Kufa John Madzima in his capacity as the Executor of the Estate of the Late Marimo Masawi Madzima v Karuwa and Associates Legal Practitioners and Rosemary Bastin and Milda Chiyangwa and Gladmon Real Estate

### Preamble
HH 221-12
HC
2120/07
KUFA JOHN MADZIMA in his capacity as THE EXECUTOR of the ESTATE of the LATE MARIMO MASAWI MADZIMA
---------


==============================KUFJ JOHN MADZIMA in his capacity as THE EXECUTOR of the ESTATE of the LATE MARIMO MASAWI MADZIMA
versus
KARUWA AND ASSOCIATES LEGAL PRACTITIONERS
and
ROSEMARY BASTIN
and
MILDA CHIYANGWA
and
GLADMON REAL ESTATE

HIGH COURT OF ZIMBABWE
HUNGWJE J
HARARE, 18th, 19th, 20th February, 2008 & 23 May 2012

CIVIL TRIAL

E Mvere, for the plaintiff
Zengwa, for first defendant
Ms J Wood, for second defendant
No appearance for third and fourth defendant

HUNGWJE J: Plaintiff issued summons claiming the following relief;

(a) That the agreement of sale be and is hereby cancelled.

(b) That second defendant be compelled to transfer stand number 3437, Highfield, Harare, to plaintiff within seven days from the date of this order failing which the deputy sheriff or his lawful assistant be authorized to sign all transfer documents on behalf of second defendant.


(c) That first and second defendants pay the costs of suit jointly and severally, the one paying the other to be absolved.

Plaintiff makes the following averments in support of his claim.

1. His father died in Marondera in 1985. At an edict meeting convened by the magistrate, Harare, he was appointed the heir in accordance with customary law.

2. His late father was the registered owner of stand number 3437, Highfield Township, Harare.

3. In 2001 plaintiff approached the first defendant and instructed the senior partner of that firm to transfer stand number 3437, Highfield Township, Harare, into his name.

4. First defendant failed to transfer the same into plaintiff’s name.

5. After first defendant failed to transfer the stand into plaintiff’s name, plaintiff requested first defendant to find a buyer for the stand on his behalf.

6. Upon finding a buyer, the agreement between the parties was that first defendant would advise plaintiff of the identity of a buyer and plaintiff would then negotiate the purchase price with that buyer. Only after plaintiff had agreed with the purchaser would be necessary documents to effect transfer into the name of the buyer be effected.

7. Notwithstanding these instructions, first defendant instructed the fourth defendant to sell the house without;

(a) advising plaintiff that he was appointing fourth defendant; or

(b) obtaining plaintiff’s agreement to the terms of the agreement of sale; or

(c) obtaining plaintiff’s signature of the agreement of sale; or

(d) obtaining the Power of Attorney from the plaintiff to sign the agreement of sale or to pass transfer.


8. First defendant compiled all transfer documents without the knowledge or consent of the plaintiff.

All in all plaintiff avers that the property was sold fraudulently by the first defendant to the second defendant. He therefore claims cancellation of the agreement of sale of the property.

First defendant vehemently denies plaintiff’s allegations of fraud and pleaded in the following terms.

First defendant claims that the sale was not in any way fraudulent as it was done pursuant to an agreement of sale concluded between plaintiff and second defendant. First defendant claims that plaintiff’s instructions were that first defendant was to secure an appraisal of the open market value of the property and, thereafter, sell the property. It averred that all that the plaintiff required was that he be kept constantly briefed on the developments. This was done and plaintiff would be called in to sign documents which required his signature. This was however not a precondition to any transaction as he would be busy at his farm most of the time. First the defendant claims that plaintiff agreed to both the appointment of fourth defendant and to the latter finding a buyer for the property. In this connection first defendant claims that plaintiff agreed with the value placed on the property by fourth defendant and was shown an evaluation done by fourth defendant.

On 27 September 2006 first defendant invited plaintiff to discuss the agreement of sale with first defendant’s employees. Although first defendant admits that plaintiff did not sign the agreement of sale, it avers that he was fully briefed about its terms and he ratified it. First defendant claims that plaintiff actually gave written instructions as to how the proceeds of the sale of the property were to be shared between him and his siblings. First defendant, in its plea, avers that plaintiff gave approval for the power of attorney to be signed by his younger brother in his absence. That power of Attorney went missing at the Deeds Registry office together with all the documentation relating to the transfer of the property in early December 2006. On 24 and 27 September 2006 plaintiff, his sister and his own younger brother attended a meeting at first defendant’s offices where the transfer of the property was discussed. In short, plaintiff was well aware of the sale and transfer of the property in favour of the second defendant after the sale of the property to the latter. First defendant therefore prayed for the dismissal of the action.

