Philippa ANN Coumbis Versus Theright Investments (Pvt) LTD AND Kunze Kwayedza Enterprises (Private) Limited AND THE Registrar OF Deeds N.O. AND Sheriff FOR Zimbabwe N.O.

### Preamble
1
HH 496-22
HC 2005/22
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PHILIPPA ANN COUMBIS

versus

THERIGHT INVESTMENTS (PVT) LTD

and

KUNZE KWAYEDZA ENTERPRISES (PRIVATE) LIMITED

and

THE REGISTRAR OF DEEDS N.O.

and

SHERIFF FOR ZIMBABWE N.O.

HIGH COURT OF ZIMBABWE

CHITAPI J

HARARE, 29 & 30 March and 20 July 2022

Urgent Chamber Application

M Ndlovu with SH Hashiti and B Maunze, for the applicant

W Chagwiza, for the 1st respondent

ER Samukange, for the 2nd respondent

No appearance by 3rd and 4th respondents’

CHITAPI J:  The applicant on 24 March 2022 filed an application number HC 2000/22.  She cited the same respondents therein as herein.  In application number HC 2000/22 the applicant prays for an order that Deed of Transfer Number 538/2021 registered in the name of the second respondent herein as therein should be cancelled and that the prior holding deed before its conveyance being Number 6176/2003 should be revived.  The usual prayer for costs is made against the respondents.

On the same date that HC 2000/22 was filed, the applicant filed this urgent application.  It is an application predicated upon case number HC 2000/22.  The applicant prays for an order that a caveat is registered on the property now held under Deed of Transfer Number 538/2021. The property is described as a certain piece of land situate in the District of Salisbury called Stand 9064 Salisbury Township of Salisbury Township Lands measuring 754 square metres. The applicant seeks that a caveat should be registered over the property in the interim. On the return date the applicant prays for an order that the first and second respondents and their agents, directors, employees, nominees or appointees be interdicted from disposing, pledging, hypothecating, mortgaging or otherwise encumbering the property pending the determination of case number HC 2000/22.

For completeness of record, the applicant filed a draft provisional order whose contents read as follows in the operative past:

“TERMS OF FINAL ORDER SOUGHT

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

1.	The 1st and 2nd respondents, their agents, directors, employees, nominee or 			appointees are interdicted from selling, pledging, alienating, hypothecating, 			mortgaging or in any way disposing of a certain piece of land situate in the District 		of Salisbury called Stand 9064 Salisbury Township of Salisbury Lands measuring 		754 square metres pending determination of the main application under HC 			2000/22.

2.	The 2nd respondent shall pay costs of suit on the higher scale of legal practitioner 			and client.

SERVICE OF PROVISIONAL ORDER

This provisional order shall be served upon the first and second respondents by applicant’s 	legal practitioners.”

When the application was set down before me on 29 March 2022, counsel for second and third respondents asked for and I granted them time to prepare and file the respondents opposing paper.  I gave a directive that the status quo in regard to the property should remain pending the determination of this application.  The respondents filed their notices of and opposing affidavits in which they opposed the granting of the relief sought.

The facts of the application are not in any serious dispute.  I outline that facts as follows.  The applicant is a divorcee.  She was, prior to her divorce married to one Ronald John Coumbis.  She averred that during the subsistence of their marriage, the two acquired various properties through acquisition vehicles created used for the purpose. One such property was the one in issue in casu. The applicant attached as annexure ‘A’ what she called the Deed of Transfer.  What is however attached is a copy of the first page of the alleged Deed of Transfer.  A Deed of Transfer has characters which identifies it.  Among other characters which I will not labour this judgment with, the Deed of Transfer must be attested to by the third respondent, the Registrar of Deeds.  To attach only the first page and call that page a Deed of Transfer is a misnomer.

