Danai Jere Chauke and Herbert Chauke v Kudzanai Mangena

### Preamble
1
HMA 09/19
HC 197/17
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DANAI JERE CHAUKE

and

HERBERT CHAUKE

versus

KUDZANAI MANGENA

HIGH COURT OF ZIMBABWE

MAFUSIRE J

MASVINGO 1, 2 & 20 November 2018; 4 December 2018 & 20 February 2019

Civil trial

Mr L. Mudisi, with him Ms S. Chivivi, for the plaintiffs

Mr T. Chivasa, for the defendant

MAFUSIRE J:

[1]	The first and second plaintiffs are husband and wife. But for seven years from 2003 to 2010 the second plaintiff [“Herbert”] cohabited with the defendant [“Kudzanai”]. Much of that cohabitation was at a property situate Stand 453 Northwood, Mberengwa Business Centre, Mberengwa.

[2]	That property is the sole subject of this trial. The first plaintiff [“Danai”] and Herbert seek two remedies in respect of it. The one is that they be declared the rightful and lawful owners. The other is an order of eviction against Kudzanai.

[3]	The property is one of those “township” stands “owned” through a cession or lease. Presently the cession holder is Danai. Evidently, there has not been much thought by the plaintiffs in their choice of remedy. These types of township properties are owned by the local authorities. There is a line of cases in which, among other things, lawyers have been chided for the use of wrong terminology in respect of these type of properties: see for example, Gomba v Makwarimba 1992 (2) ZLR 26 (S); Hundah v Murauro 1993 (2) ZLR 401 (S); Magwenzi v Chamunorwa & Anor 1995 (2) ZLR 332 (S); Jangara v Nyakuyamba & Ors 1998 (2) ZLR 475 (H) and Mberi v Mbewe & Anor HH 420-15.

[4]	The point is: the property is owned by the Mberengwa Rural District Council [“Mberengwa RDC”]. The council is not a party to this action. And if Danai is already the current cessionary, what more might she want? She cannot be declared the owner because the case is not about ownership of real rights. As regards eviction, nothing is said about the actio vindicatio. Worse for Herbert: what locus standi does he have? He is neither the owner nor the cessionary. In fact, it was him who divested himself of rights and interest in the property in favour of Danai. Legal practitioners should have the skill to blend unprocessed instructions and data from the clients into pleadings. And in this particular case, apart from the problematic choice of remedies, the pleadings, by both sides, are appalling. The plaintiffs’ declaration and the defendant’s plea are just non-commissioned affidavits in disguise. Among other things, a great deal of the evidence has been pleaded.

[5]	Anyway, the defendant takes no issue or objection with the plaintiffs’ choice of remedy, or Herbert’s locus standi. In spite of the strange nature of the claim and the unacceptable state of the pleadings, both parties seem ad idem on what the case before the court is.

[6]	The plaintiffs’ case before the court, in outline, and in paraphrase, is that the property was acquired from the Mberengwa RDC during the time Herbert cohabited with Kudzanai. It was a vacant piece of land. It was bought in Kudzanai’s name. She had no money of her own for the purchase price. Herbert lent her. They agreed Kudzanai would reimburse him. Nothing was written down. Herbert financed the entire construction of the dwelling house on the property. At some stage Herbert asked for his money back. Kudzanai could not raise it. They agreed she would cede the property to him. Together they went to Mataga, the head office for Mberengwa RDC. They completed the standard cession form given them by the council officials. But the cession process was not completed on that day. A cession fee was required. Herbert did not have it. They both went away but came back two years later with the cession fee. The cession process was finally completed. Subsequently Herbert ceded the property to Danai. Both he and Danai now want Kudzanai out of the house as they want it for themselves.

[7]	On the other hand Kudzanai’s case, also in outline and in paraphrase, is that regardless of the current cession over the property in the books of the Mberengwa RDC reflecting Danai, she is the true and rightful owner. She was the original cessionary. Herbert connived with corrupt council officials and cheated her out of the property. He took advantage of her illness at about the time of the cession and got her to sign a document which she did not appreciate to be a cession. She never went to Mataga with Herbert. After the fraud he became the new cessionary. He then ceded his rights and interest in the property to Danai. He and Danai now want to evict her from the property. But they have no right. The cession from her to Herbert was fraudulent and therefore a nullity. Her loss of rights in the property was illicit. Therefore Danai’s interest in it is defective and unenforceable.

