Asiyati Phiri and Levison Yard Phiri v Stephen Paradzai and Joyline Mhasho and Registrar of Deeds and Beauty Chakodza

### Preamble
1
HH 252-11
HC 1465/07
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ASIYATI PHIRI

and

LEVISON YARD PHIRI

versus

STEPHEN PARADZAI

and

JOYLINE MHASHO

and

REGISTRAR OF DEEDS

and

BEAUTY CHAKODZA

HIGH COURT OF ZIMBABWE

GOWORA J

HARARE, 22 September 2011

B Chidziva, for the applicants

G Mhlanga, for the 2nd respondent

No appearance   for 1st respondent

No appearance   for 3rd respondent

No appearance for 4th respondent

GOWORA J: On 23 June 2004 under Case No. HC 8385/03 this court issued an order in favour of the second respondent herein in default of appearance of the first, third and fourth respondents herein. The order was corrected by an order issued by this court under Case No. HC 4071/06 dated 26 July 2006. The correction was intended to give effect to the execution of the order of 23 June 2004.

The orders described above entitled the second respondent to have the right title and interest in certain immovable property, namely 221A Nedlaw Suburbs, Rimuka transferred from the first and fourth respondents to the second respondent herein.

On 29 March 2007 this court issued a provisional order in favour of the applicant. In terms of the interim relief under the provisional order, the execution of the judgment under Case No. HC 8385/03 was stayed and effectively the transfer to the second respondent has as a result not been effected. The applicant now seeks confirmation of that provisional order in respect of the final relief wherein the applicant seeks the rescission of the judgment under Case No. HC 8385/03, and, in addition thereto, an order setting aside of the agreement of sale between the first and fourth respondents on one part and the second respondent on the other.

It is common cause that the applicants are currently staying in the property which devolved upon them in terms of a plan of inheritance from the estate of Aluna Grace Phiri who died on 10 March 2002. The estate was wound up on 19 December 2003. It is also common cause that the said Aluna Grace Yard had purchased the right, title and interest in the property from the first and fourth respondents sometime in 2000. The exact date has not been stated. It is also common cause that on 1 September 2000 the first and fourth respondents herein ceded their right, title and interest in the property to Aluna Grace Yard. On 2 October 2000 the Director of Housing and Community Services for Rimuka Township consented to the cession which effectively thereafter bestowed a real right in the property upon Aluna Grace Yard.

It is not in dispute that the second respondent herein also concluded an agreement of sale with the first respondent in respect of the right title and interest in the same property. The agreement is dated 15 September 1999. This agreement therefore predates the agreement with Aluna Grace Yard. This is the agreement which was the subject matter of the order granted by this court under Case No. HC 8385/03 dated 23 June 2004 and which was corrected by the order dated 26 July 2006 issued under Case No. HC 4071/06. The first order permitted the second respondent to have transfer of the property effected into her name whilst the second authorised the Deputy Sheriff to sign all documents necessary for the property to be transferred into the name of the second respondent.

The applicants seek rescission of the first order. By my reckoning if the first order is rescinded the second cannot stand as it is merely one that gives practical effect to the first.

The first, third and fourth respondents have not filed any papers in opposition of the applicants’ claim. The only opposition has come from the second respondent.

The first point she takes is that the agreement of sale between Yard and the first and fourth respondents has not been exhibited to the court and that consequently she disputed the authenticity of the Deed of Cession.

The second point she takes is that she is the first purchaser and that by virtue of that agreement she acquired real rights in the property. She avers further that in the premises Aluna Grace Yard did not acquire any rights when she concluded an agreement with the first and fourth respondents as the first respondent had disposed of these rights when he concluded the agreement with her.

In argument, the second respondent has contended that the applicants do not have the necessary locus standi to bring the application for rescission of the judgment granted on 23 June 2004. She contends that only a person cited as a party can apply for the rescission of a judgment granted against it in default.

In Bopoto v Chikumbu & Ors  1997(1) Z LRI 1(H) at 3 ROBINSON J opined that r 63(1) of the High Court Rules expressly provided that only a partly against whom a judgment had been given in default could apply for the setting aside of that judgment. In my view the contention by the second respondent is a correct exposition of the law.

The applicants however contend that the application to have the judgment set aside is brought in accordance with the provisions of r 449 which allows the court to set aside a judgment erroneously sought or granted in the absence of any party affected thereby.

The question is whether the applicants were affected by the judgment. Indeed they were. By virtue of the consent from the Director of Housing and Community Services for Rimuka Township Aluna Grace Yard acquired real rights to the stand on 2 October 2000. Authority for this can be found in the case of Pedzisa v Chikonyora 1992 (2) ZLR 445 at 450C-D wherein GUBBAY CJ stated the following:

“The lease to buy agreement, as mentioned already, grants the lessee-purchaser the right to obtain transfer of the property upon payment of the purchase price and other charges and permits him, at any time, to accelerate payment of the outstanding balance in order to achieve that position. Yet there are several provisions which indicate that the Council retains a large measure of control both over the property and the purchaser until title is passed.”

