Dingani Lovemore Pambuka v Debra Gwati and The Registrar of Deeds N.O and David Njabulo Pambuka

### Preamble
1
HH 366 - 25
HCH 3829/24
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DINGANI LOVEMORE PAMBUKA

versus

DEBRA GWATI

and

THE REGISTRAR OF DEEDS N.O

and

DAVID NJABULO PAMBUKA

HIGH COURT OF ZIMBABWE

MUNGWARI J

HARARE; 28 May & 19 June 2025

Opposed Application

G Madzoke for the applicant

T K Hove for the 1st and 3rd respondents

No appearance for the 2nd respondent

MUNGWARI J:

Introduction

The applicant and the first respondent are divorced. They were previously married in terms of the laws of Zimbabwe. Their marriage was terminated by order of this court on 28 July 2006. The third respondent is their son. At the time of the divorce he was still a minor. He has since attained majority status and has through an order of this court been joined to these proceedings. The second respondent is cited in his official capacity as the authority responsible for registration, deregistration, endorsements of Deed of Transfers and mortgage bonds and monitoring the Deeds registry in Zimbabwe.

Background Facts

During the subsistence of their marriage the applicant and the first respondent acquired immovable property which included a certain piece of land called Stand 274 Quinnington Township 11 of Lot DC Quinnington, measuring 4242 square metres and held under Deed of Transfer Registration Number 2370/84. The property was registered in the applicant’s name. Prior to formalising their divorce and for reasons unknown to this Court, the first respondent caused the second respondent to register a caveat under Registration Number 36/2004 by order of court. I can only speculate that the reason might have been to secure the property pending the finalisation of the divorce because the property had been listed as matrimonial property in the divorce matter. On 30 January 2004, the second respondent registered the said caveat. The provisional order interdicted any disposal or transfer of the property pending the resolution of the matrimonial dispute between the parties. The marriage was subsequently dissolved by this court per Bhunu J, (as he then was), under case HC 4824/05. The court’s order directed as follows:

“IT IS ORDERED: BY CONSENT:

That a decree of divorce be, and is hereby, granted.

That stand 274 Quinnington Borrowdale be sold on the open market and to the best advantage of the parties through Knight Frank and Rutley.

a) That Plaintiff shall be entitled to 50% of the proceeds from the sale of stand 274 Quinnington, Borrowdale.

b) i. That Defendant shall be entitled to 30% of the proceeds from the sale of stand 274 	Quinnington, Borrowdale.

ii. The Defendant shall have the right of occupation of stand 274 Quinnington until 	December 2006

c. That 20% of the proceeds be deposited in the Guardian Fund by the estate agent for 	the benefit of the minor child David.

That the parties shall have the option to buy each other out with the Defendant having the first option to be exercised within one month of the price being determined.

In the event that trust funds are exhausted the question of maintenance for the minor child David Njabulo, shall be determined by the maintenance court in the event of a dispute arising between the parties.

That in the interim the Plaintiff shall pay maintenance to the Defendant for the minor child David at the rate of $7 million per month until stand 274 Quinnington is sold and the monies deposited in the Guardian Fund in terms of Clause 3(c) of this order.

The Plaintiff shall have the Dining Room suite and the Defendant the remainder of all the movables.

Thus, done and signed at Harare on this 28th day of July 2006.”

The parties did not comply with the specifications of the divorce order. The respondent did not vacate the property in question as instructed but remained on the property. Up to this day, she still resides at the property in question. The property was not sold and needless to state, no deposit was ever made into the Guardian’s Fund for the benefit of the minor child because there were no proceeds from the sale of the house.

In 2010, about four years after the granting of the decree of divorce and the ancillary relief, the first respondent tried to sell the house. In doing so, she did not utilise the agents specified in the divorce order. Instead, she unilaterally chose Stohill Properties (Stohill) and instructed them to sell the property on the family’s behalf. In pursuit of the mandate they had been favoured with, Stohill valuated the property and pegged the selling price at around USD$160 000. Stohill held on to the mandate and the first respondent never revoked Stohill’s mandate to sell the property. In 2023, Stohill acting on the instructions of the applicant managed to find a purchaser for the property for USD$350 000.

Applicant’s Case

The applicant alleges that, in pursuance of the conclusion of the sale, the purchaser deposited the agreed purchase price into the applicant’s legal practitioners’ account. The first respondent was informed and instructed to collect her share of the proceeds of the sale but she refused. Her claim was that the applicant had breached a court order that only allowed him to sell the property with the consent of the first respondent.  Furthermore, she said an injustice was occasioned by the sale as the property was sold at a low price and to her prejudice.

