Patience Nokulunga Bhebe v Greater Moyo and City of Bulawayo and Derrick Nkomo

### Preamble
1
HB 210/20
HC 08/17
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PATIENCE NOKULUNGA BHEBHE

Versus

GREATER MOYO

And

CITY OF BULAWAYO

And

DERRICK NKOMO

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 19 MARCH 2019 & 1 OCTOBER 2020

Ms V. Chikomo, for the plaintiff

No appearance for 2nd & 3rd defendant

N. Mlala for the 3rd defendant

TAKUVA J:	Plaintiff issued summons against the defendants on 4 January 2017 claiming for:

An order compelling the 1st defendant to effect transfer of stand number 20290 Pumula South, Bulawayo into plaintiff’s names.

The 2nd defendant be compelled to accept change of ownership papers from 1st defendant.

In the event 2nd defendant fails or refuses to comply with the order, the Sheriff of Bulawayo be and is hereby empowered to sign all necessary paper work on behalf of 1st defendant and 2nd defendant is ordered to accept papers signed by the Sheriff and transfer the property into plaintiff’s names.

An order that the 1st defendant and all those claiming title, through them be and is hereby evicted from stand 20290 Pumula South, Bulawayo.

The 1st and 3rd defendants were married in terms of customary law.  They live in the United Kingdom.  On or about the 11th November 2016 and at Bulawayo, the plaintiff and 1st defendant entered into an agreement of sale in terms of which plaintiff purchased stand number 20290 Pumula South from 1st defendant for the sum of US20 000,00.  Plaintiff paid the purchase price in full and in breach of the agreement the 3rd defendant has refused, failed or neglected to transfer the property to plaintiff’s names nor give vacant possession.

Despite being served with process the 1st and 2nd defendants did not enter appearance to defend.  Only 3rd defendant did so and proceeded to file a plea in which he contends that the 1st defendant had no authority to sell the house to the plaintiff because she obtained title through “fraud”.  Consequently, 1st defendant could not have validly transferred title to plaintiff.  He prayed for the nullification of the agreement between plaintiff and 1st defendant.

A pre-trial conference memorandum shows the issues for trial as:

“1.	Whether or not the plaintiff paid full required purchase price?

Whether or not the plaintiff is a bona fide purchaser?”

Plaintiff’s case

At the time of the trial plaintiff was a 24 year old single mother of one child.  She gave evidence in which she chronicled events leading to the purchase of the property in dispute.  Her biological mother who is resident in the United Kingdom together with 1st and 3rd defendants decided to purchase a house for her in Zimbabwe to provide shelter for her and her child.  According to her, she was instructed by her mother to go to Pumula Housing Office to meet 1st defendant’s sister one Mildred Bheka  (Mildred) for purposes of inspecting the house file.  She had been given Mildred’s phone number and they communicated and met at 2nd defendant’s Pumula offices.

Upon perusal of the housing office record, she established that 1st defendant was the registered owner of the property.  She listed the documents she examined as

Special Power of Attorney appointing Mildred as Greater Moyo’s agent exhibit 5 dated 29 September 2016

Agreement  of Sale between 2nd defendant and 1st defendant dated 23 September 2015 - exhibit 7

Agreement of cancellation of sale between 3rd defendant and 2nd defendant dated 23 September 2015 - exhibit 8

Deed of Donation dated 6 August 2015 showing 3rd defendant as the Donor and 1st defendant as the Donee – exhibit 9

From the above documents, she was convinced that the property belonged to the 1st defendant and she advised her mother as such, leading to the signing of an agreement of sale between 1st defendant and herself.  First defendant was represented by Mildred, her duly appointed agent – see exhibit 4 dated 11 November 2016.  After the purchase price had been fully paid to the 1st defendant by the witness’ mother in the United Kingdom, the witness was advised by her mother to go to Pumula Housing Office to meet Mildred for purposes of transferring ownership into plaintiff’s name.  This occurred in February 2017.  They entered the offices and Mildred explained their mission but the officials refused to change ownership into her name.  Despite asking Mildred why the officials were refusing to accede to their request, all she was told by Mildred is that 1st defendant had “a husband”.  She informed her mother who eventually sought legal advice.

