Belina Belinda Ndlovu v Valerie Derise Oosthuizen and Others

### Preamble
1
HB 66/21
HC 1261/16
---------


BELINA BELINDA NDHLOVU

Versus

VALERIE DERISE OOSTHUIZEN

And

DAPHINE SHIRLEY THOMPSON

And

RACHEL MALUNJWA

And

NHAMODZENYIKA MUPINDU

And

MLAMULI NCUBE

And

REGISTRAR OF DEEDS N.O

HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 15 SEPTEMBER, 1 OCTOBER AND 15 APRIL 2021

Civil Trial

H Shenje, for the plaintiff

J Ndubiwa, for the 3rd defendant

No appearance for 1st, 2nd, 4th, 5th and 6th defendants

MOYO J:	This matter started off as a court application but was at some stage referred to trial.  The plaintiff seeks an order couched in the following manner:-

“1.	The applicant be and is hereby declared the rightful owner of a property known as 3 Cathness Hillside Bulawayo.

2.	That pursuant to the above 1st and 2nd respondents sign all the necessary transfer papers within 7 days of the granting of this order so as to effect transfer into the names of the applicant.

3.	Failure by the 1st and 2nd respondents to sign the necessary transfer papers the Sheriff of the High Court of Zimbabwe, be and is hereby authorized to sign all the transfer papers with the Registrar of Deeds Bulawayo.

4.	3rd, 4th and 5th respondents to pay the costs of suit.”

Plaintiff’s Case

Plaintiff gave evidence on her own behalf.  She told the court that she resides at the property being the subject matter of this dispute and that she claims title to it.  She told the court that in 2006, her late husband bought the property from the Oosthuizens for 40 million Zimbabwe dollars.  After a while the sellers came back and said the money had been eroded by inflation.  Her husband was not well at the material time and later passed on.  At the material time they could not afford to pay the top up required by the Oosthuizens.  She then decided to sell her property in Famona in order to pay her children’s school fees and to make the top up.  She then went to Cheda and Partners for transfers.  She tendered an agreement of sale between Stephen Eric Oosthuizen, Daphine Shirley Thompson and Valerie Derise Oosthuizen as sellers and Precious Ndlovu as the purchaser.  Precious Ndlovu is her husband.  The agreement of sale was tendered and marked Exhibit 1.   She told the court that the agreement was later changed following the erosion of the Zimbabwe dollar by inflation and that an additional $40 000-00 was required by the sellers.  The sellers were purportedly then outside the country and she dealt with a Mr Bhaktar and a Mr Mangena who represented the sellers here in Zimbabwe.  The money was paid to Mr Mangena who in plaintiff’s presence handed over the money to Mr Bhaktar.  At that time the sellers had relocated to England.  She also told the court that at the material time, she was in contact with the sellers.

She told the court that she did have an acknowledgment of receipt that was signed but she misplaced it during various litigation processeds.  She then went to Cheda and Partners in March 2014 with the original title deed which she had been given by Mr Mangena and Mr Bhaktar so she could process transfers.  She had tenants occupying the property at that time.  She only occupied the property in 2014 towards the end of that year.  She paid $1 500-00 for the transfer at Cheda and Partners.  She was later ignored by Mr M. Ncube the lawyer she had been dealing with at Cheda and Partners.  The firm kept her original title deed in order to process transfers from the OOsthuizens to herself Cheda and Partners, particularly Mr M. Ncube then turned around and said the 3rd defendant was owed money by the 4th defendant and they gave her a photocopy of THE title deed she had given to them earlier as an original deed.  Mr M. Ncube is the 5th defendant herein.  Cheda and Partners then wrote a letter purportedly on behalf of 4th defendant to the effect that he also purchased the same house from the Oosthuizens.  She has never seen 4th defendant and Cheda and Partners just sent letters to the house  being the subject matter of the dispute as if this Mupindu (4th defendant) resided there.  She told the court that she did not believe that Mupindu (4th defendant) ever existed because the I.D No. that had been inscribed on the title deed as his, belonged to a 3rd party when she enquired at the Home Affairs office.

Plaintiff also told the court that if 3rd defendant bought the property from 4th defendant then she should confront him.  She told the court that Mr M. Ncube (5th defendant) from Cheda and Partners robbed him of his original title deed and later brought in Mupindu (4th defendant) purportedly as a person who had bought the same house from the Oosthuizens.  She refuted claims that 3rd defendant bought the property from Mupindu (4th defendant) because she had the original title deeds, having gotten it from the legitimate owners via Mr Bhaktar and Mr Mangena and that 4th defendant came in after she had left her original deeds at Cheda and Partners for the transfers, meaning that they fabricated this 4th defendant issue.  This Mr M. Ncube is nowhere to be found currently, so she told the court.

