Mclean Kuchocha V Clyde Mudada

### Preamble
1
HMT 98-20
HC 12/20
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MCLEAN KUCHOCHA

versus

CLYDE MUDADA

HIGH COURT OF ZIMBABWE

MWAYERA J

MUTARE, 26 November 2020 and 31 December 2020

Opposed Application

D Tandiri assisted by Ms N Gorutsa, for Applicant

Respondent in person

MWAYERA J: The applicant approached this court seeking for summary judgment which application is opposed by the respondent. The applicant being the registered owner of a piece of land namely Stand 2738 Umtali Township of Umtali Township lands also known as 10 Thorn Close, Morningside, Mutare issued summons for eviction of the respondent. The respondent defended the matter and hence the present application for summary judgment.

The brief background to the matter has to be put into perspective. The property in question 2738 Umtali Township was mortgaged as security to a financial institution NMB Bank Limited (referred to as the bank hereafter). This was after the then registered property owner Trinity Brian Garikayi Munowenyu (hereafter referred to as Munowenyu) and Siduduzile Masuku borrowed money from the bank. The said Munowenyu and Masuku failed to adequately service the loan culminating in issuance of process which gave a default judgment in favour of the bank. Pursuant to the judgment, the Sheriff attached the said immovable property in July 2014 and registered a caveat against the holding deed of the property. The respondent was in occupation of the property which was placed under attachment. The concerned parties inclusive of Munowenyu filed a court application for suspension of the sale of immovable property which application was dismissed by the High court on 30 March 2015. The decision not to postpone the sale is extant. The respondent reported Munowenyu to the police and also lodged a complaint with the Estate Agent Council against Munowenyu’s Estate Agent. Pursuant to the dismissal of postponement of sale on 30 March 2015 the Sheriff proceeded to sell the property through auction in execution of this court’s order in favour of the bank. This process saw the Applicant as the highest bidder and thus purchaser of the property.

The applicant is the current registered owner of the property since transfer of title was duly registered by the Registrar of Deeds. The applicant then notified the Respondent to vacate his property and there was none compliance which necessitated the formal notice and subsequent eviction proceedings against the respondent on 5 January 2020. The respondent entered appearance to defend the matter which triggered the present application for summary judgment.

It is settled that in an application for summary judgment what falls for determination is whether or not the respondent has a bona fide defence to the applicant’s claim. See Jena v Nechipote, 1986 (1) ZLR 29 (S) wherein the Supreme Court set down the threshold for the defendant to succeed against an application for summary judgment when it stated as follows:

“All that a defendant has to establish in order to succeed in having an application for summary judgment dismissed is that there is a mere possibility of his success, he has a plausible case, there is a triable issue or there is a reasonable possibility that an injustice maybe done if summary judgment is granted.”

See also Nyamweda v Benza HH 238/18 Mercantile Bank Ltd v Star Pomer CC and Another 2003 (3) SA 300 and also National Railways of Zimbabwe Contributory Pension Fund v Josro Enterprise (Private) Limited HB 157/16.The respondent in an application for summary judgment must raise a bona fide defence or a plausible case to enable the court to determine whether or not he or she has a genuine defence. In the present case the defendant’s affidavit of opposition ought to disclose a bona fide defence showing that he has a right to retain possession of the property in question. The respondent must raise triable issues which would reflect on the genuineness of his defence. In this case it is not in dispute that the applicant is the registered owner of the immovable property in dispute. It is also not in dispute that the respondent is in possession of the property.

The applicant has filed an eviction claim against the defendant. The question really is does the respondent have a right to retain and remain in the applicant’s property. The respondent filed a response to the present application day after filing of an application for a declarateur to declare the transfer of property to the applicant unlawful. That pending application, I must mention does not change the common cause fact that the applicant is the owner of the property in question. It appears to be fire fighting in the face of an application for summary judgment. The claim by respondent that he bought the property from Munowenyu gives the respondent a personal rights against Munowenyu and not rights against the applicant. In fact respondent argues that he bought the property from Munowenyu in 2012 and that there is a sale agreement. The sale agreement unfortunately does not confer ownership rights. The property the respondent claims to have bought was mortgaged specifically for a loan which was not paid leading to sale of the property in execution. Due process was followed and the respondent did not challenge culminating in proper registration of the property in the applicant’s name. The applicant thus has real rights over the property. In this case further compounding the respondent’s problem and claim of rention of the property in question is the fact that the respondent reported Munowenyu to the police for fraud. This amounts to acknowledgment of purchasing property which was tendered as security to the bank which bank in turn acquired a court order and sold the property through the Sheriff. The applicant was declared the highest bidder and purchaser. It is not in contention that after purchase, transfer and registration with the Registrar of Deeds occurred showing title was legally transferred from Munowenyu to the applicant. The applicant is the owner and his claim for eviction of the respondent is underpinned on the rei vindicatio principal. The principal of actio rei vindicatio spells out that the law protects the right of an owner to vindicate his property from whosoever is in possession of the property. All that the applicant need to prove is

That he is the owner of the property.