The thrust of cross examination centered on portraying the witness as a guilty party in the illegal sale of the house in that she knew that Greater had unscrupulously changed the ownership of the house.  The witness denied having knowledge of the full circumstances surrounding the sale as the contract was essentially between her mother and Greater (1st defendant).  She explained that she was aware that Greater was living in the United Kingdom and that this fortified her belief that Greater had the financial capacity to own a house in Pumula.  Further, she confirmed proof of payment as indicated by exhibit 6 which is a receipt of US$20 000,00.  This acknowledgement of payment was executed by Greater before a Notary Public in Leeds, United Kingdom on 15 February 2017.

Finally the witness insisted that she is an innocent purchaser who was unaware of the alleged fraud or forgery perpetrated by Greater and or her sister Mildred against the 3rd defendant.  She did not personally know Greater, Mildred, 3rd defendant or Herbert Nkomo.  More importantly, she was unaware of the existence of any matrimonial disputes between Greater and 3rd defendant.

In my view there is no evidence that plaintiff connived with 1st defendant to hatch a devious scheme to defraud the 3rd defendant of his house.  In the result the plaintiff’s bona fides in her purchase of the property was not rebutted. I find that the plaintiff’s evidence sits well with the conclusion that the purchase price was fully paid and that she had no knowledge of any criminal activities by the seller of the property.  Mr Mlala for the 3rd defendant sought to prove a case that 1st defendant stole title to the property from her husband (3rd defendant).  On a balance of probability, it was not shown that plaintiff was aware or should have known that such an illegality occurred.

Plaintiff closed her case and 3rd defendant opened his case by calling Herbert Nkomo (Nkomo) as a witness.  He is the 3rd defendant’s nephew whose evidence on how the 3rd defendant acquired the house from 2nd defendant is common cause.  According to him when the family moved to the United Kingdom the property in issue was rented out to a tenant who was paying rent to Mildred.  He did not know what transpired in the United Kingdom between 1st defendant and 3rd defendant but the latter at some stage sent him to find out if rent was being paid timeously.  He went to the house where he discovered a ZESA invoice in Greater’s name.  Although not sure of the dates, he opined that it must have been in December 2016.  Third defendant instructed him to inspect the file at 2nd defendant’s offices at Pumula but he was denied access.

Alarmed he reported the matter to the local Member of Parliament one Mr Malaba, who subsequently made a police report.  According to the witness a criminal docket was opened against Mildred who later brought 3rd defendant’s identity document to the police.  Third defendant insisted that the matter be reported to the police.  As regards exhibit 9 the Deed of Donation, the witness said 3rd defendant did not author that document as he was out of the country at the time.  He also claimed that 3rd defendant did not sign all the documents he is alleged to have signed because he knows 3rd defendant’s handwriting.  He claimed that the handwriting on all these documents does not belong to 3rd defendant.  The witness conceded that 3rd defendant voluntarily permitted Greater to benefit from the rentals from his house before the estrangement in 2014.  Finally the witness said Greater and Mildred committed fraud when they forged documents relating to the property.

Asked about plaintiff’s role in the illegal activities the witness said her problem is that she bought “stolen property”.  The bulk of the witness’ testimony consists of hearsay, speculation and opinion, he believed what 3rd defendant told him hook line and sinker.  However it became clear that there is a lot that transpired between Greater and 3rd defendant concerning this case that the witness was ignorant about.  Perhaps he felt that blood is thicker than water and chose to simply support his uncle/3rd defendant.  The witness expressed little knowledge of the break-up of the couple and echoed that all he knew was that the two were no longer living together.  Further he did not know if they were divorced or not and if so when.  Accordingly no evidence corroborates that by the year 2015 when the donation was done in favour of 1st defendant, the parties were estranged.