This court takes judicial notice of the fact that the firm Cheda and Partners later became defunct sometime in 2015 and that Mr S. Mazibisa and Mr M. Ncube (the 5th defendant) herein were subsequently deregistered and the firm closed by the Law Society of Zimbabwe.

Nothing of material importance arose during cross-examination except that plaintiff was challenged on the absence of a notarial seal on the document purportedly signed by the Oosthuizens giving Mr Mangena authority to act on their behalf.  Another issue that arose is that she in fact tried to get a certified copy of the title deed purportedly because she never had the original but she explained that to say she sought a certified copy after being duped by Cheda and Partners on the original title deed.  She confirmed that the property was sold for 40 million Zimbabwe dollars and $35 000 United States dollars.  That was the plaintiff’s case.

The other 5 defendants that is, 1st, 2nd, 4th, 5th and 6th defendants were served but neither defended nor attended court.  It is only the 3rd defendant who defended and attended the trial.

The 3rd defendant gave evidence on her own behalf and she told the court that she does not know the Oosthuizens.  She only knows the 5th defendant (Mr Mlalmuli Ncube a lawyer at Cheda and Partners)   She never met the 4th defendant Nhamodzenyika Mupindu.  She said she bought the house being the subject matter of this dispute through an agent who told her that the house was being sold through the law firm Cheda and Partners.  She went and saw the lawyer Mr M. Ncube the 5th defendant and a young man called Solomon Mupindu was also present.  They said that Nhamodzenyika Mupindu was seriously ill and was selling the house in question being represented by his son Solomon Mupindu.  She was shown the title deeds to the house.  4th defendant had a sale agreement with the 3 owners of the property named on the title deed.  The lawyers then said transfers would be done from the Oosthuizens to the 4th defendant and subsequently to herself.  She signed an agreement of sale and it was tendered and marked Exhibit 5.  She said that at the time she viewed the house there was no one in occupation and that later when she wanted to take occupation and renovate the house, the lawyers started dilly dallying and dodging her.  She ended up reporting to the police.  She then sought to cancel the agreement and seek a refund of her purchase price through the courts.  She got a default judgment against the 4th defendant to the effect that the house must be sold and she be refunded her dues.  The order of the court was that the house should be sold and 3rd defendant refunded once the house was in 4th defendant’s name, meaning that at the time the order was issued 4th defendant had not obtained title.  She had come to realise that she had improperly purchased a house when she came back from South Africa and the lawyer kept dodging and avoiding her.  She later had a meeting with Mr Sindiso Mazibisa the senior partner at Cheda and Partners who then told her that the whole transaction did not go well and at that juncture she realised she had bought a house in an improper way.  She told the court that she wanted transfer of the property into her name.

Under cross-examination she confirmed that after discussing with Mr M. Ncube and Mr Mazibisa, the lawyers at Cheda and Partners she realised that she had gone into an improper transaction.  She confirmed that her agreement of sale was signed on 12 May 2014.  She confirmed that she went to court in 2015 seeking a refund.  She stated that she appreciated that the order that had been granted under HC 1268/14 wherein 4th defendant was to get title from the Oosthuizens by virtue of the provisions of the Act relating to Derelict land had since been set aside by the High Court.  She said that she could not dispute that plaintiff left the original title deed at Cheda and Partners expecting transfer.  She confirmed that the I.D numbers purportedly belonging to 4th defendant differed as between the agreement of sale and the title deed that had been eventually processed in his name.  3rd defendant also confirmed that at the time she got an order from the Magistrate’s Court for the sale of the house and that she be refunded $40 000-00 the house was still in the names of the Oosthuizens.

These were the material respects of 3rd defendant’s evidence.  In closing submissions plaintiff’s counsel insisted that a case had been made for the declaratory order they seek and that since Stephen Enic Oosthuizen was not cited in these proceedings they seek an amendment of the order in relation to only his share to the effect that he be left out.  3rd defendant’s counsel submitted that plaintiff should have used the estate of her husband and that there was no privity of contract between plaintiff and the Oosthuizens.  He argued that on the second agreement, the person who contracted on behalf of the sellers had no lawful authority to do so.

What is clear from the facts of this matter is that:

1)	The title holders to the property being the subject matter of this dispute sold their property to plaintiff’s husband in 2006.

The agreement was not properly perfected as the sellers wanted more money by virtue of inflation.  Plaintiff’s husband died and later, she entered into an agreement with the owners of the property via an agent Mr Mangena.

