Kwanele Mpofu v Israel Ndlovu and Registrar of Deeds

### Preamble
1
HB 143/19
HC103/18
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KWANELE MPOFU

Versus

ISRAEL NDLOVU

And

REGISTRAR OF DEEDS NO

IN THE HIGH COURT OF ZIMBABWE

MABHIKWA J

BULAWAYO 28 MAY & 26 SEPTEMBER 2019

Civil Trial

B. Dube for the plaintiff

J.  Tshuma for the 1st respondent

MABHIKWA J:	Plaintiff in this matter claimed that she co-owned stand number 3861 Emganwini Township, Bulawayo with her former husband, Reuben Mpofu.  She said the parties then divorced through an order of the court which ordered that the property be sold and the proceeds be shared equally.  Allegedly, she thereafter offered to buy out the former husband to no avail.  Plaintiff claimed further that she was shocked to learn from 1st defendant that he had bought the house when she had not given her consent.  She says the sale was unlawful hence she refused to vacate the house. She also said that she wondered how 2nd defendant allowed the sale in the absence of her consent.  She claimed also that she has a “mortgage finance” to reimburse the 1st defendant his purchase price and then reverse the “unlawful transfer”.  Plaintiff then sought an order for the cancellation and reversal of the sale and transfer of stand number 3861 Emganwini Township, Bulawayo currently held by the 1st defendant under Deed of Transfer 1708/17.  She also sought an order that 2nd defendant pursues the reversal of the transfer of the said property.

1st defendant vigorously opposed the plaintiff’s action.  In short, his plea was that it is not true that plaintiff was a co-owner of stand number 3861 Emganwini, Bulawayo.  Defendant also stated he was aware of the divorce order between plaintiff and her husband and the contents thereof.  1st defendant further intimated that he bought the property in terms of the law through legal practitioners.  He averred that as such, the subsequent transfer was lawful and plaintiff is not entitled to the cancellation of the agreement of sale or to have the transfer set aside and reversed.  Finally, he averred that he was in fact aware that following the successful sale of the property, plaintiff was paid her share of the purchase price through her legal practitioners, Messrs Ndove, Museta & Associates in accordance with the divorce order.  Defendant then made a counter claim wherein he stated that he is the now registered owner of stand number 3861 Enganwini, Bulawayo Township of Lot 400A Umganini, having taken ownership of the property on 16 November 2016.  Plaintiff in the main claim remains in occupation and has, despite demand, refused to vacate the premises to pay rent to the defendant, who is the plaintiff in reconvention.

Defendant thus sought a counter order –

For the ejectment of the plaintiff from stand number 3861 Enganwini, Bulawayo of Lot 400A Umganini otherwise known as 3861 Enganwini, Bulawayo.

Directing the plaintiff to pay occupational rent at the rate of $300 per month from the 1st of December 2017 to the date of vacating the premises.

Cost of suit.

I must say from the onset that the whole claim by the plaintiff is premised on her divorce and what she termed unlawful sale of the parties’ house by her former husband.  She however did not sue the former husband or join him as a defendant in these proceedings.

In cross-examination, plaintiff admitted that when she and her husband divorced, both were legally represented.  She was represented by a Mr Ncube of Ndove, Museta & Associates while Reuben Mpofu was represented by Mr G. N. Nyathi of Messrs Sansole and Senda legal practitioners.

Plaintiff admitted also that in the divorce order, particularly clause 6 thereof, the judge ordered that stand number 3861 Emganwini Township, Bulawayo be sold to best advantage through a reputable firm of estate agents and the net proceeds thereof be shared equally between the parties.  She admitted also that the order does not talk of her buying out Reuben Mpofu at all.

Plaintiff also admitted under cross-examination that according to the Deed of Title to stand 3861 Emganwini, she is not a co-owner of that property and that she was therefore wrong in her pleadings particularly paragraph 4 of her declaration that she owned stand number 3861 together with her former husband, Reuben Mpofu.

