Thelma Nokuthaba Zikhali v Arnold Bamba Ncube

### Preamble
1
HB 44/19
HC 2189/15
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THELMA NOKUTHABA ZIKHALI

Versus

ARNOLD BAMBA NCUBE

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 16 – 18 MAY 2017 & 21 MARCH 2019

Civil Trial

J. Tshuma for the plaintiff

M. Ndlovu for the defendant

TAKUVA J:	This is a vindicatory action by the plaintiff who seeks to vindicate her house from defendant who is in occupation without her consent.  After hearing all the evidence I granted the following order.

“Judgment be entered for the plaintiff against the defendant for:-

An order evicting the defendant from No. 5 Chester Place, Hillcrest, Bulawayo and delivery thereof of the said property unencumbered.

The defendant’s counter-claim be and is hereby dismissed.

Each party to bear its own costs”

Subsequently Mr M. Ndlovu for the defendant requested full reasons for the judgment.  These are they.

Plaintiff is defendant’s step daughter.  Plaintiff’s mother who is defendant’s wife lives in Los Angeles in the United States of America.  Plaintiff resides and works in Canada having left Zimbabwe in July 2009.  In 2002, plaintiff borrowed US$15 000,00 from her mother in order to purchase a house in Bulawayo, Zimbabwe.  Her mother advanced her a loan which she paid in cash through instalments.

The money was sent to Debra Ndebele who was in turn supposed to hand over to Babra Ndlovu (plaintiff’s aunt) who bought the house on plaintiff’s behalf.  This after a Power of Attorney had been granted to Babra Ndlovu and her boyfriend one Oliver Sibanda.  An agreement of sale was signed between the seller, one Irene Matambo and Babra and Oliver Sibanda on behalf of the plaintiff.  Conveyancing was done by a firm of legal practitioners in Bulawayo and the house was transferred to the plaintiff.  In other words the house was registered in the plaintiff’s names in June 2002 as shown by the Title Deed in plaintiff’s bundle of documents.  There is also documentary proof from Western Union Money Transfers that plaintiff’s mother sent various amounts in US$ to Debra Ndebele between February and April 2002.  All this is common cause.

The issues in terms of the joint pre-trial conference memorandum are as follows:

Is plaintiff the owner of the house also known as 5 Chester Place, Hillcrest, Bulawayo?

If she is the owner, is she entitled to evict defendant?

Does defendant have a defence against plaintiff’s claim if so, what is the nature of the defence?  How does that defence affect the ownership of the property by plaintiff?

If defendant has a defence, is that prescribed?

Plaintiff testified and simply narrated how the house was purchased.  In addition she also indicated that some improvements were done on the property after she discovered that she did not like the original plan.  According to her, the money for the renovations came from her mother and was directed to the defendant who was supervising the re-construction of the house.  All in all she said it cost her around US$8 000,00 to renovate the house, other than supervising builders, the defendant did not contribute financially to the cost of renovations.  Plaintiff explained that she stayed with defendant before she left for Canada but their separation was not amicable in that she and her 14 year old cousin left home after rape allegations by her cousin.  From that time her mother had always desired that she owns property in her own right.

After the house had been purchased and registered in her name, plaintiff sent her grandmother one Josephine Zikhali to go and inspect it.  She met a lot of resistance from the defendant who had been allowed to occupy the house by her mother.  Defendant wanted to supervise the developments at his two stands in Matsheumhlophe.  He complained that he faced problems supervising the construction from as far a place as Lobengula West.  Defendant informed Josephine Zikhali that he did not want to see any member of the Zikhali family coming to that house.

The plaintiff decided to return to Zimbabwe to see the house in 2015.  The defendant locked the doors, demanding that she hands over the Title Deed.  She refused and at one time defendant threatened to petrol-bomb the property, this after he had unsuccessfully filed for a peace order against plaintiff’s grandmother Josephine Zikhali.

