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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The court dismissed the application for the declaratur.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The present application would not have been made.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Again, this would amount to speculation.

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

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

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

“Any person who –

(a)…,.

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

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

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

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

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

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

I disagree.

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

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

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

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

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

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

He who avers must of course prove.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The two can resolve the disputed balance.

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

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

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

I need to lastly deal with the question of costs.

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

The circumstances of this case are however peculiar.

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

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

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

Indeed, none of the parties laid blame on him.

He must be awarded his costs.

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

I accordingly dispose the application as follows:

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

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

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

Ownership of property can only be transferred where the transferor has title...,.

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

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

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

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

“Subject to this act, or any other law, the ownership of land may be conveyed from one person to another only by means of a deed of transfer executed or attested by the registrar.”

Section 8(1) of the Deeds Registries Act [Chapter 20:05] provides:

“Save as is otherwise provided in this Act, or in any other enactment, no registered deed of grant, deed of transfer, certificate of title or other deed confirming or conveying title to land, or any real right in land other than a mortgage bond, and no cession of any registered bond not made as security shall be cancelled by a registrar except upon an order of court.”

I must state, that, a deed of transfer or registration of cession is not conclusive proof of ownership or the rights of a cessionary: see the cases of Young v Van Rensburg 1991 (2) ZLR 149 (S)..., and Kassim v Kassim 1989 (3) ZLR 234 (H)...,.

It simply raises a presumption in favour of the holder of the title deed or the rights of a cessionary until the claimant proves, on a balance of probabilities, that, he innocently bought the property or cessionary rights from the owner of the property or cedent: see the case of Cunning v Cunning 1984 (4) SA 585 (T).

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.

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.

In any case, the court a quo dealt extensively on the evidence of the appellant, more particularly on the aspect of the purchase price.

The appellant, in her pleadings, contended, that, she bought the Stand for ZW$800. She later on changed the purchase price to ZW$8,000.

The purchase price of ZW$800,000, through a cheque paid by the respondent, was the one confirmed by the Rural Council employee and the court a quo justifiably impugned the appellant's evidence on that aspect questioning how and why the appellant conflicted herself on the price if she was the one who purchased the Stand?

This aspect was based on the credibility, and, the trial court believed the respondent.

There is no basis for this court to interfere with that finding of credibility and we find no misdirection on the part of the learned Magistrate.

That element of the purchase price only added weight to the fact, that, the issue of ownership was resolved by the appellant herself on the date she deposed to an affidavit ceding her rights to that of the respondent.

Ground of appeal number 6 denigrates the evidence of the brick moulder.

We fail to see the legal basis for criticising the learned magistrate in placing probative value on that witness's evidence.

The brick moulder, Mr John Rwapungu, was contracted to mould bricks (usually called “home-made”) by the respondent. He agreed and did the work. He also ferried the bricks to the site using an animal drawn cart. There were no developments at the site. The moulder's bricks were the ones which were used by the respondent's builder to construct development at Stand 193 Headlands.

The court a quo accepted the moulder's evidence, and also the respondent's evidence, to the effect, that, the developments at Stand 193 Headlands were effected by the respondent and belongs to him.

We find no misdirection by the learned magistrate.

When all these aspects are considered, cumulatively, the finding by the court a quo, that Stand 193 Headlands was bought by the respondent and developed by him, is unimpeachable, and, in fact, belongs to the respondent.

The appellant had to be evicted from that Stand since she is not occupying it with the permission of the owner, hence the appellant was an unlawful occupier.

Section 7(1)(a) of the Matrimonial Causes Act provides that:

“Subject to this section, in granting a decree of divorce, judicial separation or nullity of marriage, or at anytime thereafter, an appropriate court may make an order with regard to -

(a) The division, apportionment or distribution of the assets of the spouses, including an order that any asset be transferred from one spouse to the other.”

On 21 January 2015, the respondent obtained judgment in its favour against the applicant under case number HC1548/13. The judgment is for the payment of $35,873 with interest at the rate of 5% per annum from 1 January 2013, and legal costs in the sum of $2,500.

The judgment debt led to the attachment of the applicant's dwelling, namely, Stand 907 Mt Pleasant Heights, Mt Pleasant, Harare.

The applicant received the notice of attachment on 18 January 2016 and filed this application on 29 January 2016.

The applicant wants the sale of the dwelling suspended because, firstly, if the sale is allowed to proceed, her family will suffer great hardship. Secondly, the applicant says she is making a reasonable offer to settle the debt at the rate of $1,000 per month.

The following is the relief that she is asking for:

“Terms of final order sought

That you show cause to this Honourable court why a final order should not be made in the following terms:

1. The sale in execution of the said dwelling is suspended on condition that the applicant carries out fully the terms of the offer of settlement made above, and, if applicant defaults on any one instalment, execution shall proceed.

