenience to the court, and the avoidance of unnecessary delays in the administration of justice.”

Counsel for the applicant's argument is that the delay in noting the application is not inordinate. Counsel for the first respondent agreed, that, the judgment a quo was handed down in the absence of both parties. He does not deny that it caused the delay in the noting of the appeal.

I am satisfied, that, the delay is not inordinate and that the explanation for the delay is reasonable.

In spite of the applicant's success on these requirements, it must prove that the application enjoys good prospects of success.

The test of prospects of success on appeal is an assessment of whether or not a different court can arrive at a different finding than the court a quo. In the case of Essop v S [2016] ZASCA 114, the court, in defining prospects of success, held that:

“What the test for reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law, that, a court of appeal could reasonably arrive at a conclusion different to that of the trial court.

In order to succeed, therefore, the appellant must convince this court, on proper grounds, that he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding.

More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal, or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.”...,.

Prospects of success on appeal are ascertained from the grounds of the intended appeal.

On the issues covered by the parties filed supplementary heads, on the interpretation of section 39(1) and (2) of the Regional Town & Planning Act and section 152(2)-(4) of the Urban Councils Act, I make the following observations:

Section 39(1) and (2) of the Regional Town & Planning Act reads as follows:

“(1) Subject to subs (2), no person shall —

(a) Subdivide any property; or

(b) Enter into any agreement —

(i) For the change of ownership of any portion of a property; or

(ii) For the lease of any portion of a property for a period of ten years or more or for the lifetime of the lessee; or

(iii)…,.

(iv)…,.

(a) Consolidate two or more properties into one property; except in accordance with a permit granted in terms of section forty:

Provided that an undivided share in any property, whether or not it is coupled with an exclusive right of occupation, shall not be regarded for the purposes of this subsection as a portion of that property.

(2) Subsection (1) shall not apply to —

(a) Land within the area under the jurisdiction of a municipal council or town council which is owned by the municipality or town concerned; or

(b) Land within a local government area administered and controlled by a local authority which is owned by that local authority or by the State; or”…,.

A reading of section 39(2) of the Regional Town & Planning Act establishes, that, the provisions of section 39(1) do not apply to the first respondent which is a Town Council.

The land in dispute belongs to the first respondent. It can therefore be sold before it is subdivided.

That supports the applicant's intended ground of appeal No.5 which attacks the court a quo's finding, that, the entering of the parties into an agreement of sale of land, in the absence of a sub-division permit renders the agreement a nullity and the arbitrator's award contrary to public policy.

That part of the court a quo's decision is therefore not correct and gives the applicant prospects of success.

Section 152(2)–(4) of the Urban Councils Act provides as follows:

“(2) Before selling, exchanging, leasing, donating or otherwise disposing of, or permitting the use of any land owned by it, the council shall, by notice published in two issues of a newspaper and posted at the office of the council, give notice —

(a) Of its intention to do so, describing the land concerned and stating the object, terms and conditions of the proposed sale, exchange, lease, donation, disposition or grant of permission of use; and

(b) That a copy of the proposal is open for inspection during office hours at the office of the council for a period of twenty-one days from the date of the last publication of the notice in a newspaper; and

(c) That, any person who objects to the proposal may lodge his objection with the town clerk within the period of twenty-one days referred to in para (b).

(3) The council shall submit a copy of the notice referred to in subsection (2) to the Minister not later than the date of the first publication of that notice in a newspaper.

(4) A council may not, subject to section one hundred and fifty-three, sell, exchange, lease, donate or otherwise dispose of, or permit the use of any land owned by the council which lies within an area for which —

(a) There is no approved town planning scheme, unless —

(i) A copy of the proposal and of the notice published in terms of subs (2), together with any objections which have been lodged and the comments of the council on such objections, have been transmitted to the Minister; and

(ii) The Minister has consented to the sale, exchange, lease, donation or other disposition or permission to use, as the case may be:

Provided that the Minister shall not consent unless he is satisfied that an adequate area of land, suitable for the purpose, has, where necessary, been reserved for State purposes or for postal and telecommunication services; or, there is an approved town planning scheme, unless —

(i) The period of twenty-one days referred to in subsection (2) has expired; and

(ii) If any objections have been lodged, they have been considered by the council.”

In terms of section 152(2), (3) and (4) of the Urban Councils Act, land owned by a Town Council cannot be sold or leased, before the requirements stated in subsections (2) to (4) have been complied with.

The requirements are issuing two notices in a newspaper, submitting the notice to the Minister, the Minister's approval, and that there should be an approved town planning scheme.

In this case, there is no direct documental evidence to prove that the notices were given and the Minister's consent obtained. There is also no direct documental evidence that there is a town planning scheme or a diagram which forms part of the record besides indirect references in the first respondent's minutes and resolutions in which it is recorded that these requirements were complied with and that authority was granted.

Section 152 of the Urban Councils Act is couched in peremptory terms. The use of the word “shall” as opposed to “may” proves that the provisions are mandatory. The provisions have to be strictly complied with.

Failure to comply with mandatory provisions of the law renders the agreement of sale a nullity.

In the case of Pinnacle Property Holdings (Pvt) Ltd v The Municipality of Redcliff & Another SC14-23 BHUNU JA, commenting on the provision of section 152 of the Urban Councils Act, said:

“Undoubtedly, the interpretation placed upon section 152 of the Urban Councils Act in the Bruce case supra is correct. The section is couched in simple, unambiguous language admitting of no other meaning. It is axiomatic, that, the section in fact constitutes a condition precedent which must be fulfilled before a municipality can alienate its land. The object for the laid down procedure is to give interested members of the public the right to object as provided for under section 152(2)(c) of the Act.”

Further, in Bruce v Econet Wireless (Pvt) Ltd and Another 2009 (1) ZLR 284 (H)…, OMERJEE J…, said:

“Before dealing with the merits of the case, I wish to make the following observation. A local authority, such as the City of Harare, is empowered, by section 152 of the Urban Councils Act, to alienate any land it owns through sale, lease, donation, or otherwise dispose of, or permit the use of it. In doing so, the local authority is obliged to comply with the requirements stipulated in that provision.”…,.

As already indicated, there are allegations in the minutes and resolutions of the first respondent's minutes that authority to sell was obtained. It cannot therefore be confidently held, that, there was failure to comply with section 152(2) to (4) of the Urban Councils Act.

