Phili Gladys Sibongile v Gweru Investments (Pvt) Ltd and The Registrar of Deeds N.O.

HH 75-11
                                                                             HC 5403/10
PHILI GLADYS SIBONGILE
versus
GWERU INVESTMENTS (PVT) LTD
(herein represented by FRANK BUYANGA)
and
THE REGISTRAR OF DEEDS N.O.


HIGH COURT OF ZIMBABWE
MUTEMA J
HARARE, 2 and 23 February 2011


Opposed Application


Mr Muzvuzvu, for the applicant (amicus auriae)
Mr Mupindu, for the first respondent


       MUTEMA J:         The applicant’s legal practitioners have noted an appeal against
the order granted on 23 February, 2011 dismissing her application. They have requested
for the reasons for the dismissal of the application. These are they. The applicant was
initially a self-actor. She appeared in person on 2 February 2011 and applied for the
postponement of the matter to enable her to secure legal representation. I duly granted
her the indulgence which she had sought and postponed the hearing to 23 February 2011.
       The gist of the dispute can be summarized as follows:-
The applicant is suing for an order to authorize her to place a caveat over her property
called 4713 Salisbury Township of Salisbury Lands held under deed no. 2911/09 also
known as No. 8 Oates Road, Braeside, Harare. She also wants the second respondent to
be ordered to register the caveat on the said property.
       Her story is that she borrowed US$12 000 from first respondent and so far she has
repaid US$8 000, leaving a balance of US$4 000. Unbeknown to her, first respondent
fraudulently effected transfer of her property into his name and has flighted two
advertisements in the Herald in a bid to resell the property. She avers that the loan
repayment instalments were done in cash at the first respondent’s office from October
2009 to January 2010 but no receipt or loan documents were issued.
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       First respondent’s story is that applicant sold her property to it as can be gleaned
from the agreement of sale signed by parties (annexure B to its opposing affidavit) for
$12 000 on 8 September 2009 and she was paid the purchase price in full. It challenged
the applicant to produce the alleged loan agreement as well as the alleged proof of
repayment of the alleged loan. Applicant is literate and she signed the agreement of sale,
the transfer documents, viz declaration by seller and power of attorney to pass transfer
into first respondent’s name.
       It alleges foul play between applicant and second respondent since the attached
unsigned deed of transfer made in favour of Edward Ndete (who purchased the same
property from first respondent for $18 000) reveals the following:-
   a) on 19 July, 2010 the deed was accepted and payment for stamp duty was made
       and there was no caveat in the file;
   b) the parent deed (certificate of registered title) was stamped transferred on 20 July,
       2010 and the name of the transferee is E. Ndete;
   c) a seal was put on the deed to E. Ndete a clear indication that there was no caveat;
   d) the deed was not returned and was said to be missing until 5 August, 2010 it was
       notified that there was a caveat placed on the property; and
   e) the caveat was never served on the first respondent and the deed in favour of
       E. Ndete was given back on 17 August, 2010 unsigned by the registrar.
       Following the postponement on 2 February 2011 Messrs Kanoti & Associates
assumed agency on applicant’s behalf and filed the notice of assumption of agency on 18
February 2011. On 22 February 2011 Kanoti & Associates filed applicant’s answering
affidavit and on 23 February 2011 – the date of hearing they filed papers amending first
respondent’s citation to read Gweru Investments Limited. No heads of argument were
filed resulting in her being barred.
     On 23 February 2011 Mr Muzvuzvu appeared for the applicant as amicus saying he
had been requested to do so by Mr Kanoti and to apply for a postponement.              Mr
Muzvuzvu stated that Mr Kanoti said he was indisposed. Mr Mupindu for the first
respondent opposed the postponement sought arguing that he had spoken to Mr Kanoti
that morning on the phone and he was not ill and was at work in his office. The Court
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saw it fit to bend backwards to accommodate Mr Kanoti whose conduct of not coming to
court himself and sending a legal practitioner from another firm to stand in for him while
he was holed up in his office it considered unprofessional. The matter was stood down
with the court directing Mr Muzvuzvu to go and tell Kanoti to appear in court on
resumption.
       Apparently both Mr Muzvuzvu and Mr Mupindu went to Mr Kanoti’s office but
came back to court without Mr Kanoti. They both advised that they saw Mr Kanoti at
work and relayed the court’s directive but he refused to come to court alleging that he
was ill though he was at work and that there had been verbal exchanges between Mr
Mupindi and Mr Kanoti.
       Mr Muzvuzvu again requested for a postponement of the matter but Mr Mupindu
again opposed it on the ground that he had seen Mr Kanoti and did not look ill at all and
was at work. He said he had been accommodating Mr Kanoti for the past days and Mr
Kanoti had even sent him a text message that morning asking him “not to oppose us”.
       The court considered Mr Kanoti as not taking it seriously and could not condone
such conduct by a legal practitioner who is summoned to come to court and he refuses to
comply. Since the postponement was declined for lack of merit and the applicant having
filed no Heads of argument, the Court treated the matter as unopposed and dismissed the
application with costs.




Kanoti & Associates, applicant’s legal practitioners
Mupindu Legal Practitioners, first respondent’s legal practitioners