[8]	At the pre-trial conference the issues for trial were listed as follows:

i/	Whether or not 1st plaintiff [i.e. Danai] is the rightful owner of Stand 453 Northwood, Mberengwa.

ii/	Whether or not Defendant [i.e. Kudzanai] is the owner of Stand 453 Northwood, Mberengwa.

iii/	Whether or not Defendant ceded her rights, interests and title in respect of Stand Number 453 Northwood, Mberengwa to 2nd Plaintiff.

iv/	Whether or not Defendant has any lawful right to remain in occupation of the said house.

[9]	It was agreed that the onus of proof on i/ and iii/ would be on the plaintiffs, and on ii/ and iv/ on the defendant. But undoubtedly, the true and only case is iii/: whether or not the defendant ceded her rights, title and interest in the property. All the other issues flow from that. Thus the onus that was agreed to be on the plaintiffs could only be a reverse one. The true onus would be on the defendant. This is because it is common cause that currently the property is registered in Danai’s name. It is Kudzanai who alleges that the registration is voidable. It is also common cause that Kudzanai herself completed with her own hand that part of the standard cession form that a cedent is required to fill in. It is common cause that she signed the form. It is she who now wants it impeached. She alleges fraud. She who alleges must prove. But be that as it may, I have approached the matter from the point of view that the overall onus lies on the plaintiffs in line with the parties’ agreement at the pre-trial conference.

[10]	The crux of the matter is whether Kudzanai ceded her rights, title and interest in the property to Herbert freely and voluntarily. Herbert gave evidence. Danai did too. But hers was on the cession from Herbert to herself. Other than showing that it was the same type of cession and the same procedure, Danai’s evidence was of less probative value on the question whether Kudzanai freely and voluntarily ceded her rights and interest to Herbert.

[11]	Herbert’s evidence is largely the summary in Para [6] above. Some of the details were these. There was a housing development at Mberengwa RDC in the 2000s. Both he and Kudzanai successfully applied for land: him in the low density section, and Kudzanai in the high density section. He lent Danai $2,3 million (those were the days of hyperinflation). She had no money for the purchase price. She was just a stall holder and vendor at the local greens market. She earned so little that she could not even afford school fees for her children. He himself was a small scale gold miner.

[12]	On the construction of a dwelling house on the property, Herbert said he dealt with two builders that Kudzanayi engaged at his instance. He produced a few receipts in his name issued by some hardware shops that he said were for supplies and materials during construction. Kudzanai largely superintended the construction as he himself was away most of the time. The cession was first processed on 22 September 2010 in the office of one of the council officials, John Dhile Dube [“Dhile”].

[13]	Herbert emphasised an aspect to show that the cession from Kudzanai to himself was all above board. This was in relation to the installation of electricity and water at the house. He financed the installation of electricity. The account with the Zimbabwe Electricity Transmission and Distribution Company was in his name right from the onset. With the water installation, initially the account with the Zimbabwe National Water Authority was in Kudzanai’s name. After the cession they arranged that the account be transferred to him. This was done successfully without any hassles. Kudzanai never raised any issue at all despite the fact that every time she made payments for water the receipts would be issued in his name.

[14]	Herbert says it was only in 2016, after Danai had instituted proceedings in the magistrates’ court to have Kudzanai evicted from the property, that she rushed to Mberengwa RDC challenging the cession for the first time (those proceedings were subsequently withdrawn). On 7 November 2016 the council wrote to Danai advising that Kudzanai had raised a complaint about the cession; that it appeared transfer from her to Herbert was “… non existent” and that unless within thirty days Herbert brought tangible proof of an agreement of sale and affidavits, the lease agreement (obviously between council and Danai) would stand cancelled.

[15]	Herbert says he easily cleared up the confusion at council by producing all the relevant documents. This led council to write another letter, three days later, to Kudzanai acknowledging the cession by her to Herbert, and the subsequent one from Herbert to Danai, and advising that its previous letter would be superseded.

[16]	As witnesses, the plaintiffs called several officials from Mberengwa RDC: Dhile, who had been in charge of pegging and allocating the stands; Milton Mambo Moyo [“Milton”], who is the current acting Chief Executive Officer and through whom several official documents have been produced, and Julius Mashavakure [“Mashavakure”] who was the Chief Executive Officer at the relevant time.

[17]	The highlight of Dhile’s evidence was this. Herbert and Kudzanai came to his office at Mataga and explained the purpose of their visit. It was to do a cession of rights over Stand 453 from Kudzanai to Herbert. He enquired whether they were both in agreement. They said yes. He asked them to produce their identity documents. They did. He gave them the standard cession form. He explained what it was and what was required of them. Section 1 was to be completed and signed by the cedent with her own hand. Section 2 was to be completed and signed by the cessionary with his own hand.   They had to have two witnesses each. They did not have them. Herbert asked if they could just pick any of the people milling in the corridors outside waiting to pay bills. He said yes. Four witnesses were brought in, two for Kudzanai and two for Herbert. From their signatures, the witnesses for Kudzanai were a Zhou and a Mpofu. For Herbert they were a Mabaso and a Moto. After the signing, Dhile took the two and handed them over to Mashavakure. However, it was after a long time that they came back to have the cession process completed.