2. No order as to costs.

Interim relief granted:

Pending determination of this matter, the Applicant is granted the following relief:

1. The Deputy Sheriff shall suspend the action towards the sale in execution of the said dwelling.

2. A copy of this order shall be served on the respondent's legal practitioners.”

The history of the case is as follows:

The applicant was in the employment of the respondent, as Human Resources Director, for 12 years before 2010. In 2010, she sought to leave the respondent's employment due to harsh economic conditions that were prevailing at the time.

On 10 September 2010, she made an application to the respondent for a voluntary retrenchment package which was being offered by the respondent which she found attractive. In response, the respondent persuaded her to stay with a staff retention proposal of a housing loan of $120,000.

The same offer was extended to the Chief Executive Officer and the Finance Director.

According to the housing loan offer, the title deeds of the house that she would purchase would be surrendered to the respondent as security.

The repayment of the loan was going to be upon separation; in other words, upon the applicant's termination of employment.

During her tenure, she was only supposed to pay interest of $600 per month.

Upon termination of employment, the applicant was supposed to repay the loan using her terminal benefits.

The applicant was persuaded to stay by the housing loan offer and took the loan on 23 October 2010.

This staff retention proposal was signed by the Chief Executive Officer, C Mutasa, and the Board Chairman, P.F Timba.

The applicant stated that in 2012, there was a change of management at chairman and CEO levels of the respondent.

She said that relations were not good between herself and them. She further stated, that, it became clear to her that the employment relationship could not continue.

On 17 December 2012, she tendered her resignation from employment in acknowledgement of the breakdown of the relationship.

She said that upon her resignation, her terminal benefits went towards settling the loan - but it was not extinguished.

It was only reduced from $67,124 to $35,172.

She said that she failed to agree with the respondent's new managers as to how the balance was to be settled.

As a result, litigation ensued resulting in the parties signing a Deed of Settlement in December 2014, and the respondent obtaining judgment which gave rise to the attachment of her dwelling.

The applicant stated, that, if the house is sold her family will likely suffer great hardship.

She said that she has always acknowledged her indebtedness to the respondent and has always intended to pay the debt; but, because she was not employed from January 2013 to June 2015 she was unable to pay anything.

She said that now that she is in employment she is making an offer to pay off the debt at the rate of $1,000 per month which offer she says is reasonable.

The applicant attached proof to show, that, from July 2015, when she took up employment with Pan African Mining (Pvt) Ltd, she had only managed to pay $4,000 to the respondent.

The amount was not disputed by the respondent.

Although the applicant does not state in her application that she is making this application in terms of Order 40 Rule 348A(5a), I do agree with the respondent, that, looking at the nature of the application, it is indeed being made in terms of Order 40 Rule 348A(5a) which deals with applications for the postponement or suspension of the sale of a dwelling where that dwelling has been attached and is occupied by the execution debtor or members of his family.

The execution debtor is empowered to make a chamber application for the postponement or suspension of the sale of the dwelling or eviction of its occupants. The application should be made within 10 days of notice of attachment of the dwelling.

Once such an application is made, the Registrar of this court shall submit the chamber application to a judge who shall consider the papers forthwith: per Rule 244 of the High Court Rules, 1971.

In terms of Rule 348A(6), an application made under Rule 348(A)(5a) shall be treated as urgent and set down urgently, without delay.

However, even if the application is treated urgently, the order that is granted by the court is a final one.

This is supported by Rule 348A(5e) which states, that, if the judge is satisfied that there is good ground for postponing or suspending the sale of the dwelling concerned or postponing or suspending the eviction of the occupants, he may order the postponement or suspension of the sale or eviction subject to terms and conditions he may specify.

The Rule does not say that the order that is granted is a provisional one.

Even the Form 45 upon which this chamber application is made shows that the order which is sought by the applicant is final in nature.

The relevant portion of the Form reads as follows:

“The applicant seeks an order in the following terms:

The sale in execution of the said dwelling is postponed until…,. (date)

OR ALTERNATIVELY:

The sale in execution of the said dwelling shall proceed subject to the condition that the above mentioned occupants are permitted to remain in occupation until…,. (date)

OR ALTERNATIVELY:

The sale in execution of the said dwelling is suspended on condition that the applicant carries out fully the terms of the offer of settlement made above.”

It is apparent therefore, that, in this matter, the applicant ought to have made a chamber application and not an urgent chamber application as she did.

It will be futile to grant a provisional order suspending or postponing the sale.

Once this is done, there will not be anything to confirm on the return day as the provisional order that she is seeking is final in nature and has the effect of a final order. In fact, there will not be any need for confirmation of the provisional order on the return day.

