Mqhele Ndlovu v Magadalen Sibanda and Registrar of Deeds, Bulawayo

### Preamble
1
HB 108/19
HC 1200/15
---------


MQHELE NDLOVU

Versus

MAGADALENI SIBANDA

And

REGISTRAR OF DEEDS, BULAWAYO, NO

THE HIGH COURT OF ZIMBABWE

BERE J

BULAWAYO:  22 MARCH 2016 AND 25 JULY 2019

Opposed Application

Z C Ncube, for the Applicant

K Sibanda, for the respondent

BERE J:     On 22 March 2016, and after reading the documents filed of record and hearing arguments from Mr Z C Ncube (for the applicant) and Mr K Sibanda (for the first respondent), I made the following determination:

“IT IS ORDERED THAT:

The validity of the agreement of sale entered into between the Applicant and the 1st respondent on 18 December 2014 be and is hereby confirmed.

The 1st Respondent and all those claiming occupation  through her, be and are ordered to vacate the premises  known as Stand Number 4051 Nketa 7, Bulawayo within   five (5) days of granting of this order.

Failing 2, above, the Sheriff of the High Court of Zimbabwe, or his lawful agents be and are hereby authorized and directed to evict the 1st Respondent and  all those claiming through her occupation from the  aforesaid Stand Number 4051 Nketa Township of Lot 400A  Umganwini also known as Number 4051 Nketa7, Bulawayo.

The 1st Respondent be and is hereby ordered to facilitate transfer of Stand Number 4051 Nketa 7, Bulawayo into the names of the Applicant by signing all necessary documents to effect transfer and furnishing the Applicant’s conveyancers with the original title deed held under deed of transfer number 2385/2007, a copy of the rates clearance certificate and a copy of the capital gains tax certificate, within five (5) days of being called upon to do so by the Applicant’s conveyancers failing which, the Sheriff of the High Court of Zimbabwe or his lawful deputy shall be authorized to act on his behalf.

In the event that the Applicant is obliged to pay any sums of money towards the procurement of the rates clearance certificate for the capital gains tax certificate, then the Applicant shall be entitled to recover such payment from the 1st respondent by producing to the Registrar of this Honourable Court proof of such payment in which event the Registrar shall be authorized to issue a writ of execution in such amount.

The 1strespondent be and is hereby ordered to pay the costs of suit on an attorney and client scale.”

Subsequent to the granting of the order the now applicant filed a chamber application seeking condonation to appeal against the judgment.  This prompted a request for the reasons for judgment.  Here are they.

On 14 May 2015 the applicant filed an application in this court seeking an order which the court granted on 22 March 2016 as laid out above.

The basis of the application was that on 17 December 2014 the respondent gave her erswhile legal practitioner, Mr Mlamuli Ncube, a Special Power of Attorney to sell her property, viz, house number 4051 Nketa 7, Bulawayo.

On 18 December 2014, the applicant concluded a purchase agreement of the house in question with the seller’s duly appointed agent who acknowledged receipt of the agreed sale price of the house.

When the first respondent failed to give vacant possession of the property, the applicant then sought to enforce the agreement of sale.

In response to the application filed by the applicant, the respondent argued that despite having given her agent the Special Power of Attorney to dispose of her property, she had revoked that power at the time of the sale.  In other words, the first respondent argued that her agent had no authority to sell her property to the applicant.

The first respondent also argued that her case and that of the applicant had material disputes of fact which could not be resolved by way of application procedure but by trial.

The issues

From the simple dispute between the parties I decipher the following to be the issues for determination, in this case.

The first issue is whether or not the agent was authorized to dispose of the property and consequently the validity of the sale agreement.  The second issue is whether or not the application procedure was appropriate in this case.

The Legal Position

Coming to the fore in this application is the relationship between an agent and principal and how this relationship impacts on innocent third parties.  There is a plethora of authorities that have elucidated on the relationship between an agent and their principal.  In the case of MRC for Economic Affairs, Environment and Tourism Eastern Cape v Kruizenga referred to me by applicant’s counsel, the court captured the relationship between an agent and a principal as follows:

“As it is the representative and not the principal who concludes the juristic act, the question whether the parties were in agreement has to be determined with reference to the intention of the representative.  The principal’s intention is not relevant to the question whether consensus necessary to produce a contract existed or did not exist, knowledge required [acquired] by the representative is imputed to the principal and a contract concluded by the representative on terms not intended by the principal does not affect the issue of consensus.”