In the case of ZESA v Maposa 1999 (2) ZLR 452 (S)…, GUBBAY CJ, commenting on how to determine issues of public policy, said:

“An award will not be contrary to public policy merely because the reasoning or conclusions of the arbitrator are wrong in fact and or in law. In such a situation, the court would not be justified in setting the award aside.

Under Article 34 or 36, the court does not exercise an appeal power and either uphold or set aside or decline to recognise and enforce an award by having regard to what it considers should have been the correct decision. Where, however, the reasoning or conclusion in an award goes beyond mere faultiness or incorrectness and constitutes a palpable inequity that is so far reaching and outrageous in its defiance of logic or accepted moral standards that a sensible and fair minded person would consider that the conception of justice in Zimbabwe would be intolerably hurt by the award, then, it would be contrary to public policy to uphold it.”...,.

The above calls for caution in a judge's gate keeping function. The intolerable level of an award being contrary to public policy should not be lightly assumed by a single judge in chambers, especially when some proposed grounds of appeal point to the applicant's prospects of success. I would therefore allow the application to enable the full Bench to determine the proposed appeal.

It is accordingly ordered as follows:

1. The application for condonation of the late noting of an appeal and extension of time within which to note the appeal be and is hereby granted.

2. The applicant shall file its notice of appeal within five (5) days from the date of the granting of this order.

3. The costs of this application shall be costs in the cause.

This is an appeal against the whole judgment of the High Court, handed down on 31 July 2023, in which it confirmed the cancellation of an agreement of sale between the first respondent and the appellants.

After hearing the appeal, on 23 October 2023, the Court gave an ex tempore judgment and issued the following order:

“IT IS ORDERED THAT:

1. The appeal be and is hereby allowed with costs.

2. The judgment of the court a quo is set aside and substituted with the following:

(a) The application be and is hereby referred to trial.

(b) The applicant's founding affidavit shall stand as the summons.

(c) The first and second respondent's opposing papers shall stand as their appearance to defend.

(d) Thereafter, pleadings shall be in terms of the rules.

(e) Costs shall be in the cause.”

Thereafter, on 30 September 2024, counsel for the appellants wrote a letter to the Registrar requesting for written reasons for the order we granted. These are they.

On 10 May 2018, the appellants and the first respondent entered into a sale agreement. The agreement was for the sale of Stand No.1239, Stand 1239 Good Hope Township of Lot 16 Good Hope, Harare by the first respondent to the appellants for US$50,875.

A deposit of US$25,000 was to be paid on the signing of the agreement, in cash, to the first respondent. The balance of US$25,875 was to be paid, as cash, in monthly installments of US$718 per month to the first respondent, over a period of 13 months commencing on 1 August 2022 until it was paid in full.

In terms of clauses 1 and 2, all payments were to be made directly to the first respondent in cash.

The first respondent cancelled the agreement of sale four years later, on 4 May 2022, alleging that the appellants had not paid the deposit and instalments in terms of clauses 1 and 2 of the agreement of sale.

At the time of cancellation, the appellants had completed the construction of the ground floor of the house they were building on the property.

In their opposing affidavit, deposed to by Shuwiso Bandika, their agent, on the authority of a Power of Attorney issued to him by the first appellant, he stated that he paid the deposit to the first respondent in cash, in the presence of his wife, the second respondent.

He further stated, that, at the signing of the agreement and payment of the deposit, his principals, the appellants, who stay outside the country, were participating through phone calls.

He further stated, that, the first respondent received the deposit and asked his wife (the second respondent) to issue a receipt to the appellants. He stated that the second respondent issued the receipt on 1 June 2018.

In respect of installments, he stated that he would approach the first respondent to make payments, who would, on each occasion, instruct him to make the payments to his wife, who would give him receipts for the payments.

He further stated, that, the first respondent allowed the second respondent, his wife, to market the property and receive payments of instalments on his behalf. He stated that all the installments were paid to the second respondent on the instructions of the first respondent.

After the first respondent cancelled the agreement, on 4 May 2022, he applied to the court a quo for the confirmation of the cancellation.

The deponent to the appellants opposing affidavit further stated, that, the first respondent was duping purchasers of Stands in his development scheme using the same modus operandi. He averred in paragraphs 6 to 8 of the appellants opposing affidavit that:

“6. A resolution of the dispute cannot be objectively attained without the calling of further evidence. Which evidence can be tested through cross-examination.

The events, as alluded to by the applicant and the respondents, are irreconcilable.

The Applicant states, that, the first and second respondents have never paid to him any money towards the purchase of the property, which is at variance with the evidence of the respondents who state, that, they paid the purchase price in full - a point which can be confirmed by the third respondent who was, and still is, the agent of the Applicant whom he had authorised to receive payments on his behalf. A fact which he now denies in bad faith so as to contemplate huge financial prejudice on the first and second respondents. I hereby attach the proof of payment and globally mark them as Annexure 'B'.

7. The Court should also take judicial notice of the fact, that, the Applicant is using the same modus operandi to prejudice home seekers who would have paid to him the full purchase prices for homes and he now disowns them. An example of similar cases that are before the honourable court are a Court Application for the confirmation of the cancellation of an agreement of sale filed under reference HCH5557/22 between the Applicant and Ronald Sithole and Two Others. Another Court Application for the confirmation of the cancellation of an agreement sale filed under reference HCH3646/22 between the Applicant and Fillet Madenga and Another and many others that contains similar facts to the present case.

8. This ought to encourage the Court to lean in favour of having all issues canvassed through the leading of evidence and have the witnesses cross examined. This will give the court the benefit of determining the issues of credibility of the witnesses while having an opportunity to deal with the core of the dispute.”

It is clear, that, the dispute between the parties is that the first respondent deliberately caused the appellants to pay instalments to the second respondent, his wife, after he had personally accepted the deposit, after which he instructed his wife to issue the receipt.

In granting the first respondent's application, the court a quo, on the issue of whether or not the appellants had paid the purchase price in the manner stated by their deponent said:

“Manifestly, the applicant's cause of action does not hinge on the fact that the respondents did not pay the purchase price. It hinges on the fact that the payment was not made strictly in accordance with the agreement of sale that required payments to be made directly to him in cash.

