Cephas Tapiwa Muneri v Delatfin Civil Engineering Private Limited and Felix Munyaradzi and Zvimba Rural District Council

### Preamble
1
HH 519-25
Case No HCH 336/25
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CEPHAS TAPIWA MUNERI

versus

DELATFIN CIVIL ENGINEERING PRIVATE LIMITED

and

FELIX MUNYARADZI

and

ZVIMBA RURAL DISTRICT COUNCIL

HIGH COURT OF ZIMBABWE

MUSITHU J

HARARE: 4 June 2025 & 8 September 2025

Opposed Application-Declaratur

T.T.G. Musarurwa, for the applicant

T.S. Musundire, for the 1st & 2nd respondents

MUSITHU J: This is an application for a declaratur in terms of which the applicant sought to be declared the lawful holder of rights and interest in an immovable property known as Stand Number 1650, Haydon Park, Sandton, measuring 1097 square metres (the property). The property is situated in the third respondent’s jurisdiction.

Background and the Applicants’ Case

The brief factual background is as follows.  In May 2017, the applicant purchased the property from one Kudakwashe Mhandu Zawu (the seller). The transaction was handled by an estate agency company called Rawson Properties. Prior to the transaction, the seller disclosed to the applicant that the property did not have title deed, but rather it was held under the developer’s cession. The developer was the first respondent herein represented by the second respondent.

The applicant proceeded to the first respondent’s offices where he met the second respondent who attended to his enquiries during the due diligence exercise. The second respondent advised him that the property was free from any encumbrances and that there was no impediment that could preclude its sale. The applicant was further advised that the seller could dispose of the property as it was fully paid for. It was on the basis of these representations that the parties proceeded to consummate the agreement of sale.

Around October 2018, and on the basis of the agreement of sale drawn by Rawson Properties, the applicant approached the first and second respondents who drew up a fresh agreement of sale between themselves and the applicant in respect of the same property. This was intended to create a direct relationship between the applicant and the first respondent. The agreement of sale substituted the one prepared by Rawson Properties, and it was duly signed by the second respondent on behalf of the first respondent.

In November 2018 the applicant and the seller went to the first and second respondents and requested the first respondent to formerly facilitate the cession of rights and interests in the property to the applicant. He was charged a fee to facilitate the cession of rights and interest into his name, which fee he duly paid. The first respondent prepared a cession agreement which was duly signed by the seller, the applicant and the first and second respondents. It is on the strength of these agreements that the applicant claims that he is the holder of rights and interest in the property. The applicant claimed to have been residing at the property since 2017 when he purchased it. The applicant averred that in all these agreements, the first and second respondents duly confirmed that the property had been paid for in full.

In October 2023, the first and second respondents invited the applicant to pay the sum of US$650.00 as regularisation fee which was due and owing to the third respondent. The applicant paid the said amount. On 12 December 2024, the applicant was shocked to come across a notice in the local newspaper which invited him to the offices of the first respondent’s legal practitioners, Warara & Associates in order to avoid legal action. The applicant sent a representative to the offices of the first respondent as well as its legal practitioners to enquire the basis of the threatened litigation. In their response, the first and second respondents indicated that they had not received the purchase price of the property, and they were going to repossess the property in the event that he did not pay the purchase price which was now calculated at the rate of US$55.00 per square metre.

The first and second respondents indicated that when the property was initially sold to the first buyer (the seller herein), the first respondent did not receive the purchase price as it was misappropriated by one of its employees. It was on that basis that the first respondent wanted to repossess the property. The applicant averred that he fully paid the purchase price after a diligent enquiry with the two respondents who at all stages maintained that the property had no encumbrances whatsoever.

The applicant averred that the mere fact that the first respondent may have been duped by its own employee did not impact on his rights in the property. The alleged fraud was an internal matter to be resolved between the first respondent and its employee. The applicant further averred that the balance of convenience favoured the granting of the relief sought since he managed to demonstrate the circumstances under which he acquired the property through the active involvement of the first and second respondents. His rights were under threat given the first respondent and second respondent’s position that they intended to repossess the property. The first and second respondents’ demands were thus illegitimate and wrongful and bordered on criminality.