Considering that the applicant is a self-actor who is not well versed with the rules of this court, I will condone her adoption of the wrong procedure.

This is in light of the fact, that, the respondent did not make it an issue.

It is just an observation that I made as the court.

In any case, the applicant made her application within 10 days of having been served with the notice of attachment of the dwelling.

The respondent has not suffered any prejudice, because, before the hearing, it was served with the application and got the chance to file its notice of opposition and opposing affidavit.

The requirement of Rule 348A(5C)(b) which says, that, upon the filing of the chamber application, the Registrar, shall, without delay, serve a copy of the application on the judgement creditor, was therefore complied with.

So, in the event that I am satisfied that the applicant has made a good case for herself I will award an order in terms of Rule 348A(5e) which order will be final.

Where a judgment debtor applies, under Order 40 Rule 348A(5a), for the postponement or suspension of the sale in execution or eviction, the judge may grant the application in terms of Rule 348A(5e) which reads:

“If, on the hearing of an application in terms of subrule (5a), the judge is satisfied —

(a) That the dwelling concerned is occupied by the execution debtor or his family and it is likely that he or they will suffer great hardship if the dwelling is sold or they are evicted from it, as the case may be; and

(b) That —

(i) The execution debtor has made a reasonable offer to settle the judgment debt; or

(ii) The occupants of the dwelling concerned require a reasonable period in which to find other
accommodation; or

(iii) There is some other good ground for postponing or suspending the sale of the dwelling concerned or the eviction of its occupants, as the case may be; the judge may order the postponement or suspension of the sale of the dwelling concerned or the eviction of its occupants, subject to such terms and conditions as he may specify.”

What it means is that the judge may postpone or suspend the sale of the dwelling if he is satisfied, that, the execution debtor or his family are in occupation of the house and will likely suffer great hardship if the dwelling is sold.

In addition to showing that great hardship is likely to be suffered, the execution debtor should make a reasonable offer to settle the debt.

If a reasonable offer is made, the judge will postpone or suspend the sale to enable the execution debtor to pay off the debt.

If the execution debtor cannot make a reasonable offer to settle the debt, he should, in addition to showing that he or his family will likely suffer great hardship, show that he or his family needs a reasonable period to secure alternative accommodation.

In that case, the judge will postpone or suspend eviction for a reasonable period to enable him or his family to find alternative accommodation before they can vacate the dwelling.

If the execution debtor, after showing that he or his family will likely suffer great hardship, neither offers a reasonable offer to settle the debt nor shows that he or his family needs a reasonable period to acquire alternative accommodation, but advances some other good ground which persuades the judge, the judge may postpone or suspend the sale or the eviction on conditions he thinks fit.

Put differently, for a judgment executor to succeed in his application, it is imperative in every case that he shows;

(i) Firstly, that there is occupation of the dwelling by him or his family; and

(ii) Secondly, that he or his family will likely suffer great hardship.

This is the first requirement the execution debtor has to satisfy or meet in terms of Rule 348A(5e)(a).

After satisfying the first requirement, the second requirement that he ought to satisfy is in terms of Rule 348A(5e)(b); under subparagraph (i) by making a reasonable offer to pay the debt; or under subparagraph (ii) by showing that he or his family needs a reasonable period to find alternative accommodation; or under subparagraph (iii) by advancing some other good ground which persuades the judge to find in his favour.

It is my understanding, that, Rule 348A(5e)(a) and Rule 348A(5e)(b) should be read conjunctively because of the use of the word 'and' instead of 'or' between them.

In casu, it is not disputed that it is the applicant, who is the execution debtor, who is in occupation of the dwelling together with her family.

She has averred, in her application, that, the family will likely suffer great hardship if the sale is allowed to proceed and she has made an offer to settle the debt which she says is reasonable.

I have to make a determination on whether she has shown that the family will likely suffer great hardship and whether her offer is indeed reasonable.

On great hardship which will be suffered by her family if the house is sold and they are evicted, the applicant made the following submissions:

They will be rendered homeless and end up on the streets as she will not be able to spare any money for rentals since the family is operating on a very tight budget. The children, especially the two who are in school, will be affected in their studies. The trauma of losing a home and friends will leave or cause permanent psychological scars that may affect their mental health and development.

She said that the one in Form 4 will be affected the most since he will be sitting for his examinations this year.

She also said that since the house was constructed by her husband, the sale will put a strain on their relationship as he is already blaming her for the loss that they are about to suffer.

The applicant said that the house's estimated open market value is $300,000, but, a forced sale will cause it to fetch much less.

She said that this will be worsened by the harsh economic conditions prevailing in the country which make potential buyers unable to offer fair value.

The applicant said that the family will therefore suffer a huge financial loss.

