James Sijabuliso Sibanda v Wilson Tendai Donzwa and Meron Matewere and Registrar of Deeds, Harare

### Preamble
1
HH 401-13
HC 14552/12
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JAMES SIJABULISO SIBANDA

versus

WILSON TENDAI DONZWA

and

MERON MATEWERE

and

REGISTRAR OF DEEDS, HARARE

HIGH COURT OF ZIMBABWE

MAFUSIRE J

HARARE, 10 September 2013 & 8 November 2013

Opposed application

N. Bvekwa, for the applicant

Mugume, for the respondents

MAFUSIRE J:  On the day of the hearing of this matter the parties opted not make any oral submissions. They proposed that I make a determination on the basis of the papers filed of record. I obliged. At any rate, the applicant’s answering affidavit and heads of argument, although having been issued earlier, were at that time still to find their way into the court record.

Initially, and in his founding papers, the applicant had made out a case for, and had claimed the nullification of the transfer from the first respondent (hereafter referred to as “Donzwa”) to the second respondent (hereafter referred to as “Matewere”) of a certain property in Bluffhill, Harare, (hereafter referred to as “the property”) which was at the centre of the dispute. He also claimed the reinstatement of his title deed and a punitive order of costs against Donzwa and Matewere.

Applicant’s case had been that in consideration of the help that Donzwa had rendered to him in the form of a loan of money to pay back a debt that applicant owed a certain financial institution, he had sold the property to Donzwa but that he had had the option to buy it back from him, albeit at a much higher price. Applicant was to exercise the buy-back option within the stipulated period. His case had been that without having paid him the loan money in full and in breach of trust, Donzwa had gone on, without applicant’s knowledge, to sell and transfer the property to Matewere who, he alleged, had been complicit in that arrangement.

However, following an emphatic rebuttal by both Donzwa and Matewere, the applicant recanted his original position, conceding in the answering affidavit and heads of argument that the matter having been overtaken by events he would not press for the cancellation of the sale and transfer of the property from Donzwa to Matewere. Instead he claimed that he was now praying “… for the maintenance of the status quo ante.” However, this status quo ante was not specified or explained.

Applicant’s claim lacked merit. It was a dog’s breakfast. This will emerge from the details below.

Part of applicant’s supporting papers to the founding affidavit was an agreement of sale (“the agreement of sale” or “the agreement”). It was signed by the applicant and Donzwa on 6 February 2012. In terms of it the applicant had sold the property to Donzwa for US110 000-00. Of that amount applicant had acknowledged in clause 2 (a) of the agreement that he had already received the sum of US$52 180-00. The balance of US$57 820-00 would be paid in two instalments: US$30 000-00 on the signing of the agreement and US$27 820-00 on or before 15 March 2012.

In his founding affidavit applicant claimed that contrary to what clause 2 (a) of the agreement stated,  in fact, he had not receive the amount of US$52 180-00 in full. Applicant’s debt to the financial institution had been US$40 600-00. He claimed that after he had helped him retire this debt Donzwa was then going to pay to him directly the sum of US$11 579-20 to make up the US$52 180-00. Therefore as to why he would then acknowledge receiving an amount which he had never received applicant had this to say:

“The statement that I received the US11 579-20 was actually made in good faith as he had promised that despite his failure to pay earlier, he would be paying this amount together with the initial deposit of USD$30 000-00.”

The agreement of sale contained the usual “entire contract” clause. This clause stated, among other things, that the agreement constituted the entire contract between the parties. Applicant said nothing about this clause. He made no attempt to reconcile it with his averments above. They were clearly in conflict with that clause. That was one of the major problems with applicant’s case. But this particular one pales into insignificance if consideration is had to what followed.

In an effort to show that Donzwa had not paid for the property in full applicant tabulated what he said were all the payments made by Donzwa in respect of the property. It seems common cause that in some instances Donzwa had paid in kind, namely in the form of maize deliveries. Applicant’s schedule of payments by Donzwa amounted to US$45 908.50. With US$40 600-00 having been paid directly to the financial institution, Donzwa was alleged to have paid only US$86 508-50, thus leaving a shortfall of US$23 490-70.

Applicant’s schedule of payments was not supported by any documents. In contrast, and in rebuttal of applicant’s claims, Donzwa tabulated his own schedule of payments. Except for the last, all of them were supported by some form of receipt. These were signed by the applicant himself or his agents. The absence of a receipt in respect of the last payment is immaterial. Applicant acknowledged that payment. Donzwa’s table of payments, excluding the amount of US$40 600-00 paid directly to the financial institution, amounted to US$61 395-50 (although the receipts themselves actually amounted to US$61 390-50, a minuscule and irrelevant difference of $5-00). Thus, he had overpaid.

What was remarkable about the two schedules was the degree to which they corresponded even though the applicant seemed to have got some of the dates wrong. In order to explain the difference in the totals, the applicant, in his answering affidavit, demonstrably resorted to nit picking. Incidentally this answering affidavit was filed almost two months after the respondents’ notice of opposition and almost a month after the respondents’ heads of argument.