The applicant denies ever receiving the purchase price at all.

But, the respondents have produced incontrovertible proof that they did pay, albeit, via the third respondent. The applicant says he never authorised the third respondent to receive the purchase price for him.

Yet, the third respondent is not a distant and an unrelated third party.

To begin with, she was, at all material times, the wife of the applicant. But, more importantly, she was very much an integral player in the sale deal. On the agreement of sale, not only did she sign as the applicant's witness, but, also, whilst the applicant is captioned as the 'seller' below her own signature is the caption: 'SOLD BY MRS RATIDZAI MATUKUTIRE.'”

In arriving at its decision, the court a quo, in paragraph 13 of its judgment, said:

“[13] However, in the light of the Supreme Court decision in Matukutire v Makwasha & Ors above, and the doctrine of stare decisis, the dispute in this matter is practically issue estoppel. The respondents are estopped from raising the grounds of defence that they have raised in this matter. The superior court has already ruled against such a defence, namely, that they paid the purchase price via the third respondent. The law on issue estoppel, a species of res judicata, is settled: see Galante v Galante (2) 2002 (1) ZLR 144 (H).

In paraphrase, it is this: in the interest of finality in litigation as a tenet of public policy, a party is precluded from raising in subsequent proceedings an issue, whether of fact or of law, that was previously determined to finality by a competent court between the same parties or their privies: see Willowvale Mazda Motor Industries v Sunshine Rent-a-Car 1996 (1) ZLR 415 (S).”…,.

The court a quo eventually granted the first respondent's application for confirmation of the cancellation of the agreement of sale.

Counsel for the appellants submitted, that, there are disputes of facts which cannot be resolved without leading viva voce evidence.

He referred us to the appellants opposing affidavit which states, that, the first respondent received the deposit and instructed his wife to issue the receipt. He also referred to payments of instalments after the first respondent, on being approached for payments, instructed the appellants to make the payments to the second respondent - his wife. He referred us to the receipts issued by the second respondent as proof of payment of the purchase price.

Counsel for the first respondent argued, that, the appellants breached the contract by failing to pay in terms of the contract.

The issue which arises for determination is whether or not there were disputes of facts which warranted a remittal of the case for the hearing of evidence.

The law on disputes of facts was clarified by MAKARAU JP…, in the case of Supa Plant Investments (Pvt) Ltd v Edgar Chidavaenzi 2009 (2) ZLR 132 at 136F, where she said:

“A material dispute of fact arises when such material facts put by the applicant are disputed and traversed by the respondent in such a manner as to leave the court with no ready answer to the dispute between the parties in the absence of further evidence.”

In this case, we are of the view, that, the issue is on whether the first respondent used deception to cancel the agreement of sale.

The appellants allegation is that the first respondent personally received the deposit but did not personally issue the receipt, having instructed his wife to issue the receipt to the appellants. On installments, the appellants said the first respondent was approached for purposes of payment but he would divert the appellant's agent to his wife to whom payments were eventually made. The appellants further alleged there are other purchasers under the first respondent's Housing Scheme who were duped in this manner.

They gave details of cases in the court a quo of persons who were subjected to the same modus operandi.

These, in our view, are disputes which do not leave the court with a ready answer. They warrant the hearing of viva voce evidence.

The issue goes beyond what the law says.

It calls for the determination of whether or not the first respondent personally received the deposit and instructed his wife to issue the receipt. It further calls for a determination on whether or not the appellant's agent approached the first respondent to pay installments but was deliberately instructed to go and pay to the second respondent.

In respect of the case heard and determined by this Court in Mutukutire v Makwasha SC92-21, in which the first respondent successfully appealed against the High Court's refusal to confirm his application for confirmation of the cancellation of the agreement of sale, we took the view, that, though it dealt with an agreement of purchase of land in the same scheme, the parties are different and the details of what happened differ.

We are of the view, that, the hearing of evidence will establish whether or not the first respondent duped, or induced, the appellants to pay in the manner they did. If he did, the issue of whether he can benefit from his wrongdoing would arise.

It was for these reasons that the court issued the order referred to in paragraph 1 of this judgment.

The court a quo made the pertinent finding, that, the argument about the respondent having breached the contract was an afterthought.

In this regard, it is also significant, as correctly submitted by counsel for the respondent, that, the appellant's first and second grounds of appeal were not motivated (see paragraphs 9 and 16.) They must, therefore, be taken to have been abandoned: see Equity Properties (Pvt) Ltd v Al Shams Global BVI Ltd & Anor SC101-21.

It is also significant, that, the tender of payment meant to liquidate the respondent's indebtedness to the appellant was made in March 2020. It follows, that, payment was thus made within the prescribed period of 24 months in compliance with the terms of their agreement of sale.

The court a quo did not err when it pronounced as follows:

“In casu, the contract between the parties was a domestic transaction, expressed in United States dollars, before the effective date. The US$8,996 was (a) legal obligation or liability whose payment was due. It was, in accounting terms, an asset in the applicant's books of accounts and a liability in respondent's books or statements of accounts. As such, it fell well within the reach and impact of section 22(1)(d) as read with section 22(4)(a) of the Finance (No.2) Act 2019….,.

To conclude, in the matter in casu, the purported notice of breach and demand to rectify the alleged breach was not given per the provisions of section 8 of the Contractual Penalties Act [Chapter 8:04] which govern the termination of instalment sales.

I therefore find, that, the application for rescission of judgment lacks bona fides and so is the defence on the merits. The applicant enjoys no prospects of success.”

In the circumstances, the court a quo cannot be faulted for finding against the appellant as it did. The appeal has no merit.

It is accordingly ordered as follows:

The appeal be and is hereby dismissed with costs.

This is a chamber application for condonation of non-compliance with the Supreme Court Rules 2018 and for extension of time in which to appeal made in terms of Rule 43.

The intended appeal is against a judgment of the High Court which was handed down on 30 July 2021. In that judgment, the applicant's application for a declaratur was dismissed. The applicant seeks an order in the following terms:

“1. The application for condonation for non-compliance with Rule 38(1) of the Supreme Court Rules 2018 be and is hereby granted.

2. The application for extension of time within which to file and serve a notice of appeal in terms of the rules be and is hereby granted.

