Craftcall Investments (Private) Limited v Diana Mutsa Mapondera and Lawrence Masanga

### Preamble
1
HH 495 - 25
HC 5751/22
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CRAFTCALL INVESTMENTS (PVT) LTD

versus

DIANA MUTSA MAPONDERA

and

LAWRENCE MASANGA

HIGH COURT OF ZIMBABWE

CHITAPI J

HARARE; 2 September 2025

Opposed Court Application

S. Banda, for the applicant

R. G Zhuwara, for the first respondent

M. G Bumhira, for the second respondent

CHITAPI J:    The applicant Craftcall Investments (Private) Limited is a duly registered company according to the laws of Zimbabwe. The first respondent Diana Chipendo (now Mapondera) and the second respondent Lawrence Masanga are divorced by order of this court in case no. 10701/14 dated 18 August 2016. The dispute between the parties concern the disputed sale of stand 81 Gletwyn Township Harare held in the name of the first respondent under deed of transfer no. 2620/2003. The disputed agreement is dated 26 April 2013.

A preliminary issue needs to be recorded herein for completeness of the paper trail regarding how the application was dealt with by the court. There was a judgment that disposed of this application dated 20 May 2024 by Chinamora J. It was issued under judgment no. HH 198/24. The case which the judgment disposed of was referenced case no. HC 575/22 (an obvious error as it left out a 1, the correct number being 5751/22). A formal written complaint dated 10 October 2024 was addressed to the Honourable Judge President by the first and second respondents’ legal practitioners. They protested that they had become aware of judgment no. HH 198/24 on 9 October 2024 which judgment had been issued before the matter was set down for hearing nor were the parties heard. The judgment was granted in favour of the applicant. The first and second respondents’ legal practitioners in their wisdom copied the letter to the Registrar, The Secretary of Judicial Service Commission, Permanent Secretary of the Ministry of Justice and Parliamentary affairs, Mangezi and Partners and to their clients. In the court’s view the issue of the judgment having been issued without a hearing as it became common cause between the warring parties was one which should have engaged counsel for both side to approach the Registrar for clarification. There exists in the rules, provisions for relief to be granted to parties where a judgment is issued in error. As it turned, the letter accused the learned judge of impropriety of conduct, bias or impartiality and of engaging in conduct that impacted negatively on the integrity of the judicial system. Such accusations and comments may understandably be made by a layman but not a legal practitioner who is expected to investigate an occurrence first before scandalizing the judicial officer.

The respondents’ legal practitioners acted too precipitately in making accusations of impropriety against the judge. This is so because they ought to have engaged the learned judge first through the Registrar and obtained an explanation for the issuance of how the judgment came to be issued without a set down or a hearing. Rule 29 of the rules ought to have been engaged first in that situation. The rule provides as follows;

“Correction, variation and rescission of judgments and orders

29(1)	The court or a judge may in addition to any other powers it or he or she may have, on its 	own initiative or application or upon the application of any affected party, correct, rescind 	or vary –

an order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby; or

an order or judgment in which there is an ambiguity or a patent error or omission but only to the extent of such ambiguity; or error or omission, or

an order or judgment granted as a result of a mistake common to the parties

(2)	Any party desiring any relief under this rule may make a court application on notice to all 	parties whose interests may be affected by any variation sought within one month after 	becoming aware of the existence of the order or judgment.

(3)	The court or a judge shall not make any order correcting rescinding or varying an order or 	judgment unless satisfied that all parties whose interest may be affected have notice of the 	order proposed.”

The above cited rule should be the starting point for seeking relief in an instance such as what obtained. There are procedures which the law provides in circumstances where a case has been wrongly dealt with. Counsel must not or at least are not expected to act out of exuberance because a judicial officer has made an error. Counsel are aware that the right to be heard is entrenched in our constitution and it is cardinal. Accusations of judicial misconduct were made by counsel and a report made against the learned judge without even considering that the learned judge had a right to respond appropriately to the issue. Counsel was in this case expected to engage the rules for the solution. It is correct that judicial officers are not beyond reproach and I do not herein seek to make judgment or defend Chinamora J. I make the comment I have made to caution legal practitioners who are officers of the court that in circumstances as this one where an allegation is made that a matter has been disposed of by the court on the papers without a formal hearing having been convened, it is inadvisable to rush to impute improper motives on the judicial officer without seeking an explanation first. In this matter, a simple letter to the Registrar to seek an explanation on how the judgment was issued without a hearing having been convened would have been a good starting point.

