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Stephen Zingwe v Synodia Gwanzura (née Cheteni) and Petition Elton Gwanzura
HH 129-11HH 129-112011
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STEPHEN ZINGWE
versus
SYNODIA GWANZURA (nee CHETENI)
and
PETTION ELTON GWANZURA
HIGH COURT OF ZIMBABWE
KUDYA J
HARARE, 22, 23 and 24 November 2010
and 24 and 25 January and 2 February and 22 June 2011
Civil Trial
B Mugomeza, for the plaintiff
T Mawere, for the first defendant
Second defendant in person
KUDYA J: The plaintiff concluded an agreement of sale with the second
defendant on 20 January 2003 and took registered title of the immovable property, stand
number 2946 Gwelo Township of Gwelo Township Lands, also known as 40 Mcllwaine
Southdowns, Gweru, on 19 February 2003.
The first defendant, Mrs Gwanzura, is the former wife of the second defendant, Mr
Gwanzura. Their marriage of 19 years was dissolved by the High Court sitting at
Bulawayo on 23 July 2002 in case number HC 2877/98. The divorce order, inter alia,
apportioned the house between the defendants. The relevant part of the order reads:
“a) That the immovable property known as 40 Mcllwaine road Southdowns
Gweru shall be valued by CC Sales (Pvt) Ltd within a month from the date of
this order.
b) That after the valuation either party shall pay the other 50% of the valuation
fine (sic) of the property and whichever party shall pay the other first will
secure the property.
c) In the event that either party is not able to raise the half share will (sic) three
months from the date of valuations (sic) the property shall be sold by Trevor
Dollar Estate agents at the best advantage of the parties and the purchase price
shall be shared equally between the parties.
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d) In the event that the plaintiff has been paid his half share in terms of the
divorce order he shall sign the transfer of guardianship (sic) documents within
(sic) from the date of transfer failure (sic) which the Deputy Sheriff Gweru is
hereby authorised to sign the transfer papers to effect transfer of ownership of
40 Mcllwaine road, Southdowns, Gweru, to the defendant.”
The property was duly valued by CC Sales Ltd Gweru on 28 November 2002 at
ZW$8.4 million. The report gives a full description of the property. It, inter alia,
describes the swimming pool as non functional, badly cracked and in a bad state of repair.
The main bedroom, one other bedroom and the garage had structural cracks. Some
sections of the walls were damp and the roof leaked. In terms of the court order either
party had until 28 February 2003 to buy the other out failing which the house would be
sold to best advantage and the proceeds shared equally between the parties.
Mrs Gwanzura remained in occupation of the house with the children of the
marriage after Mr Gwanzura deserted them in 1997 and settled in Kwekwe with another
woman. She has been residing in the house ever since the divorce order was granted.
The plaintiff issued summons out of this court on 31 March 2003 seeking the
eviction of Mrs Gwanzura, holding over damages and costs of suit. He based his claim on
ownership. Mrs Gwanzura contested the claim and filed her plea and counterclaim on 16
April 2003. She averred that the plaintiff, with prior knowledge of her rights in the
immovable property, fraudulently and criminally connived with Mr Gwanzura to defeat
her of those rights. She prayed for the dismissal of the claim and for the cancellation of
the Deed of Transfer 373/03. On 19 May 2003, the plaintiff disputed the averments made
in the counterclaim.
Mr Gwanzura was joined in the matter with the consent of the parties on 28
January 2004 as the second defendant in reconvention. He filed his plea to the
counterclaim on 27 February 2004. He averred that he had fully abided by the terms of
the divorce order by buying out the defendant of her share in the immovable property
before disposing it to the plaintiff; and denied acting fraudulently, contemptuously or in
connivance with the plaintiff.
At the pre-trial conference of 23 June 2004, the following three issues were
referred to trial:
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1. Whether or not the plaintiff was aware that the property was the subject of a
matrimonial dispute.
2. Whether or not the agreement between the plaintiff and second defendant was
done fraudulently to defeat the court order under case 2877/98.