Second defendant pleaded as follows. The acquisition of the property was above board and she has since taken transfer. She disputes allegations of fraud. She however left first defendant to deal with the allegations as they are directed at first defendant. Since she has paid the full purchase price and taken transfer of the property innocently, she resists plaintiff’s claims on the basis that she is an innocent purchaser.

Third and fourth defendants did not file any papers and were barred at the pre-trial conference stage.

It seems to me that the main issue for determination in this matter is whether there was a contract of sale between the plaintiff, as owner of the immovable property which devolved to him in terms of customary law, and the second defendant. In order to decide whether a contract exists one looks first for the agreement by consent of two or more parties. There is a wealth of authority for regarding such agreement as the foundation of contract. (See Rose-Innes Diamont Mining Co Limited v Central Diamont Mining Co LTD (1883) 2 HCG 272 @308; Potgieter v New York Mutual Life Insurance Society (1900) 17 SC 67 @70; Joubert v Enslin 1910 AD 6 @33; Grennberg v Waschke 1911 WLD 1 @7; Woods v Walters 1921 AD 303 @309; R v Kramer 1948 (3) SA 48 (N) @ 52; Salisbury Municipal Employees Association v Salisbury City Council 1957 (2) SA 554 (SR) @ 557; Swart v Vosloo 1965 (1) SA 100 (A) @ 104; Nicolau v Navarone Investments (Pty) Ltd 1971 (3) SA 883 (W) @ 885H; Cinema City (Pty) Ltd v Morgenstern Family Estates (Pty) Ltd 1980 (1) SA 796 (A) 804D.)

Having said this, it must be immediately added that the concept of agreement by consent, or true agreement, or the meeting of the minds, or consensus ad idem is more of a philosophical than a legal concept. (RH Christie: The Law of Contract In South Africa, 2nd ed @ p21). When the question to be answered is whether an agreement by consent between two or more parties exists, what one is really looking for is not the unexpressed will of those parties but evidence of such agreement. Such evidence, or lack thereof, in the present case, must be ascertained from the evidence tendered by the parties during trial.

It is common cause that the first defendant entered into an agreement of sale with second defendant regarding the property, which property is part of a deceased estate. It is also common cause that by virtue of his appointment as heir to his late father’s estate, plaintiff inherited the property in question in his personal capacity. Plaintiff maintained throughout the trial that his instructions to first defendant were that first defendant secures transfer of the property into his own name. He intended to sell the property once the title deed in his name was available. It is common cause, too, that first defendant, through its principal partner, sold the property to second defendant. Second defendant did not know, at that time, of the defect in title held by the seller, first defendant. I say this for the following reasons. First defendant claims that plaintiff entered into an agreement of sale with second defendant. This is certainly not the case. The agreement of sale was entered into between “estate of the late Marimo Masawi Madzima represented by Karuwa and Associates” as seller, and second defendant represented by Evaristo Murombedzi, as purchaser. The seller was therefore not “Kufa John Madzima in his capacity as executor of the estate late Marimo Masawi Madzima.” The identity of the seller is of crucial importance in light of the fact that the property was, at the time, registered in the name of the late Marimo Masawi Madzima. In order for the property to be sold his consent or agreement, as owner, therefore seller, would have been a prerequisite to any intended sale. After his death, his successor in title would have stepped into his shoes and assumed the rights of ownership. He would, therefore be entitled to make a disposition of the property. The facts in *casu* show that plaintiff was duly appointed heir to his father’s estate in his personal capacity. Plaintiff therefore became the only person legally competent to pass ownership of stand 3437, Highfield Township, Harare.

**The Evidence**

The evidence led for the plaintiff demonstrated that between the 2001 and 2007 plaintiff had unsuccessfully waited for first defendant to deliver on his mandate to register the inherited property in his name. Plaintiff gave his evidence well. He was not shaken under cross-examination. He impressed the court as an honest witness. He was able to explain every detail of this case in a convincing manner. Clearly, he had not rehearsed his evidence to suit his case. The discrepancies in his evidence demonstrating the point I make. For instance, there is an apparent contradiction between his pleadings and his evidence in court. The impression created, in the pleadings, is that his instructions to his legal practitioners were that after he realized that first defendant had failed to deliver on the original mandate, he had instructed first defendant to sell the property on his behalf. Clearly, this is not what happened, according to the plaintiff. In his own words, the intention to sell was expressed in passing to his erstwhile legal practitioners after his siblings had sought to make a claim of their share to the deceased estate. The evidence shows that the plaintiff’s siblings had sought legal advice from Musunga & Associates. At that time plaintiff’s legal practitioners were the first defendant. Plaintiff had later ditched first defendant when he realized, on 20 April 2007, that first defendant had sold the property in question without his knowledge or consent. Plaintiff explained that the letter of 2006 in defendant’s bundle of documents is not indicative of any consent to the sale of the property by first defendant. In the end I am satisfied that plaintiff is a credible and honest witness.