Be that as it may, upon the letter being received, I was assigned the duty to investigate the issue. Since rule 29 appeared to deal with the matter, the parties were invited to appear before me. After engaging the issue it was clear that at least on the paper trail, the parties did not argue the matter nor was the matter set down for hearing. The judgment was therefore issued without the parties having been heard orally. The learned judge in doing so erred. The error was one common to all the parties. By the time I dealt with the issue the learned judge had left service. In terms of rule 29(1)(c) I set aside judgment HH 198/24 on the grounds that judgment was issued in the absence of a hearing and in default of the parties and was therefore issued through mistake common to the parties. In consequence of the setting aside of the judgment and with the consent of the parties the hearing of the application was set down before me on 5 November 2024.	Reverting to the merits of the matter, the facts are that the first respondent is the registered owner of a property called stand 72 Gletwyn Township of Stand 81 Gletwyn Township. The applicant averred that by written agreement dated 26 April 2013, a copy of which is attached to the founding affidavit, purchased the property for USD 140 000.00. The purchase price was to be paid by a deposit of US$ 70 000.00 to be paid upon signing the agreement and the balance of      $70 000.00 by 22 June 2013. Possession of the property was to be granted on transfer or mutual agreement. The applicant avers that the full purchase price was paid in full and seeks transfer of the property.

The first respondent resists the application and seeks its dismissal on the basis that there was no valid contract between her and the applicant. She denied that she granted a power of attorney to anyone or to Omasi Makaza to represent her or sell the property on her behalf. The power of attorney referred to is dated 29 May 2013. It was produced by the applicant and attached to the founding affidavit as the instrument that enabled Makaza to sign the agreement on her behalf. The power of attorney is shown to have been executed at Karoi before a legal practitioner S. Muyemeki. The date on the power of attorney is however preceded by the date of the sale. There is no indication in the wording of the power of attorney that it was retrospective had or that it ratified any acts of the first respondent done prior to her executing the power of attorney which she disputes in any event. The authority to sell must therefore be based on other facts. No other facts were pleaded. The applicant in the answering affidavit did not address the anomaly. Instead it attached an affidavit by Makaza who did not speak to the signing or making of the sale. Even if his affidavit had not been expunged, it would not have helped the issue.

The first respondent disputed that the purchase price was paid or if it was paid, she averred that she never received it. The applicant produced proof of payment as follows;

$70 000.00 paid to J Mambara & Partners the applicant’s legal practitioners in this application. The payment is dated 3 may 2013 by RTGS. The receipt by Mambara and Partners is dated 3 may 2013.

Payment of $20 000.00 by RTGS dated 21 May 2013 made into the second respondent’s Chinhoyi FBC account.

Payment of $25 000.00 to the second respondent by RTGS transfer dated 19 August 2013.

Payment of $10 000 to the second respondent by RTGS transfer dated 4 October 2013.

Payment of $12 000.00 to the second respondent by RTGS transfer dated 19 December 2013.

Other payments for agency fees to the estate agent Property Barons who sold the property on the instructions of the second respondent were attached.

Significantly the applicant attached e – mail communications, one dated 12 September 2014 in which she wrote to the applicant’s legal practitioners as follows:

“Dear Mr Mataka

Following our conversation today I would like to withdraw with immediate effect the power of attorney given to Mr Makaza with the sale of my property under 72 Gletwyn farm, Shawasha Hills. From now onwards I am directing you to correspond with me regards this issue. Furthermore I would like a copy of the evidence that Mr Masanga received a payment of $70 000.00 from you with regards to this property.

Please advise the buyers to pay the balance of this property as arranged or alternatively I will seek legal advice to withdraw the sale.

My contract details are 3 Westwood, Gravesend, DA 117AA, Kent, UK. My number is 00447710458004.