The applicant’s legal practitioners wrote to the second respondent requesting for the upliftment of the caveat as according to the applicant it was no longer serving its purpose. The second respondent asked for upliftment fees which were duly paid on 18 July 2024. However, the second respondent did not uplift the caveat but instead requested for proof of consent from the second respondent. Dissatisfied, the applicant has approached this court seeking for an order on the following terms:

“It is ordered that:

An application for the upliftment of caveat be and is hereby granted.

The second respondent be and is hereby ordered to uplift the Caveat No. 36/2004 within 14 days of granting this order.

The respondents shall pay costs of suit on an attorney client scale if they oppose this application.”

The applicant’s argument is that the order of the High Court on 16 January 2004 under HC 100/04 was a provisional order in favour of the first respondent, prohibiting the second respondent from, "transferring or encumbering in any way property number 5 Waxbill Way, Borrowdale Harare" registered in the applicant's name pending the finalisation of the matrimonial dispute between the parties. By that order any transaction involving the property was "ordered stayed forthwith pending the resolution of a matrimonial dispute" between the applicant and first respondent. In line with the dictates of the provisional order, on 30 January 2005, the second respondent registered a caveat against the title deed to the property.

The provisional order in HC 100/04 was subsequently confirmed on 19 May 2004. In effect, the confirmed relief interdicted the second respondent from registering any interest in the property without the written consent of the first respondent.

On 28 July 2006, the High Court, under case number 4824/05, issued an order for divorce in the suit between the applicant and the first respondent. The court directed the property to be sold on the open market to the best advantage of the parties. The proceeds were to be shared in stated ratios among the applicant, the first respondent, and a minor child of their union who is the third respondent.

In 2010 the first respondent appointed Stohill Properties to sell the property. The property was sold to a purchaser identified by the first respondent's appointed agent. The purchase price was duly paid and is ready for distribution per the terms of the court order in HC 4824/05. Despite the sale of the property, the second respondent has refused to the transfer the property citing the absence of consent from the first respondent.

The applicant further argues that the second respondent’s request for consent is misplaced and defies logic because the matrimonial dispute was resolved when the High Court granted the parties the decree of divorce and directed that the house be sold.  As a result, there is no requirement for the first respondent’s consent. According to the applicant, the divorce order is extant and by disregarding it, the second respondent is on a frolic of his own in demanding the written consent of the first respondent.

First and Third Respondent’s Case

The third respondent’s case hinges on the first respondent’s. In turn, the first respondent objected to the upliftment and stated that she was not consulted on the sale of the property. She submitted that the purchase price was below that which she expected. She submitted valuation reports obtained after the sale of the property. The valuation reports supported her contentions that the property might have attracted a sale in the sum of USD400 000 rather than the USD350 000 that the property was sold for and according to her this would have been the best market value of the property and to the best advantage of everyone concerned.

She further submitted that the caveat should remain in place and in doing so relied on the order of this court per Hungwe J dated 19 May 2004. The order states as follows:

“IT IS ORDERED

“That the provisional order granted on the 16th January 2004 by this Honourable Court be and is hereby confirmed.”

TERMS OF THE ORDER MADE

That you show cause to this Honourable Court why a final order should not be made in the following terms:-

The Registrar of Deeds be and is hereby interdicted and restrained from registering any interest on the immovable property known as No.5 Waxbill Way, Borrowdale held under Deed of Transfer 2370/84 without the written consent of DEBRA JATISAI PAMBUKA (NEE GWATI) the Applicant herein.

That there be no order as to costs if the confirmation of the order is not opposed.

AMENDED INTERIM RELIEF GRANTED

IT IS ORDERED: BY DEFAULT OF THE FIRST REPONDENT

That pending the confirmation of the Provisional Order herein, the Registrar of Deeds be and is hereby interdicted from transferring or encumbering in any way Property No.5 Waxbill Way, Borrowdale, Harare held under Deed of Transfer No. 2370784 forthwith.

That if any transactions have taken place, or are in progress, that these be and are hereby ordered stayed forthwith pending the resolution of the matrimonial dispute between the Applicant and the first Respondent.

SERVICE OF THE ORDER

The Applicant's Legal Practitioners be and are hereby given leave to serve this order on all the Respondents.”