Plaintiff said the defendant is living in her house without her consent, she therefore wants him evicted from her property.  Plaintiff denied being part of a grand scheme to defraud the defendant by fraudulently having the house registered in her name.  Further, she said defendant sold his Lobengula West house well after she had purchased the house in dispute.  Although she was aware that her mother and the defendant were engaged in divorce proceedings, she did not know the precise details of that action.

The plaintiff’s demeanor was good.  She answered all questions well and truthfully.  Although she has an interest in the outcome of this case, she did not display any blatant bias or hostility against the defendant.  The bulk of her evidence is actually corroborated by the defendant whose only gripe with her is that she is being used as a pawn in the game between him and her mother.  There are no internal or external contradictions in her evidence.  Accordingly I found her a credible witness whose evidence I accept in toto.

Plaintiff closed her case and defendant opened his case by testifying.  His testimony covered the plaintiff’s claim and his counter claim.  As regards the circumstances surrounding the purchase of the property defendant said it was bought by both of them since he is legally married to plaintiff’s mother.  He claimed to have been involved in the negotiations with the seller sometime in 2002 although he was based in South Africa.  He had to take leave to come and attend to this issue.  When he left he nominated his sister one Debra Ndebele to be his representative.  However, he was informed that his wife had instructed Debra Ndebele to surrender the purchase price to her sister Babra Sibanda.  He admitted that the full purchase price came from plaintiff’s mother and that it is Babra and her husband who paid the purchase price to the seller.

He said he was phoned while in South Africa by his wife to return to Zimbabwe to effect transfer.  However he was surprised upon his return to find out that the property had been registered in plaintiff’s name.  Defendant was not happy about this and he confronted his wife in USA.  The explanation he got was that it was an error which would be rectified in due course when she returns to Zimbabwe and he took her word for it.  This was in 2002.  Defendant returned to Zimbabwe in 2004 and plaintiff’s mother suggested that he should “develop the house”.

According to him the fraud was perpetrated by the law firm that prepared the conveyancing documents, the plaintiff, plaintiff’s mother and Irene Matambo (the seller).  He maintained under cross examination that his wife was supposed to first discuss the issue with him.  Despite admitting that he did not enter into an agreement of sale with Irene Matambo.  Defendant insisted that this agreement of sale between Irene Matambo and plaintiff was fraudulent.  Defendant also conceded that there was no agreement of sale between plaintiff’s mother and Irene Matambo.  Defendant argued that since the money came from his wife, the house is matrimonial property.  The defendant said he sold his property in Lobengula West in order to “develop” the property in issue.  When it was pointed out to him that in his pleadings he had stated that the purchase price was raised through the sale of the Lobengula West house, he said that was an error that arose from language differences with his lawyer.  The correct position according to him was that the proceeds of the sale were used to improve the house in dispute.

Defendant confirmed that the property was registered in 2002 and divorce proceedings commenced around 2014 – 2015 under HC 637/15.  Notwithstanding that defendant insisted that there was a nexus between the transfer of the house to plaintiff and the divorce.  His argument was “it was a long term strategy.”  While admitting that the marriage was out of community of property, defendant said when they got married, they signed a “document showing it was in community of property”.  Defendant confirmed that he owns a residential stand in Matsheumhlophe, Bulawayo.

Defendant’s evidence has internal contradictions in that while in his pleadings he had stated that he contributed to the purchase price of No. 5 Chester Place, Hillcrest, Bulawayo through the proceeds of the sale of the Lobengula West house, in his evidence in chief he said these proceeds were used to “renovate” the house.  Further, probabilities do not favour defendant’s version in that it contradicts primary evidence in the form of documents in existence.  Not only that, defendant ‘s testimony that his wife phoned him while he was in South Africa to go to Zimbabwe to attend to the transfer of ownership is improbable and incredible in that as defendant confirmed, when he arrived the property had already been registered in plaintiff’s name.  It boggles the mind why plaintiff’s mother would openly invite the defendant to participate in what the latter describes as “fraudulent transfer”?

