Nicholas Khawulani Masuku v Lindani Masuku and Steven Mandi Nyoni and Registrar of Deeds

### Preamble
1
HB 145/19
HC 2193/19
X REF HC 2077/19
---------




NICHOLAS KHAWULANI MASUKU

Versus

LINDANI MASUKU

And

STEVEN MANDI NYONI

And

REGISTRAR OF DEEDS

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 16 SEPTEMBER & 3 OCTOBER 2019

Urgent Chamber Application

Z. Ncube for the applicant

K. Ngwenya for the 1st respondent

L. Mpofu for the 2nd respondent

MAKONESE J:	This is an application filed under a certificate of urgency.   Applicant seeks the following relief:

“Terms of Interim Relief

It is ordered that the respondents are hereby interdicted from dealing in any manner whatsoever with the property presently registered in the 1st respondent’s names and held by her under Deed of Transfer 1450/2019, which may result in the said property being transferred to another party.

The 1st respondent be and is hereby ordered to return the status quo ante prevailing in respect of applicant’s occupation of plot 4 Fairstar, Bulawayo.

The 3rd respondent be and is hereby directed to place a caveat, examiner’s note or such other warning as may be necessary to inform third parties against dealing in the property.

Terms of final order sought

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

The respondents be and are hereby ordered to reverse the transfer/and or cancel the Deed of Transfer number 1450/2019, registered in the names of the 1st respondent.

The 1st and 2nd respondents to pay the costs of suit on an attorney and client scale.”

This application was opposed by 1st and 2nd respondents.

Factual background

The applicant purchased plot 4 Fairstar, Bulawayo from the 2nd respondent way back in 2003.  The purchase price was Z$40 000 000, which the applicant was to pay first by transferring stand number 1955 Emakhandeni, Bulawayo to the 2nd respondent.  The stand was valued then at Z$21 300 000.  In addition to that the applicant was supposed to pay the balance in instalments.  Both applicant and 2nd respondent took occupation of their respective properties.  A dispute arose between the parties.  2nd respondent filed an application for summary judgment under case number HC 1451/05.  On the 17th June 2007 NDOU J dismissed the application with costs.  The applicant remained in occupation of the property.  He has remained in the property ever since.  2nd respondent appeared to have abandoned the matter altogether.  2nd respondent did not prosecute his claims.  The applicant meanwhile adopted a “wait and see” approach.  There is no dispute that applicant has been enjoying peaceful and undisturbed occupation of the plot for over 16 years.  Unbeknown to the applicant, first and second respondents concluded an agreement of sale in respect of the plot.  In terms of that agreement the 2nd respondent ostensibly sold the property to 1st respondent on 30th May 2019 for the sum of RTGS$84 000. 1st respondent is now the holder of a title deed registered under Deed of Transfer number 1450/19.  On 28th August 2019, the 1st respondent addressed a letter to applicant’s legal practitioners demanding that applicant vacates the property by 31st October 2019.  On the 9th August 2019 applicant’s lawyers responded to the letter of demand, pointing out that there was a pending dispute relating to the property.  The parties could not reach an amicable conclusion and hence this urgent chamber application for restoration of the status quo ante.

Urgency

1st and 2nd respondent contend that the matter is not urgent at all.  1st respondent argues that by virtue of the Title Deed she is the holder of real rights in respect of the property and is entitled to the property under the actio rei vindicatio.  The applicant contends that the agreement between the 1st and 2nd respondent is a sham designed to avoid the resolution of the pending case.  Applicant avers that the 1st and 2nd respondents are relatives who have connived in order to wrestle the property from him.  I am of the view that the matter is clearly urgent.  This is not one of those cases where the matter can wait.  See Kuvarega v Registrar General & Anor 1998 (1) ZLR 188.

By her own admission, 1st respondent through her legal practitioner indicated that she desires to institute proceedings for applicant’s immediate eviction from the property.

Whether applicant is entitled to the relief sought

The applicant insisted that sanctity of court processes should be upheld.  Mr Ncube, appearing for the applicant argued that the 2nd respondent’s casual approach to the matter pending in court and which remains unresolved is not acceptable.  He further argued that the proceedings under HC 1451/05 could not be deemed abandoned by the 2nd respondent’s mere say so.  Mr L. Mpofu, appearing for the 2nd respondent, contended that the pending dispute was simply “ignored” by 2nd respondent.  It was argued on 2nd respondent’s behalf that the dispute in court had been overtaken by events and that there was no need to pursue the matter.  2nd respondent avers that the matter had somewhat resolved itself and that the agreement of sale between the applicant and 2nd respondent had been cancelled.  It was not indicated to this court exactly how and when the agreement was cancelled, if at ll.

Mr K. Ngwenya, appearing for the 1st respondent argued that this application is intended to pre-empt the proceedings for eviction which have been instituted in the Magistrates’ Court and usurp the powers of the lower court.  It was argued on behalf of the 1st respondent that she was an innocent purchaser who is entitled to protection under the law.  It was averred on behalf of 1st respondent that the property was dilapidated and that the price fixed was a fair value of the property.

It is my view that the balance of convenience in this matter favours the applicant.  He has been in occupation of the property for the past 16 years.  He has enjoyed peaceful and undisturbed occupation.  2nd respondent was always aware that the dispute between the parties had not been resolved.  His assumption that the matter was abandoned has no logic both in fact and at law.  The sale of the property to the 1st respondent was mala fide and designed to avoid the resolution of the dispute pending in court.

An application for an interdict is based on a right which in terms of substantive law, is sufficient to found a cause of action. The right for which the applicant seeks protection need not be a clear right, that is, one whose existence is proved on a preponderance of probability. Where a clear right is shown to exist, then an applicant for an interim order need not show that he will suffer irreparable harm if the interdict is not granted. He merely has to show that an injury has been committed or that there is a reasonable apprehension that an injury will be committed. It is only in those cases where a prima facie right, though open to doubt, is shown to exist, that an applicant needs to go further and demonstrate that there is a danger of irreparable harm ensuing. In the present case, the applicant has established the right to occupy the property in terms of an agreement of sale. That agreement has not been lawfully set aside. The applicant has demonstrated the existence of a prima facie right. see, Nyika Investments (Pvt) Ltd v Zimasco Holdings (Pvt) Ltd & Ors 2001 (1) ZLR 212.  The applicant will undoubtedly suffer irreparable harm if the interdict is not granted.

In the result, and for the aforegoing reasons, the following order is made:

The application be and is hereby granted.

The 1st and 2nd respondent to pay the costs of suit, the one paying the other to be absolved.

Ncube & Partners, applicant’s legal practitioners

T. J. Mabikwa & Partners, 1st respondent’s legal practitioners

Malinga & Mpofu, 2nd respondent’s legal practitioners