3. The applicant shall file and serve the notice of appeal against the judgment of the High Court in HC6650/19 within five days from the date of this order.

4. There shall be no order as to costs.”

The first respondent is a property development company. The second respondent is a duly registered housing co-operative of which the applicant was a member. The third respondent is the subsequent purchaser of the property in dispute, Number 294 Carrick Creagh, Borrowdale which property had initially been leased to the applicant on a rent to buy basis. The fourth respondent is the Minister responsible for State land and properties.

It is common cause, that, on 13 October 2011, the applicant was allocated Stand Number 294 Carrick Creagh, Borrowdale by the fourth respondent on a lease-to-buy basis.

The allocation was made pursuant to a partnership agreement entered between the first and second respondents wherein the first respondent was appointed to develop the land on which the property is situated. Members of the second respondent were required to pay a development fee to the first respondent before being issued with a lease agreement by the fourth respondent.

The applicant avers, that, she was exempted from paying development fees, through a letter dated 3 November 2008, as she was part of the executive committee of the second respondent.

On 6 August 2019, the applicant visited the fourth respondent's offices to check on the status of the Stand. She then found in the relevant file a letter dated 18 December 2018 demanding payment of $404,999=04 being the outstanding development fees. The fees were to be paid by 31 January 2019 failing which the offer of the Stand would be withdrawn. The letter also stated, that, the applicant had breached the lease agreement by not paying the development fees.

The applicant averred, that, although the letter was dated 18 December 2018, there was no valid cancellation as the same was not served on her at her domicilium citandi as reflected in the lease agreement. She only became aware of the letter well after the due date.

During the course of the inquiries as to the withdrawal of the offer of the Stand, the applicant further discovered, that, the property had been allocated to the third respondent.

Consequently, the applicant filed an application for a declaratur in the court a quo under case number HC6650/19. She averred, that, she held a valid lease agreement and never declined to pay the development fees. She contended, that, there was no basis for the repossession as she was not notified that she owed the development fees.

She sought to be declared the true and legal owner of Stand Number 294 Carrick Creagh, Borrowdale.

She also sought that the sale agreement concluded between the first and third respondents be declared null and void and for the same to be set aside.

The first to third respondents opposed the application whilst the fourth respondent did not file any opposition.

The first respondent contended, that, the applicant had no real rights accruing to her. It further contended, that, the applicant's exemption from paying development fees was not absolute.

The second respondent contended, that, the applicant could not seek a declaratur on ownership on the strength of a lease. This is because ownership vested in the fourth respondent. It also contended, that, the exemption from paying development fees was a privilege that was subsequently withdrawn.

The third respondent argued, that, she was properly allocated the Stand and paid the requisite development costs. She further argued, that, the requirements for a declaratur had not been met.

The court a quo found, that, the applicant did not satisfy the requirements for the granting of a declaratory order.

The court found, that, it was not in dispute that the letter of cancellation of the lease agreement was not served on the applicant. As such, it ruled that no valid cancellation was effected.

The court a quo further found, that, if the letter was a notice of cancellation, then, in terms of the parties agreement, the fourth respondent was supposed to confirm cancellation - which he did not do.

All the respondents failed to put a date on which the lease was cancelled.

However, notwithstanding that it had found that there had been no proper cancellation of the lease agreement, the court a quo refused to grant the declaratory order sought by the applicant. It ruled, that, the applicant had not fulfilled the obligations set out in the lease agreement.

Resultantly, the application was dismissed.

Aggrieved by the decision of the court a quo, the applicant lodged an appeal to this Court under SC308/21. The appeal was filed within the 15 days stipulated in Rule 38(1)(a) of the Supreme Court Rules 2018.

However, the notice of appeal was defective in that the relief sought was inexact.

On the day of the hearing of the appeal, that is, 11 January 2022, the issue of the defective notice of appeal was brought to the attention of the applicant's counsel. The matter was duly struck off the roll by consent of all the parties.

The applicant intends to file a fresh appeal, but, she is out of time; hence the present application.

Counsel for the applicant submitted, that, the delay was not inordinate and the reason for the delay is attributed to the legal practitioner who drafted a defective notice of appeal.

On the issue of prospects of success, counsel for the applicant argued, that, the intended appeal enjoyed good prospects.

Counsel submitted, that, the court a quo correctly made a finding, that, the termination of the lease agreement was invalid due to the failure by the fourth respondent to serve the required notices at the applicant's domicilium citandi. It was further argued, that, by refusing to declare that the contract between the applicant and the fourth respondent as valid, the court a quo made a decision that was contrary to the evidence placed before it. Finally, counsel for the applicant submitted, that, as the application before the court a quo related to a declaratory order, and not for specific performance, the application ought to be granted.

Counsel for the first respondent submitted, that, although the delay in noting of the application for condonation is not inordinate, the explanation for the delay is unacceptable since the applicant was legally represented.

Concerning prospects of success on appeal, counsel for the first respondent argued, that, the applicant has no prospects of success because the reason for the applicant's failure to pay developmental fees could not suffice as the exemption regarding payment was clearly outlined as a privilege subject to revocation.

Further, it was counsel for the first respondent's contention, that, the applicant failed to establish the reasons why she did not adhere to the obligations which were set out in the lease agreement.

Moreover, he argued, that, without the applicant first seeking the cancellation of an agreement between the third and fourth respondent, the relief sought by the applicant was incompetent in an application for a declaratur.

Finally, counsel for the first respondent prayed, that, the application be dismissed with costs on a legal practitioner-client scale.

Counsel for the second respondent raised a point in limine to the effect, that, the applicant had approached the court with dirty hands as she had neglected to pay costs which the court a quo had ordered her to pay.

On the merits, counsel for the second respondent argued, that, the appeal has no prospects of success as the applicant was equally in breach of her own obligations in respect of the same lease agreement which she intended to have enforced. Counsel submitted, that, the applicant sought to be declared the owner of the Stand despite the fact that she had no agreement of sale but was merely a beneficiary of a lease agreement. Ownership of the Stand continued to vest in the State as represented by the fourth respondent.

Counsel for the third respondent submitted, that, the applicant did not disclose that she was required to pay development fees and to erect buildings worth USD$200,000 in her founding affidavit.

Counsel submitted, that, the applicant has no prospects of success due to the fact that she failed to perform all her obligations under the contract she sought to enforce.

