Farai Nigel Chitsinde AND Nyasha Amanda Chitsinde (Represented BY Constance Tsitsi Chitsinde) V THE Minister OF Local Government AND Urban Development AND Oliver Chitsinde AND THE Master OF HIGH Court N.O

### Preamble
1
HH 175-13
HC 4873/12
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FARAI NIGEL CHITSINDE

and

NYASHA AMANDA CHITSINDE

Duly represented by

CONSTANCE TSITSI CHITSINDE (nee MATONISA)

versus

THE MINISTER OF LOCAL GOVERNMENT AND

URBAN DEVELOPMENT

and

OLIVER CHITSINDE

and

THE MASTER OF HIGH COURT N.O

HIGH COURT OF ZIMBABWE

MAWADZE J

HARARE, 28 May & 6 June 2013

Family Law Court

Opposed Application

A. Makoni, for the applicants

Ms T. Mashiri, for the 1st respondent

No appearance for 2nd respondent

No appearance for 3rd respondent

MAWADZE J:  This is an opposed application which I ultimately dealt with as an unopposed application for the reasons I shall herein later outline.

The applicants seek an order in the following terms:-

“IT IS ORDERED THAT:

The Agreement of Sale entered into between Oliver Chitsinde purportedly acting on behalf of the applicants and the Government of Zimbabwe on 21 July 2007 be and is hereby declared null and void (sic)

The first respondent and or the Government of Zimbabwe and all those calling through them shall forthwith vacate Lot 5 of GA Helensvale, failing which the Deputy Sheriff with the assistance of the Zimbabwe Republic Police where necessary, be authorised and directed to restore possession of the property to the applicants.

That the first and second respondents shall pay the costs of this application jointly and severally, the one paying the other to be absolved”.

The facts of the matter giving rise to this application are briefly as

follows:-

The first and second applicants are brothers born to the second respondent and Constance Tsistsi Chitsinde. The first respondent is cited in his official capacity and was acting for and on behalf of this Government of Zimbabwe. The third respondent is cited in the official capacity, more so as the second applicant is still a minor.

The first and second applicants are the owners of a certain piece of land known as Lot 5 of GA Helensvale measuring 2,4019 hectare (hereinafter the property). This property was transferred into the first applicant (born on 1 November 1993) and the second applicant (born on 26 August 1997 on 31 January 2001 under the Deed of Transfer Number 789/2001. The property even as at now is still registered in the names of the applicants. At the time the first and second applicant acquired this property they were minors. The first applicant only turned 18 years on 1 November 2011. The second applicant at 16 years of age is still a minor.

On 23 April 2004 the Government of Zimbabwe acting through the Minister of Home Affairs as represented by its Permanent Secretary published through the Zimbabwean Government Gazette General Notice No 2551/04, a notice in terms of s 5 of the Protected Places and Areas Act [Cap 11:12]. As per that notice a certain property in the Borrowdale area of Harare which includes Lot 5 of GA Helensvale (the property) was declared a protected area. The property, that is, Lot 5 of GA Helensvale is also known as No 17 Budleigh Close Borrowdale. According to the second respondent the Government of Zimbabwe intended to develop a Presidential Palace within the protected area.

On 21 July 2004 the Government of Zimbabwe acting through the first respondent represented by the Chief Government Valuation and Estates Officer entered into an agreement of sale of the property with the second respondent who purportedly represented the first and second applicants who are the owners of the property and were minors. The purchase price of the property as per the agreement of sale is expressed as Zimbabwean $800 million. In addition to this cash payment the Government of Zimbabwe also provided alternative land either in form of stand 791 Borrowdale measuring 8 acres or a commercial stand measuring about 5.5 acres. From the papers filed of record it is common cause that the full purchase price both in cash and in form of compensating land was paid by the Government of Zimbabwe. However despite the clear provisions in the agreement of sale that the Government of Zimbabwe was to take transfer soon after the payment of the purchase price, the property is still registered in the names of the first and second applicants. This so despite the fact that the agreement of sale was signed in 2004. No reasons are given as to why the Government of Zimbabwe through the first respondent has not taken transfer of the property. One can only assume that the dispute between the applicants and the first and second respondents has caused this delay. It would however appear from the papers filed that the Government of Zimbabwe was given vacant possession/occupation of this property despite the fact that the transfer has not been done.