3. Whether the defendant is entitled to cancellation of title deeds.
The plaintiff testified on his own behalf and called the further evidence of his elder
brother Tawona Zingwe. In addition he produced exh 1, a 16 paged bundle of documents.
Mrs Gwanzura gave evidence on her own behalf and called the evidence of Mr Dzimba,
the senior partner of the Dzimba, Jaravaza and Associates, legal practitioners, who was
her legal practitioner of record during and after the divorce proceedings. In addition she
produced three bundles of exhibits that were marked as exh 2, 4 and 5. Mr Gwanzura also
testified on his own behalf and produced exh 3, a three paged copy of an agreement of
sale dated 11 July 2003 concluded between Mrs Gwanzura and Elizabeth Sithole
purportedly for the sale of the immovable property.
The plaintiff has lived in the Untied Kingdom for the past 11 years where he works
as a research development officer. He flew into the country on 6 December 2002. He
instructed Trevor Dollar Estate agents of Gweru to buy a property in the low density
suburbs of Gweru for him. He paid into their trust account ZW$15 million for that
purpose. He left the country for the United Kingdom on 3 January 2003 before a suitable
property had been found.
He mandated his late father Saul Zingwe to act on his behalf during his absence.
He was not personally present during the preliminary stages before the purchase of the
immovable property. He did not physically participate in the purchase and transfer of the
property to his name. He, however, received periodic progress reports over the telephone
from his father. He was, however, unable to describe the house he purchased. When his
father failed to receive vacant possession, he issued summons out of the Gweru
Magistrate’s court, on his behalf, on 5 November 2004 for the eviction of Mrs Gwanzura.
When default judgment for the cancellation of his title was entered against him on 24
October 2005, his father filed the founding affidavit for rescission on 23 February 2007.
He denied possessing prior knowledge of Mrs Gwanzura’s rights personally or through
his agents.
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The plaintiff’s father died after the closure of pleadings but before trial. He called
the evidence of his elder brother Tawona Zingwe to testify on the events that took place
on the day he accompanied his father to inspect the immovable property. Tawona stated
that they met Mr Gwanzura for the first time at Trevor Dollar Estate Agents on that day.
He could not recall when they went for the visit but estimated it to have been between 14
and 15 January 2003. Mr Gwanzura accompanied them to the property. At the gate he
observed that the house had a swimming pool and a cottage. They were met at the
entrance to the house by Mrs Gwanzura who took them into the lounge. He inspected the
house whilst seated in the lounge and noted that it had a big kitchen and three bedrooms.
He was impressed by the state of the lounge and excited at the prospect of finding a house
after a long search that he dispensed with the inspection of the three bedrooms. He stated
that his father did not inspect the house. They went away in the euphoria of finding a
suitable house after a long search. He was not present when the agreement of sale was
concluded. After taking transfer, Mrs Gwanzura refused to vacate. It was at that stage that
Chakanetsa and Partners, legal practitioners for Mr Gwanzura during the divorce
proceedings and sale and transfer of the property showed him and his father the divorce
order.
During cross examination, he disputed that Mrs Gwanzura informed them that the
house could not be sold because it was encumbered by a divorce order issued by the High
Court and refused them entrance into and inspection of the house. Although he disputed
it, the impression that I gathered from his responses under cross examination was that a
tense atmosphere prevailed at the immovable property on the day of inspection. He stated
that no introductions were done by Mr Gwanzura; that whilst they sat down on the sofas
Mrs Gwanzura remained standing and that no inspections were done. He confessed that
he neither saw nor inspected the kitchen but relied on the description he received from
Trevor Dollar Estate Agents. He revealed that he was unaware that the first room of entry
into the house from the verandah where he averred they were received by Mrs Gwanzura
was the dining room. He was also oblivious that they sat in a sunken lounge.