The applicant averred that annexure ‘A’ was replaced by the current holding Deed of Transfer number 538/21 dated 10 March 2021 in the name of the second respondent.  Annexure ‘A’ is of no evidential value, were it contested.  It is important that an applicant who refers to an official document and purports to annex a copy of such document should acquaint with what constitutes or characterizes that document and ensure that the whole document as properly characterised or constituted is attached as annexure.  In casu, the respondents did not raise issue with the incomplete and therefore worthless annexures.  The applicant however is lucky in that the fact that the property was transferred from prior holding Deed Number 6176/2003 in the name of the first respondent and is now filed under Deed of Transfer Number 538/2021 in the name of the second respondent was common cause amongst the parties.

It is common cause that both the first and second respondents are duly incorporated and registered companies in accordance with the laws of Zimbabwe.  The applicant’s ex-husband is said to have been a shareholder in the first respondent.  He was however not a director.  The first respondent in the opposing affidavit attached as annexure ‘A’ thereto, a copy of the CR14 of the first respondent to evidence the names of its directors. The first respondent like the applicant only photocopied the back of the CR14 and called the annexure the CR14.  It clearly is not a copy of the CR14 because a document which has characteristics that constitute it must be copied and attached as such and where the law so requires, certified or notarized.  The purport of annexure ‘A’ was to show that the applicant’s ex-husband resigned as director of the first respondent on 31 March 2005.  The applicant did not raise issue with the so called CR14.  It was in any event not contested by the applicant that the applicant’s ex-husband was not a director of the first respondent as alleged.

In relation to numbering of annexures by the first and second respondents it is noted that they numbered their annexures as ‘A’, ‘B’ and so on in that order.  The applicant’s annexures were similarly numbered. This creates unnecessary confusion because of duplication of lettering. The respondents should either continue from the last letter in the annexures to the founding affidavit or use a different format of numbering. In this manner no confusion arises from having to go through or refer to different documents which have similar identification in terms of annexure indentation.

The comment on the indentation aside, it is common cause that the first respondent sold the property in issue to the second respondent by sale agreement a copy of which dated 18 December 2020 is attached to the second respondent’s opposing affidavit as annexure B. The property was conveyed to the second respondent by Deed of Transfer Number 538/21 on 10 march 2021.  The applicant contends that the Supreme Court by judgement SC 130/21 awarded her 80% of the shareholding of the first respondent.

The applicant specifically referred to paragraph 3.2 of the Supreme Court order which reads as follows:

“3.2.	The respondent shall transfer his 80 percent shareholding in the “The Right 			 	Investments (Pvt) Ltd to the plaintiff and sign all relevant documents to effect transfer of 			his shares to the plaintiff within 30 days of this order failing which the Sheriff be and is 			hereby authorized to sign such documents.”

The order is very clear and refers to transfer of the applicant’s husband’s shares in the named company.  The applicant did not allege that the husband did not transfer the 80% shareholding to her.  The Supreme Court delivered its decision on 21 October 2021.  The property had already been dealt with by the first respondent and sold to the second respondent and transfer was registered some seven to eight months before the decision rendered by the Supreme Court. The first respondent was not party to the Supreme Court decision.  There was no allegation that it was aware of the litigation concerning the property in question at the time of sale and subsequent transfer of the property to the second respondent.  For reasons not explained, the applicant did not join her ex-husband to the current application. The non-joinder in my view does not assist the applicant because the Supreme Court order which she relies upon directs that the husband should make a positive act.  He should sign over 80% of his shareholding in the first respondent to the applicant.  Whilst in terms of Rule 32(ii) it is the law that a joinder or non-joinder of a party is not a ground for dismissal of the claim, the rule also provides that the court may determine the dispute as far as it affects the rights and interests of the parties involved in the litigation.  It is appropriate in this case to determine the dispute as far as it affects the rights and interest of the parties to the application.

The applicant averred in the founding affidavit that the first respondent “undercut the Supreme Court of Zimbabwe when it disposed of the property when proceedings were pending before it” It is however, not averred that the first respondent was party to the litigation.  It certainly was not party if reference is made to the parties in SC 130/21.  The Supreme Court on p 32 of the cyclostyled judgement stated that the applicant “must be awarded shares of property holding companies in respect of which the respondent’s shareholding is on record”.  In the disposition or order made, the award granted to the applicant was an 80% shareholding in the first respondent and an order that the applicants’ husband who is not party to this application should sign the transfer of shares to ensure the transfer of the said shares to the applicant.  No order was ever made against the first respondent to either perform any positive act or to refrain from doing any act in the ordinary operations of the first respondent as a distinct legal persona.