The matter was postponed for six months to enable the 3rd defendant to testify.  He eventually appeared and testified on 19 March 2019.  He and 1st defendant (Greater) got married in 2000 after he had acquired house number 20290 Pumula South, Bulawayo between 1994 – 1995.  The couple lived in South Africa until Greater moved to the United Kingdom in 2003 where her siblings were resident.  She took the couple’s children with her.  Third defendant who had tried his luck to enter the United Kingdom in 2001 was caught, deported and banned from entering that country for ten years.  However in 2010 he decided to join the wife in the United Kingdom.  The parties were married in terms of customary law.  After putting his papers in order he reentered the United Kingdom and lived with Greater as “husband and wife” although later in his evidence he said things were not well from the moment he set foot in the United Kingdom in 2010 because he suspected infidelity.  In 2014 or 2015 Greater tore 3 pages from his Zimbabwean passport in jest to prove that the passport paper was of poor quality.

In answer to a follow-up question by Mr Mlala he said Greater intentionally tore the passport to prevent him from travelling to Zimbabwe.  According to him the motive was to enable her to sell his house fraudulently.  He also alleged that Greater “stole” his birth certificate, national identity card and passport out of malice.  Later on Greater got him arrested on several occasions in the United Kingdom after their relations turned sour after he discovered that his wife was in love with another man.  In fact he said when he arrived in the United Kingdom in 2010, Greater was already married to this other man.  Despite demanding the return of his documents, Greater refused with them.  Sometime in 2015 he asked his nephew Herbert Nkomo to check on the house and he was informed that the house was now registered in Greater’s name.

He granted a power of attorney to Herbert Nkomo and a report of fraud was made to the police in Zimbabwe.  It was 3rd defendant’s evidence that between August and October 2015 the 1st defendant returned to Zimbabwe without his knowledge and forged a letter authorising her to transfer the ownership of the property into her name.  He disowned the signature on exhibit 8 and 10.  Exhibit 8 is a memorandum of agreement allegedly made and entered into between the Municipality of Bulawayo and 3rd defendant cancelling the agreement of sale between the same parties entered on 7 February 2000.  Exhibit 8 was signed on 23rd September 2015 at Bulawayo.  The Town Clerk and two witnesses signed for and on behalf of the 2nd defendant (Municipality of Bulawayo).  On the other hand the 3rd defendant signed as the purchaser and supported by two witnesses.  Third defendant described this signature as a forgery in that at the time it was penned, he was in the United Kingdom.

Exhibit 10 is the Deed of Donation which was prepared by Mr Kenneth Lubimbi, a duly admitted and sworn Notary Public at Bulawayo on 6 August 2015 in the presence of two witnesses.  According to this Deed of Donation, he, 3rd defendant out of love and affection for his wife, Greater Moyo donated stand 20290 Pumula South Township, Bulawayo.  Attached to exhibit 10 is a letter allegedly written by 3rd defendant addressed to the “Housing Officer Pumula Housing Office, Pumula Bulawayo” giving his consent to transfer ownership of the same property to Greater Moyo.  In that letter he is alleged to have stated; “This is a free transfer to Greater my wife, I have since bought a farm.  Therefore “I give her the house”.  The letter is dated 14 August 2015.  Third defendant denied writing and signing the letter.  He claimed this to be part of the grand scheme orchastrated by Greater so as to steal his house.

The 3rd defendant did not in my view give evidence in a chronological manner. His evidence does not read well in that it is riddled with contradictions improbabilities and inconsistencies.  When asked to narrate what happened when he arrived in the United Kingdom in 2010 he initially said they lived as “husband and wife”.  However, he later changed and said when he arrived, Greater was “already married to another man”.  As regards the torn passport pages, he initially said Greater tore them simply to prove the poor quality paper but later said she did so “intentionally or deliberately in order to bar him from leaving the United Kingdom.  Upon being asked about whether or not he made a report about his missing documents to the United Kingdom police, he said he did.  However when asked about the specifics of that report, he said he told them Greater had stolen them, only to make a u-turn and said he told them the documents were “lost”.