The apparent problem is that whilst Mangena per plaintiff’s testimony purported to act for and on behalf of the Oosthuizens, he entered into an agreement of sale with the plaintiff in his own capacity and not on behalf of the sellers.  Even the acknowledgment of receipt purportedly signed by Mr Mangena do not state that he received the sums for and on behalf of the Oosthuizens as for onward transmission from them.  However, it is plaintiff’s evidence that she subsequently received the original title deed from Mr Mangena and that she did speak to the sellers on the phone whilst dealing with Mr Mangena and Mr Bhaktar.  Obviously plaintiff had a background of dealing with the Oosthuizens vis a vis her husband’s agreement with them which agreement is not being challenged.  It would appear on the strength of the presence of the original title deed with Mr Bhaktar and Mr Mangena that they did to some extent have liason with the owners of the property.  Whilst the plaintiff seemingly does have a good case against the sellers of the property, such case was not properly pleaded and ventilated for the following reasons:-

1)	The estate of the late Precious Ndlovu should have been a party to these proceedings vis a vis the first agreement of sale which plaintiff could not inherit from the estate.  Plaintiff’s case seems to suggest that she inherited rights from the estate of her husband vis a vis the agreement of sale he had with the Oostehuizens which is wrong at law.

The agreement by herself with Mangena poses challenges in the manner it is couched but clearly, the evidence shows that top up she paid to Mangena for the property her husband had already purchased so much so that the foundation of her claim would be the initial agreement of sale between the Oosthuizens and her husband and the later top up that she then paid in pursuant of same.  The essence of plaintiff’s claim is that her husband bought this property and she topped up.  I am satisfied that plaintiff has proved on a balance of probabilities that indeed her husband and herself paid for the property being the subject matter of this dispute.  Again, the pleadings are badly drawn because one Stephen Eric Oostehuizen was not cited and yet plaintiff seeks an order and that she declared the lawful owner of the property.  Of course that could be cured by leaving out a 1/3 share belonging to him in the court order so that she could sue him for that 1/3 at a later stage.

With regard to the 3rd defendant I have no doubt that she has not made any valid claim to compete with plaintiff and her husband’s estate against the owners of the property.  Clearly, 3rd defendant was duped by the lawyers after they received title deeds from the plaintiff.  She did not even claim against the owners of the property because she bought from the 4th defendant.

As a result, she bought from a person who did not have any real rights to the property as opposed to plaintiff’s husband who clearly bought from the owners of the property.  3rd defendant in essence does not have any competing claim against the owners of the property.  Her claims lie with 4th defendant who is seemingly no longer interested in the matter.  In fact 3rd defendant cancelled her agreement with 4th defendant and sought a refund of her purchase price.  She cannot in the same vein have a competing interest with plaintiff and her husband’s estate over the property.  She has a personal claim against 4th defendant and she should seek to enforce her refund judgment to the extent that it excludes the property being the subject matter of this dispute.  3rd defendant certainly has no rights to defend vis a vis plaintiff and her husband’s claims against the owners of the property.

Consequently, it is this court’s finding that 3rd defendant has no defence whatsoever against the claims being made by the plaintiff from the owners of the property.

The question that immediately arises, is what is the appropriate order to be made in this instance?  Clearly plaintiff and her husband bought this property from the Oosthuizens who have not defended this suit because they clearly know of the matters raised by the plaintiff in these proceedings.  The initial agreement of sale was between plaintiff’s husband and the Oosthuizens and was clearly signed.  A fair outcome of this case would be one that gives effect to the transactions that were clearly entered into by the parties.  3rd defendant having no say whatsoever on what happened between plaintiff, her husband and the Oosthuizens, and she not having any competing claim against the claim by the plaintiff, and her claim only being against the 4th defendant who has not defended this claim either, she has absolutely no interest to present against the plaintiff’s case.  The matter is in essence between plaintiff, her husband and the Oostthuizens and it is thus undefended in that respect.  I accordingly find no prejudice to any of the parties seeing that the owners of the title being contested have not defended, to make an order to the effect that:-

It is accordingly declared that:-

The plaintiff, jointly with the estate of the late Precious Ndlovu are entitled to 2/3 of the property known as No. 3 Caithness Road Hillside, also known as Subdivision D of Lots 219 and 220 Hillside of Napiers lease measuring 2644 square metres.

That 3rd defendant pays the costs of suit.

Shenje and Company, plaintiff’s legal practitioners

Mashayamombe and Company, 3rd defendant’s legal practitioners