In the answering affidavit applicant singled out four payments, including the last one which also appeared in his own schedule. He claimed not to have received those amounts. Of those four the one had been paid to ZIMRA apparently for the capital gains tax. Applicant’s criticism was that if it was him who had been transferring the property then it would not have been Donzwa’s business to have made that payment, but him!

The second payment singled out by the applicant had been one of those made via one of his agents. It had been signed for. Applicant’s criticism of this payment was that the agent’s signature on that particular payment was different from all the others and that the agent had denied receiving the payment anyway! There was no supporting affidavit from the agent.

Applicant’s criticism with regards to the third payment was that his full names were “James Sijabuliso Sibanda” and not “T. B. Sibanda” as had been written on the receipt, and that the person cited as having received that payment was unknown to him.

The last payment was criticised on the basis that Donzwa had not attached any supporting voucher. Yet from his own schedule the applicant had acknowledged that payment.

On the issue of the apparent conflict between those payments alleged by the Donzwa and those alleged by the applicant I had no hesitation in accepting Donzwa’s schedule. It was more consonant with the probabilities. I did not think that there was any dispute of fact which would warrant the adoption of a robust approach to resolve it. The robust approach to dispute of facts in motion court proceedings was explained by GUBBAY JA, as he then was, in Zimbabwe Bonded Fibreglass (Pvt) Ltd v Peech 1987 (2) ZLR 338 (SC), at page 339 as follows:

“It is, I think, well established that in motion proceedings a court should endeavour to resolve the dispute raised in affidavits without the hearing of evidence. It must take a robust and common sense approach and not an over fastidious one; always provided that it is convinced that there is no real possibility of any resolution doing an injustice to the other party concerned. Consequently there is a heavy onus upon an applicant seeking relief in motion proceedings, without the calling of evidence, where there is a bona fide and not merely an illusory dispute of fact. See Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3)] SA 1155 (T) at 1165; Soffiantini v Mould 1956 (4)] SA 150 (E) 154; Joosab & Ors v Shah1972 (1) RLR 137G at 138G – H; Lalla v Spafford NO &Ors1973 (2) RLR 241; Masukusa v National Foods Ltd & Anor 1983 (1) ZLR 232 (HC)” (my emphasis).

In motion court proceedings where real disputes of facts emerge, relief can be granted if the facts stated by the applicant together with the admitted facts in the respondent’s affidavit justify such an order. In the case of Plascon-Evans Paints Ltd v Van Riebeck Paints (Pty) Ltd 1984 (3) SA 623 (A) CORBETT JA stated as follows at pages 634H – 635B of the judgment:

“It is correct that, where in proceedings on notice of motion disputes of fact have arisen on the affidavits, a final order ………… may be granted if those facts averred in the applicant’s affidavits which have been admitted by the respondent, together with the facts alleged by the respondent, justify such an order.”

Plascon-Evans’s case was followed by the Supreme Court in Savanhu v Marere NO & Ors 2009 (1) ZLR 320 (S) above. At page 324D – E MALABA DCJ said:

“The appellant chose to proceed by way of court application to claim the order of specific performance against the first respondent. As the proceedings were by way of a court application and there were disputes of fact, the final relief could only have been granted if the facts stated by the first respondent together with the admitted facts in the appellant’s affidavit justified such an order: Plascon-Evans Paints Ltd v Van Riebeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634H – 635B”

In the present case the striking similarities in the payments alleged by Donzwa and those admitted by the applicant, in my view, support the conclusion that Donzwa had discharged his payment obligations in accordance with the agreement of sale.

The lack of merit of the applicant’s case did not end with the issue of payments. As stated before, the agreement of sale had a buy-back option in favour of the applicant. Applicant had to exercise the option within three months from the 15 March 2012. He had not. In the application he claimed that he would have wanted to exercise the option but that because Donzwa had not paid him in full he had failed to!

Applicant was demonstrably ill-advised. Clause 7 of the agreement gave the innocent party the right to inter alia call for the party in breach to purge his breach within a stipulated period of time or else face cancellation of the agreement. Applicant had not invoked this clause. In the application he said he would now take steps to give such notice and enforce his rights. To me this application was classically a charade. And there was more.

Applicant stated in his founding papers that he had come to know about the fact that Donzwa had sold and transferred the property to Matewere only in December 2012 when he had received an application by Matewere in the magistrate’s court claiming arrear rentals for the applicant’s occupation of the property. That was clearly a lie. On 1 October 2012 applicant acknowledged having received a letter from a firm of estate agents called Ten Yards Real Estate. The letter, addressed to the applicant, had read as follows:

“RE: NOTICE TO VACATE NO. 1 WILLOW CLOSE, BLUFFHILL

This letter serves to inform you that the owner of the above mentioned property has now found a buyer as you are aware that he was selling. We are therefore giving you [three] 3 months to vacate the premises on or before 31 December 2012. You shall be paying your monthly rentals of $600,00 to Ten Yards Real Estate by the last day of the month. Kindly attach proof of payment of water and electricity bills.”