First Respondent’s Case

In the opposing affidavit which was deposed to by Cain Mangena, the first respondent raised the point in limine that the applicant had not exhausted domestic remedies that dealt with the issue. The applicant needed to provide proof of payment which confirmed that he purchased the property from the first respondent and that the transaction was legal. The applicant had also not attended at the first respondent’s legal practitioners’ offices to clear the issues concerning his rights in the property as required by the notice placed in the media. The property was one of the stands that the Magistrates Court in HREC-CG6502/24 ordered that they should revert to the first respondent.

As regards the merits, it was averred that the applicant failed to satisfy the requirements of an application of this nature. It was averred that the first respondent was defrauded by Saymore Mutakura, Jacob Muyambo and Amos Kagona (now deceased). The three individuals misled the second respondent into signing the said agreements, and the factual findings were confirmed by this court in a criminal appeal judgment involving the trio. It was further averred that from the agreement of sale attached to the application, the applicant purchased the property from Saymore Mutakura who was convicted of fraud involving the same property. The first respondent was defrauded and the agreement of sale was a product of fraud. No lawful rights could emanate from the fraud.

The first respondent also denied that the applicant paid for the property in full. No proof of payment was attached to the application. The applicant entered into an illegal contract which was unenforceable. His recourse was a claim for damages against Mutakura. The applicant and the first respondent were both victims of fraud. The applicant’s alleged clear right was a product of fraud. The court was urged to dismiss the application for lack of merit.

The Submissions

Mr Musarurwa for the applicant submitted that the second respondent was barred for not having filed a notice of opposition despite being served with the application. No notice of opposition was also filed in respect of the third respondent as well. Mr Musundire for the first and second respondents conceded that the second respondent was indeed barred. The application will thus be treated as unopposed as against the second and third respondents.

Mr Musarurwa further submitted that the deponent to the first respondent’s opposing affidavit, Cain Mangena, did not specify how he acquired personal knowledge of the facts that he deposed to. He referred to a criminal trial, but he did not specify what part he played in that matter. He did not state that he had personal knowledge of the facts and therefore his affidavit was inadmissible based as it was on hearsay evidence. The court was urged to strike out the opposing affidavit and treat the matter as unopposed.

In response, Mr Musundire submitted that the deponent to the first respondent’s opposing affidavit stated that he had personal knowledge of the facts, as the General Manager of the first respondent. As far as the criminal proceedings were concerned, there was a judgment that was attached to the opposing affidavit which the deponent related to.

The court determines that the preliminary point is devoid of merit. In para 2 of the opposing affidavit, the deponent stated that the facts deposed to were within his personal knowledge, and therefore true and correct. As the General Manager, he was speaking from a position of information and knowledge of the business of the first respondent. He made averments of fraud in relation to an employee of the first respondent and attached a judgment of this court on appeal which dealt with the criminal conduct of the accused persons, Saymore Mutakura and Jacob Muyambo, who are alleged to have defrauded the first respondent. The deposition made in respect of the criminal matter was in the context of the findings made by the appeal court in relation to the two accused persons who had been found guilty of defrauding the first respondent.

As regards the merits, Mr Musarurwa submitted that it was not every kind of fraud that had the effect of vitiating a sale. The second respondent had signed the agreement of sale between the applicant and the first respondent. The second respondent had also signed the cession agreement on behalf of the first respondent. The second respondent was the one who was expected to explain how he was defrauded as the person who signed both agreements on behalf of the first respondent. The second respondent had not disputed that he consented to the cession.

Mr Musarurwa further submitted that the agreements signed by the first respondent were binding upon it, as underscored by the caveat subscriptor rule and the Turquand rule. The Turquand rule was statutorily reinforced by sections 22 and 23 of the Companies and Other Business Entities Act [Chapter 24:31]. According to counsel, the applicant was precluded from relying on its internal processes to the prejudice of the applicant. There was no basis upon which the first respondent could refuse to recognise the agreement of sell and the cession.