Many thanks,

Diana Masanga”

The second respondent purported to file an opposing affidavit. He indicated thereon that he did not oppose the application but went on to give detail in the opposing affidavit supporting the case for the applicant. This he could not do. It is either a respondent does not oppose the application in which case the respondent simply does nothing and default judgment is entered or the respondent consents to judgment. The respondent cannot file a supporting affidavit in answer to the application which on the face of the application form No. 23 calls upon the respondent who intends to oppose the application to file a notice of opposition in the appropriate form. Counsel for the applicant objected to the second respondent’s affidavit citing the authority of the case Chamisa v Mnangagwa and 24 Ors CCZ 21/2019. The Constitutional Court explained the obvious in reference to that court’s rules but is equally applicable in casu, which is that the parties must follow the rules. A respondent writing to oppose an application must give notice to oppose and file opposing papers. The notice of application does not call upon the respondent to file either a notice of opposition or a notice to support the application. A respondent cannot therefore file a supporting affidavit nor a notice to support another party. Both the applicant and second respondent’s legal practitioners did not correctly contest this statement of the law. It followed that the affidavit of the second respondent had to be and was expunged from the record. Consequently, the second respondent was in default of opposing the application and was barred by operation of law. Counsel for the second respondent did not attempt to have the bar uplifted or to have the matter postponed to enable the filing of an application to uplift bar.

The second respondent attached an affidavit by Omasi Makaza in which the deponent speaks to the authenticity of the power of attorney granted to him by the first respondent which the first respondent disputes. It was not clear from the expunged opposing affidavit of the second respondent what the relevance of the affidavit in relation to the factual averments made by the second respondent was. A supporting affidavit’s purpose and/ relevance must be averred in the affidavit through which it is introduced. If it is just plucked and included in the papers without ado, it is irrelevant. However with the second respondent being out of the picture, the contest remained between the applicant and the first respondent.

I have already summarized the positions of the applicant and their contentions. A preliminary issue of prescription arose in heads of arguments and the first respondent’s counsel sought to advance it. Counsel after exchanges with the court capitulated and abandoned the point because albeit the issue was one of law which could be raised at any point in the proceedings, no proper notice to raise the point was given. A point of law should be raised in a formal manner so that the other party is not taken by surprise and is allowed a reasonable time to respond to it.

A further point argued was that the agreement of sale violated section 39 of the Regional Town and Country Planning Act [Chapter 29:12]. Counsel for the first respondent submitted that the agreement was illegal because the sale related to a subdivision of the property in dispute before a subdivision permit had been applied for and or issued. A consideration of the agreement shows that the sale did not relate to a subdivision but to the whole of stand 72 Gletwyn Township of stand 81 Gletwyn Township measuring 1.5357 hectares. Subsequent subdivisions do not affect the first sale of the whole of the property. The first respondent’s counsel submitted that the transfer of the stand as a whole was not feasible because the property had since been subdivided. This argument does not affect the first respondent’s rights to the property as she did not apply for the subdivision and neither does it validate an agreement which is not legally valid should the court find so.

The issue of the validity of the written agreement is in my view resolved on its face. The power of attorney which purported to support the authority to sell was discredited and in fact forged as far as the first respondent’s signature is concerned. She showed that she was not in Karoi on 29 May 2013. The legal practitioner S. Muyemeki must be investigated by the Law Society for possible misconduct in attesting to a power of attorney purportedly executed before him as a notary public when the giver of the power of attorney was not present but out of the country. A copy of this judgment will be delivered to the Law Society Secretary by the Registrar.

The power of attorney aside, the agreement itself does not purport to show that the seller was acting through an attorney or agent. It is common cause that the first respondent did not sign the sale agreement. In the absence of evidence that the first respondent signed the agreement, the same is a forgery, at least of her signature. Thus the written agreement is null and void. That said, the question that arises is on what basis then in the absence of the written agreement could the alleged sale of the property be given legal force. The answer if it be there must be located in the founding affidavit. The applicant did not specifically plead other grounds to hold the first respondent to the disputed sale.