On the other hand first defendant called five witnesses. All the evidence led for first defendant failed to discharge the onus upon first defendant show that, indeed it was authorized by the owner, to pass transfer on behalf of the owner of the property, nor did the evidence indicate that first defendant was duly authorized by the owner to sell the property.

The evidence led for first defendant was contradictory, lacked credibility and exhibited an unacceptable degree of dishonesty dealings by a legal practitioner on behalf of his client. I will recite a few examples to demonstrate the findings that I make.

First defendant’s case in the pleadings was that plaintiff entered into an agreement of sale with second defendant; that he had agreed to the appointment of fourth defendant for the purposes of fixing a fair value of the property in contemplation of its sale to second defendant; that he had discussed the terms of the agreement of sale with first defendant’s employees; that plaintiff ratified the actions of the first defendant leading to the sale of the property. Surprisingly, none of these issues were put to the plaintiff during cross-examination. When the first defendant’s employees, including Mr Karuwa, the senior partner and principal of first defendant, were quizzed on the manner in which the transfer to second defendant was carried out, which transfer was fraudulently executed, each blamed the other. In short, first defendant’s case was mutually destructive. As for the principal; first defendant must be seen for what he is. He engineered the fraudulent sale of the property to the unsuspecting second defendant’s representatives. After years of successfully evading the plaintiff over the issue of title deeds to the property, matters came to a head by sheer coincidence when, on 20 April 2007, second defendant’s representatives met with the plaintiff in first defendant’s offices.

According to second defendant’s the representative, upon sight of first defendant’s principal, Mr Karuwa, plaintiff immediately demanded his title deeds. It is important to note that at this stage, both plaintiff and second defendant’s representative were unaware of the ties that bound them in respect of the property.

If, as first defendant claimed, plaintiff had consented to the sale, why would he be demanding title deeds in April 2007? Why, if he knew of the sale, had no mention of the availability of the proceeds of sale been made to him upon the purchasers having paid it over? In any event, the first defendant failed to explain why all the documents - from the agreement of sale, the addendum, the consent to transfer as well as the declaration by seller, were never signed by plaintiff, if as it alleges, plaintiff was kept advised of the developments regarding the sale of the house. First defendant could not explain why it was necessary to sign on behalf of the seller, such a large number of documents, including the use of someone else’s ID number as the seller’s, when the seller was only a phone call away. The only conclusion that this court arrived at, on the facts before it, is that first defendant, through its principal, set upon a scheme to perpetrate a fraud upon the plaintiff, the Deeds a Registry, as well as the second defendant. Mr Karuwa, an experienced legal practitioner, failed to call or subpoena evidence regarding the loss of transfer documentation at the Deeds Registry office. The evidence suggests that no documents were lost because they did not exist. It is my finding that plaintiff never gave first defendant authority, written or verbal, express or implied, to sell his property. I also further find that plaintiff never signed any Power of Attorney regarding the sell or transfer of his immovable property. This explains why, for example, the sequence of transfer of title was not followed in this case. Property was transferred straight from the deceased’s name to the purchaser without first transferring into plaintiff’s name.

The Law

An owner’s right to dispose of his property – *ius disponendi* – means that voluntary disposition is unexceptional and, in practice, the usual means by which rights are terminated in one person and created in another one, a central feature to this every day institution, is that it is derivative, in the sense that ownership is transferred, and this presupposes co-operation between owner and acquirer. (See D Carey Miller (1986): The Acquisition and Protection of Ownership).

Derivative acquisition is a wider concept which includes ownership acquired by universal or particular means. Universal means applies in the case of general acquisition of any estate or part thereof, by a particular means is referred to acquisition of a single thing on number things. The distinction is important because it identifies fundamentally different ways in which ownership may be acquired. (Miller: 1986) For example, upon marrying in community of property, spouses acquire *ipso jure* an undivided of share in the joint estate and acquisition, although derivative, is not dependent upon any act of will or co-operation.