The Deed of Title was in the sole names of Reuben Mpofu and there was no reason for a 3rd party purchasing the house, to believe that some other person owned it.  The plaintiff admitted also that Knight, Frank and Shepherd Estate Agents valued the property at $25 000,00.  The property was however sold by Ken Estate Agents for $30 000,00.  Both the plaintiff and her legal practitioners were aware of the sale.  The sale was between Reuben Mpofu and the 1st defendant and there was nothing at the Deeds Office that would warn anyone that such sale was unlawful.  In fact the sale was lawful.

It must be said also that plaintiff surprisingly admitted under cross-examination that her lawyers at the time, received her half-share of the proceeds of the sale of the house, which she says she initially refused to accept but eventually collected the money from the lawyers and used it.

After that admission, the following brief exchange ensued between her and Mr Tshuma for the 1st defendant.

“Q	-	So as we speak, the house has been sold in terms of the court order

A	-	Yes

Q	-	And you have received your  half share as per the court order.

A	-	Yes but not in full.”

Clearly, whether or not her lawyers paid to her all that she expected to receive, was none of 1st defendant’s business for as long as he bought the property legally,in good faith and paid for it in full.

Further, correspondence between the parties’ legal practitioners particularly exhibit 6 written by Messrs Ncube and Associates on behalf of plaintiff to Messrs Sansole and Senda on 21 December 2017 clearly shows that at the time, plaintiff wanted to be given adequate notice to vacate the house.  She intimated that adequate notice would be three (3) months from the date it was given and would expire at the end of March 2018.

Applicant went on in exhibit 6 to say that it was only at the expiry of the notice period that she would, at her option, either be obliged to pay rent or move out.

So it is clear that applicant was well aware that she either had to move out of the house or pay rent, meaning the house was not hers.  She could not have expected to either pay rent or move out of her own house.  It is clear that at the expiry of the notice period, which she, in any event was not entitled to in my view, but was only given at the benevolence of the 1st defendant, plaintiff changed goal posts.  She reneged on her promise to either pay rent or vacate the house, to frustrate the 1st defendant. Perhaps she had challenges in getting alternative accommodation or raising rentals but that had nothing to do with the 1st defendant.  It appears to me and in fact it is admitted that plaintiff was aware that the court had ordered that the property be sold. She knew that both sets of lawyers (her lawyers as well as 1st defendant’s lawyers) were making efforts to sell the house number 3861 Emganwini.  The Title Deed was in Reuben Mpofu’s sole names, yet she concealed the said Title Deed to prevent the sale of the property as per the court order.

She claimed in her declaration and several times in evidence in court that she co-owned the house and that her consent was required before the house was sold.  She was mistaken in that belief.

The case of Masariri v Mutavayi& Ors 2010 (1) ZLR 475 (H) (judgment number HH-226-10) is at all four with the current case.

Consequent upon divorce between plaintiff and her former husband, a Magistrate’ Court granted the parties equal shares in the matrimonial house.  The plaintiff however did not arrange for a cession or transfer of her half share in the house into her name.  The husband (1st defendant), in whose name the house was registered, sold the house at a proper market value to the 2nd defendant and transfer was duly made in accordance with the sale.  The husband thereafter calculated plaintiff’s 50% share of the proceeds of the sale minus the estate agent’s commission.  At the plaintiff’s instance, the husband deposited plaintiff’s half share into her sister’s bank account.

Plaintiff however, alleged that she had not been aware of the sale and had not consented thereto.  She sought an order nullifying the sale between her husband (1st defendant) and the buyer (2nd defendant).  The 2nd defendant, joined the 1st defendant in opposing the relief sought and submitted that she was entitled to evict the plaintiff from the house which she continued to occupy.  It was held per MUSAKWA J, that plaintiff’s consent to the sale of the house was not required because she did not hold any title to it.  The court order awarding her a half share in the house did not translate into conferment of title thereto.  In the absence of a cession or a transfer of the half share of the property into her name, she had no more than a personal right against the 1st defendant.