Counsel further submitted, that, the applicant's lease-to-purchase agreement with the fourth respondent has two distinct cancellation for breach clauses; clause 15 requires the lessor forthwith to declare the agreement terminated, and, clause 22 has a forfeiture clause in terms of which there is no contemplation of any need to declare and communicate the termination of agreement.

Additionally, it was submitted, that, the termination of the applicant's lease and ejectment was effected by means of the subsequent letting for eventual purchase to the third respondent.

The third respondent had made improvements to the immovable property.

Counsel further submitted, that, the double sale argument raised by the applicant is an error of law since there was never any sale and purchase of land in the scheme of the lease-to-buy arrangement.

The third respondent argued, that, the applicant's failure to fulfil the conditions of the lease-to-buy agreement militate against the application.

Applications for condonation of late filing of appeal and extension of time within which to appeal are regulated by Rule 43 of the Supreme Court Rules 2018 which states that:

“(1) An application for leave to appeal or for condonation of non-compliance with the rules and for extension of time in which to appeal shall be signed by the applicant or his or her legal practitioner and shall be accompanied by a copy of the judgment against which it is sought to appeal.

(2) An application for leave to appeal shall set out the date on which the High Court refused leave to appeal and shall have attached to it —

(a) A notice of appeal containing the matters required in terms of paragraphs (a) to (f) of subrule (1) of Rule 37;

(b) A copy of the proceedings before the High Court when leave to appeal was refused, together with the judgment, if any;

(c) An affidavit setting out any facts which are relied upon as affecting the granting of leave to appeal.

(2) An application for condonation of non-compliance with the rules and for extension of time in which to appeal shall have attached to it a notice of appeal containing the matters required in terms of subrule (1) of Rule 37 and an affidavit setting out the reasons why the appeal was not entered in time or leave to appeal was not applied for in time. Counsel may set out any relevant facts in a statement. Where such application is in relation to a matter in which leave to appeal is necessary, the application shall, in addition, comply with the requirements of subrule (2).”

It is a common principle of law that has been practiced over time, that, a party who fails to comply with the rules of this Court must apply for condonation and give adequate reasons for failure to comply with the rules.

This was expressed in Zimslate Quartize (Pvt) Ltd & Ors v Central African Building Society SC34-17 where the court held that:

“An applicant, who has infringed the rules of the court before which he appears must apply for condonation, and, in that application, explain the reasons for the infraction. He must take the court into his confidence and give an honest account of his default in order to enable the court to arrive at a decision as to whether to grant the indulgence sought. An applicant who takes the attitude that indulgences, including that of condonation, are there for the asking does himself a dis-service as he takes the risk of having his application dismissed.”…,.

The factors to be considered in an application of this nature were outlined in Mzite v Damafalls Investment (Pvt) Ltd & Anor SC21-18 where the court stated that:

“The requirements for the application of this nature to succeed are well known, as outlined in the case of Kombayi v Berkout 1988 (1) ZLR 53 (S). These are:

1. The extent of the delay;

2. The reasonableness of the explanation for the delay; and

3. The prospects of success on appeal.”

In casu, the judgment in which the applicant intends to appeal against was handed down on 30 July 2021. The applicant filed a defective notice of appeal on time and the matter was struck off the roll on 11 January 2022. She then filed the present application on 18 January 2022, some seven (7) days after the matter was struck off the roll.

The overall delay, of six months, is inordinate.

The explanation given by the applicant, for failing to note a valid appeal, is that the applicant's legal practitioners believed that they had filed a valid notice of appeal. It was only on the day for the hearing of the appeal that her legal practitioner realized the defect in the notice.

The applicant's legal practitioner, deposed to a supporting affidavit in which he explained the issue of the defective notice of appeal.

According to him, in crafting the substituting order, he omitted to state the substantive relief. He had not seen anything wrong until this was brought to his attention by counsel for the third respondent on the date of hearing.

A client may suffer for the negligence of his legal practitioner: see S v McNab 1986 (2) ZLR 280 (SC).

This is because a legal practitioner is expected to execute his or her duties diligently and to follow the rules of court. In this respect, see Nguruve v Secretary of The Commission of Inquiry 1988 (1) ZLR 244 (SC).

Counsel for the applicant was certainly expected to get things right.

It follows, that, the application fails both on the length of delay and the reasonableness of the explanation for the delay.

Despite the applicant having failed to meet the first two requirements for such an application, I will proceed to determine whether there are prospects of success in the intended appeal as it is a requirement to consider all the elements cumulatively.

Prospects of success refer to the question of whether the applicants have an arguable case on appeal or whether the case cannot be categorised as hopeless.

In the case of Essop v S [2016] ZASCA 114, the Court, in defining prospects of success, held that;

“What the test for reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law, that a court of appeal could reasonably arrive at a conclusion different to that of the trial court.

In order to succeed, therefore, the appellant must convince this court, on proper grounds, that, he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding.

More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal, or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.”…,.

In her draft notice of appeal, the applicant has raised four grounds of appeal, and, the main issue is whether or not the court a quo erred in dismissing the application for a declaratur.

In the court a quo, the applicant sought for an order declaring her to be the true owner of the Stand in question.

Clause 2 of the lease agreement entered between the applicant and the fourth respondent shows, that, it was valid for four years. The lease agreement was entered into on 11 October 2011. It means that the lease expired sometime in 2015.

The applicant filed the application for a declaratur on 9 August 2019 - some four (4) years after the lease had lapsed.

The lease agreement which the applicant sought to be declared valid and binding had lapsed by the time she approached the High Court for a declaratur.

I am satisfied, that, the relief or order she sought in the court a quo was incompetent as the lease agreement was terminated by effluxion of time and was never renewed. She could not have sought to be declared the owner of a property she had not purchased.

The court a quo was correct not to grant a declaratur in favour of the applicant as the applicant had not purchased the property and had not fulfilled the conditions relating to developing the property.

In addition, the lease on the property had lapsed and had not been renewed.

Consequently, there are no prospects on appeal.

As the applicant has failed to satisfy the requirements for the grant of this application, the application cannot succeed. As is the norm, costs will follow the event.

Accordingly, it is ordered that the application be and is hereby dismissed with costs.