Furthermore, and curiously, applicant also acknowledged having earlier on received another letter dated 8 August 2012 from Donzwa’s legal practitioners. In that letter applicant had been informed that Donzwa had instructed that applicant should start paying rentals for the property; that although he should have started to pay such rentals several months earlier Donzwa had indulged him but would now expect him to start paying from 1 September 2012 at US$600 per month, plus municipal bills, and that if he was agreeable he had to confirm by 20 August 2012 failing which it would be assumed that he intended to vacate the premises.

In his founding affidavit applicant said he had ignored both letters; the October letter for the reason that to him it was no more than a follow up on the rent issue that had been raised in the August letter; and the August letter for the reason that Donzwa had himself not fulfilled his part of the agreement of sale.

Whatever his reasons for not responding to those letters, the fact remains that applicant had since been informed that the property had been sold and transferred and that he was required to pay rent or quit. But again it does not end there.

Applicant’s claim that he had ignored both letters was another patent lie. He had in fact responded to the August letter. That had been on 15 August 2012. He had written to respondents’ legal practitioners as follows:

“Re: Rentals for 1070 Bluff Hill

Thank you for your letter dated 8 August 2012.

As per our agreement, I can confirm the arrangement I had with Mr. W. Donzwa. Please expect our payments in line with your letter. I would also like to thank you and Mr. W. Donzwa for your indulgence and hope that this relationship will continue.”

I have failed to understand why the applicant was manifestly abusing the court process by mounting such an ill-conceived application. Quite apart from anything said above it turned out that the transfer of the property from Donzwa to Matewere had been done with his active facilitation. Among other things, he had personally attended at the offices of the Zimbabwe Revenue Authority (“ZIMRA”) for the mandatory interview which is the prelude to the issuing by ZIMRA of the capital gains clearance certificate that is one of the mandatory documents required for the registration of transfer in the deeds office. Donzwa expressly stated in his opposing affidavit that applicant had personally attended at the ZIMRA offices. Applicant said nothing about it in the answering affidavit.

In the circumstances I dismiss the application with costs.

Both Donzwa and Matewere asked for costs against the applicant on a legal practitioner and client scale. Matewere pointed out that the applicant was staying at the property rent-free. He felt that the application was a ploy to prolong that situation. I am satisfied that this is a matter deserving of an award of costs on the higher scale. It still puzzles me why the applicant persisted with an answering affidavit and even heads of argument after the respondents had made out such an unassailable case in their opposing papers.

The award of costs is a matter wholly within the discretion of the court; see Graham v Odendaal 1972 (2) SA 611 (AD). Where the costs are incurred unnecessarily the court can order the party responsible to pay them. In Fripp v Gibbon & Company 1913 AD 354 DE VILLIERS CJ stated at p 363:

“To me it seems more in accordance with the principles of equity and justice that costs incurred in the course of litigation which judged by the event or events, proved to have been unnecessarily or ineffectively incurred should, as a rule, be borne by the party responsible for such costs.”

The court has an inherent power to make an order in an appropriate case that the losing party should pay the winning party’s costs on an attorney and client scale; see Nel v Waterberg Landbouwers Ko-operatieve Vereeniging 1946 AD 597, at p 604.

The reason for an award of costs on an attorney and client scale is that there may be special considerations arising from the circumstances which gave rise to the action or from the conduct of the losing party that may justify a court awarding such a special order of costs so as to ensure more effectually that the successful party will not be out of pocket in respect of the expenses of the litigation. In Nel’s case above, TINDALL JA, in a passage at p 607 which was adopted by REYNOLDS J in Mudzimu v Municipality of Chinhoyi & Anor 1986 (1) ZLR 12 (HC), at pp 16 – 17, put it as follows:

“The true explanation of awards of attorney and client costs not expressly authorised by Statute seems to be that, by reason of special considerations arising either from the circumstances which give rise to the action or from the conduct of the losing party, the court in a particular case considers it just, by means of such an order, to ensure more effectually than it can do by means of a judgment for party and party costs that the successful party will not be out of pocket in respect of the expense caused to him by the litigation.”

In the present case the applicant deliberately tried to mislead the court. For reasons known to him he neglected to exercise the buy-back option but tried to blame it on his benefactor, Donzwa. He had in fact been overpaid but claimed an underpayment. He had been made aware of the sale of the property to Matewere and had facilitated the transfer. However, he feigned ignorance of the whole transaction. Donzwa had expressly engaged him regarding rental payments for his continued occupation of the property. He claimed he had ignored the letters. But he had not. He had expressly and unequivocally undertaken to start paying rent. There is credence in Matewere’s averments that the application was an attempt by the applicant for him to continue occupying the property free of rent. That is an abuse of the court. Such conduct justifies a penal order of costs.

The application is dismissed with costs on an attorney and client scale.

Bvekwa Legal Practice, legal practitioners for the applicant

Mufadza & Associates, legal practitioners for the respondents