The applicant attached a paper trail apart from proof of payment and the e – mails already referred to in this judgment. There is an e – mail Annexure “F” dated 17 September 2014 from the second respondent to the applicant’s representative later Chibaya. It is copied to the applicant. The writer apologized for the first respondent’s actions which were however not articulated. He confirmed that the full purchase price had been paid and that outstanding charges related to conveyancing fees, capital gains tax, owners and electricity charges and security charges on taking possession or occupation. The second respondent then stated therein that his agency had been terminated by the first respondent.

The applicant also attached as Annexure “F2” the second respondent’s e – mail to the first respondent dated 16 September 2014. The second respondent in a twist to the pleaded position of the applicant that the property was sold through and by virtue of the power of attorney granted to Makaza then averred that he is the one who represented the respondent by reason of a “verbal agency”. The second respondent averred therein that he telephoned the first respondent during the sale negotiations and she agreed to the sale, He then stated “I signed the agreement per pro which is on your behalf”. The second respondent then set out the details of payments made. The details contained therein shows that part of the purchase price was paid directly into the first respondent’s account who used it to pay for a property in Westwood and other amounts were also used for either the first and or second respondent or jointly.

The facts are clear that the first respondent was aware of the sale. She denied that she received the purchase price. However she did not deny the details of the money alleged to have been paid directly to her or on matter of mutual interest between her and the second respondent. In her own e – mails she averred that she had terminated the agency of her husband and Makaza. Significantly her e – mail of 13 September 2014 provides;

“Dear Sir/Madam

72 Gletwyn Shawasha Hills

As the owner of 72 Gletwyn Shawasha Hills. I wish to inform you that I would like to withdraw the power of attorney from Omus Makaza and Lawrence Friday Masunga with immediate effect.

Thank you in advance.

Diana Mutsa Masanga”

In the e – mail of 12 September 2014 addressed to her legal practitioner Y Mataka. She stated that henceforth communication on the sale had to be made with her directly. She asked for evidence of payment of $70 000.00 to the second respondent. Significantly the first respondent instructed her legal practitioner to “advise the buyers to pay the balance of this property as arranged or I will seek legal advise (sic) to withdraw the sale”. Therefore as at 13 September 2014, the first respondent was aware of the sale, wanted a confirmation of payment of $70 000.00 to the second respondent, wanted to now take charge of the issue and wanted the balance outstanding to be paid”. The e – mail gave her physical and telephone address.

The conduct of the first respondent would ordinarily lead one to plead estoppel or ratification. It is however trite that the applicant succeeds or falls in his or her claim on the founding affidavit. The applicant’s counsel in argument submitted that the first respondent was estopped from denying the power of attorney. It is not however the power of attorney alone which is at play but even the validity of the sale agreement on its face. The applicant was aware of the dispute on the validity of the agreement. The applicant did not deal directly with the first respondent as the owner. The applicant inadvisedly so sued the second respondent instead of just obtaining a supporting affidavit from him. His affidavit cannot be relied upon. He is the one who in any event can speak to the fulfilment of the purchaser’s obligations on the sale and in that way give support to a prayer for specific performance. Even if one was to infer ratification and or estoppel, there are no common cause facts to show that the applicant fully performed its obligations to the applicant as indeed as at 13 September 2014 the first respondent was asking about the balance of the purchase price and demanding it.

The applicant was also with respect ill advised to institute its claim by application proceedings when clearly a lot of explanations were necessary on disputed issues. In casu, I am not persuaded to grant the relief sought. There are a lot of untied loose ends which are unclear as I have detailed them. The applicant in the circumstances of the disputed facts which were not properly dealt with, did not establish a case for an order of specific performance. The application fails.

On the issue of costs, they are in the discretion of the court. Costs normally follow the event. Where they do not follow the event, special circumstances which should be recorded by the court must justify a departure. There are no such facts pleaded or established in this matter. Costs will accordingly follow the event.

The matter is disposed of as follows:

IT IS ORDERED THAT:

The application is dismissed with costs.

Chitapi J: …………………………………………………

J Mambara & Partners, applicant’s legal practitioners

Newham Attorneys, first respondent’s legal practitioners