The source of the dispute between the applicants and the first and second respondents can be summarised as follows:-

The applicants contend that the agreement of sale of the property entered between the first respondent representing the Government of Zimbabwe and the second respondent (who is their father and guardian) is null and void. The basis for this assertion is that the sale of the property involved disposal of immovable property belonging to minors. It is the applicants’ contention that in such a transaction it was incumbent upon the second respondent to comply with the provisions of the law which deals with the disposal of immovable property belonging to the minors. In specific terms the applicants submit that although the second applicant is their father and guardian he was obliged at law to obtain the consent of the Master of the High Court or the court before he could enter into the agreement of sale with the first respondent. The applicants contend that this obligation arises at common law and also in terms of the statutory provisions whose procedure is provided for in r 249 of this High Court Rules 1971. The applicants further submit that their interests were not taken into account when the property they own was purportedly sold as no curator ad litem was appointed. Consequently the applicants’ further submit that it is the second respondent who benefitted from the purported sale of this property as the applicants did not acquire any other immovable property or benefitted in any manner. It is on this basis that the applicants seek the sale of this property to be declared null and void and for the Government of Zimbabwe through the first respondent and all those calling through him to be evicted from the property.

The first and second respondents filed opposing affidavits. Both the first and second respondents do not seem to challenge the averments made by the applicants in relation to the non-compliance with the law in executing the agreement of sale. The first respondent contends that it acted in good faith, paid the purchase price of the property and did not know that the second respondent had not obtained the required authority nor followed the correct procedure in the disposal of the property. The second respondent’s argument is that he believed that the declaration made in terms of s 5 of the Protected Places and Areas Act [Cap 11:12] obliged him to sell the property and did not afford him the opportunity to follow whatever due process was necessary. The second respondent disputes that he did not act in the best interest of the applicants and that the applicants did not benefit from the disposal of the property.

I am constrained to deal with this application on its merits but to grant a default judgment because of what emerged at the time of the hearing of the application.

The applicants filed their heads of argument on 23 October 2012. Both the first and second respondents did not file their respective heads of argument as is required in terms of r 238(2) of the High Court Rules. However the second respondent may be absolved from this obligation as his erstwhile legal practitioners Kantor & Immerman renounced agency on 6 November 2012. In essence therefore the second respondent from that date to the date of hearing was a self-actor or unrepresented.

The first respondent did not file heads of argument even as at the date of hearing and consequently the first respondent was barred in terms of r 249(2)(b). Ms T. Mashiri who appeared for the first respondent on the date of hearing did not apply for the upliftment of the bar. In fact she indicated that she was constrained in making such an application because the first respondent had virtually nothing to say on the merits of the case in opposing the order sought.

The second respondent despite being duly served for the date of hearing on 24 May 2013 did not attended court on 28 May 2013 and was therefore in default. An order against the second defendant should therefore be granted.

In terms of r 239 the first respondent is barred and this court is enjoined to deal with this application as though it was unopposed since the bar was not lifted. All in all, I am in the circumstances obliged to grant a default judgment against the respondents. This principle can be discerned from the ratio decidendi in the cases of; Redstar Wholesalers v Mutomba 2005(1) ZLR 411(S) at 413H-414A; Zvinavashe v Ndlovu 2006(2) ZLR 372(S).

Lastly I would want to point out that at the commencement of the hearing of this application Mr A. Makoni for the applicants properly conceded that the second applicant was improperly before the court. The second applicant cannot competently be represented by Constance Tsitsi Chitsinde (the mother) who was not appointed to do so and when the second respondent the father is the guardian. The application by the second applicant was therefore struck out and the order granted in default only relates to the first applicant.

In the result it is ordered that:-

The Agreement of Sale entered into between the first respondent Oliver Chitsinde purportedly acting on behalf of the first applicant and the Government of Zimbabwe on 21 July 2004 be and is hereby declared null and void.

The first respondent and or the Government of Zimbabwe and all those calling through them shall forthwith vacate Lot 5 of Lot GA Helensvale, failing which the Sherriff of Zimbabwe, with the assistance of the Zimbabwe Republic Police, where necessary, be authorised and directed to restore vacant possession of the property to the first applicant.

The first and second respondents shall pay the costs of this application jointly and severally, the one paying the other absolved.

Mbidzo, Muchadehama & Makoni, applicants’ legal practitioners

Civil Division of the Attorney General’s Office, 1st respondent’s legal practitioners