Stephen Gonye v Thandiwe Thebe and Registrar of Deeds (N.O)

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HB 64/21
HC 1243/20
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STEPHEN GONYE

Versus

THANDIWE THEBE

And

REGISTRAR OF DEEDS (N.O)

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 6 AUGUST 2020 AND 8 APRIL 2021

Urgent Chamber Application

L Mcijo, for the applicant

T Ndebele, for the 1st respondent

No appearance for the 2nd respondent

TAKUVA J:	This is an urgent chamber application wherein the applicant seeks interim relief couched in the following terms;

“INTERIM RELIEF SOUGHT

Pending the return date of this matter the applicant be and is hereby granted the following interim relief:

The respondents be and are hereby directed to suspend and put on hold the transfer of stand No. 1356 Cowdray Park from the applicant to the 1st respondent pending finalization of this matter.”

The facts giving rise to this application can be gleaned from the applicant’s founding affidavit and summarised as follows:

The applicant is the current registered owner of the stand in dispute only because transfer to one Innocent Hlambelo (HLAMBELO) and eventually to the 1st respondent’s deceased husband one Mlamleli Somfula Thebe (THEBE) has not been completed.  The applicant admits selling the property in issue to Hlambelo in January 2002.  He gave occupation to Hlambelo and asked him to accommodate 1st respondent who was his girl-friend.

Eighteen (18) years later he made a follow-up with CABS who were holding his title deeds pending the clearance and cancellation of a bond registered over the property.  He was referred to Messrs Lazarus and Sarif who informed him that they were in the process of transferring the property into the name of the 1st respondent who purported to have bought the property with her late husband from him.

Despite informing Lazarus and Sarif that he never sold the property to the 1st respondent or any of her relatives, the lawyers referred the file to the Registrar of Deeds for the processing of transfer.  According to the applicant, the transfer is premised on fraud in that he never sold the property to the 1st respondent.  Therefore, applicant seeks to interdict the respondents from proceeding with the transfer and if it had already gone through that it be reversed and cancelled.

Applicant contended further that he has a prima facie right to the property since he never sold it to the 1st respondent or any of her relatives.  Applicant fears that if the property is transferred, there would be real harm not only to him but to Hlambelo to whom he sold the house “long back” and is the one entitled to the transfer not the 1st respondent.

Finally, the applicant contended that the balance of convenience favours the granting of this interdict “to stop this illegality.” Applicant believes there is a likelihood that 1st respondent may dispose of the property once she gets title to it.

The 1st respondent opposed the grant of the relief sought on the following grounds.  The thrust of 1st respondent’s opposition is that the applicant has no prima facie right over the property in that he sold the property in question to Hlambelo and therefore alienated his rights over the property.  Hlambelo subsequently sold the property to 1st respondent’s late husband.  The 1st respondent annexed an affidavit duly sworn to by Hlambelo, confirming selling the house to one Thebe.  The 1st respondent contended that the applicant has no claim whatsoever over the property in question.  His locus standi, so the argument goes is not only questionable but non-existent.

As regards irreparable harm befalling applicant if the order is not granted, 1st respondent argued that no harm will be suffered by either the applicant and or Hlambelo as both alienated their rights to one Thebe back in 2003.  Further, 1st respondent argued that the balance of convenience does not favour the applicant in that he got his full dues back in 2003 that is 17 years ago.  Whereas on the other hand, the 1st respondent has been in peaceful possession and occupation of the property in question since purchasing it seventeen (17 years ago.  Finally, 1st respondent submitted that she does not intend to dispose of the property since it is her only dwelling left behind by her late husband.  In any event, so the argument goes even if she disposes of the property, this would not affect applicant and or Hlambelo as these two were paid what was due to them back in 2003.

First respondent prayed for the application to be dismissed.

THE LAW

It is trite law that the requisites of a temporary interdict in the form of an interim relief are:

a prima facie right

a well-grounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is eventually granted.

a balance of convenience in favour of granting the interim relief and

the absence of any other satisfactory remedy.