Tawona was not a credible witness. He gave contradictory evidence. He supplied a
false date of the inspection. The reasons he gave for failing to conduct an inspection were
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proved false by Mrs Gwanzura and unwittingly by Mr Gwanzura. His lack of knowledge
of the structure of the house from the verandah to the lounge demonstrated that he did not
enter the house. He was oblivious of the structural defects on the property that were noted
in the valuation report.
Mrs Gwanzura stated that her former husband came to the house for the first time
after his 1997 desertion on the day of inspection. It was on the morning of 5 January
2003. He was in the company of an old man and a young man who he did not identify
and who refused to identify themselves but who she later knew as Saul Zingwe and
Tawona Zingwe, respectively. She met them in the verandah. They wanted to inspect the
property on the instructions of Trevor Dollar Estate Agents. She alleged that she warned
the old man not to be deceived by Mr Gwanzura who under the terms of a High Court
divorce order could not dispose of the property before he had bought her out. Mr
Gwanzura shouted at her. He went away arguing with the two strangers. She immediately
contacted her legal practitioners who in turn dispatched letters to both Trevor Dollar
Estate agents and Mr Gwanzura’s legal practitioners Chakanetsa and Partners on 6
January 2003. The letters pointed out that the sale of the immovable property and
especially through Trevor Dollar Estate Agents was unlawful and premature as three
months had not yet elapsed from the date of evaluation. The letters were not responded
to.
Later, her legal practitioners informed her of the payment of ZW$4.2 million from
Chakanetsa and Partners of 20 January. The news prompted her to deposit an equivalent
amount with her legal practitioners on 22 January 2003 who on 28 January dispatched a
bank certified trust cheque in the same amount with a covering letter to Mr Gwanzura’s
legal practitioners. The letter and cheque were received at Chakanetsa and Partners on 30
January 2003. She did not know what became of the bank cheque after it was received by
Mr Gwanzura’s legal practitioners. The money was paid over in expectation that the
cheque deposited by Mr Gwanzura’s legal practitioners on 20 January would be
dishonored. As it turned out, that cheque was honoured by the drawee bank on 22
January.
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She produced exh 4. It consists of the declarations by the purchaser, the plaintiff
and seller, Mr Gwanzura and the power of attorney to make transfer by Mr Gwanzura.
They were all deposed to on 20 January 2003. The declarations were signed in Kwekwe
while the power of attorney to pass transfer was deposed to in Bulawayo. All the three
documents stated the purchase price of the immovable property as ZW$5 million. The
declarations provided the date of sale and purchase as 20 January 2003.
She convincingly demonstrated that exh 3, the purported agreement of sale of the
property by her to Elizabeth Sithole was forged. The first page originally bore the
description of an undeveloped property and the date stamp of her legal practitioners
Maputsenyika and Associates that appear on the other two pages. For what it is worth,
exh 3 was a red herring and was irrelevant to the present proceedings.
She filed an urgent chamber application on 25 February against the second
defendant, his lawyers and the Registrar of Deeds, which was served on 27 March 2003,
to stop transfer of the property in ignorance that transfer had already passed on 19
February 2003. She maintained that the transfer be cancelled for breach of a court order
averring that her legal practitioners accepted payment from Mr Gwanzura in good faith
without knowledge of the breach.
Mrs Gwanzura was a truthful witness. That the inspection took place on 5 January
as opposed to 14 or 15 January was confirmed by the letter written by her legal
practitioners on 6 January. Her version of the events of that day was confirmed by the
shortcomings in the testimony of Tawona and Mr Gwanzura. That she denied them entry
into the house was confirmed by Tawona’s failure to describe the house. Had he entered
the house he would have remembered its structural features such as the dining room and
sunken lounge. Unlike Tawona, Mr Gwanzura confirmed that he indicated to his former
wife that they were under instruction from Trevor Dollar Estate Agents to inspect the
house. Gwanzura testified that the atmosphere was pregnant with tension. He said his
former wife was shouting at him but he did not listen to what she was saying. Tawona
stated that the atmosphere was calm and serene. It would not accord with human
experience for Mrs Gwanzura to have kept quiet when she knew that the house was not
yet ripe for sale. When she stated that she advised Saul and Tawona Zingwe of the
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existence of a court order she must have been telling the truth. That the probabilities
favour her version is further demonstrated by the inclusion in the agreement of sale of
clause 1b to the effect that the balance of the purchase price would be paid after the
inspection of the house or transfer. I believed her testimony on the events of 5 January
2003.