See also Glofinco v Absa Bank Limited (t/a United Bank)

In the case of Freeman `& Lockyer vs Buckhurst Park Properties (Mangal) Limited and Anor which is one of the leading cases on agency in England, DIPLOCK LJ expressed the legal position in the following terms:

“The representation which creates ‘apparent’ authority may take a variety of forms of which the commonest is representation by conduct, that is, by permitting the agent to act in some way in the conduct of the principal’s business with other persons.  By so doing the principal represents to anyone who becomes aware that the agent is so acting, that the agent has authority to enter on behalf of the principal into contracts with other persons of the kind which an agent so acting in the conduct of his principal’s business has usually ‘actual’ authority to enter into.”

Similar sentiments are expressed in the Zimbabwean case of Seniors Service (Pvt) Ltd vs Nyoni

On issues of material disputes of facts, the authorities are clear that such disputes of fact do not arise merely because a litigant desires them to so exist, but that the circumstances dictate such existence.  The facts must, upon close analysis demonstrate that they cannot be resolved outside trial proceedings and that they must be relevant to the legal issues requiring determination.  If such material disputes of fact are far-fetched, the court will naturally reject such averments and adopt a robust approach in resolving the parties’ dispute on the papers without the agony of going through trial.  See National Director of Public Prosecutions vs Zuma and Zimbabwe Bonded Fibreglass (Private)Limited vs Peech

Application of the Law to the facts of this case.

It is the position in this case as stated by the applicant and admitted by the first respondent that Annexure “B”, the Special Power of Attorney to sell the property in question was given to the first respondent’s agent Mlamuli Ncube on 17 December 2014, a day before the property was sold to the applicant.

It is also not in dispute that when the applicant went to view the property in the company of the first respondent’s agent, they saw the first respondent who allowed them to view the property.  This is clear from the applicant’s founding affidavit where he states as follows:

“--- there was nothing to suggest that Mr Mlamuli Ncube did not have the first respondent’s authority as the first respondent represented that Mr Mlamuli Ncube had authority as the latter was her legal practitioners and also because at the time of the sale, the 1st respondent allowed me to view the house and satisfy myself as to its condition” my emphasis.

It will be noted that in her opposing affidavit, the first respondent did not controvert this clearly pointed averment made against her by the applicant.  One would have thought, the first respondent, having been presented with an opportunity to revoke her special Power of Attorney in favour of the agent in public, she would have done so by objecting to the viewing of the house by the applicant. The respondent did not. She chose to remain aloof when her agent was showing the applicant the house.

The respondent cannot purport to have secretly revoked her clear instructions to his agent to the detriment of innocent third parties like the applicant who purchased the house on the strength of what the first respondent manifested in public, that she had authorized the agent to sell the property.  There is overwhelming evidence that the first respondent conducted herself in a way that led to the applicant believing that the sale of the house was above board.

The issues which I have tried to summarize, which are common cause in this matter and relevant to the disposal or determination of the dispute between the parties do not give room to any material disputes of fact, if anything, that averment is illusory.

From the averments contained in the first respondent’s opposing affidavit one gets the impression that the only reason that led to the first respondent to attempt to renege from the sale agreement is because her agent has not given her the money for the sale of the house. If this observation is correct (as I believe it should be), the respondent must direct her anger and energy against her agent and not to the innocent purchaser, the applicant.

On the question of costs, I am more than satisfied that the first respondent has not been candid with the court and that by opposing this case, she was indulging in a fishing expedition.  Such litigants cannot escape a punitive order of costs.

It was for these reasons that I granted the order against the first respondent on 22 March 2016.

Ncube & Partners Legal Practitioners, Applicant’s Legal Practitioners

Mathonsi Ncube Law Chambers, first Respondent’s Legal Practitioners