In the opposing affidavit the first respondent averred that albeit the applicants’ husband having been the majority shareholder, the first respondent remained a legal persona in its own right.  It operated under the auspices of its board of directors of which the applicants’ husband was not a director. The first respondent still exists. It averred that it was not party to the divorce proceedings which culminated in the Supreme Court judgement No SC 130/21 and had no knowledge of the divorce proceedings in question.  The first respondent averred that the disposal of the property in issue was done before the first respondent became aware of the divorce proceedings.  It averred that the sale of the property to the second respondent was an arm’s length transaction entered into independently of the divorce proceedings to which the parties to the sale were not privy.  The first respondent averred that the applicant could still seek appropriate remedy from her husband should she establish her entitlement thereto consequent on the sale of the house.  The first respondent averred that the real rights passed by it, to the second respondent by virtue of the Deed of Transfer being registered could not be cancelled nor transfer reversed without legal justification and that none was established.

The second respondent averred that it is an innocent purchaser.  It submitted that it has no relationship with the applicants’ husband.  Further, it averred that the Supreme Court judgement was delivered in October, 2021 after the property in question had already been sold to the second respondent by the first respondent, the sale having taken place on 18 December, 2020.  The second respondent averred that the applicant did not have a valid cause of action against both itself and the first respondent since her cause of action arose from or by virtue of the Supreme Court judgement.  The judgement, so submitted the second respondent, did not have retrospective effect and could not be construed as invalidating the sale of the property. The second respondent submitted that the applicant did not cause the noting of a caveat against the property so as to stay its transfer pending the litigation between the applicant and her husband.  The second respondent averred that it carried out a due diligence on the property and did not find any encumbrance on the property save for a 2010 mortgage bond passed in favour of the defunct Kingdom Bank. The same was cancelled on transfer.  The second respondent submitted further that in any event, the Supreme Court had granted the applicant 80% of the shareholding of her husband in the first respondent which was not the same as an apportionment of a share in the immovable property owned by the husband.  It was also the second respondents’ averment that the first respondent received fair value for the property because the Zimbabwe Revenue Authority which assessed the capital gains tax for purposes of transfer agreed that the purchase price was fair value. The second respondent averred that there was no valid legal cause to interdict it from lawfully dealing with its property as it wished.

In relation to the law applicable in this application, r 60(a) of the Court Rule provides as follows:

“(9) Where in an application for a provisional order. The judge is satisfied that the papers establish a prima facie case he or she shall grant a provisional order either in terms of the draft filed or as varied”

Whether or not a prima facie right has been established by the applicant on his or her papers is an evidential matter.  In other words, in the context of an urgent application for a provisional order the applicant must allege facts which if not controverted would establish a case for the grant of the main relief sought.  See Ethel Tsatse Mpezeni v Zimbabwe Electroral Commission and 12 Ors HH 475/18.

The applicant in the main relief seeks an interim interdict that the first and second respondents should not by its agents, directors, employees, nominees or appointees, sell, pledge alienate, hypothecate, mortgage or in any way dispose of the property in dispute herein. In the interim relief the applicant prays for an order that the third respondent should register a caveat over the property upon service of the provisional order. The provisional order sought is a bit curious because the final order which the applicant has put up is in fact an interim order which is intended which to temporarily hold if granted, until a pending application no. HC 2000/22 has been determined.  I do not make any findings on the propriety of the order sought because the issue did not arise for argument, and secondly, the determination which I make is not informed by the propriety of the wording of the provisional order.

The interim relied sought is again in the nature of a final order.  The applicant prays that a caveat is registered by the third respondent,

“a piece of land situate in the district of Salisbury called stand 9064 Salisbury Township of 	Salisbury Township Lands measuring 754 square metres immediately upon service of the 	provisional order on him.”