See Setlogelo v Setlogelo 1914 AD 221

Steel and Engineering Industries Federations and Others v National Union of Metal Workers of South Africa (2) 1993 (4) SA 196 (t) at 199 G-205J.

Air Field Investments (Pvt) Ltd v Minister of Lands and Others 2004 (1) ZLR 511 (S) at 517 F-H.

The remedy of a temporary interdict is the protection of an alleged existing right.  It is certainly not a remedy for the past invasion of rights.  Therefore its effect is to maintain a certain status quo by freezing the position until the court decides where the right lies.  Where the right is derived from is not important.

Applying the law to the facts in casu, one should quickly note that it is common cause that applicant sold his house to Hlambelo in 2002-3.  The legal import of this sale is that it formalised the alienation of applicant’s rights in that property.  On the facts the contract of sale between applicant and Hlambelo is perfecta.  After this sale whatever happened to the property is none of applicant’s business.  Indeed the evidence shows that Hlambelo sold the property to Thebe on 4 February 2003.  This is confirmed by Hlambelo in his affidavit sworn to on the same date and filed by 1st respondent as Annexure A.  It is common cause that 1st respondent was married to the late Thebe.

Upon receiving $3 000 000-00 from Thebe, Hlambelo gave the former and 1st respondent vacant possession.  The process of transferring the property to Thebe commenced, culminating in the City of Bulawayo granting its consent to the transfer of the property to Thebe on 2 September 2004 – See Annexure B.  It appears applicant was fully aware as far back as 2003 that the property had been sold to Thebe – see Annexures E and F.  The latter document was signed by applicant as a witness to a debt relating to the payment of Capital Gains Tax on the property.

However, there are two documents that Mr Mcijo for the applicant disputed their authenticity on the basis that they were allegedly signed in 1998 before applicant sold his property to Hlambelo.  See Annexure C which is the declaration by the seller (applicant) and Annexure D, the declaration by the purchaser.  Mr Ndebele for the 1st respondent conceded that the date on these documents is wrong.  In my view, the sequence of events in this matter shows that this was a clear error.

In any event the 1st respondent’s case is not that her late husband bought property from Gonye but from Hlambelo.  It is also not her case that the property was purchased in 1998 but in 2003.  Therefore Annexures C and D, confusing as they may be are irrelevant to the main dispute in casu namely whether or not applicant alienated his rights to the property.  Applicant denies selling his house to 1st respondent’s late husband but admits selling it to Hlambelo who in turn sold it to 1st respondent’s husband.  These transactions occurred between 2002 and 2004.  There is no mention during this period of an earlier sale between Gonye (applicant) and Thebe (1st respondent’s husband).  For these reasons I am not convinced that Annexures C and D establish fraud by Thebe that would render the agreement of sale between Hlambelo and Thebe null and void.  In any event, even if this were so, it would not grant applicant the prima facie right in this application in that he admits selling the house to Hlambelo.  The buck ends there.

For the foregoing reasons, I find that notwithstanding the fact that the property is still registered in applicant’s name, he has no prima facie right to make this application because he sold the property to Hlambelo thereby alienating his rights in the property.

As regards a well grounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is eventually granted, I find that there is no well grounded irreparable harm to the applicant in that the property no longer belongs to him.  The transfer will not prejudice him in any way.

In my view, the balance of convenience does not favour the granting of the interim relief in that the applicant has no interest or rights in the property.  Applicant was paid for the property 17 years ago and he enjoyed the money.  Unless he wants to benefit twice by selling the house to a 3rd party, one does understand why he is crying more than the bereaved if at all there is a bereavement on the facts.

On the other hand, the 1st respondent is a widow who has been living in the house since 2003.  It is common cause that she has been in peaceful occupation and possession of the house for close to 18 years.  On these facts it is clear that 1st respondent will suffer greater inconvenience than the applicant.

The last requirement is inapplicable because the applicant on these facts, has not been injured.  He therefore does not require any remedy.

DISPOSITION

The application lacks merit.  It is hereby dismissed.

Liberty Mcijo & Associates, applicant’s legal practitioners

Lazarus & Sarif, 1st respondent’s legal practitioners