This is an appeal against the whole judgment of the High Court (the court a quo) in which it dismissed the appellant's application for a declarator.

The appellant is a company under liquidation. The first respondent (Sheriff of Zimbabwe) is cited in his official capacity. The second respondent (Interfin Banking Corporation) is a banking institution incorporated in terms of the laws of Zimbabwe. The third respondent (Al Shams Global BVI Limited) is a company incorporated in terms of the laws of the British Virgin Islands. The fourth respondent (Jayesh Shah) is a male adult who is also the director of the third respondent. The fifth and sixth respondents (Registrar of Deeds and Master of the High Court) have been cited in their official capacities.

On 12 December 2019, the appellant filed an application for a declarator through its liquidator, who was acting in terms of a certificate of appointment issued by the sixth respondent. In that application, the appellant sought a declaration to the effect, that, it is the owner of a certain piece of land known as Stand 666 Marlborough Township Extension 5 of Subdivision A of Strathmore held under Deed of Transfer No. 8810/2003 (hereinafter called the property).

The appellant also wanted delivery of the original copy of the Deed of Transfer No. 8810/2003, under which the property was held, from the first and third respondents.

The events that led to the application are as follows:

On a date that was not specifically stated, the appellant obtained a loan from the second respondent (Interfin Banking Corporation) which was secured under Mortgage No.2069/2010. The second respondent subsequently went under liquidation, but, before that, it ceded the debts and rights in the mortgage bond registered in its favour, to the third respondent (Al Shams Global BVI Limited). The third respondent later obtained a judgment against the appellant and issued a writ against the property which was sold in execution.

During the sale of the property, which had been declared specially executable by the court on 4 May 2016, the appellant instituted voluntary liquidation proceedings. The first respondent (Sheriff of Zimbabwe) placed the property under a caveat on 24 August 2016. The appellant was placed under provisional liquidation on 9 August 2017 and the order was confirmed on 11 October 2017.

The first respondent conducted a sale in execution on 6 February 2017.

Initially, the fourth respondent (Jayesh Shah) was confirmed as the highest bidder but failed to pay the purchase price. The second highest bidder, who happened to be the third respondent (Al Shams Global BVI Limited), was offered the property and was subsequently confirmed as the winning bidder.

The appellant claimed, that, the sale had been confirmed without it being given the required fifteen (15) days notice to object to the sale in terms of the repealed High Court Rules 1971. In addition, the appellant claimed, that, there had been a sham scheme by the third and fourth respondents, with the fourth respondent being a major shareholder of the third respondent. The appellant claimed, that, the fourth respondent was competing with himself by offering the highest bid which he failed to pay so that the third respondent would be declared the second highest bidder.

When the order for the final liquidation of the appellant was granted by the court, on 11 October 2017, the property had not been transferred to the third respondent.

The appellant's liquidator requested the first respondent to give him the title deeds of the property. However, the first and third respondents are said to have refused to hand over the original copy of the Deed of Transfer.

This prompted the appellant to file an application for a declaratur in the court a quo.

It is in that application that the liquidator of the appellant disclosed that he had already sold the property to one Mr Manyika, on 24 July 2017, for the amount of US$190,000 and that the purchaser had paid the full purchase price and was awaiting transfer of the property.

The liquidator submitted, that, he was allowed, at law, to sell the mortgaged property in order to pay off creditors.

The application was opposed by the second respondent who contended, that, it had been unnecessarily joined to the proceedings as it would not be affected by the relief sought by the appellant.

The third respondent also opposed the application and raised four points in limine:

(i) Firstly, the third respondent argued, that, there was an existing matter pending before the court a quo, under HC11203/17, which was premised on the same cause of action as the court application that was before the court.

(ii) The second issue raised was that the non-joinder of Mr Manyika as a party to the proceedings was fatal to the application.

(iii) The third respondent also argued, that, the appellant ought to have sought leave to institute proceedings against the second respondent which was under liquidation.

(iv) In addition, the third respondent contended, that, the application was fatally defective due to the appellant's failure to obtain leave to institute proceedings against it as it is a peregrinus.

In relation to the merits of the case, the third respondent opposed the application on the basis, that, the appellant had no real right of dominium over the property which had been declared specially executable by the court. The third respondent asserted, that, the property had been sold in execution before the appellant was placed in liquidation. It also argued, that, as the property had been bonded owing to the debt due to the third respondent, as ceded by the second respondent, the appellant ought to have sought the consent of the second and third respondents before selling the property.

Moreover, the third respondent prayed for the application to be dismissed, with costs borne by the liquidator of the appellant in his personal capacity.

The fourth respondent also opposed the application. As the fourth respondent had deposed to the third respondent's opposing affidavit, in his capacity as its director, he associated himself with the averments made in that affidavit.

Nonetheless, the fourth respondent added that the application was unwarranted and motivated by a desire to assist the appellant's shareholders. He argued, that, there was no basis, at law, in terms of which the appellant's liquidator could set aside an entire sale in execution and sell the property to a third party.

He stressed, that, liquidation does not automatically set aside a sale in execution and permit the appellant to resell the property.

Additionally, the fourth respondent submitted, that, the order confirming the liquidation of the appellant only set out parts of section 221(2)(a)–(h) of the repealed Companies Act [Chapter 24:03] (hereinafter referred to as the Act) as the powers which the liquidator could exercise in terms of the Act. As the liquidator of the appellant relied upon other provisions of the Companies Act, the fourth respondent was of the view, that, he was acting in breach of the terms of his appointment.

Lastly, the fourth respondent alleged collusion between the appellant's legal practitioners and its liquidator and prayed for costs de bonis propriis to be granted against the legal practitioners.

Regarding the merits of the case, the appellant submitted, that, the liquidator had acted in terms of section 276 of the Companies Act which empowered him to recover and take the assets of the appellant under liquidation.

The appellant submitted, that, as the transfer of the property to the third respondent had not taken place, the property was still owned by the appellant.

In addition, the appellant argued that the first respondent had not notified its directors, at the material time, of the sale of the property before confirming it, and this nullified the whole procedure as it was done contrary to the rules of the court. The appellant also argued, that, the sale was invalid because it was not given fifteen (15) days notice within which to object to the confirmation of the sale in terms of the rules.