Mr Peter Dzimba, her legal practitioner at the time, also confirmed her testimony.
He wrote the letters of 6 January addressed to Trevor Dollar and Mr Gwanzura’s legal
practitioners. He confirmed that on 20 January Mr Gwanzura paid the half share of the
immovable property that would entitle him to full ownership rights in the property. He
reluctantly conceded that the cheque was honored on 22 January. He wrongly believed
that the payment date would be the date on which the cheque was honoured as opposed to
the date of payment. That payment is deemed to have been made on the day of payment
is clear from the observations made in Sibbald v Dakota Motors 1956 (3) SA 307 (T) at
207; Colley v UDC Rhodesia Limited 1976 (1) SA 821 (RAD) at 825F-826A; and B & H
Engineering v First National Bank of SA Ltd 1995 (2) SA 279 (A) at 286B. He confirmed
the accuracy of the information in exh 5 that demonstrated that the money paid by Mr
Gwanzura was invested by him with Trust Bank and then Beverly Building Society on
the instructions of and for the account of Mrs Gwanzura to hedge against loss in the event
that her counterclaim failed. By 26 September 2005 it had grown to $16 824 954-90.
He stated that the bank certified cheque paid to Mr Gwanzura’s legal practitioners
was not returned. Despite the fact that the present case commenced in March 2003 and
his former client counterclaimed in April 2003, he failed to produce the invoice from Mr
Gwanzura’s legal practitioners, a copy of the cleared cheque or his own bank statements
indicating debit entries in his trust account.
Mr Gwanzura stated that he made payment for his former wife’s half share to his
legal practitioners on 2 January 2003 who advised him that he could thereafter sell the
immovable property. He instructed them to sell the property and they in turn instructed
Trevor Dollar Estate Agents to do so. On 14 January his legal practitioners contacted
him. Acting on the information they relayed, he went to Trevor Dollar Estate Agents on
15 January where he met his legal practitioner, the late Mr Mutandi, Saul Zingwe and his
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wife and son Tawona. He went with the two prospective buyers to the house. His former
wife led them into the lounge where they sat down. The prospective purchasers did not
inspect the house but left soon thereafter expressing satisfaction with what they had seen.
His legal practitioners wrote out the cheque to Dzimba, Jaravaza and Associates on 8
January but for reasons unknown to him they only delivered the cheque on 20 January.
While he failed to produce proof that he indeed paid in the money on 2 January, the
image of the cheque produced at the back of the bank statement dated 25 January 2003 of
his former legal practitioners is dated 8 January. It was common cause that it was
receipted at Dzimba, Jaravaza and Associates who banked it and invested the proceeds.
He further stated that he signed the agreement of sale on 20 January at Trevor Dollar’s
offices in Gweru. On 25 January he then signed the declaration of the seller and power of
attorney to pass transfer. He asked his wife to vacate the property but she refused.
He was cross examined by the plaintiff’s counsel. He stated that when he informed
his former wife why they were at the house she was visibly angered by his explanation.
He stated that he did not inform the Zingwe family about the court order but left the task
to his legal practitioners and the estate agents. On the sequence of signing the agreement
and payment of the money to Mrs Gwanzura’s legal practitioners he repeated twice that
he signed first before he proceeded to deposit the cheque at their offices.
Under questioning by Mrs Gwanzura’s legal practitioner he confirmed that he
deposited the money with his own legal practitioners using a cheque from one of his
companies P and Elton Investments on either 2 or 3 January 2003. He was issued with a
trust account receipt. He admitted that by 25 March 2003, when he was served with the
urgent chamber application, he knew the basis upon which his wife challenged the sale.