A caveat constitutes an impediment that limits the manner in which a specified property may be dealt with.  The caveat is noted against the title deed of the property concerned which deed may be in form of a deed of grant, deed of transfer or other deed conferring title to land or a real right on land and s 2 of the Deeds Registries Regulations S I 236/2018 provides the definition of a deed of title.  It follows that the prayer by the applicant for registration of a caveat interdict over the piece of land is incompetent. Even applying simple grammar, it is not possible to make a registration over a piece of land.  The registration is made over another document.  The placement of the caveat results in the 3rd respondent not permitting the transfer of the property on which the caveat is noted until the caveat is uplifted.

The caveat sough in this matter notwithstanding the applicant’s counsel’s ineptitude in drawing up the provisional order is an interim one.  What the applicant simply seeks from the court is that a caveat is registered against documents of title to the property in question pending the determination of case number HC 2000/22 wherein the applicant seeks the cancellation of the holding Deed of Transfer in the name of the second respondent.  If I were to grant the order sought, I would grant the order as varied.  The power of variation of a provisional order sought, is reposed in the Judge who determines the urgent application.

An interim interdict is granted upon the applicant satisfying certain factors or requirements.  Firstly, the right which anchors the main case which is sought to be protected should be prima facie established although open to some doubt. Secondly there should be a well-established apprehension of irreparable harm to the applicant if the interim interdict is not granted and the applicant succeeds in the main case. Thirdly the applicant must show that the balance of convenience favours the grant of the interim relief.  Fourthly, the applicant must show that there is no other satisfactory remedy available except the grant of the interim interdict.

In casu I am not satisfied that this is a proper case for the grant of the relief sought.  The papers in my view do not establish a prima facie case entitling the applicant to the relief sought.  It is clear that the property in relation to which the applicant seeks the cancellation of the Deed of Transfer in case number HC 2000/22 was conveyed from the first to the second respondent long before the Supreme Court judgment on which the applicant bases the relief sought was passed.  The transfer of the property was registered on 10 March 2021. The Supreme Court judgment was delivered on 21 October 2021.  Neither the first or second respondents were parties to the divorce case between the applicant and her husband who was a shareholder in the first respondent. The Supreme Court judgment did not have retrospective effect. The judgment did not grant the applicant any share of the immovable property in question but only an 80% shareholding of the husband in the first respondent. The argument that the first respondent’s only asset was the immovable property may be correct.  However, that fact would not assist the applicant because when the Supreme Court granted her the 80% shareholding aforesaid, the transaction between the first and second respondents had long been concluded.

The applicant in her wisdom or lack of it did not consider it necessary to cite or join her husband as a party to either this urgent application or main application HC 2000/22. The non-joinder makes it difficult for the court to appreciate the cause of action which informs the relief sought.  The applicant was granted a share of property (shares) held by the husband in the first respondent.  The husband would be expected to satisfy the Supreme Court judgment yet he is left as a spectator.  Under such circumstances there is no prima facie case established by the applicant against the first and second respondents. Had the applicant’s husband been a party to the application the argument could have been different because he is the one who was ordered to sign over his shares in the first respondent to the applicant. The first respondent has no legal relationship with the first and second respondents even upon an interpretation of the Supreme Court order.

In my view, once the applicant’s papers do not establish a prima facie case, then the urgent application stands to be dismissed.  There is no need to discuss other factors that must be satisfied before the relief of the nature sought herein may be granted. The first and second respondents prayed for the costs of this application if it is dismissed. The second respondent prayed for costs on the punitive scale of attorney and client.  I am not persuaded that the scale of costs sought is justified. The applicant may have perhaps through wrong legal advice embarked on this application in the manner it was crafted. The applicant cannot be said to have abused the legal process in seeking to enforce the Supreme Court judgment albeit wrongly. Costs will be granted on the ordinary scale.

Accordingly, I determine the application as follows:

The applicant having failed to establish a prima facie case on her papers for the grant of the provisional order, the application be and is hereby dismissed with costs.

The interim order issued on 29 March 2022 for the parties to maintain the status quo in regard to the property pending the determination of this application is hereby discharged.

Mawere & Sibanda, applicant’s legal practitioners

Kwenda & Chagwiza, first respondent’s legal practitioners

Samkange & Hugwe, second respondent’s legal practitioners