Chenjerai Travolta Jana v Takunda Gungurukwa

### Preamble
HH 75/05
HC 10760/03
CHENJERAI TRAVOLTA JANA
versus
TAKUNDA GUNGURUKWA
---------


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CHENJERAI TRAVOLTA JANA
versus
TAKUNDA GUNGURUKWA
and
ADSA REAL ESTATE (PVT) LTD
and
ASSETFIN (PVT) LTD

HIGH COURT OF ZIMBABWE
KAMOCHA J
HARARE, 3 and 4 MAY 2005 and 7 September 2005

Opposed Court Application

Mr Mushuma, for the applicant
Mr C. Phiri, for the 1st and 2nd respondents
Mr Nyapadi, for the 3rd respondent

KAMOCHA J: At the hearing of this matter the applicant raised three points in limine against the 1st and 2nd respondents and moved that they should remain barred and judgment be granted in his favour against them as prayed.

The first issue was that the 2nd respondent filed its opposing papers out of time and was automatically barred. It should have applied for the upliftment of the bar but it did not. It was served with the court application on 16 December 2003 by the Deputy Sheriff. The dies induciae expired on 5 January 2004. The 2nd respondent only filed its notice of opposition on 21 January 2004 after it had already been barred. The bar is still operational and the 2nd respondent made no application to have it uplifted.

Secondly the applicant submitted that the 1st respondent's opposing papers are not properly before this court. The first respondent is Takundwa Gungurukwa. The opposing affidavit was deposed to by one A. Kasi on behalf of the 1st respondent. A Kasi merely stated that he was authorised to swear to the affidavit on behalf of the 1st respondent yet there was nothing to show that he indeed had been authorised to do so. The 1st respondent ought to have deposed to an affidavit wherein he would have deposed to an affidavit wherein he would have confirmed the issue of authority, verifying the averments made on his behalf and stating that he was bound by Kasi's affidavit. The applicant then submitted that the absence of such an affidavit from the 1st respondent was a fatal irregularity whose net effect was that there was no opposition by the 1st respondent. There is merit in the applicant's submission.

The 1st respondent offered no explanation for the failure to do so. The court makes a finding that there is no opposition from the 1st respondent.

The third issue was that the 1st and 2nd respondents filed their heads way out of time and were barred. They were served with applicants heads on 14 May 2004 but they only filed theirs on 16 December 2004. The respondents should have filed their heads of arguments within 10 days as stipulated by rule 238 (2a) but it took them seven months to do so. In terms of rule 238(2b) they are barred and this court shall proceed to deal with the matter on the merits.

**MERITS**

Applicant admits in the papers filed of record that he was allegedly defrauded by the 1st and second respondents only. He accepted that they were the ones who received the amount of $5.8 million and holding onto it until this day. It is also accepted the 3rd respondent derived no benefit from the alleged fraud.

Mr Mushuma appearing for the applicant conceded that the 3rd respondent should not have been cited at all and the application in respect of him should be dismissed. He, however, did not concede to costs being on a punitive scale- I am inclined to agree with him. This was not a deliberate attempt by the applicant to prejudice the 3rd respondent. What should not be lost sight of is that applicant was dealing with alleged trickisters. 3rd respondent admits that annexure 'C' is a fraud- Despite the fact that there was no agreement of sale between 1st and 3rd respondent the 1st respondent was insisting that 3rd respondent sold him the property. It however has turned out that 3rd respondent did not sell him the property. The 3rd respondent did not help the situation by being silent until court proceedings were instituted.

In my view this is not a proper case for awarding costs on an attorney client scale.

In the result I would dismiss the application against 3rd respondent with costs on a party and party scale.


The applicant's claim against the 1st and 2nd respondent is for damages. It being alleged that the 2nd respondent gave out that it was selling certain immovable property known as Subdivision of Lot 2A Bluffhill-Harare on behalf of the 1st respondent for a sum of $5 800 000. The applicant expressed his intention to purchase the said property.

The parties signed the Agreement of Sale on 10 December 2002. The purchase price had infact been paid in full by the applicant the day before the agreement was signed. However, trouble started when applicant sought to have transfer registered into his name. After some correspondence between applicant's legal practitioners and those of the respondents, applicant concluded that he had been defrauded of his $5 800 000. He then decided to launch this application seeking specific performance. In the event that 1st respondent failed to perform he prayed that this court grant him an award of damages to be ascertained at the time of judgment. The order that he sought was couched thus:

"IT IS ORDERED THAT:
1. The 1st respondent be and is hereby ordered to transfer certain immovable property being a Subdivision of Lot 2A Bluffhill Township, Harare, commonly known as Stand No. 837, Bluffhill, Harare measuring 1 000 square metres, that is, to the applicant, within 10 days of his receipt of this order.

2. Alternatively, the agreement of sale entered into by the applicant and 1st respondent on the 10th of December 2002, be and is hereby cancelled, and the 1st, 2nd and 3rd respondents be and are hereby ordered to pay the applicants damages together with interest thereon at the prescribed rate from date of judgment to date of payment in full, that is, jointly and severally, the one paying the others to be absolved.

3. The damages referred to in paragraph 2 of this order shall be the sum equivalent to the open market-value of the property referred to in paragraph 1 of this order, that is, on the date when this order is granted.

4. The registrar, within 5 days of the expiration of the period specified in paragraph 1 of this order, appoint a registered Estate Agent to value the property referred to in paragraph 1 above."


5. The Estate Agent or Valuer so appointed shall, within one month of the date of his/her appointment, submit a valuation report of the property concerned to the parties and to the registered.

6. The 1st respondent shall pay the Estate Agent or Valuer's costs.

7. The 1st, 2nd and 3rd respondents shall pay the applicant in accordance with paragraph 2 of this order within 15 days of the date the valuation report is submitted to them, the value of the said property as determined by the Estate Agent or Valuer.

8. The 1st, 2nd and 3rd respondents shall pay the costs of this application on the legal practitioner and client scale, that is, jointly and severally, the one paying the others to be absolved."

The applicant later abandoned the prayer for specific performance but persist with that for damages. He, however, has two major difficulties;

First the relief sought by the applicant cannot be obtained by way of application procedure which is in appropriate for claims for damages. In the case of *Room Hire Co. (Pvt) Limited vs Jeppe Street Massions (Pvt) Limited* 1949 SA 1155(T) MURRAY AJP stated that there were certain classes of cases such as illiquid and claims for damages in which application proceedings are not permissible. ELORF J in *Atlas organic Fertilisers v Pikkewyn Chiwano* 1978 (4) SA (T) of 699 B held the opinion that motion proceedings were inappropriate for claims for damages;

This approach has been followed in this jurisdiction as well. See for instance *Masukusa v National Foods Limited & Another* 1983 (1) ZLR 232.

The second difficulty that applicant has is that he seeks damages which would be quantified at the time of the judgment. The damages would be equivalent to the prevailing value of the property at the time of the judgment. That is clearly untenable as damages are due from the time of the delict is perpetrated.

Further applicant sought to amend his prayer. That also is impermissible since he chose to proceed by way of a court application.

In the light of the foregoing I would dismiss this application with cost.


Hove, Lemani and Associates, applicant's legal practitioners

Messrs Magwaliba, Matutu & Kwiria, 1st and 2nd respondents' legal practitioners
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