Notwithstanding this admission he failed to produce proof that he indeed paid the amount
to his legal practitioners. He would have done so by producing the trust account receipt
he received or the honoured cheque that he paid or P and Elton Investments bank
statements for the relevant period. He also made out that he signed the agreement before
he deposited the ZW$4,2 million with Dzimba, Jaravaza and Partners. He must have
realized the implication of his answer for he quickly changed and alleged that he actually
paid first before he signed the agreement of sale. He conceded under searching cross
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examination that the Zingwe family members left the house prematurely before
inspection because his former wife refused them permission to do so.
I found Mr Gwanzura an unreliable and untruthful witness. He gave conflicting
versions on when he gave instructions for the sale of the house. In one vein he said it was
after 8 January 2003 and in another said it was actually either on 28 or 29 December
2002. Contrary to his evidence in chief, he denied in his opposing affidavit of 28 March
2003 filed in the urgent chamber application that Trevor Dollar sold the house on his
behalf. Contrary to all other evidence he was to aver that Saul Zingwe’s wife was present
at the inspection. His failure to advise his former wife that he was selling the house
because he had already bought her out was telling against him. I found myself in
agreement with the contention by Mr Mawere, for Mrs Gwanzura, that Mr Gwanzura
used some of the proceeds paid by the plaintiff to buy her out. He conceded that he
knowingly cheated the fiscus by declaring a low value for the purchase of the property.
After assessing the evidence of the plaintiff, Tawona and Mr Gwanzura against that
of Mrs Gwanzura, I was satisfied that she told the truth. I accept her testimony wherever
it differs with their testimonies.
It is on the basis of these facts that I proceed to determine the three issues referred
to trial.
Whether or not the plaintiff was aware that the property was the subject of a
matrimonial dispute
A comparison of the testimony of Mrs Gwanzura and that of Tawona and Mr
Gwanzura demonstrated that the plaintiff’s representatives were aware of the existence of
the divorce order when the agreement of sale was concluded. The plaintiff’s father and
brother were advised by Mrs Gwanzura not to be duped by Mr Gwanzura as the sale of
the house was encumbered by a divorce order of the High Court. In addition, Mr
Mugomeza, for the plaintiff, conceded that Trevor Dollar were the agents of the plaintiff
in the transaction. On 6 January 2003, Trevor Dollar was advised of the existence and
effect of the divorce order. They nonetheless proceeded headlong to purchase the
property for the plaintiff. I am satisfied that the plaintiff through his representatives and
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agents was aware that the property was subject of a matrimonial dispute between Mr and
Mrs Gwanzura.
Whether or not the agreement between the plaintiff and second defendant was done
fraudulently to defeat the court order under case 2877/98
The date on which the agreement of sale was executed was in dispute. The
confusion was caused by the defendant’s late father who in an affidavit filed on 23
February 2007 in the action that was brought in the Gweru Magistrates’ court and later
withdrawn averred twice that the agreement of sale was concluded on “2 nd January 2003”.
The affidavit was contrary to the agreement produced in court and the declaration by
seller signed by Mr Gwanzura and the declaration by purchaser signed by him that
provided the date of 20 January 2003. 2 January coincidentally coincides with the date on
which Mr Gwanzura alleged he deposited the purchase price with his legal practitioners.
The double repetition of the date as “2 nd January 2003” in one affidavit is inconsistent
with a typographical mistake and points to a positive statement of fact. I accept that the 2
January was not the date on which the contract of sale was concluded. It is contrary to the
agreement itself and the other documents that I have already referred to. It is also
contrary to the plaintiff’s evidence that he was still in the country on that date and would
have executed the agreement in person. It is contrary to the evidence of Mr Gwanzura,
the other party to the agreement. I find the conclusion inescapable that it was a deliberate
falsehood designed to support Mr Gwanzura’s averment that he deposited ZW$4, 2
million with his own legal practitioners on that day. Such a conclusion paints the
plaintiff’s representative in poor light as a person who was prepared to connive with Mr
Gwanzura to mislead Mrs Gwanzura.