That at the commencement of the proceedings the property to be vindicated was                 still in existence and the respondent was in possession of the property.

That the respondent is in possession without his consent see Silvertondale (Pvt) Ltd RSA 986, Jay Stannon and Another 1998 (1) ZLR 7 and also Premier service Medical Aid Society v Henry Mandishona HH 219/17.

Once ownership is proven and it is apparent the respondent is in possession without the owner’s consent then it follows the respondent may not withhold property from the owner unless he is vested with some right enforceable against the owner such as right of retention or contractual right. In the present case the applicant procedurally purchased the property following a judicial auction and transfer and registration of title in applicant’s favour was effected. The applicant has real rights and thus entitled to recover his property possessed against his will and consent. See Chetty v Naido 1974 (3) SA 13 A. The respondent argued that he bought property from Munowenyu as per sale agreement does not clothe or vest the respondent with real rights. The court’s remarks is Chauke v Estrelac Investments (Pvt) Ltd and Others HH 335-17 apply with equal force here. The court held that:

“An agreement of sale does not confer ownership rights to the purchaser as the applicant’s counsel initially sought to argue in his heads of argument as he late conceded in his supplementary heads of arguments and during hearing. Ownership rights are conferred by transfer and registration of title with the office of the third respondent, the Registrar of Deed.”

See also Takafuma v Takafuma 1994 (2) ZLR 103. The property in question when purportedly sold to the respondent was mortgaged as security for a loan taken by the then registered owner Munowenyu. At the time of attachment and sale in execution by the Sheriff NMB Bank Limited was entitled to cause attachment in execution of judgment by operation of law. Chauke case Supra the court held that:

“ a judgment creditor is entitled to attach and have sold in execution the property of his debtor. This is notwithstanding that a third party has a personal right against such a debtor to the ownership or possession of such a property, which right may have arisen prior to the attachment.”

The same position is highlighted by Herbstein and Van Winsen in the book Civil Procedure of Superior Courts in South Africa 3rd ed at p 596 were the authors stated as follows:

‘…..a judgment creditor is entitled to attach and have sold in execution the property of his debtor notwithstanding that a third party has a personal right against such a debtor to the ownership or possession of such property which right arose prior to attachment or even the judgment creditor had notice when the attachment was made. An attachment in execution acts as judicial mortgage or pignus judiciali.”

In the present case the mortgaged property registered in Munowenyu the judgment debtor, was attached sold and transferred procedurally to the applicant. The respondent has no basis to cling to the property without the consent of the owner, in this case the applicant. That he has issues with Munowenyu whom he reported for fraud does not give him retention right of property belonging to the applicant. The filing of an application for a declarateur to counter the application of summary judgment does not clothe the respondent with real right to the applicant’s property which he is in possession of without the applicant’s consent. It is apparent the appearance to defend the eviction proceeding was raised in circumstances devoid of any genuineness. It appears calculated as a dilatory tactic to delay the day of reckoning considering the applicant’s status as the registered owner of property. The law accords the applicant protection to vindicate his property from whoever is in possession without his consent. The respondent has no plausible cause or triable issues as against the applicant. His intended claims against a third party do not entitle him to retain the applicant’s property.

In the premises the eviction which is anchored on actio rei vindicatio cannot be genuinely defended. The applicant is entitled to the relief sought. Although initially the respondent was legally represented for purposes of these proceedings he was a self-actor. The clinging on to the applicant’s property might have been occasioned by failure to comprehend the legal position as opposed to abuse of court process as such the request for costs on a punitive scale will not be acceded to.

Accordingly it is ordered that:

The application for summary judgment be and is hereby granted.

The respondent and or all those who claim occupation through him be and are hereby ordered to vacate and render vacant possession of No. 10 Thorn Close, Morningside Mutare to the applicant within 10 days of this order.

In the event that respondent and or all those claiming occupation through him fail to comply with the order in para 2 above the Sheriff or his Deputy is hereby authorised and directed to evict them.

The respondent shall pay costs.

Tandiri Law Chambers, Applicant’s legal practitioners