Under customary law, succession is another instance of derivative acquisition on the universal basis in that, on acceptance the heir becomes owner without any act of delivery. The modern general law in Zimbabwe has evolved over time and, in the process, has abandoned the system of universal succession in favour of one of the executorship. This explains why, in spite of the application of customary law of succession, where immovable property is involved, the effect of such succession is followed by the appointment of an executor after the registration of the act of acquisition of the immovable property. In the case of immovable property therefore, derivative acquisition is by registration. A feature of derivative acquisition is that it operates on the basis of an act of will by the transferor, who must be the owner or someone duly authorized to act on behalf of the owner. This is expressed in the maxim *nemo pluis iuris ad alium transfere potest quam ipse habet* (no-one can transfer any greater right than he himself possesses) and *nemo dat quod non habet* (no-one can give what he himself does not have). See *Silberberg and Schoeman: The Law of Property* (2nd ed) @ pp 72-73.

Transfer or delivery effected by a person who is not the owner or who is not authorized by express mandate to, or authorized to, act for the owner is ineffectual to pass ownership to the transferee. See *Maasdorp, Institutes of South African Law Vol II: The Law of Property* (2nd ed) @ p62.

The Decision

First defendant admits that the papers relating to the agreement of sell reflect someone other than the plaintiff but claims that first defendant had obtained plaintiff’s authority to execute the agreement in its form. I did not believe the first defendant’s claim. The conclusion therefore is that the agreement of sale does not tell the truth about itself. The owner did not authorize the sale of his property. Therefore, the seller was not duly or properly authorized to sell what was purportedly sold to the second defendant. The party to the sale of any immovable property must be in a position to pass ownership. *In casu*, first defendant was not the owner of the property nor was it duly authorised by the owner to pass transfer. As the seller was not duly authorized to sell, it could not pass transfer. In the sale of immovable property, the parties must intend the passing of ownership or be in a position to pass ownership. *In casu*, although it could be argued that first defendant intended to pass ownership into second defendant’s name pursuant to the agreement of sale, however, without authorization by the owner, for the juristic act of passing transfer, there can be no basis for such an argument. I make this observation on the basis that first defendant knew, or must have known, that it cannot pass ownership. This knowledge of lack of capacity can be inferred from the fraudulent misrepresentation masterminded by Mr Karuwa, on behalf of first defendant, which included doctoring all the documents necessary to pass transfer, which documents were then uttered to the officers at the Deeds Registry office resulting in the existence of a deed of transfer of title from the deceased to the second defendant. This fraudulent act goes to the root of the agreement of sale between first defendant and second defendant. It vitiates the transaction. As such, no transfer of title is effected by virtue of this fraud. First defendant had no title, therefore, it could not give what it did not have. The owner of the property is entitled to vindicate his title against any other person notwithstanding that an innocent purchaser may have been led to believe that they have acquired a real right in such property. Unfortunately for second defendant, hard as it may seem, she received no title as a result of the fraud. That is not to say, however, that second defendant has no remedy at law. She believed, innocently, that a legal practitioner was acting in her best interest throughout. The fact is, he did not. Karuwa knew, or ought to have known, that he could not get away with this fraud. Despite his spirited denial of any wrongdoing, he is at the centre of this unfortunate series of events. He should face the consequences as second defendant must look to him for a remedy.

In the result, the plaintiff must succeed in his vindicatory action against the defendants.

**Costs**

As appointed out above the real cause for this litigation is first defendant which failed to discharge its duties in terms of its mandate, to both plaintiff and second defendant. It should bear all the costs.

**Order**

In the result I make the following order.

1. The agreement of sale of stand number 3437 Highfield Township, Harare, be and is hereby cancelled.
 2. Second defendant be and is hereby compelled to make transfer of stand number 3437 Highfield Township, Harare, in favour of the plaintiff within seven days of the date of this order.

3. In the event of that second defendant fails or neglects to comply with paragraph two above, then in that event, the deputy sheriff or his lawful assistant be and is hereby authorised to say all the documents necessary to pass transfer of title in respect of stained number 3437 Highfield, Harare, in favour of the plaintiff.

4. First defendant is to pay plaintiffs costs on the legal practitioner and client scale.

A copy of this judgment is to be served on the Law Society of Zimbabwe.

Musunga & Associates, plaintiff’s legal practitioners
Karuwa & Associates, 1st defendant’s legal practitioners
Byron Venturas & Partners, 2nd defendant’s legal practitioners
--- END OCR FALLBACK ---