Mr Mugomeza submitted that the agreement of sale was not concluded in fraud of
the divorce order. Mr Mawere made a contrary submission.
In Pretorius NO v Smith &Ors 1971 (1) SA 459 (T) at 461A-C COLMAN J stated
that:
“It is clear that the word “fraud”, when used in relation to the type of disposition
which can be attacked in a case of this kind, does not bear the same meaning as it
bears in criminal law, or in the context of a contract induced by fraud. There need
be no false representation or deceit by the husband in order to lay the disposition
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open to attack. It is equally clear, however, that not every disposition that has
prejudiced the interests of the wife will be set aside at her instance, or that of her
estate or heirs. Every donation made out of the assets of a joint estate diminishes
the estate, and so prejudices the wife. And the same applies to a transaction, other
than a donation, which results in loss to the joint estate. But such dealings,
simpliciter, are not open to attack.”
And at 462C:
“I am of the opinion that the plaintiff in an action of this kind must prove dolus, in
the sense of an intention to prejudice the wife’s interests. I base that conclusion on
Voet’s use of the term “fraud”, and upon Davis v Brisley’s Minors 18 SC 407,
where the ACTING CHIEF JUSTICE, relying, apparently, on van den Linden,
equated the concept “fraud of the wife” to “willful intention to prejudice the
wife”. A bona fide transaction, it seems to me, is not open to attack, however
unwise it may be.”
I understand COLMAN J to be saying that fraud of the wife’s rights cannot simply be
implied from the mere fact that prejudice has been occasioned to the wife but must be
proved by showing that her husband carried out the transaction clandestinely or in
deliberate disregard of the wife’s rights.
Several cases have dealt with the same issue in this jurisdiction. These are
Muzanenhamo & Anor v Katanga & Ors 1991 (1) ZLR 182 (S) at187A; Crundall
Brothers (Pvt) Ltd v Lazarus NO & Anor 1991 (2) ZLR 125 (S) at 129D-F Muganga v
Sakupwanya 1996 (1) ZLR 217 (S) at 219H-220A; Tewe v Hanoki & Ors SC 55/03 at p 4
of the cyclostyled judgment. In the Muzanenhamo case, and Muganga case, supra,
McNALLY JA equated the fraudulent intent with intent to defeat the wife’s just claim. In
Crundall Brothers, supra at 133C the Supreme Court stated that:
“The doctrine of notice, as it is called, requires nothing more than notice or
knowledge of the prior claim. It is not necessary to prove mala fides or fraud.”
In Tewe’s case, supra, the purchasers were unaware of the dispute between the
wife Tewe and her husband Hanoki at the time of purchase or transfer. ZIYAMBI JA
stated at p 4 of the cyclostyled judgment that:
“Since the rights of husband and wife are personal and do not as a matter of law
affect third parties, for the appellant (wife) to succeed against the second and third
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respondents (purchasers) she had to show not only that they were aware of her
rights in the property but that they were attempting to defeat her rights.”
I have already found that the plaintiff was aware of Mrs Gwanzura’s rights in the
property. Those rights were that she was firstly entitled to a one half share in the value of
the property and secondly that she had three months within which to buy out her
husband’s half share and take title. The first leg of the formulation by ZIYAMBI JA is
answered in Mrs Gwanzura’s favour, that is, that the plaintiff was aware of her rights in
the property.
The issue that falls for determination is whether the plaintiff intended to defeat her
rights. Mr Mugomeza contended that Mr Gwanzura first paid out his former wife before
he concluded the agreement of sale with the plaintiff. He relied on the evidence of Mr
Gwanzura to that effect. Mr Gwanzura’s testimony does not support the contention.
Firstly, by 5 January 2003 he was disposing of the property before he had bought out his
former wife’s share. I found from his evasiveness on the point that even on 20 January
2003 when he concluded the agreement, he signed it before making payment of the half
share due to Mrs Gwanzura. He failed to prove that he deposited the money on 2 January.
