Sympathy Sydney Mutamba v Tafirenyika Wilson Nyamande and The Registrar of Deeds

### Preamble
1
HH 237-12
HC 3250/07
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SYMPATHY SYDNEY MUTAMBA

versus

TAFIRENYIKA WILSON NYAMANDE

and

THE REGISTRAR OF DEEDS

HIGH COURT OF ZIMBABWE

BERE J

HARARE, 29 & 30 May 2012

Opposed Application

P.C. Paul, for the applicant

Adv. Wood, for the 1st respondent

BERE J: This case is founded upon the declaration which was filed by the plaintiff in this court on 25 June 2005 and whose relevant contents can be restated as follows:-

On or about March 1999 the plaintiff and the first defendant entered into an agreement in two parts. The first part was that the parties would jointly purchase property known as the Remainder of Cherutombo, Marondera from Dulys (Private) Limited with the plaintiff paying 1/3 and the first defendant 2/3 of the price that was to be set by Dulys (Private) Limited.

The second part of the agreement which was severable from the first was that after acquiring joint ownership, the parties, would endeavour to obtain a subdivision of the property and then do a partition transfer in term of which the plaintiff would receive the house and surrounding land which he was occupying whilst the defendant would receive the rest of the property.

The plaintiff alleged that in breach of the first part of the agreement and  in fraudulent conduct, the first defendant on or about March 1999, purchased and paid for the property and proceeded to consolidate it with another property which he already owned.

It was the plaintiff’s case that on or about December 2000 and January 2001 the parties met to discuss the matter and it was agreed that they would continue with their endeavours to have the property subdivided so that the plaintiff could receive title to his portion that he was occupying but that the amount to be paid by the plaintiff for his portion would be subject of negotiation between the parties, which negotiations would be done in good faith and take into account the respective contributions made by the parties in the acquisition of the property.

It was further stated that it was an implied term of the agreement that if parties were unable to reach an agreement on the price to be paid by the plaintiff for his portion, he would be entitled to revert to the original agreement in terms of which he would receive 1/3 of the Remainder of Cherutombo on payment of $300-00, alternatively a reasonable amount having regard to the plaintiff’s contribution which the plaintiff states would not exceed $50 000 000-00.

It was further the plaintiff’s position that the plaintiff would only have been entitled to institute action for specific performance in the event of the negotiations having broken down. It was the plaintiff’s position that consequently the negotiations broke down in August 2004.

For the alleged arrangement between the plaintiff and the first defendant, the former sought to be granted the following remedy:

An order setting aside the certificate of consolidated Title done in favour of the first defendant.

Rectification of the Deed of Transfer in (a) (supra) so as to reflect the plaintiff as the owner of an undivided 1/3 share thereof against payment to the defendant of a sum of $300-00 alternatively $50 000 000 -00 (Zimbabwe dollars) plus 1/3 of the cost of transfer.

ALTERNATIVELY

(c)That the first defendant be compelled to do whatever is necessary and

to make such appropriate applications to the relevant authorities for

the subdivision of the remainder of Cherutombo in such a manner that

flat No. 1 on the said property constitute a distinct subdivision.

(d)That the subdivision to be created in terms of para (a) above be

transferred to the plaintiff upon payment of $50 000 000-00 together

with the necessary transfer fees.

(e) That the first defendant pays the plaintiff’s costs of suit.

Faced with a suit of this nature the first defendant filed a special plea and

an exception.

The first defendant argued that, the claim having arisen in or about March 1999 and summons having been issued out in June 2007, the suit ran foul of the Prescription Act which dictates that in a case of this nature the extinctive period is three years.

In the alternative, the first defendant took the stance that the second agreement alluded to by the plaintiff ran foul of the Regional and Town Planning Act which states that no agreement  to subdivide property is valid unless and until authority to subdivide land has been obtained before any such agreement has been entered into.

The other issues which were raised in both the special plea and exception filed by the first defendant were abandoned at the time of arguing and I shall not deal with them as I believe the decision made by the first defendant’s counsel in not pursuing them was a sound one. Accordingly therefore, in my determination of this matter I shall deal with the two issues raised.

Advocate Wood who appeared for and on behalf of the first defendant put up a very simple but pointed argument on prescription. She argued that the cause of the plaintiff’s claim arose in March 1999 and it was therefore incompetent for the plaintiff to institute action in June 2007 as the time lapse lay outside the prescriptive period of three years. I understood the argument and followed it without difficulty as it is consistent with the provisions of s 15(d) of the Prescription Act . See also the case of Mcloud Zvavovaviri Mapanga v Alfred Chapupu Masanga and Anor.

I did not hear Mr Paul for the plaintiff to seriously argue that the defence of prescription was not a sustainable one in this case. However, he seemed to believe that the alleged on-going negotiations alluded to in para 9 of the plaintiff’s declaration had the effect of interrupting prescription.

This argument was quickly shot down by Advocate Wood by making reference to the case of Pocock v AFC. It is clear to me that the law is settled that negotiations on their on cannot interrupt the running of prescription.

The second point dealt with by the first defendant counsel was that the second agreement allegedly entered into by the parties was not enforceable as it is specifically prohibited by s 39 of the Regional Town and Country Planning Act . For clarity’s sake the relevant portion of the section reads as follows:

“39 No Subdivision or consolidation without permit

Subject to subs (2) no person shall:-

Subdivide any property; or

Enter into any agreement –

for the change of ownership of any portion of a property, or

(ii)     ………….

.…………

or

Consolidate two or more properties into one property:

Except in accordance with a permit granted in terms of section forty”.

The plaintiff’s declaration makes it quite clear that when the parties allegedly entered into the second agreement no attempt had been made to comply with the provisions of section forty of the Act.

The need to comply with s 39 (supra) as well as its interpretation came up for consideration in the case of X-TREND-A-HOME (Pvt) Ltd v HOSELAW INVESTMENTS (Pvt) Ltd. In that case McNALLY JA with  the concurrence of the other judges of appeal commented on the need to comply with the mandatory provisions of s 39 and remarked as follows:-

“The evil which the statute is designed to prevent is clear. Development planning is the function and duty of planning authorities, and it is undesirable that such authorities should have their hands forced by developers who say “but I have already entered into conditional agreements; major developments have taken place; large sums of money have been spent. You can’t possibly now refuse to confirm my unofficial subdivision or developments”.

When the above case was brought to the attention of Mr Paul, all he could say was that this case was obiter dicta and it was not applicable to the parties in casu. I do not agree. What Mr Paul referred to as obiter dicta was in fact the ratio in the case and I am satisfied the ratio pronounced would cover inter alia the situation the plaintiff and the defendant found themselves in in the instant case.

COSTS

The first respondent has sought to have the plaintiff’s case dismissed with costs on Attorney-client scale.

By and large the question of costs is entirely the discretion of the Court. The discretion must be exercised judiciously.

In the instant case, I am surprised by the level of stubbornness demonstrated by the plaintiff despite the odds having been stacked heavily against him from the  inception. This is a case which ought to have been abandoned from the time the plaintiff was served with the first defendant’s plea because the legal position could not have been made clearer than highlighted in that plea.

In my view the first defendant was quite justified to demand a punitive award of costs.

In the result the plaintiff’s claim is dismissed with costs on Attorney-client scale.

Wintertons, plaintiff’s legal practitioners

Mufaka & Associates, 1st defendant’s legal practitioners