Etta Dube v Lot Mpala and Zanele Mpala and Kossam Ncube & Partners and The Registrar of Deeds

### Preamble
1
HB 126/25
HC 2029/22
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ETTA DUBE

Versus

LOT MPALA

And

ZANELE MPALA

And

KOSSAM NCUBE & PARTNERS

And

THE REGISTRAR OF DEEDS

IN THE HIGH COURT OF ZIMBABWE

NDLOVU J

BULAWAYO 18 FEBRUARY & 24 JULY 2025

Court Application

B.Z. Mlilo, for the applicant.

1st respondent in person.

No appearance for the 2nd, 3rd & 4th respondents.

NDLOVU J: This is an application for an order compelling the 3rd respondent to commence the preparation of the documentation necessary for the conveyance of a property being Stand No. 4772, Bulawayo Township, commonly known as No. 15 Worcester Crescent, Hillcrest, Bulawayo, [the property] into the applicant’s name, and an order compelling the 1st and 2nd Respondent to accept payment of the purchase price being RTG$ 50 000.00. In essence, this is an application for an order compelling specific performance.

BACKGROUND

The first and second respondents were married. As fate would have it, their marriage terminated, and as is customary, this termination was recorded and signified by a High Court Divorce Order. The relevant parts of that Divorce Order read as follows;

“7. IMMOVABLE ASSETS

i. 	The Defendant be and is hereby awarded 58% and with the Plaintiff being awarded 42% of the highest market value of Stand number 15 Worcester Crescent, Hillcrest, Bulawayo…

ii. 	That the parties be and are hereby directed to buy the other out of his/her shares in Stand number 15 Worcester Crescent, Hillcrest, Bulawayo, within 18 months from 01 November 2015. [own emphasis]

iii. 	That should either fail to buy the other out, Stand number 15 Worcester Crescent, Hillcrest, Bulawayo, be and is hereby directed to be sold immediately using the highest market value and monies shared according to their respective percentages.

The 18 Months from 01 November 2015 [30 April 2017] passed by without either party buying the other out of the property. One year down the line and on 30 April 2018, the 2nd Respondent [ZANELE MPALA], who had featured as the Plaintiff in the Divorce proceedings, signed an agreement of sale of the property with the applicant, setting the purchase price at US$50,000.00.

This property was and still is registered in the name of the first respondent [MR LOT MPALA], making him the sole owner of the property with the legal right to sign an agreement of its sale or authorise the same. Lot Mpala did not sign the agreement of sale with the applicant. The purchase price was to be paid in full at the signing of the agreement of sale. It is a common cause that no payment was made.

On 17 September 2018, Mr Lot Mpala then made an application to this Court, Lot Mpala vs Zanele Mpala and the Registrar of Deeds, HC2490/18, seeking an order placing a caveat on the Title Deed of the property. In that application, he did not cite the applicant in this matter, Etta Dube.

On 25 February 2019, the court dismissed Mr Lot Mpala’s application to place a caveat on the Title Deed and granted an order in the following terms;

“2. Applicant be and is hereby ordered to sign papers in respect of stand 4772 Bulawayo Township, also known as No.15 Worcester Cresent, Hillcrest, Bulawayo within 48 hours to facilitate transfer into the names of Etta Dube, herein represented by Edith failing which the Sheriff of the High Court be and is hereby authorised to sign all relevant papers.”

The order cited above was not complied with, nor was it pursued for over two years. On 23 November 2021, the applicant instructed her lawyers to demand from the third respondent, the then attorneys of the second respondent, the bank account details for depositing the purchase price of RTGS$50,000.00 and the third respondent’s requirements for effecting the transfer of ownership of the property from the first respondent to her. This was 3 years, 6 months, 3 weeks and 2 days after signing the agreement of sale with the second respondent on 30 April 2018, as per which she was required to pay US$50,000.00 in cash upon signing the contract, as stipulated in clause 6 of the agreement.

Soon thereafter, the second respondent terminated the third respondent’s mandate as her attorneys. The third respondent duly informed the applicant’s attorneys that they no longer had instructions to act on behalf of the second respondent.

RELIEF SOUGHT

1. 	The 3rd Respondent be and is hereby ordered to prepare all the documents necessary to effect the transfer of Stand 4772 Bulawayo Township, commonly known as No. 15 Worcester Crescent Hillcrest, Bulawayo, into the name of the Applicant, within fourteen (14) days of this Order;

2. 	In the event that the 3rd Respondent failing to prepare all the documents necessary to effect the transfer of Stand 4772 Bulawayo Township, commonly known as No. 15 Worcester Crescent Hillcrest, Bulawayo into the name of the Applicant, within fourteen (14) days of this Order, the Applicant be and is hereby authorized to instruct Messrs Webb Low and Barry to prepare all the documents necessary to effect transfer of Stand 4772 Bulawayo Township, commonly known as No. 15 Worcester Crescent Hillcrest, Bulawayo, into the Applicant’s name.