[18]	Through Milton the plaintiffs produced, among other things, a register of stands (exhibit 3), and the minutes of the Works and Planning Committee (exhibit 5) showing, among other things, that the cession of Stand 453 by Kudzanayi had been approved by council on 17 March 2011.

[19]	Mashavakure said when Dhile brought the two to his office he also explained the implications of what they intended to do. He said the witnesses had signed the form already. After they had produced their identity documents he got the two to sign the cession form. However, they did not have the cession fee of $50 (this was now after dollarization). He told them the cession could not be processed until the cession fee had been paid. They went away and only came back in December 2012. Meanwhile the Works and Planning Committee of the council had already approved the cession on 17 March 2011. The process of cession approval had been decentralised from Local Government’s head office in Harare to the local authorities.

[20]	Kudzanai’s evidence was essentially as summarised in Para [7] above. The bulwark of her case was her challenge of the validity of the cession form, exhibit 1(c). Section 1 of that document that Kudzanai filled in left the description of the property or the lease number blank. Completed, it read as follows:

“I … Kudzanai Mangena do hereby cede, assign and transfer to … Herbert Chauke all my rights and title to and interest in Lease No …[blank]…at Mberengwa Business Centre, in Mberengwa District from the 1st October 2010. Dated at Mataga this 22 day of Sept 2010.”

[21]	Kudzanai says her failure to mention the property to be ceded was fatal. She says there can be no cession without the property to be ceded being identified or described.

[22]	Dhile and Mashavakure explained that at that time the piece of land in question had not yet been allocated a lease number. They denied that the cession was defective for that reason because that property was the only piece of land “owned” by her at the township and that it was the one she had expressly intended to cede to Herbert. Furthermore, Section 2 of the form that Herbert completed and signed as the cessionary clearly identified the property the cession of which he was accepting. It read:

“I Herbert Chauke National Registration No 54 – 021135 Z 54 Address P.O. Box 7 Mberengwa do hereby accept transfer of the Agreement of Lease Stand Number 453 Mberengwa Business Centre in Mberengwa District as from the 1st October day of 22 September 2010 [sic].”

[23]	Kudzanai charges that council officials Dhile and Mashavakure were corrupt. She says Dhile was close friends with Herbert. The friendship had blossomed when Herbert had been a boarding master at a local school. She claimed that she was poorly educated, having dropped out of school at form 2 level. As such she could not have been expected to appreciate the legal implications of a cession. Furthermore, she produced several copies of hospital cards as proof that at the time that Herbert asked her to sign the cession form she had been sick with HIV AIDS. She says she earned enough from her greens market, that with fellow traders they alternated in giving each other sale proceeds at month-ends and that she had saved enough for the purchase price of the property.

That basically was the case before me.

[24]	Justice is often depicted as a lady blindfolded, holding a sword in one hand and a set of balancing scales in another. The scales are said to be for measuring the strength of a case. They represent the weighing of evidence. Before the case starts the scales are evenly balanced. They are in a state of equilibrium. The weight of the evidence as the case progresses upsets the balance. As the case concludes the court checks the way the scales are tilted. Judgment is granted for the party in whose favour the scales are tilted.

[25]	Thus, a trial in a civil case involves the making of findings or inferences of facts by balancing probabilities and selecting a conclusion which seems to be the more natural or plausible one from several other conceivable ones, even though that conclusion may not be the only reasonable one: see Joel Melamed and Hurwitz v Cleverland Estates (Pty) Ltd; Joel Melamed and Hurwitz v Vorner Investments (Pty) Ltd 1984 (3) SA 155.

[26]	In this case, the scales of justice are undoubtedly tilting in favour of the plaintiffs because of the weight of the evidence that they have led. There is no question that on a balance of probabilities Kudzanai intended to cede, and did cede, her rights, title and interest in Stand 453 Mberengwa Township to Herbert. She completed the cession form in her own handwriting and signed it. The execution of the cession might have lacked meticulousness or diligence. But looked at objectively, and taken together with all the other surrounding circumstances, it is a long shot for Kudzanayi to allege that she did not know what she was signing. With a form 2 standard of education, coupled with the explanation that Dhile and Mashavakure said they rendered before execution, and the fact that she raised no issue when the water account was changed from her name to Herbert’s, I accept that the cession document, exhibit 1(c), represents the true intention of the parties. I reject her evidence and accept that of Herbert and of the council officials.