Second Respondent

The second respondent was in default of appearance and did not file any opposing papers. This development meant that the applicant on one hand and the first and third respondents on the other remained as the main protagonists.

Preliminary Issues and Objections

I was not spared the ritual of commencing almost every application with the raising of objections in limine. The first respondent argued that the applicant failed to comply with court rules in not serving the first respondent with heads of argument. Through her counsel, she also argued that there is material dispute of facts in the matter and as a result it ought not to have proceeded by way of application proceedings. Lastly, that in not first consulting the first respondent prior to and during the sale, the applicant had approached this court with dirty hands and now wanted to sanitise the illegality.

The court invited submissions from both parties on the preliminary issues raised.

Failure To Comply With Court Rules

The first respondent insisted that the applicants did not comply with the rules in particular Rule 59 sub rule 20 of the High Court Rules, 2021, which makes it mandatory that heads of argument should have been served on the other party. According to the first respondent, the unexplained failure by the applicant to serve their answering affidavit as well as the heads of argument was a clear disobedience of the rules and the court should show its displeasure by dismissing the case for failure to comply with the rules. The applicant on the other hand stated that while there was no proof of service availed there was no prejudice that had been occasioned on the part of the first respondent. As a result, so he argued, there was no basis for upholding of the point in limine.

Subrule (19) of Rule 59 of the High Court Rules, 2021, provides for the filing of heads of argument. That rule states that once the heads have been filed a copy shall be delivered to the other party. A perusal of the record shows that the heads of argument were indeed filed. The record before the court however does not have proof of service, an indication that they may not have been served. The question therefore is, what are the consequences, if any, of that non-compliance?

The principle is that where there has been a failure to comply with the rules that failure will invalidate a step taken if it results in prejudice to the other party. See the case of Infralink Private limited vs Sheriff of Zimbabwe N.O. & 2 Ors, HH 01/19 p.3 where Chitakunye J (as he then was) cited with approval the dicta in Uitenhage Municipality v Uys 1974 (3) SA 800 (E) at 805D-F wherein the learned judge stated that:

“The principle has repeatedly been laid down in our courts that the Court is entitled to overlook, in proper cases, any irregularity in procedure which does not work any substantial prejudice to the other side (see The Civil Practice of the Superior Courts in South Africa 2 ed by Herbstein and van Winsen at 356 and the authorities there cited.) In Trans-African Insurance Co. Ltd v Maluleka 1956 (2) SA 273(A) at 278 Schreiner Ja says:

“.. technical objections to less than perfect procedural steps should not be permitted, in the absence of prejudice, to interfere with the expeditious and, if possible, inexpensive decision of cases on their real merits.”

In the above matter the court went on to state that the raising of objections is not proscribed but that what is important is that they are not just raised for the sake of it. Instead, the party taking the objection must show that he/she/it was prejudiced by the irregularity complained of. In this case, the respondents did not only fail to demonstrate the prejudice that they suffered but also did not even allege prejudice as a result of the applicant’s failure to serve them with the heads of argument. In fact, the reality is that the heads of argument were filed with the registrar of this court and uploaded onto the Integrated Electronic Case Management System (IECMS). The court takes judicial notice of the notorious fact that once that happened, the heads became available to the respondents on the IECMS platform.  To prove that it was so, the respondents’ heads of argument address some of the issues raised in the applicant’s heads of arguments. The point in limine is therefore without merit and must fall.

Material Dispute of Facts

Counsel for the first respondent argued that the matter revolves around the proper value of the property. He submitted that at all times the first respondent had always believed that a price of USD$500 000 is the fair value of the property.  The applicant well knowing first respondent’s position had in 2023 unilaterally sold the property for USD$350 000.

I asked counsel if he was addressing me on the correct matter considering that the respondent had in 2010 requested Stohill, her appointed agents to evaluate the property and the Estate Agent had pegged the value at USD$160 000. I drew counsel’s attention to annexure “D” on page 17 of the consolidated application where Stohill wrote a letter to the Master of the High Court informing him that they had valuated the property at a selling price of USD$160 000. Counsel made an about turn and rephrased his statement. He then said that at all times the first respondent had always believed that a price of USD$500 000 would be a fair value. He submitted that such variance in what first respondent believed to be a fair price and what the applicant unilaterally sold the property for constitutes a variance which can be termed as a dispute of fact. For this reason, counsel submitted that where a dispute of fact is reasonably foreseeable the proper procedure is to proceed by way of action. As a result, so he argued, there is need for the court to hear oral evidence showing how applicant arrived at the figure of USD$350 000. The applicant on the other hand dispute the allegation that there are material disputes of fact.