It was held further, that she had no entitlement to have the sale set aside because she had not transferred the half share granted to her by the court, into her name.  As a result, no title was conferred to her in respect of the former matrimonial house and her husband was well within his rights to sell the house to a 3rd party.

It was held also that having regard to the fact that the house was sold at a proper market value and the fact that 1st defendant paid plaintiff’s half share of the proceeds into a sister-in-law’s account, the fact that plaintiff herself somehow failed to access the money had nothing to do with the 1st defendant, and the plaintiff’s claim had to be dismissed in its entirety with costs of suit.

As already stated above, plaintiff in this case is in the same predicament.  In fact what worsens her position is the fact that she did not even sue her former husband but the buyer only.  This court therefore finds that the order in terms of which the property was sold did not confer any rights to the property in the plaintiff, nor did it make it a requirement that her consent is necessary to sell the property. The sale in question was valid and 1st defendant is the lawful owner of the property.

Consequently, the law is clear that where the lawful owner of property brings a claim before a competent court to vindicate his property from a person occupying it without his consent, his claim must succeed unless the person occupying, and sought to be evicted relies upon a legally recognizable competing right to the ownership of the property.

It follows therefore in the light of the above finding of fact and law, as well as the plaintiff’s own admission in exhibit 6 referred to above that 1st defendant is, as a consequence, entitled to hold over damages in the form of rentals.  Plaintiff was effectively a tenant of the 1st defendant.  As stated in John Sisk and Son Zimbabwe (Pvt) Ltd vs Alten Enterprises (Pvt) Ltd and Anor (HC 1884/10) [2011] ZWHHC 83.

“A tenant has an undisputed obligation to pay rentals that he lives from the landlord.  That is the sine qua non for his continued occupation of the leased property.  He has no right to occupy the landlord’s property save in return of payment of rent.  Where …  The minimum that the tenant in such a situation must pay is the amount that it contends represents fair rentals for the premises.  Thus the tenant must pay to avoid being ejected on the basis of non-payment of rentals even if its challenge to what constitutes fair rentals is subsequently validated …”

It was not disputed in 1st defendant’s evidence that the rent market value charged in high density suburbs at the time was $50 per room.  The value for rentals for the full house would therefore have been $400,00 per month.  However, 1st defendant has claimed rentals at only $300,00 per month which in the court’s view is fair and reasonable in the circumstances.

Finally, 1st defendant has sought an order for costs on the attorney and client’s scale against the plaintiff.  I am satisfied that in casu, plaintiff has been unduly persistent and intransigent in the face of a clearly baseless claim, especially against the 1st defendant as the buyer of the property and subsequently the legal owner.  Even in court and in her testimony, she still persisted with a claim that had clearly, and long fallen face down, by continuously arguing non issues that absolutely had nothing to do with the defendants she had sued.

Luckily for her, 2nd defendant did not join the 1st defendant in opposing her claim.

I am convinced that this is a proper case wherein the court finds itself in line to depart from the ordinary rule that parties are entitled to bring their claims or defend themselves in our courts without being punished for it.

In the circumstances of this case, the court finds itself with no option but to show its indignation at the conduct of the losing party.  The plaintiff in this matter persisted and fought to the bitter end, and in the process unnecessarily put the 1st defendant out of pocket with a claim that she knew or at the very least ought to have known it is a claim not sound in law.  Seemingly, from her attitude in court, she defied and despised advise from her erstwhile lawyers.

Accordingly, I make the following order|:

The plaintiff in the main claim be ejected from stand number 3861 Emganwini, township of Lot 400A Umganini, otherwise known as 3861 Emganwini, Bulawayo.

That plaintiff in the main claim pays to the 1st defendant, occupational rent of $300 per month calculated from the 1st of December 2017 to the date of vacating the premises.

That plaintiff in the main claim pays costs of suit on an attorney and client scale.

Mabundu & Ndlovu Law Chambers, plaintiff’s legal practitioners

Webb, Low & Barry, 1st defendant’s legal practitioners