[27]	Simply put, a cession is the transfer or giving up of rights and interest by one party which the other party accepts or receives. The cession is pivoted on an agreement that is legitimate. The transferor or giver of the right is the cedent. The receiver is the cessionary. No formalities are required for a valid cession: see R.H. Christie: Business Law in Zimbabwe, Juta & Co Ltd, 1998, at p 110. I accept that Kudzanai failed to pay back Herbert’s loan of money to her for the purchase price. She agreed to transfer the property to him. The true owner of that property is the Mberengwa RDC. It sanctioned the cession.

[28]	Other than her word of mouth, Kudzanai produced nothing to show that she had the financial capacity to buy the property and develop it all by herself. In contrast, Herbert has the cession. He has relevant council officials vouching for him, not only by word of mouth, but also by producing official council documents. On top of that Kudzanai’s own conduct, for example, in not challenging the electricity and water accounts in Herbert’s name, and in waiting for Danai to take action four years after the cession before challenging it, is consistent with the plaintiffs’ case that the cession was above board.

[29]	Mr Chivasa, for the defendant, slurs Dhile’s character. He has succeeded in showing that Dhile was dismissed from council for underhand dealings in connection with the allocation of council’s stands at the township. He has also succeeded in showing contradictions in the evidence of Dhile and Mashavakure. For example, Dhile said the parties signed the cession form in front of him and in his office before taking them to Mashavakure. On the other hand, Mashavakure insisted that the parties’ witnesses had signed the form ahead of them but that they themselves signed the form in his presence and on the same day.

[30]	Mr Chivasa has also succeeded in extracting a concession from Milton, the current acting Chief Executive Officer, that the cession, exhibit 1(c), could not be said to be valid in the state that it is in. However, and with all due respect to Mr Chivasa, his efforts are all in vain. There is a Shona saying: “kupedzera miseve pamakunguwo idzo hanga dziripo!” meaning, wasting all the arrows on worthless crows when more treasured guinea fowls abound.

[31]	That Milton may believe that the cession form is invalid is only his opinion. It does not bind the court. Milton was only responding to questions on it after he had been made to concentrate on the omission in Section 1. In contrast, the court is not only looking at that omission, but also on the form as a whole. Not only that, but the court is also looking at all the other documents tendered and the evidence of everyone who testified, including Kudzanai herself.

[32]	The contradictions between Dhile and Mashavakure are insignificant. They do not go to the root of the matter. They do not detract from the fact that the cession happened. Both of these officials were giving evidence eight years after the event. Both were eager to impress and stress how the execution of the cession was above board. Dhile might have lost employment due to corruption in other cases, but there has been nothing demonstrated in the present case resembling a mishandling of Kudzanai’s cession, let alone fraud. In fact, between him and Mashavakure, his evidence is the more credible.

[33]	Kudzanai’s alleged illness is a cloak or façade. By her own admission, she suffered no mental incapacity, temporary or otherwise, by reason of it. She knew what she was doing when she signed the cession. It is only because of the litigation against her that she now alleges fraud.

[34]	The plaintiffs have proved their case on a balance of probabilities. They are entitled to the substance of the relief sought, which is an order of eviction against the defendant. The plaintiffs’ entitlement to vacant possession of the property stems from Danai’s ownership of the rights, title and interest in it. One of the incidents of ownership of a thing is the owner’s entitlement to the exclusive possession of it. The law presumes possession of the thing as being an inherent nature of ownership. Flowing from this, no other person may withhold possession from the owner unless they are vested with some right enforceable against the owner: see Silberberg and Schoeman’s The Law of Property, 5th ed., at p 243 and Badza v SMM Holdings (Pvt) Ltd HMA 20-17. Otherwise an owner deprived of possession against his or her will can vindicate his or her property wherever found, and from whomsoever holding it: see Chetty v Naidoo 1974 (3) SA 13 (A), at p 20B.

[35]	However, given the sloppy or incompetent manner the relief sought is drafted and the unreasonableness of giving the defendant only 48 hours’ notice to vacate a property she has been staying in for such a long time, the following order is hereby granted:

i/	The defendant shall vacate the property known as Stand 453 Northwood, Mberengwa Business Centre, Mberengwa, and give vacant possession of the same to the plaintiffs within thirty (30) days of the date of this order failing which the Sheriff shall be empowered and authorised to evict her, and all those claiming occupation through her, from the property.

ii/	The defendant shall pay the plaintiffs’ costs of suit.

20 February 2019

Mutendi, Mudisi & Shumba, plaintiffs’ legal practitioners

Chivasa & Associates, defendant’s legal practitioners