In response Mr Musundire submitted that the first respondent did not have any intention to enter into any contract with the seller or the applicant. The agreement of sale between the first respondent and the third party, and the agreement between the applicant and the first respondent were a result of fraud. Counsel further submitted that the three accused persons, that is, Jacob Muyambo, Saymore Mutakura and the now deceased, Amos Kagona sold commonage stands that were supposed to be delivered to the relevant Government Ministry responsible for local government. Jacob Muyambo was employed by the first respondent, while Saymore Mutakura and Amos Kagona were car dealers.

Mr Musundire further submitted that the agreement of sale between the applicant and the first respondent made reference to Mutakura in clause 3.1, yet Mutakura was unknown to the first respondent. The initial agreement between the first respondent and the seller was equally void. The caveat subscriptor rule was not applicable where there was a misrepresentation. It was further submitted that the Turquand rule was not applicable where the transaction was not within the company’s powers, and therefore unauthorised.

The Analysis

I will first deal with the preliminary point that was raised by the first respondent in its opposing affidavit. The point was that the applicant had not exhausted domestic remedies that dealt with the issue. The applicant had not provided proof of payment which confirmed that he purchased the property from the first respondent and that the transaction was valid.

In his response to the point in the answering affidavit, the applicant averred that he had reached out to the first respondent and had been advised that the property was now being resold at a price range of between US$50.00 and US$60.00. He felt that he could not be made to pay for the property twice. His legal practitioners had also tried to reach out to the first respondent’s legal practitioners for an amicable resolution of the matter without success.

What was dubbed a preliminary point was clearly not one. A preliminary point or point in limine is a legal objection which is dispositive of the dispute based on a technical legal objection without the need to traverse the merits of the dispute. The domestic remedies that the first respondent’s counsel alluded to did not arise by operation of law or a contract. There may have been some operational procedures which the first respondent expected its clients to observe, but these could not be elevated to assume the character of domestic remedies. In any event, the applicant averred that it engaged the first respondent, but such engagements were in vain.

The Merits

Section 14 of the High Court Act (the Act), confers on this court the powers to grant a declaratur. The section provides as follows:

“14 High Court may determine future or contingent rights

The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.”

Authors Herbstein & Van Winsen, in their book ‘The Civil Practice of the High Courts of South Africa, 5 Ed, p 1428, define a declaratory order as:

“An order by which a dispute over the existence of some legal right or obligation is resolved. The right or obligation can be existing, prospective or contingent and no specific consequent relief need be claimed.”

In Munn Publishing (Pvt) Ltd v Zimbabwe Broadcasting Corporation 1994 (1) ZLR 337 (S) at 343-344, it was held that:

“The condition precedent to the grant of a declaratory order is that the applicant must be an interested person, in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court. See United Watch & Diamond Co (Pty) Ltd &Ors v Disa Hotels Ltd & Anor 1972 (4) SA 409 (C) at 415 in fine; Milani & Anor v South African Medical & Dental Council & Anor 1990 (1) SA 899 (T) at 902G–H. The interest must relate to an existing, future or contingent right. The court will not decide abstract, academic or hypothetical questions unrelated to such interest. See Anglo-Transvaal Collieries Ltd v S A Mutual Life Assurance Soc 1977 (3) SA 631 (T) at 635G–H. But the existence of an actual dispute between persons interested is not a statutory requirement to an exercise by the court of jurisdiction. See Ex p Nell 1963 (1) SA 754 (A) at 759H–760A. Nor does the availability of another remedy render the grant of a declaratory order incompetent.”

Thus, a declaratur has as its objective, the resolution of a dispute concerning the existence of some legal right or obligation which may even arise ex-contractu. The party that seeks a declaratur must demonstrate the existence of a direct substantial interest in the subject matter of the dispute. Such interest must relate to an existing or future right.

Applying that test to the present case, I have no doubt that there existed a dispute in connection with the property that the applicant claimed to have acquired from the first respondent through the seller. The applicant also had an interest in the property which translated to an existing right. The first respondent claimed that the agreements that the applicant relied upon to assert some rights in the property were invalid as they were fraudulently procured by people who had no authority to transact on its behalf. The first respondent relied on the judgment of this court in the criminal appeal of Saymore Mutakura v The State HCHCR 3127/24 and Jacob Muyambo v The State HCHCR 3137/24. Nothing much turns on that judgment as it did not refer to the property in dispute. It referred to commonage stands that were fraudulently allocated to Mutakura and Kagona, yet they were supposed to be allocated to the Ministry of Local Government. If the property in dispute was one of those commonage stands, then it was not mentioned in the judgment. This court cannot, based on conjecture, conclude that the property in dispute was also the subject of the criminal complaint in the aforesaid criminal judgment on appeal.