Lastly, the appellant asserted that in terms of section 213 of the Companies Act, transfer of the property could not proceed without the leave of the court.

Per contra, the third and fourth respondents argued that the judicial attachment of an immovable property creates a judicial mortgage, and, because of this, the appellant was deprived of any rights over the property.

The respondents also submitted, that, when the property was attached, it became vested in the first respondent and nothing could be done without the first respondent's consent or authority.

Furthermore, the respondents were of the view that, as the second respondent had ceded the debt to the third respondent, the third respondent assumed the position of caveator whose interests in the property were protected by the caveat. The appellant therefore should have sought the consent of the third respondent before selling the property.

Moreover, the respondents submitted that the Deposit Protection Corporation had the right to restrain dealings with the mortgaged property until payment of the debt and interest in full. As such, the disputed property could not be sold without the consent of the Deposit Protection Corporation.

The court a quo dismissed the points in limine raised by the third respondent.

It found, that, the preliminary point of lis pendens was devoid of merit as the litigation in HC11023/17 did not involve the same parties as those in the application before it.

The court also dismissed the point, that, the appellant should have sought leave to institute proceedings against the third respondent which is a peregrinus. The court a quo held, that, the conduct of the third respondent showed that it had submitted to the jurisdiction of the court.

Furthermore, the point in limine to the effect that there was a material non-joinder of Mr Manyika was also dismissed as the court found that such non-joinder was not fatal to the application.

On the merits, the court a quo found that the application by the appellant sought the setting aside of the sale of the property to the third respondent - which property had already been declared specially executable by the High Court.

It was the court's observation, that, such an order could not be sought without first seeking the setting aside of the order which declared the property specially executable.

In reference to the appellant's claim, that, the sale of the property to the third respondent was not perfecta, the court a quo held that the judicial sale had been completed by the time the appellant was declared to be under provisional liquidation on 9 August 2017.

The court further noted, that, the appellant purported to sell a property that the first respondent had already sold to the third respondent in the execution of a judgment debt. Likewise, the court a quo held that there was a judicial caveat on the property which the appellant ought to have respected.

In addition, the court a quo was of the view that the appellant's conduct frustrated the transfer of the property to the third respondent when the sale was perfecta. The court held, that, the attachment of the property by the Sheriff vests a real right in the judgment creditor which means the property cannot be disposed of without the judgment creditor's consent. As such, the appellant could not deal with the property as it pleased.

It was the court's finding, that, in light of the appellant's failure to set aside the order that declared the property specially executable, or nullifying the writ which attached the property, the disputed property did not form part of the appellant's assets. The application was subsequently dismissed for lack of merit.

It is against this decision that the appellant has noted an appeal on the following grounds:

The grounds of appeal are as follows:

1. The court a quo erred in holding, that, the contention of the appellant was that the sale was not perfecta and should be set aside because transfer had not been effected and proceeded to accept that the first respondent had followed and fulfilled the correct procedure.

2. The court a quo erred and grossly misdirected itself in not finding that the first respondent failed to follow due process when conducting and confirming the sale thereby rendering the sale not perfecta.

3. The court a quo erred in holding, that, the third respondent had become the owner of Stand 666 Marlborough Township despite the fact that no transfer had been effected by way of registration of title at the Deeds Registry.

The relief sought by the appellant is as follows:

“RELIEF SOUGHT

WHEREFORE, the appellant prays for the following relief:

1. That, the instant appeal succeeds.

2. That, the order of the High Court be and is hereby set aside and substituted with the following:

“(a) That, the immovable property, namely, a certain piece of land situated in the District of Salisbury called Stand 666 Marlborough Township Extension 5 of Subdivision A of Strathmore held under Deed of Transfer No. 8810/2003 forms part of the assets of the applicant company in liquidation.

(b) That, the first and third respondents deliver the original copy of the Deed of Transfer No. 8810/2003 in terms of which applicant holds a certain piece of land situated in the District of Salisbury called Stand 666 Marlborough Township Extension 5 of Subdivision A of Strathmore to the applicant within ten (10) days from date of service of this order.”

Before this Court, the following submissions were made:

Counsel for the appellant submitted, that, the effect of the order placing the appellant under liquidation was the creation of a common law principle known as concursus creditorum which is codified in terms of section 212 of the repealed Companies Act. He submitted, that, section 213 of the repealed Companies Act provided for the stay of any proceedings against the property of a company under liquidation. As such, the property in question became part of the company's estate upon the granting of the order of liquidation.

Furthermore, counsel submitted that ownership of the property remained vested in the appellant in whose name the title deed was registered.

Counsel for the appellant also submitted, that, the judicial sale of the property was not perfecta as a sale only becomes perfecta upon registration with the Deeds Registry.

Moreover, counsel argued that the judicial attachment of the property created a judicial mortgage (pignus judiciale) which did not have greater powers than an ordinary mortgage and had no effect on the liquidation proceedings.

In response, counsel for the second respondent submitted that it would abide by the decision of the court as it had no direct and substantial interest in the matter and the relief sought did not affect it.

Counsel for the third respondent submitted, that, by the time the appellant was placed under liquidation, the judicial sale of the property was perfecta. Due to this, section 213 of the repealed Companies Act was inapplicable as the property did not form part of the assets of the appellant which the liquidator had the power to recover.

Counsel further submitted, that, registration of a title deed in one's name was not the sole proof of ownership of immovable property. He stated that there are special circumstances where the court goes beyond the title deed to ascertain the true owner of the property.

He averred, that, in casu, the judicial sale of the property and payment of the purchase price, were special circumstances that warranted a finding by the court a quo that ownership of the property had passed to the third respondent.

The fourth respondent submitted, that, section 213(b) of the repealed Companies Act makes an exception to the provision that anything done after liquidation proceedings have commenced is void.

He further submitted, that, the court a quo had resolved the matter on the basis of equity as the sale had been confirmed and the third respondent had paid the purchase price and all that was outstanding was the transfer of the property and registration of the title deed in its name at the Deeds Registry.

The issues for the determination of this appeal are as follows:

1. Whether or not the court a quo erred by finding that the third respondent is the owner of Stand 666 Marlborough Township.

2. Whether or not the court a quo erred in finding that the judicial sale was perfecta.

The issue of whether or not the court a quo erred in finding, that, the third respondent is the owner of Stand 666 Marlborough Township is central to the determination of what prevails over the other between a liquidation and a judicial attachment.