While accepting that this house was rented to tenants ever since, 3rd defendant did not admit that he allowed Greater to benefit solely from the rentals.  He claimed Greater “imposed herself” as the sole beneficiary.  This was despite credible and uncontroverted evidence including that from Herbert Nkomo to the effect that Greater’s sister, one Mildred Bhebhe was collecting rentals for the benefit of 3rd defendant’s in laws.  What is improbable about this is why 3rd defendant would keep quite about such a glaring disparity.  He surprisingly did not proffer any explanation why he allowed this situation to persist for years.  It would have been very easy for 3rd defendant to simply instruct the tenants to pay rentals to Herbert Nkomo instead of Mildred Bhebhe if that is what he wanted.  I take the view that the probabilities favour a conclusion that 3rd defendant voluntarily surrendered his income from the rentals to his wife (Greater Moyo) for the benefit of her family.

It was not shown through 3rd defendant’s evidence that plaintiff or her mother had knowledge of the couple’s strain.  Thus, it was not shown that plaintiff acted mala fide in the circumstances.  Just like Herbert Nkomo, 3rd defendant’s case was that Greater stole title without showing that plaintiff was part of the conspiracy to defraud 3rd defendant of his house. Finally, 3rd defendant did not and could not challenge the payment of US$20 000 to Greater as purchase price by plaintiff’s mother.

The third defendant closed his case and Ms Chikomo for the plaintiff requested the court to call the Notary Public whose Deed of Donation had been challenged by the 3rd defendant.  Mr Mlala, for the 3rd defendant had no objection and the court called Mr Kenneth Lubimbi as a witness.  His evidence is easy to follow.  It is to the effect that the Donor and Donee produced their verification particulars and he verified them as against the appearers and he was satisfied that he was dealing with the correct parties.  He explained to the 3rd defendant what a donation was all about.  According to him, the couple showed affection towards one another with the man apparently taken by the beauty of his wife.  He then prepared the Deed of Donation which the parties together with witnesses signed in front of him.  As to the assertion that the 3rd defendant did not appear before him, the witness categorically refuted this by stating that after both parties produced their identification particulars, he “verified the photographs on the identification particulars as against the appearers” and he was satisfied he was dealing with the rightful people.

According to the witness he talked to 3rd defendant for some time while explaining the purpose of the Deed of Donation.  Third defendant told the witness that he (3rd defendant) was a brother to one Themba Nkomo an ex-court recorder and that the Council officials and ZIMRA wanted a Deed of Donation prepared by a Notary Public before he could transfer his house to his wife Greater Moyo.  The witness asked for proof of ownership and he was shown an agreement of lease between 3rd defendant and Bulawayo City Council dated 7 February 2000.  He then asked why 3rd defendant wanted to donate the house to his wife and he said it was out of love and liberality without any conditions.

There were 3 women accompanying 3rd defendant namely his wife Greater, her sister and a Miss Nkomo who was said to be 3rd defendant’s aunt or cousin.  These women were the parties’ witnesses.  After drafting the papers, he gave a copy each to 3rd defendant and Greater.  Third defendant gave the witness his cell numbers as 0777320618 and 0716836479.  The witness said the office of Notary Public is of utmost good faith and he did his job professionally.  Under cross-examination he maintained that he properly identified the 3rd defendant and he had no doubt that he is the person who appeared before him and signed the declaration by the donor on 6 August 2015.  He insisted that if he was in doubt he would not have done it.  As regards witnesses’ identities he said he did not check them as there is no need at law to do so.  Finally when it was put to him that 3rd defendant denied appearing before him he said it is easy for him to say that especially where the reason for donating property fell away.

In my view this witness gave his evidence truthfully.  It was not shown that he departed from both the substantive or procedural rules required in preparing such documents.  The documents he executed are thus valid at law.