Defendant called Mr OliveR Sibanda who is married to Babra Ndlovu the plaintiff’s aunt.  He confirmed receiving instructions from plaintiff’s mother to go and collect money from Debra (the defendant’s sister).  He and his wife collected US$4 000,00 but he was made to believe that Babra had used part of the money without the owners’ consent.  Plaintiff’s mother discussed the issue with her sister and they agreed that plaintiff’s mother would send more money to supplement the US$4 000,00 so that they purchase a house.  He could not remember the total figure they received from plaintiff’s mother but eventually they were given the seller’s name.  They met her and viewed the house.  After that they briefed plaintiff’s mother who expressed interest to purchase the house.  They then went to Mr Naran who exchanged the US$ to Z$ and they secured a lawyer to whom they paid the purchase price.  After about two weeks he signed the agreement of sale as the purchaser but he discovered that the purchaser was the plaintiff and this did not surprise him as plaintiff was Zodwa’s daughter.  At the time this happened, defendant was in South Africa.

He collected the Title Deed which he handed over to the defendant on plaintiff’s mother’s instructions.  According to him defendant queried why the house was registered in plaintiff’s name.  Thereafter, he was instructed by plaintiff’s mother to collect the plan for the house from Irene Matambo.  He handed all documents to defendant.  Although he was aware that defendant was supervising the renovations he had no idea where the money came from.

Under cross-examination he conceded that the whole process of buying and transferring ownership of the house took place when defendant was in South Africa.  He also confirmed his wife Babra and himself were working as a team during the process.  They had been granted Power of Attorney to sign this agreement on behalf of the purchaser.  According to him there was nothing irregular about the agreement of sale and the fact that the plaintiff was the purchaser did not surprise them because plaintiff and defendant belonged to the same family.

Defendant told the witness that there was an error on the documents without being specific.  The witness said he complied with plaintiff’s mother’s instructions fully.

In my view, this witness told the court the truth of what he and his wife did in this saga.  Although at times his memory failed him, he covered all the relevant stages satisfactorily.  He confirmed that he saw the Power of Attorney authorising them to sign the agreement of sale.  He conceded that he did not closely read the Power of Attorney which he believed had been granted by the plaintiff’s mother.  Also, he confirmed that the purchaser was the plaintiff in terms of the agreement of sale.  The Title Deed also reflected the plaintiff as the owner of the house.

The Law

There is no doubt that plaintiff’s claim is premised on the principle of re vindicatio.  Plaintiff has to prove two essentials, namely; (i) that she is the owner of the property and (ii) that defendant is in possession of the property without the owner’s consent.

There are four possible defences, namely;

That the plaintiff is not the owner of the property

That the property no longer exists or not identifiable

That at the commencement of the proceedings defendant was no longer in possession of or physical control of the property

That possession or physical control is not unlawful.

See Musanhu v Musanhu HH-58-17; Stanbic Finance (Pvt) Ltd v Chivhungwa 1999 (1) ZLR 262 (H) where it was held that “Stanbic Finance, as the true owner of the motor vehicle, is entitled on the principles of the actio rei vindicatio to recover it from any person, including the respondent, who had possession of it without its consent”.

Silberberg and Schoeman The Law of Property second edition at page 289 while discussing this principle state: “The applicable action, in respect of both movables and immovables, is the rei vindicatio which is an action in rem.  An owner who institutes the rei vindicatio to recover its property is required to allege and prove no more than

That he is the owner of the thing, the burden rests upon the vindicator in the absence of an admission on the pleadings of his title to prove it.  Once the acquisition of ownership has been proved by the plaintiff on a preponderance of probability, its continuation is presumed.

That it was in the possession of the defendant at the commencement of the action.”

Mr Ndlovu for the defendant premised his argument on four fronts namely; (i) that plaintiff’s ownership was tainted with fraud in that she initially said she did not see the Power of Attorney but later changed and said she gave it to Babra. (ii) Mr Sibanda did not have the Power of Attorney from plaintiff since he said the Power of Attorney came from her mother. (iii)  the agreement of sale was irregular since it was not signed at the time the payment was made. (iv) that plaintiff was unjustly enriched at the expense of the defendant and plaintiff cannot just evict defendant without compensating him.