Counsel for the appellant argued, that, in terms of section 213 of the repealed Companies Act, all actions and proceedings against a company in liquidation cannot to be proceeded with without the leave of the court. As the transfer of the property had not been done when the appellant was placed under final liquidation, he submitted that the third respondent had to seek leave from the court for the transfer to be effected.

In addition, counsel for the appellant maintained that the appellant holds a real right over the property whereas the third respondent only has a personal right.

The thrust of these submissions is that since the appellant had been placed under liquidation, the liquidator had the authority to dispose of the appellant's assets despite the fact that there was a judicial attachment or caveat operating against the property in question.

The term 'real right' is defined in section 2 of the Deeds Registry Act [Chapter 20:05] as “any right which becomes a real right upon registration.”

In the case of Mavhundise v UDC Ltd & Ors 2001 (2) ZLR 337 (H)…, the court held that:

“Ownership of land can only be acquired by transfer of the ownership from the previous owner, and such transfer must be registered in the Deeds Registry.”

In light of the above, it is clear that a real right in an immovable property is established by the registration of that right in the Deeds Registry.

Nonetheless, this Court, in the case of CBZ Bank Limited v (1) David Moyo (2) Deputy Sheriff, Harare SC170-18, stated the following:

“In any event, the registration of transfer in the Deeds Registry or registration of cession at the offices of a local authority or Deeds Registry does not always reflect the true state of affairs. A title deed or registered cession is therefore prima facie proof of ownership or cessionary rights which can be successfully challenged. When the validity of title or registered cession is challenged, it is the duty of the court to determine its validity in order to make a ruling which is just and equitable.”

From the above, it is pertinent to note that there are instances where the registration of a real right to an immovable property at the Deeds Registry can only be prima facie proof of ownership. This prima facie right is subject to challenge by any other person who may claim to have a real right over the same property.

These special circumstances were explained by this Court in CBZ Bank Limited v (1) David Moyo (2) Deputy Sheriff Harare SC170-18 in the following manner:

“Special circumstances exist where a purchaser has failed to have the property registered in his name, when he and the seller have demonstrated a clear intention to effect transfer, and when there was no legal impediment to such transfer or the impediment does not justify the refusal to grant protection to the purchaser.”

In the case of Van Niekerk v Fortuin 1913 CPD 457, the Court highlighted that:

“It seems to me that the plaintiff, being a judgment creditor, and the property being still registered in the name of the defendant, prima facie the plaintiff has the right to ask that the property shall be seized in execution, unless the party interested can show that there are special circumstances why such an order should not be granted.”

Based on the above, the court a quo found that the sale of the property to the third respondent had been completed before the appellant was placed under liquidation, hence, there was no legal impediment affecting the sale.

This finding cannot be faulted.

In addition, the first respondent had attached the property in question and issued a writ of execution against it. The appellant did not challenge the attachment and the writ of execution was not set aside.

The writ is still extant and valid.

The effect of a judicial attachment of immovable property was dealt with by the court in the case of Cold Chain Zambia Limited v Kingsley (nee Nehonde) & Ors HH370-20 as follows:

“The attachment in execution of property, at the instance of the judgment creditor, creates a real right in favour of the judgment creditor in the property in question.”

The above puts to rest the contention by the appellant, that, the court a quo erred by declaring that the third respondent had become the owner of the property in the absence of transfer from the appellant and registration of ownership at the Deeds Registry.

Moreover, in the case of The Sheriff for Zimbabwe & Anor v Willdale Limited t/a Willdale Bricks HH387-17, MAKONI J…, cited with approval the case of Liquidators Union and Rhodesia Wholesale Limited v Brown & Company 1922 AD 549…, as follows:

“…,. While an ordinary arrest of the property under the Roman-Dutch law gives no preference, an arrest effected on property in execution of a judgment creates a pignus praetorium or to speak more correctly, a pignus judiciale, over such property.

The effect of such a judicial arrest is that the goods attached are thereby placed in the hands or custody of the officer of the Court. They pass out of the estate of the judgement debtor, so that, in the event of the debtor's insolvency, the curator of the latter's estate cannot claim to have the property attached delivered up to him to be dealt with in the distribution of the insolvent's estate.”…,.

In light of the above authority, I am of the view that the appellant cannot claim to have a right over the disputed property as it is no longer part of its assets.

The appellant tried everything so that the property could not be attached.

The property is vested in the first respondent and awaiting transfer, whilst the third respondent has a real right of ownership over it. It is on this basis, that, I am inclined to remark that since judicial attachment took place first, it prevails over liquidation.

Therefore, the appellant is not the owner of the property.

The appellant is a creature of the Urban Councils Act. Its land sales are strictly controlled by that Act.

Section 152 of the Urban Councils Act provides as follows:

“Subject to any rights which have been acquired by a miner, a council may, subject to section one hundred and fifty-three, sell, exchange, lease, donate or otherwise dispose of or permit the use of any land owned by the council after compliance has been made with the section.

Before selling, exchanging, leasing or donating or otherwise disposing of or permitting the use of any land owned by it, the council shall, by notice published in two issues of the newspaper, and at the office of the council, give notice:

(a) Of its intention to do so, describing the land concerned and stating the object, terms and conditions of the proposed sale, exchange, lease, donations, disposition or grant of permission of use; and

(b) That copy of the proposal is open for inspection during office hours, at the office, for a period of twenty–one days from the date of the last publication of the notice in a newspaper; and

(c) That any person who objects to the proposal may lodge his objection with the Town Clerk within the period of twenty-one days referred to in para (b).”

Section 152 of the Urban Councils Act sets out the procedure to be followed by the appellant when disposing of land belonging to Council. These provisions are mandatory. As long as same are not complied with, no valid sale or transfer of Council land can occur.

Thus, even assuming that the respondent had a valid Agreement of Sale, such would not prevail in the absence of proof that the provisions of section 152 of the Urban Councils Act were complied with.

Failure to comply with the mandatory provisions of section 152 of the Urban Councils Act renders the agreement null and void.

In casu, the court a quo sanctioned a nullity. Its order cannot stand: see Mcfoy v United Africa Co. 1961 (3) ALL ER 1169 (PC)…,.