The plaintiff has established the first issue namely that Greater was paid the full purchase price by plaintiff’s mother in the United Kingdom – exhibit 6.  As regards the 2nd issue I find that there is no evidence that plaintiff knew or should have known that there was an ownership dispute between 3rd and 1st defendants.  She did not know that Greater had committed fraud against the 3rd defendant.  The paper trail as revealed by the documents is that 3rd defendant donated his house to his wife (1st defendant) on 6 August 2015 (Exhibit 10).  After that, he entered into a memorandum of agreement to cancel his agreement with 2nd defendant.  This was done on 23 September 2015.  After that the 2nd and 1st defendants entered into an agreement of sale in respect of the same property – Exhibit 7 dated 23rd September 2015.  Subsequently more than a year later on 11 November 2016, 1st defendant and plaintiff entered into an agreement of sale wherein the latter purchased the property – Exhibit 4.  In this agreement 1st defendant was represented by her sister Mildred to whom she had granted a Special Power of Attorney on 29 September 2016 – see Exhibit 5.

It must be noted that before signing the agreement of sale (Exhibit 4), plaintiff inspected the house file at Pumula Housing Office and saw all the exhibits referred to above therein.  She was convinced that the house lawfully belonged to Greater.  She believed on reasonable grounds in my view, that there were no encumbrances to the 1st defendant’s rights and interests in the house.  She is in that regard an innocent purchaser.  Clearly the more probable account is that 3rd defendant formally caused change of title of the house into his wife’s names as she for years of their union had benefited from the proceeds of the property to an extent that one would say that placed her as owner of the estate.  It cannot therefore be improbable that 3rd defendant willed that the house be in 1st defendant’s name.  The parties’ lifestyle and conduct with regards to collection of rentals is suggestive of a donation having been done in favour of 1st defendant.

In a civil matter, the standard of proof is never anything other than proof on a balance of probabilities.  The primary consideration is to do justice to each party and the test for that justice is to balance their competing claims.  The standard of proof required by the civil standard is easier to express in words because it involves a comparative rather than quantitative test.  The burden is discharged if the tribunal can say “we think it more probable than not” see City of Gweru v Mbaluka 2014 (1) ZLR p1.

In casu, I find that on the evidence led on record for the plaintiff and 3rd defendant it is clear that plaintiff’s account of events and intent of transaction is more probable than 3rd defendant’s account.  This is supported by 3rd defendant’s witness Herbert Nkomo.  The evidence also corroborates plaintiff’s version.  As regards the alleged fraud or forgery, it is trite that the onus of proving unlawfulness is on the party alleging it.  The 3rd defendant has failed to discharge that onus.  There was not a shred of evidence that the plaintiff knew or ought reasonably to have known that Greater had stolen the house from her husband the 3rd defendant.  Plaintiff accepted the documents in the file at Pumula Housing Office in good faith understanding that they were legally binding and that the 1st defendant would honour the agreement.  In any event, this is a case calling for the relaxation of the par delictum rule in that to declare the contract between plaintiff and 1st defendant illegal so as to debar the innocent party (plaintiff) from relief would be to “injure the innocent, benefit the guilty and put a premium on deceit”.  It would result in unjust enrichment in that it is the 3rd defendant’s wife who would benefits together with 3rd defendant’s children from the alleged illegality.

In such cases public policy demands the courts should properly take into account the doing of “simple justice between man and man in order to prevent injustice.  See Hatting & Ors v Van Klerk 1997 (2) ZLR 240 (S); Dube v Khumalo 1986 (2) ZLR 103 at 109D-F; Jajbhay v Cassim 1939 AD 537 at 344-345.

Accordingly it is ordered that;

The 1st defendant be and is hereby compelled to effect transfer of stand 20290 Pumula South, Bulawayo into plaintiff’s names.

The 2nd defendant be ordered to accept change of ownership papers from 1st defendant.

In the event 1st defendant fails or refuses to comply with the order, the Sheriff, Bulawayo be and is hereby empowered to sign all necessary paperwork on behalf of 1st defendant and 2nd defendant is ordered to accept papers signed by the Sheriff and transfer the property into plaintiff’s names.

The 1st defendant and all those claiming title through her be and are hereby evicted from stand 20290 Pumula South, Bulawayo.

Dube-Tachiona & Tsvangirai, plaintiff’s legal practitioners

Sansole & Senda, 3rd defendant’s legal practitioners