3.	 3rd Respondent be and is hereby ordered to provide an account for payment of the purchase price, being $50 000.00, which is now payable in RTGS dollars at the rate of one as to one, within fourteen (14) days of this Order;

4. 	In the event that the 1st and 2nd Respondent fail to provide an account for payment of the purchase price being $ 50 000.00, which is now payable in RTGS dollars at the rate of one as to one, within fourteen (14) days of this Order, that the said amount be paid to the

Registrar of the High Court.

5.	 1st to 3rd Respondents, jointly and severally, one paying and the other being absolved, be and are hereby ordered to pay costs of suit on an attorney-client scale if the application is opposed.

THE APPLICANT’S CASE

The applicant claims that she purchased the property in question from the first and the second respondents through an agreement of sale signed by the second respondent and herself following the first and second respondent’s divorce order. She submits that the purchase price for the property was US$50,000.00, an amount now denominated in RTGS dollars in terms of S.I. 33 of 2019. She further submits that the money has been held in trust by her lawyers since 2018 because the third respondents have failed to provide the necessary documentation and banking details for the transfer of the funds to be effected. The applicant states that she is also basing this application on the order of this court, under HC 2490/18.

FIRST RESPONDENT’S CASE

The 1st respondent opposes this application. He argues that the alleged agreement of sale is invalid and void because, as the registered owner of the property, he did not sign it, and he did not agree to sell his house to the applicant. He denies ever accepting the applicant’s offer to purchase his house for US$50,000.00.

The first respondent further argues that any claim the second respondent has to the property by virtue of the divorce order is limited to 42% of its value or proceeds of the sale. He contends that the second respondent has personal rights only to the property and cannot enter into an agreement to sell it without his consent as its registered owner.

In addition to his opposition to this application, he has filed a counter-application seeking what he calls the setting aside of the order granted under HC2490/18 compelling him to sign transfer documents of the property in favour of the applicant. He argues that the order was erroneously granted.

He argues that had the court known that he had not agreed to the applicant’s offer and not signed the agreement of sale, the court would not have compelled him to effect the transfer of the property.

ISSUES FOR DETERMINATION

Whether or not the agreement of sale signed by and between the applicant and the second respondent is valid and binding on the first respondent?

Whether or not there is a valid counterclaim.

RESOLUTION

Is the agreement of sale signed between the applicant and the second respondent valid and binding on the first respondent?

The property in issue is an immovable property registered in the national register of immovable properties in this country in the name of the first respondent alone. It is a well-established principle that only the registered owner of an immovable property can sell it or authorise its sale. The only exception to this hollowed position of the law is when the property is being sold under an order of the Court through the process of a judicial sale. It is a common cause fact in this matter that the first respondent [MR LOT MPALA,] the registered owner of the property in issue, did not sign the document pleaded by the applicant as the Agreement of Sale of the property signed by and between her and the second respondent’s [Ms ZANELE MPALA] on 30 April 2018. It is a common cause fact that the second respondent is not the registered owner of the property in question, nor is she a registered co-owner of that property. The question that then arises is whether the first respondent had given the second respondent authority to sale the property and sign the agreement of sale of the property. If not, a further question would be whether or not Mr. Lot Mpala later ratified the contract signed by Zanele Mpala.

The first respondent denied the existence of an agreement of sale between him and the applicant. He denies accepting the applicant’s offer and agreeing to sell the house to her. His Court application under HC 2490/28 is an exhibit showing that he did not consent to the sale of his property.

It is contended by the applicant that the first respondent is bound to the sale agreement on account of the divorce order and the court order granted in Case No. HC 2490/18. She seeks that this court enforce the transfer of the property on the strength of the HC 2490/18 Order. It is a fact that the applicant was not a party to the divorce action, nor in Case No. HC 2490/18.

The applicant has not alleged, let alone proved, that the first respondent authorised his ex-wife to sell the property and/or contract with her. There is no allegation, proof or evidence that the first respondent ratified the agreement between the applicant and the second respondent. She has not even begun to plea estoppel. The applicant has failed to discharge the onus on her to prove that she contracted with the first respondent, the owner of the property, to sell her his property. The divorce order by this court did not change the registration or ownership of the property in question. All that the divorce order did was to award a personal right of 42% to the second respondent in the first respondent’s property, and nothing more. The law prioritises the first respondent’s rights as the registered owner of the property in circumstances like these.

“An owner whose property has been sold and delivered without his consent remains the owner, as the seller cannot pass ownership that was not his… The general rule that the seller can give no better title than he has operates in favour of the true owner, unless the purchaser proves that the true owner is estopped from denying the seller’s authority to sell.” R.H. Christie, Business Law in Zimbabwe, 2nd Ed, Juta & Co Ltd at pp149-150

Consequently, the matrimonial property remains unsold and liable for sale in compliance with the divorce order.

