Pondai Mushambadope v Champion Constructors (Pvt) Ltd and The Registrar of Deeds

### Preamble
1
HH 288-12
HC 5761/12
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PONDAI MUSHAMBADOPE

versus

CHAMPION CONSTRUCTORS (PVT) LTD

and

THE REGISTRAR OF DEEDS

HIGH COURT OF ZIMBABWE

BHUNU J

HARARE, 8 June 2012 and 22 June 2012 and 25 June 2012

and 11 July 2012

Urgent Chamber application

A. Chagonda, for the applicant

R Munatsi, for the respondent

BHUNU J: The applicant purchased a certain piece of undeveloped immovable property known as Stand 1145 Hilton of Subdivision A of Waterfalls from the first respondent. The full purchase price has been paid to a firm of lawyers and the applicant is awaiting transfer. The applicant has since sued the respondent for specific performance seeking transfer under case number HC 3885/12.

The applicant’s complaint is that on 19 May he visited the stand in question and noticed that developments were being carried out at the stand on the instructions of the first respondent. The applicant immediately became apprehensive that the developments were calculated to frustrate and prejudice his interest in the property. He therefore lodged this application seeking an order interdicting the first applicant from carrying out any further developments on the property or transferring it to anyone else.

It appears the applicant effected payment through a firm of lawyers Messrs Robinson and Makonyere. The respondents however deny having received the purchase price from the firm of lawyers. They are accordingly refusing effecting transfer of the disputed property on account that they have not yet received the purchase price.

Whilst the respondents admit effecting improvements on the disputed property they deny that this is meant to frustrate or prejudice the applicant’s interest in the property in any way. They contend that the improvements complained of are no more than the ordinary improvements to make the place habitable without prejudging the applicant in any way. In other words they are merely servicing the stands.

In my view it appears that both litigants have genuine apprehensions of possible loss or prejudice arising from the current state of affairs if no precautions are taken until such time that the dispute is resolved under case Number HC 3885/12. The first respondent’s apprehension in refusing to effect transfer before receiving the purchase price for the property for fear of losing both the stand and the purchase price should the lawyers fail to convey the money to it is understandable.

On the other hand the applicant’s apprehension concerning developments which he does not understand and has not authorised on the property for which he has paid the purchase price is equally understandable.

In the circumstances of this case it appears fair and just to me that both parties’ interests be secured pending the final determination of the dispute by the courts. The first respondent cannot be stopped from carrying out routine servicing of the area such as water, sewer reticulation and roads construction. By the same token the first respondent cannot watch and do nothing about any developments other than routine servicing of the stand which may prejudice his interest in the stand.

In the result it is in the best interest of both parties that the development of the stand be limited to the normal servicing of the stand without the construction of any other permanent structures on the stand until the dispute is resolved by the courts.

It is accordingly ordered:

That the respondent be and is hereby interdicted from carrying out any improvements on Stand 1145 Hilton of Subdivision A of Waterfalls other than routine serving of the stand until the matter under case number HC3885/12 has been finally determined by the courts.

That each party bears its own costs.

Sawyer & Mkushi, applicant’s legal practitioners

Mapondera & Company, respondent’s legal practitioners