In explaining what constitutes a material dispute of fact, Makarau J (as she then was) stated, in the case of Supa Plant Investments (Pvt) Limited v Edgar Chidavaenzi HH 92/09 at p 4 that:

“A material dispute of fact arises when such material facts put by the applicant are disputed and traversed by the respondent in such a manner as to leave the court with no ready answer to the dispute between the parties in the absence of further evidence.”

When determining the presence or otherwise of material disputes of fact there are safeguards and guiding principles which the courts have designed. It is not therefore the mere claim that there is a dispute of fact which will hamstring a court from determining an application on the papers.  The central issue is whether or not there indeed is a dispute of fact whose determination is necessary for the disposition of the issues before the court. See Da Mata v Otto N.O, 1972 (3) SA 858 (A).  Where such is, the court is usually dissuaded from determining the matter without calling oral evidence. In such instances it is inadvisable to reach a determination on the basis of probabilities which appear from affidavits contradicting each other.  The respondent’s affidavit must clearly demonstrate bona fide material disputes fact which can only be resolved through the leading of oral testimonies.

In this case, the respondents’’ argument is that the disputed issue is the value of the property. But if regard is had to the papers before me, the value of the property is not the subject matter of this application. There is a valuation which was done for the master in 2010 which fixes the value of the property at USD$160 000. The property was again valuated in 2023, for USD$350 000. The present application is for the upliftment of a caveat placed on the property pending the determination of the matrimonial dispute between the parties. The caveat was not placed on the property in perpetuity. I will return to deal with the specifications regarding the property in issue as stated in the order of this court at the time that the decree of divorce was granted.

I may also add that, Tembani Gomo, a lawyer who was acting for the first respondent, at the time the property was sold, authored correspondence after the sale in which he acknowledged that the property had been sold by Stohill agent. That letter was copied to Stohill Properties, an agent which had been appointed by the first respondent. As shown in annexure “D” Stohill clearly indicated that they had been given the mandate to sell the property by the first respondent. It was them who accepted the offer from the purchaser resulting in the property being sold for USD$350 000, a sum that was more than double the actual market value which the same agent had originally placed on the property. So, even if it had been critical for the determination of this matter, the question of values could not have stood in the way of the resolution of this matter. In the end, there are clearly no material disputes of fact which can prevent this court from determining the application on the papers.

Dirty Hands

The first respondent submitted that the applicant approached the court with dirty hands because he ignored an extant court order which required that he submits the first respondent’s written consent to the Registrar of Deeds before the property could be disposed of. He had sold the property without first obtaining such written consent and that constitutes dirty hands. According to the counsel for the first respondent, what makes this worse is the fact that the applicant ignored the divorce order which says property is to be sold to the parties’ best advantage. The property was however not sold to the best advantage and in addition, it was sold without the consent of the first respondent. Owing to those two reasons the applicant should not have a right of audience before this court.

The applicant stated that he had not breached any court order because the divorce order instructed that the property must be sold. That sale cannot give rise to dirty hands.

In the court’s view, what is apparent is that the order which the first respondent seeks to rely on appointed Knight Frank and Rutley as the agents to handle the sale. The first respondent defied that court order by appointing a different agent. In his desire to have the matter closed, the applicant did not take issue with that appointment. His wish was simply that the agent would sell the property in terms of the divorce order. True to that, the property was sold through the first respondent’s own agent. The legal principle that, he who does something through another does so himself is relevant. Using that legal principle, the applicant is correct to argue that it was actually the first respondent who disposed of the property. She however could not sign the agreement of sale because her name does not appear on the tittle deed. For that reason, the applicant signed because his name appears on the title deed. There is therefore no contempt that can arise from that.

In addition, the question of whether or not the applicant required the consent of the first respondent to sell the property is the essence of the very dispute that is before this court. For the above reasons, the issue of dirty hands cannot arise. The point in limine is therefore without merit and must accordingly fail.

The Dispute

The only issue that arises for determination is whether the second respondent should be ordered to uplift the caveat that he noted against the title deed to the applicant's property, Stand 274 Quinnington Township 11 of Lot DC Quinnington, (number 5 Waxbill Way, Borrowdale) Harare, at the instance of the first respondent.