The reason why the cheque dated 8 January was paid on 20 January was demonstrated
clearly by his legal practitioners trust account bank statement issued on 25 January 2003.
The opening balance on 22 January was ZW$20 000-00. Two deposits, one cash and
another by cheque boosted the balance to ZW$48 399-00 before a large transfer of ZW$7
224 166-40 pushed the credit balance to ZW$7 272 565-40. The plausible explanation of
the source of those funds appears to be the nett amount due to Mr Gwanzura from the
deposit of ZW$7,5 million made by the plaintiff at the conclusion of the sale agreement.
It was not within the contemplation of the order that he would sell the property to raise
the money to buy out his former wife’s share. I am satisfied that Mr Gwanzura intended
to defeat Mrs Gwanzura’s rights. He acted clandestinely and with deliberate intention to
defeat his former wife’s rights. Mr Gwanzura, thus, acted fraudulently.
I am also satisfied that the plaintiff’s actions also fall into the same category as
those of Mr Gwanzura. He purchased a property with the defects noted by CC Sales (Pvt)
Ltd without inspecting the property. His representatives falsely stated that they inspected
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the house. They inserted an unusual clause that they would pay the balance after
inspection or transfer. They could not insist on their right to inspect before concluding the
agreement because they knew that they were trampling upon Mrs Gwanzura’s rights,
which she had advised them of on 5 January 2003. That the plaintiff’s agents were acting
mala fide was further reinforced by the connivance they embarked upon with Mr
Gwanzura to cheat the fiscus by under declaring the purchase price. The plaintiff
benefited by paying lower stamp duty and Mr Gwanzura by paying less capital gains tax.
I hold that the agreement of sale was executed to defraud Mrs Gwanzura of her just
rights that she was awarded in the divorce order.
Is the first defendant entitled to cancellation of the title deed?
It seems to me that the answer to the last question must be in the affirmative. In
Mvududu v Mvududu NO & Ors 1981 ZLR 397 at 405G-H McNALLY AJ, as he then
was, held that:
“A registered deed may be cancelled by order of court, on the authority of s 8 of
the Deeds Registries Act [Cap 139]. Such action cannot be lightly taken, but it
seems to me that where there has been justus error, as here, and the rights of
Rhoda have been entirely overlooked, and those of Mwashinga and Enoch
misconceived, so that a false certificate was issued by the District Commissioner,
the court must intervene.”
I am thus empowered by s 8 (1) of the Deeds Registries Act [Cap 20:05] to cancel
a registered deed. In the Mvududu case, supra, it was cancelled because there had been a
justus error. In the present case there has been fraudulent intent on the part of the
registered holder. Failure to cancel would be in the words of KORSAH JA in Hattingh &
Ors v van Kleek 1997 (2) ZLR 240 (SC) at 246B “deprive the innocent person of his
rights … benefit the guilty and put a premium on deceit.”
Mrs Gwanzura prayed for costs on the scale of legal practitioner and client. Costs
are in the discretion of the court. I would have granted them because of the deceit
exhibited in the present case by the plaintiff and Mr Gwanzura. The facts demonstrated
that Mrs Gwanzura appropriated the payment made by Mr Gwanzura from the proceeds
of the purported sale. They also show that an equivalent amount she paid to Mr
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Gwanzura reached his legal practitioners even though there is no record of what became
of it. The ultimate loser in the present case was the plaintiff who lost all his money and
the house. It is in the light of this loss that I would award Mrs Gwanzura costs on the
ordinary scale.
Accordingly, it is ordered that:
1. The plaintiff’s claim be and is hereby dismissed with costs.
2. The Deed of Transfer No 373/03 registered on 19 February 2003 in favour of
Stephen Zingwe of Stand 2946 Gwelo Township of Gwelo Township Lands
be and is hereby cancelled.
3. The plaintiff shall pay the first defendant’s costs of suit in the counter claim.
Mutezo & Mugomeza, plaintiff’s legal practitioners
Mawere & Sibanda, first defendant’s legal practitioners