The agreement of sale by the applicant and the second respondent is of no moment and does not bind the first respondent. The second respondent could not, without the authority, consent, or cooperation of the first respondent, sell the first respondent’s house to the applicant. The property in question belongs to the first respondent, who is the registered owner of the property. No one can give what he does not have, and no one can transfer any right greater than he himself possesses. This sale is null and void on the basis that it was conducted by a person who is not the owner of the property and without any mandate to sell the property. See Silberberg and Schoeman, The Law of Property, 2nd Edition.

It is on this reasoning that this court makes a finding that there was no sale agreement between the first respondent and the applicant. The contract of sale being relied on by the applicant is a nullity ab initio. Lungisani Moyo v Musiyiwa & Anor HB 41/18. No court can create a contract for the first respondent, nor can it order him to enter into one. Whatever was consequently done purportedly on the strength of the agreement of sale between the applicant and the second respondent was a nullity as well. The matter ends there.

Whether or not there is a valid counterclaim.

The first respondent’s counterclaim is improperly before this court. One cannot purport to counterclaim in an application with an application for rescission of a judgment in another matter, regardless of how the parties and the facts of the dispute are related in both matters.

COSTS

Both parties prayed for costs on a higher scale. Ordinarily, courts are slow to award costs against an unsuccessful party at that scale. Certain aspects of this matter are difficult to overlook or pass by without comment and/or sanction. In this case, the applicant was always represented by counsel. She purported to buy a house from someone who was not its registered owner. Went on to sign an agreement of sale with such person. What happened to someone doing due diligence?

As per the terms of the ill-fated agreement, the applicant was supposed to pay US$50,000.00 in cash upon signing the contract of sale. The applicant did not pay the purchase price upon signing the agreement with the second respondent. Why not? We can only infer that it was because of the knowledge and realisation that the contract was not worth the paper it was written on without the first respondent’s signature. That was understandable. Appreciating the challenge haunting the agreement, the applicant did not pay or at least tender to pay the purchase price to the attorneys of either the first or second respondent and chose to retain the money with her lawyers.

Curiously, the applicant and or her attorneys did nothing to enforce her purported rights and take transfer, for over 3 years. She did nothing, even after the order in HC 2490/18, an order she now seeks to rely on partially in this application. Not even SI 33 of 2019 could jolt her into action. In all probability, the applicant and her lawyers were well aware that the second respondent did not consent to the sale of this property and that the title deed of this property was registered in the first respondent’s name. They therefore knew that there was no contract and consequently no debt as contemplated in SI 33/2019. A lawyer is considered to have superior knowledge of the law compared to a layperson. Legal practitioners are under a duty to utilise their superior skills and expertise when conducting affairs on behalf of their clients.

The applicant only sprang into action and began writing letters to the third respondent in a bid to effect the transfer of the property in November 2021, and tendering RTGS 50 000.00 as the purchase price an amount so shockingly low, as to defy all rational comprehension and strain the bounds of credulity, on the facts of the case. It can be concluded that the applicant was grasping at straws. She is desperate and has a cunning inclination. These actions constitute an egregious abuse of process, and the fact that they occurred under the eyes and involvement of legal practitioners suggests a troubling lack of diligence. As a trained professional, the lawyer should have verified the authenticity of the agreement and correctly advised their client on the merits of the case. Failure to do this demonstrates a blatant disregard for the legal system’s integrity and an appetite to take advantage. The applicant’s malicious intent and the lawyer’s potential complicity are concerning, suggesting a calculated attempt to deceive and manipulate the legal process.

DISPOSITION

The first respondent is the registered owner of the immovable property. He did not consent to its sale nor authorise its sale. There was never an agreement of sale of the property between the applicant and the first respondent. The applicant “disappeared” for over three years without paying or tendering payment of the purported purchase price. The sale agreement is null and void. The second respondent was not entitled to sell the matrimonial property without having obtained the authority from the first respondent. Everything that followed purporting to flow from the purported agreement of sale had and has no effect is was null and void. Therefore, there was/is no transfer enforcement to talk about. In any case, the 3rd respondents no longer have the mandate of the second respondent.

The counterclaim is improperly before this court.

To compensate for wasted court resources and expenses and uphold the integrity of the legal process, punitive costs are warranted in this case to deter future frivolous claims. By awarding punitive costs, this court sends a strong message about the seriousness of the applicant’s misconduct, indicating that such behaviour will not be tolerated and that parties and their lawyers will be held to a high standard of honesty and diligence.

As a result, punitive costs are awarded against the applicant.

As a result, I make the following order.

ORDER:

The application to compel the respondents to supply Bank Account details for depositing the purchase price and requirements to transfer the House into the applicant’s name be and is hereby dismissed with costs on an attorney and client scale.

The first respondent’s counterclaim be and is hereby struck off the roll with no order as to costs.

NDLOVU J

Web, Low and Barry Inc. Ben Barron and Partners, Applicant’s Legal Practitioners