The applicant submits that there is no legal justification for the continuance of the caveat that was placed against the property by the second respondent over twenty years ago.  He contends that the second respondent's refusal to uplift the caveat is wrongful and illegal. On the other hand, the first and third respondents contend that the existence of the caveat is justified and the sale of the property should only be made with the first respondent’s consent.

The Law

Clearly in this case, the applicant seeks a mandamus or mandatory interdict. In its raw sense, the mandatory interdict is a judicial remedy which forces a respondent to do certain specified acts which he/she/it is required at law to perform. In the case of CRG Quarries (Pvt) Ltd versus The Provincial Mining Director Mashonaland East Province N.O and Others HH 700/20, this court cited with approval, Professor G. Feltoe, A Guide to Administrative and Local Government Law in Zimbabwe, 2007, who defined a mandamus as follows:

“This remedy can be used to require an administrative authority to perform a mandatory statutory duty imposed upon it that it is wrongly refusing to perform, or to require the authority to correct the effects of its unlawful administrative action.”

The mandatory interdict is commonly used by litigants who seek to force government departments, administrative bodies or their agents to do or to refrain from doing particular acts which they are obligated by law to do or not to do. The requirements of a mandatory interdict are essentially similar to those of a prohibitory interdict. The famous case of Setlogelo v Setlogelo 1914 AD 221 defines those requirements to be the following:

a clear or definite right

that the respondent has a duty to perform the act requested

absence of similar protection by other ordinary remedy

An applicant must demonstrate that the respondent has refused or neglected to fulfil the duty which he/she/it has in terms of the law and that there is no other way by which the applicant can redress the issue. As such an applicant seeking a mandamus must show that he/she has exhausted other available and alternative remedies before seeking protection via the mandamus. It is so, because of the extra ordinary nature of the remedy of a mandamus.

An applicant such as in this case must demonstrate that he/she has previously tried to have the respondent perform the duty which he/she needs him to carry out.  It must appear from the pleadings that a request was made to the respondent for the performance of the duty and that the respondent has refused to do so.

In this case, in seeking to establish a definite right the applicant made it clear to the court that he is the registered owner of the property in question. In fact, it is not disputed that he holds title to the property.  That ownership gives the applicant absolute rights to the property, which rights are enforceable. He can enforce them in compliance with the court order which awarded rights to the first respondent and to some extent the third respondent. He therefor clearly satisfies the first requirement for the mandamus.

That the second respondent, as the registrar of deeds, has a duty to place or remove caveats placed on immovable properties is not debatable. He therefore bears the obligation to remove the caveat sought to be impugned by the applicant.  The caveat which was placed on the property was on the strength of the order that was issued by this court on 16 January 2004. That order simply directed the Registrar of Deeds not to allow the applicant or anyone else for that matter to transfer or encumber the property in dispute without the written consent of the first respondent. But that bar was not placed in perpetuity. It was only operational during the pendency of the applicant and the first respondent’s matrimonial dispute in the High Court. It could not have been intended to operate ad infinitum. In the case of Stenhope Investments (Pvt) Ltd and Anor v Blessing Mukoko, HH 132/18 p. 5, the Court stated that,

“A caveator does not have to show that the other party is about to dispose of the property. The applicant has to show that he has a matter pending that concerns the property. The moment that the pending matter is determined, the caveat lapses by operation of law. The caveat cannot continue in perpetuity. The interest claimed by the caveator may be challenged by the owner of the property. It is the duty of the court to determine the validity and correctness of the application for a caveat.”

On the date that this court settled the matrimonial dispute between the parties and granted them a decree of divorce, the order of 16 January 2004 ceased to operate.   It meant that if the applicant wished to transfer or encumber the property in one way or another, the requirement that the second respondent needed the written consent of the first respondent fell off. Instead, the disposal of the property became regulated by the terms of the order which granted the parties their divorce.