The husband attached a supporting affidavit stating that he is the one who borrowed money from Time Bank to finance the construction of the dwelling and subsequently caused the title deeds to be issued in both his names and the applicant's.

He said that they never use this house as security in borrowing money because it is their only dwelling house.

He said that he is currently unemployed and has been trying to establish a farming business for the past few years, but, unfortunately, the business has not performed well and he has lost money.

He attached proof to show that he indeed took a loan from Time Bank in respect of the property.

By 6 November 2003, the loan was paid up.

In response, the respondent, citing the case of Masendeke v CABS 2003 (1) ZLR 65 (HC), submitted that great hardship is hardship which is more than the ordinary hardship faced by individuals who have been deprived of their dwelling.

The respondent said that an inconvenience in finding and paying for alternative accommodation, or the need to relocate to another residential place, is just ordinary hardship which cannot be categorised as great hardship.

The respondent further stated, that, if the open market value is around $300,000, a forced sale value may be slightly less.

It further said that the proceeds thereof are likely to far exceed the judgment debt, and, the surplus from the sale will be available to the applicant to seek alternative accommodation.

It said that the fact that the applicant is now employed means that she can afford to seek alternative rented accommodation whilst she secures an alternative property to buy with the net proceeds.

The respondent further stated, that, in any case, the applicant ought to have used the loan to purchase a house and secured the loan with the title deeds of the purchased house.

It said that it is now suffering because the applicant did not use the loan for its intended purpose.

In Masendeke v CABS 2003 (1) ZLR 65 (HC)…, CHINHENGO J said:

“In my view, the hardship must be more than ordinary hardships which persons deprived of their place of residence ordinarily suffer such as the attendant inconveniences in finding and paying for alternative accommodation or the need to relocate to another residential place such as a rural home or a rented accommodation. The hardship must be great in that it results in the execution debtor being rendered homeless.”

The same sentiments were echoed by MAKONI J in Zwidza & Anor v Mudoti & Anor HH349-15.

In the circumstances of this case, I make a finding that if the sale is allowed to proceed the applicant and her family will suffer great hardship. This is in view of the following reasons:

The applicant is the sole breadwinner.

Although she has secured another job and is earning a salary of $5,000 per month, the letter of confirmation of employment from her new employer states, that, it (the new employer) is experiencing cash flow problems. As a result, it cannot pay its employees their full salaries at once at the end of the month. It has resorted to paying them in cycles.

The applicant gets her salary every three (3) weeks, and, even then, she does not get her full salary, but $1,800 per cycle.

The letter further states, that, as it is, the employer already owes the applicant salary arrears of two (2) months salary.

The applicant produced a breakdown of her family expenses which shows that they use $1,800 per month.

This is clear evidence that indeed the applicant and her family are operating on a very tight budget as she said. As things stand, the applicant cannot afford rented accommodation.

I do not find the respondent's argument, that, the applicant can afford to buy another house using the surplus from the sale of the house appealing for the following reasons:

To begin with, this is a house which is registered in the names of both the applicant and her husband. The husband therefore has his half share.

The sale of the house basically means that the husband is forced to sell his share, even if he will recover his share from the net proceeds of the sale.

The bottom line, however, is that he would have lost his house.

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.

The Regional Town and Country Planning Act [Chapter 29:12] defines what ownership, as it pertains to property, means. An owner means:

“(a) In the case of land which is vested in the President —
(i) If it is not Communal Land, the Minister responsible for the administration of the land concerned; or
(ii) If it is Communal Land, the Minister responsible for the administration of the Communal Land Act [Chapter 20:04];

(b) In the case of land which is not vested in the President —
(i) The person who is registered in the Deeds Registry as the owner of the property; or
(ii) A local authority or a statutory body to which the ownership of the property has been transferred or vested by any enactment; or
(iii) The person lawfully holding the property in accordance with any enactment or agreement with the State or a local authority or a statutory body which entitles that person to obtain title thereof on the fulfilment by him of the conditions fixed by or in terms of such enactment or agreement; and includes —

A. The legal representative of a person referred to in subparagraph (i) or (iii) of paragraph (b) who has died, has become insolvent, is a minor, is of unsound mind or is otherwise under disability; or

B. The liquidator of a company which is a person referred to in subparagraph (i) or (iii) of paragraph (b).”...,.

In terms of section 43 of the Regional, Town and Country Planning Act, any land acquired under that section by a planning authority, that is not a local authority, shall vest in the President....,.

Despite the provisions that vest land in the President or local authority under the Regional Town and Country Planning Act, the owner of the land in question, for purposes of the law, is the Minister assigned with the administration of the land in terms of an Act of Parliament.

In all other cases, the owner is either the person holding title deeds or the local authority.

Many other specified species of ownership are not pertinent for discussion.