It is not in dispute that the second respondent allegedly signed the agreement between the applicant and the first respondent, and the cession agreement between the original seller, the applicant and the first respondent. He signed the agreements in his capacity as a representative of the first respondent. The second respondent did not file opposing papers to explain the circumstances under which he signed the agreements. As already stated, this court cannot conclusively determine the validity of the agreements based on the High Court judgment on appeal as it did not expressly refer to the property. It referred to several stands. In the absence of an explanation by the second respondent concerning the circumstances under which he signed the agreements, then it would be difficult to impugn the validity of his signature, and by extension the agreements themselves based on the alleged fraud.

The attitude of the first respondent herein to the agreements that the applicant sought to rely upon requires some interrogation. The first respondent averred that the agreements were fraudulent because the people who purportedly acted on its behalf were unknown to it. One of the flaws in this argument as already noted, concerns the role played by the second respondent in signing the agreements and thereby endorsing their validity. The first respondent’s trouble is that the said agreements were not invalidated or terminated as an expression of its disavowal to their existence. Merely denying their legality in an opposing affidavit did not have the desired effect of nullifying them. In the case of Indium Investments (Private) Limited v Kingshaven (Private) Limited & Two Ors, the court made the following pertinent remarks at p 6 of the judgment:

“In the absence of a counter-claim for declarations of invalidity in respect of the agreements discussed above, the court could not grant relief to the effect that the agreements were invalid.  At best, it was argued, the court ought to have granted absolution from the instance.” (Underlining for emphasis)

Further down in the same judgment at page 7 thereof, the court went to make the following insightful remarks:

“A plea is a defence and as such can be likened to a shield.  It is not a weapon or a sword.  No relief can attach to a party through a plea.  In the same plea the respondents averred that by separate process Shumba and his wife would approach the High Court for a declaration of invalidity of the two Zimbabwean agreements.  No such process was ever launched.” (Underlining for emphasis)

Although the above remarks were made in the context of a plea in action proceedings, they apply with equal persuasiveness to the circumstances of this case. One cannot conceive of an opposing affidavit as a weapon or a means of attack. Rather, it is a shield. It is a mode of defence to an attack. The arguments by the first respondent’s counsel regarding the validity of the agreements would have been apt in motivating a counterapplication for a declaration of invalidity of those agreements. The arguments become ill-conceived in the present matter for as long as no attempt was made to have the agreements declared null and void. That declaration of invalidity had to be initiated by the first respondent through a claim of its own against the applicant and the seller. It could not be achieved through the backdoor by riding on the applicant’s own claims to refute the validity of the agreements.

It was for the foregoing reasons that the court determined that the applicant had made a case for the granting of the declaratur.  The applicant is therefore entitled to the relief that he sought herein.

Costs

The applicant sought an order of costs on the punitive scale in the draft order. Nothing was said in the applicant’s oral submissions to further motivate an order of costs on the punitive scale. I found no justification to grant the order sought with costs on the punitive scale.

Resultantly, it is ordered that:

The application for a declaratory order is hereby granted.

The applicant is hereby declared the lawful holder of rights and interests in Stand Number 1650 Haydon Park, Sandton.

The attempt by the first and second respondents to repossess Stand Number 1650 Haydon Park, Sandton from the applicant is hereby declared unlawful.

The third respondent is hereby directed to register the applicant in its records as the lawful holder of rights and interests in Stand Number 1650 Haydon Park, Sandton.

The first respondent shall bear the applicant’s costs of suit on the ordinary scale.

Musithu J:……………………………………………………………………………………..

Zvavanoda Law Chambers, legal practitioners for the applicant

Warara & Associates, legal practitioners for the 1st respondent