In terms of that order as recited in the earlier paragraphs of this judgment, there was no stipulation that the written consent of the first respondent was required for the transfer of the property. The written consent was required if the property were to be transferred before the conclusion of the divorce claim. After that, the parties were bound by the order granted at divorce which stated that stand 274 Quinnington Borrowdale was to be sold on the open market and to the best advantage of the parties through the agency of Knight Frank and Rutley. My reading of that clause of the order is that it does not even include the aspect of the valuation of the property. Where that is required, the courts usually make it an express term of the order. But the order did not also preclude the parties from having their property valued by professional valuers. In fact, it could have been the only way to determine the market value of the property especially given that the court had stipulated its sale on the open market. Further, the parties’ shares from the proceeds of the sale were predetermined by the court order. The plaintiff was entitled to 50%, the defendant 30% with the remaining 20% being earmarked for the maintenance of the minor child of their union. In addition, the defendant was given the right of occupation of the house. The usufruct would last until December 2006. Almost two decades later, she is still staying in the house in complete violation of the court order. The 20% which was supposed to be deposited into the guardian’s fund for the benefit of the then minor child was not so deposited.

The fact that the applicant and the first respondent do not agree on the value of the property does not give the second respondent’s office the power to keep on the property, a caveat which fell off by operation of law. The applicant and the first respondent could sell the property for a song and the second respondent will still be obligated to transfer it to anybody who purchases it. If the respondent wishes to contest the value at which the price was sold, she must do so through other means and not to arm-twist the second respondent into arrogating himself powers that he does not have. The second respondent is relying on a court order whose effect long expired.  The divorce proceedings were concluded on 28 July 2006, with the Court ordering the sale of the property in question to the best advantage of the applicant and the first respondent. The property was sold as required by the Court order. It was sold for more than the US$160,000.00 value indicated by the first respondent's own appointed agent, Stohill Properties.

Like I have already indicated, nothing turns on the valuations produced by the first respondent because those were concluded after the property had already been sold. At any rate, the valuations do not represent the actual amounts obtainable for the property. They remain estimates. At times it is important when couples divorce for both of them to accept the reality of their divorce and the consequences it comes with. For the first respondent to imagine that she is going to hold on to a property whose sale a court directed twenty years ago, may be wishful thinking. In any case, it is not as if the first respondent did not have options. She had numerous. In terms of the court order, she could have simply bought out the applicant. She chose not to despite her claim that the house could be sold for more than USD$350 000. The irresistible inference is that the first respondent simply does not want to let go of the house. Second, if she did not agree with the valuation of USD$350 000 she ought to have taken the necessary steps of seeking the setting aside of the sale of the property. All that she stated was that she wished to contest the sale but as it stands that sale remains valid until it is set aside. It can only be given effect to by ordering the removal of the caveat.

Availability of other remedies

There is no other remedy which can adequately vindicate the applicants’ rights other than a mandamus.  Herbstein & van Winsen, The Civil Practice of the High Courts of South Africa 5 ed, pp 1467-1468 articulates this principle:

“The question of the absence of an alternative remedy must be understood in the context of the remedy envisaged by law.  For it to qualify as an alternative remedy, it must:

be adequate, having regard to the circumstances of the matter;

be ordinary and reasonable;

be a legal remedy;

grant similar protection.”

In casu there is none. The second respondent is unrelenting and is bent on uplifting the caveat only when he receives the written consent of the first respondent. The demands of the matter therefore call for action in the form and stature of a mandamus. I am therefore satisfied that the applicant has made out a case for the relief he seeks.

Costs

The applicant proposed in his draft order that the respondents be ordered to pay costs on an attorney client scale if they oppose the application. “Respondents” refers to all the three respondents. The second respondent however cannot be judged with the same yardstick as the other two. He did not file any opposing papers which showed that he had no interest in the substantive dispute. Furthermore, he was cited in his official capacity and in not filing any opposing papers opted to be bound by the decision of this court. He cannot therefore be visited with costs, more so on a higher scale.

The first and third respondents filed their opposing papers. Their opposition to the application was intended to defend their rights as they saw fit. There was nothing blatantly unreasonable about it. If the court were to grant the applicant’s request for costs on attorney and client scale it would make it appear like the courts are bent on punishing everyone who chooses to defend an action against them. In the absence of any other justification, the court will take the usual approach to costs, that is that costs follow the cause.

Disposition

Accordingly, the application is granted on the following terms:

The application for upliftment of a caveat be and is hereby granted.

The second respondent be and is hereby ordered to uplift caveat no 36/2004 placed on Deed of Transfer No. 2370/84 relating to Stand 274 Quinnington Township 11 of Lot DC Quinnington, measuring 4242 square metres within 14 days of this order.

The first and third respondents shall pay the applicant’s costs of suit

Mungwari J: ………………………………………….

Mataka legal Practise, applicants’ legal practitioners

T K Hove and Partners, first and third respondents’ legal practitioners