And later at 450G-H:

“In my opinion, the cumulative impact of these clauses is such as not to have conferred upon the respondent a real right to the property; what he acquired was a personal right, exercisable against the Council. Put differently, the lease to buy agreement created obligations binding solely on the parties to it.”

The cession executed by the Municipality of Kadoma and Aluna Grace Yard and the first respondent was to the following effect:

“The Municipality of Kadoma hereby consent to the Cession of the contractual rights held by the Cedent vis-à-vis the Municipality in respect of Stand No 221A Nedlaw Surbubs, Rimuka Kadoma, (hereinafter referred to as the stand) and in particular confirm that provided that Cessionary meets all of the obligations to the Municipality presently pertaining to the Cedant relative to the stand, then the Municipality will, in accordance with its agreement with Cedant, give title to the said stand to Cessionary”

It cannot be disputed that based on this agreement the first respondent effectively disposed of his right title and interest in the property to Aluna Grace Yard who then acquired a personal right enforceable against the Municipality for transfer into her name upon her complying with the conditions attaching to the original agreement between the first respondent and the Municipality. It is also pertinent to note that the fourth respondent seemed not to have been a party to the agreement between the first respondent and the Municipality. At p 452C-E the learned Chief Justice stated:

“I prefer to approach the issue of whether the respondent’s personal right against the Council ever became a real right, by taking account of the primary duty of a lessor. It is to deliver not only vacua possessio but also commodus usus (undisturbed use) of the property let-to transfer to the lessee the detentio or physical control enabling him to sue and enjoy it. See Tshandu v City Council, Johannesburg, 1947 (1) SA 494 (W) at 497; Soffiantini v Mould 1956 (4) SA 150 (E) at 153D. That duty will not, of course, be fulfilled if, when the property is handed over, it is occupied by some other person, whether he be a trespasser or there under colour of right. In such event the court, at the request of the lessee, will grant specific performance, that is, direct the lessor to give occupation of the property to the lessee. The lessor will be compelled to comply if it is in his power to do so; but where not, he will be ordered to pay damages.”

In the founding affidavit the statement is made that the applicant and his brother ‘have continued to stay’ at 221A Nedlaw Rimuka, Kadoma. Before then Aluna Grace Yard had assumed occupation on 30 December 2002. There is no suggestion that the second respondent has at any time assumed occupation of the stand. The applicants were then awarded the rights of Aluna Grace Yard under the cession from the Municipality of Kadoma and the first respondent.

It is also not in dispute that the distribution plan in terms of which these rights were awarded to the applicants was confirmed by the Master in December 2003. The distribution plan has not been set aside.

The judgment of 23 June 2004 was granted in their absence. By the time the order was granted three events which had an effect on the status of the stand had occurred. The first respondent had ceded his rights under the lease agreement with the Municipality to Aluna Grace Yard and the Municipality had then, by consenting to the cession entered into an agreement with Yard in terms of which each acquired obligations and rights flowing from the cession agreement. The effect of the cession was that the first respondent was divested of any rights or obligations he might have had as a result of his agreement with the Municipality. He therefore no longer had any rights which could be passed to another person. Before the second respondent could be vested with any right in the stand, the cession of rights to Aluna Grace Yard had to be set aside. This has not been done to this date. The last event is that the rights ceded to Yard under the cession were then distributed in an inheritance plan to the beneficiaries of Yard. The plan has not been set aside. In my view if BHUNU J been aware of all these developments in respect of the property and the fact that the applicants were claiming rights to the same he would not have granted judgment without the applicants having been made aware of the second respondent’s claim against the first respondent. To that effect, this then was a judgment granted in error in the absence of the parties that would be affected by the judgment. The applicants are therefore entitled to an order setting aside the default judgment granted against the first respondent under Case No. HC 8385/03.

The provisional issued in favour of the applicants also provides in terms of the final relief for an order for the setting aside of the sale agreement between the first and second respondents.

When one peruses the founding affidavit it is evident that the applicants paid scant attention to this aspect of the dispute. It is however an issue that the second respondent paid a lot of attention. The applicants then respond in more detail in the answering and supporting affidavit.

It is trite that an application stands on falls on the founding affidavit. In the founding affidavit the applicants pray for an opportunity to be heard. There is no claim for the setting aside of the agreement of sale between the first and second respondents. In my view they have not laid a sufficient basis in the founding affidavit for this court to accede to the prayer in respect of the agreement between the first respondent and the second respondent.

In any event both parties have instituted separate actions for the transfer of rights in the transfer of rights in the property into their respective names. I believe that those proceedings are the appropriate fora for the parties to have the validity or otherwise their respective agreements tested.

In the premises the applicants are entitled to an order of the rescission of the judgement of this court dated 23 June 2004 granted under Case No. HC 8385/03.  There will be no order as to costs.

Kantor & Immerman, applicants’ legal practitioners

Jarvis Palframan c/o Debwe & Partners, 2nd respondent’s legal practitioners