The 1st point has no merit in that on the evidence it is clear that plaintiff’s mother played a major role in facilitating the purchase of the property.  Plaintiff’s evidence was that she signed the Power of Attorney and gave it to her mother who in turn sent it to Babra Ndlovu.  Perhaps the following exchange between Mr M. Ndlovu for the defendant and plaintiff makes the point more clearer;

“Q	-	 Who signed the agreement of sale?

A	-	My aunt’s boyfriend Mr Sibanda

Q	-	The same man married to your aunt

A	-	Could be

Q	-	Without your consent?

A	-	She took her boyfriend with her and he signed

Q	-	Did you grant Power of Attorney to Sibanda?

A	-	No to Babra Ndlovu

Q	-	Who arranged for the Power of Attorney

A	-	My mother

Q	-	You did not see the Power of Attorney

A	-	No

Q	-	I put it to you that transfer was fraudulent?

A	-	No

Q	-	Who signed the declaration by purchaser?

A	-	Babra Ndlovu

Q	-	There was no Power of Attorney from you?

A	-	My mother sent it to her.  I did the Power of Attorney and gave it to my mother who sent it to Babra.  You earlier asked me about the Power of Attorney with Sibanda’s name and that is the one I did not see.

Q	-	Where did you sign the Power of Attorney

A	-	In Canada …”

The above exchange conclusively answers the second point about Mr Sibanda not having the Power of Attorney from plaintiff but from her mother.  The third point is difficult to follow.  As regards the final point, the defendant has not shown on a balance of probabilities that the plaintiff will be unjustly enriched.  Defendant did not prove that he used his resources to renovate the house after it had been purchased.  He simply wanted the court to accept his ipse dixit without any documentary proof that he also contributed to the renovations.

Applying the principles to the facts I find that in casu the plaintiff has proved on a balance of probabilities that she is the owner of the property in dispute.  That proof is in the form of the Title Deed duly registered at the Deeds Office in Bulawayo.  The registration has not been shown to be irregular.  After the seller sold the property to the plaintiff the purchase price was paid and the conveyancer prepared and submitted documents that facilitated the transfer.  According to Oliver Sibanda, he and his wife Babra were granted the Power of Attorney to sign documents to purchase the house and effect transfer.  He further confirmed that the agreement of sale was between Irene Matambo and Thelma N. Zikhali (plaintiff).  More importantly he said the defendant was not part of that transaction since the full purchase price came from Ntombizodwa Ncube (plaintiff’s mother).  The 1st requisite is therefore met in that in terms of the Deeds Registries Act (Chapter 20:05), ownership of immovables is proved by the Title Deed.

The second requirement is admitted by the defendant making it common cause.  The defendant admits that he is in possession of the property without plaintiff’s consent.  He further admits that plaintiff has demanded that he vacates the house.

Defendant’s defence is that the house is matrimonial property since it was purchased using his wife’s money.  This however is legally untenable because the plaintiff is not part of the matrimony.  The parties’ marriage is out of community of property meaning that each of the parties is free to do as they please with their property including money.  In any event even if defendant’s wife had bought the house as a gift to plaintiff, that property would not be the mother’s property.  Further, even if it were proved that defendant contributed to its renovations, it would still not make it matrimonial property.  Defendant who was legally represented did not produce an antenuptial contract presumably because it does not exist in casu.  Defendant is labouring under a misunderstanding of the law apparently premised from cultural power.

Fraud has not been established by the defendant in that plaintiff never communicated with defendant.  Therefore, she could not have made any form of misrepresentation that caused or was potentially prejudiced to the defendant.  The plaintiff’s conduct or that of her mother can hardly be said to be fraudulent.

Accordingly, it is ordered that judgment be and is hereby entered for the plaintiff against the defendant for:

An order evicting the defendant from No. 5 Chester Place, Hillcrest, Bulawayo and delivery thereof of this property unencumbered.

The defendant’ counter claim be and is hereby dismissed.

Each party to bear its own costs.

Webb, Low & Barry incorporating Ben Baron & Partners, plaintiff’s legal practitioners

Mlweli Ndlovu & Associates, defendant’s legal practitioners