3^rd Draft

KENIYA MASENDA

versus

WASHINGTON MASAWI

And

CHITUNGWIZA TOWN COUNCIL

HIGH COURT OF ZIMBABWE

CHINHENGO J

HARARE, 30 August 2003

Unopposed Matter

Miss D. Tomana, for applicant

CHINHENGO J: On 22 May 2003, a provisional order was issued by this court in favour of the applicant in the following terms:

“TERMS OF THE ORDER MADE

1. That you show cause to this Honourable court why a final order should not be made in the following terms:

   1. That the 1^st Respondent be and is hereby ordered to sign all documents necessary to effect cession of rights, title and interest in House No. 1748 Unit A Seke, Chitungwiza to the Applicant within ten days of the date of this order.

2. That failing compliance by the first Respondent with paragraph 1(a) of this order, the Deputy Sheriff, Chitungwiza, be and is hereby empowered and directed to sign in 1^st Respondent’s stead, all the documents necessary to effect cession of rights, title and interest in the property in question to the Applicant.

3. That the 1^st Respondent pay the costs of this application.

2. Pending the finalization of this matter –

1. The 1^st respondent be and is hereby interdicted and restrained from transferring, ceding or in any way alienating or encumbering his right, title and interest in the property aforedescribed to any person other than the applicant and;

2. The Second Respondent be and is hereby interdicted and restrained from in any way giving effect to any transfer, cession or in any way alienation or encumbrance of the 1^st Respondent’s right, title and interest in the property aforedescribed to any person other than the applicant.

3. That service of this Provisional Order be effected as follows:

1. on the 1^st Respondent, by publication in a shortened form, approved by the Registrar of this Honourable Court, in the Government Gazette and in any Friday Edition of the Herald; and

2. on the 2^nd Respondent, by the deputy Sheriff at 2^nd Respondent’s office.”

The applicant duly published the provisional order in the form approved by the Registrar of this court in the Government Gazette and in the Herald Newspaper and served a copy of it upon the second respondent.

The respondents did not file any papers in opposition and the matter was enrolled on the unopposed roll on Wednesday 6 August 2003 for the confirmation of the provisional order. I directed the applicant’s legal practitioner to file written heads of argument in order to satisfy me that the procedure which the applicant had adopted was correct. Those heads of argument were submitted to me on 8 August.

The issue on which I directed that heads of argument be filed arose from the following facts: In his founding affidavit in the application for a provisional order the applicant alleged that in September 2001 he entered into an agreement in terms of which the first respondent sold to him the first respondent’s rights, title and interest in House No. 1748 Unit A Seke, Chitungwiza (“the house”} for $320 000,00 payable to Messrs Sawyer and Mkushi Legal Practitioners pending cession of the first respondent’s rights in the house to the applicant. The second respondent had earlier refused to pass on of rights in the house to the first respondent because it was of the view that the first respondent, being the lawful heir in the estate of his late father, the actual holder of the rights in the house, should have had the rights in the house passed on to him first before they could be ceded to the applicant. The second respondent had also advised the applicant and the first respondent that it would take at least one year to assign rights in the house from the first respondent’s late father’s estate, in reality from the Executor, to the first respondent. Because of the possibility that this assignment of rights would take a long time, the applicant authorized Messrs Sawyer and Mkushi to release the purchase price to the first respondent. The funds were released on 24 September 2001.

In his affidavit the applicant averred that towards the end of 2002 certain “bills and documents’ from the second responded reflected that the first respondent had become the lawful holder of rights in the house. The applicant attempted to locate the first respondent from that time but she was unsuccessful. The first respondent’s whereabouts were unknown. The applicant said that she performed all her obligations in terms of the agreement between her and the first respondent and that she was entitled to the cession of rights in the house. In para 9 of the affidavit she stated:

“I now approach this, Honourable Court for relief in terms of the

Titles Registration and Derelicts Lands Act [Chapter 20:20).”

and prayed for the relief in the provisional order. The Chamber application to which the affidavit and draft provisional order were attached reads:

“Chamber Application in Terms of Section 3 of the Titles Registration and Derelicts Lands Act [Chapter 20:20]

Application is hereby made for an order in terms of the Draft Provisional Order annexed to this application on the grounds that –

1. The Applicant is a Purchaser of the immovable property in question.

2. The Applicant has acquired rights in the immovable

property in question; she is entitled to obtain cession of rights, title and interest in her name, but the first Respondent’s whereabouts are unknown.

2. The applicant is therefore applying by way of

Chamber Application in terms of the Titles Registration and Derelict Land Act, [Chapter 20:20]. Leave is sought to serve the provisional order by way of publication in the Government Gazette and a Friday edition of the Herald.”

The provisional order was granted on the basis of this application and the affidavit by the applicant.. The issue which concerned me was whether the procedure adopted by the applicant i.e. making a Chamber Application in terms of the Titles Registration and Derelict Lands Act(“the Act”) was correct. At the hearing Miss Tomana submitted that the procedure was correct and she persisted in that argument in the heads of argument.

Section 3 of the Act provides as follows:

“Any person who, by prescription or by virtue of any contract or transaction or in any other manner, has acquired the just lawful right to the ownership of any immovable property in Zimbabwe registered in the name of any other person and cannot provide the registration of such property in his name in the Lands Register, the register of occupation stand or the register of claims, as the case may be, in the manner and according to the forms for that purpose by law provided, by reason of the death, mental incapacity, insolvency or absence from Zimbabwe of the person in whose name such property stands registered as aforesaid or of any person or persons through or from whom such right has been mediately or immediately derived or owing to any other cause may apply to the High Court to order the registration of the title to such property in his name in the land register, the register of occupation stands or the register of claims, as the case may be, of Zimbabwe.”

The question is whether this provision of the Act is applicable to the present case. The applicant’s alleged interest in the house arises from a sale of the interest allegedly acquired by the first respondent by virtue of inheritance. The first respondent’s father had an agreement with the second respondent which, it would seem, entitled him to ownership of the house upon payment of the full purchase price to the second respondent and upon transfer of the house to him. When he died the house, apparently, had not been transferred to him. The first respondent inherited his father’s interest in the house.

The first difficulty which arises from the applicant’s affidavit is to show by documentary evidence that the first respondent indeed acquired a right in the house by way of inheritance. This could very easily have been done by the production of a certificate nominating him as heir and by a deed assignment executed between him and the second respondent. No such document was produced. The farthest that the applicant went to show that the first respondent had any right in the house was an averment in para 7 of her affidavit that certain bills and documents from second respondent “started reflecting” that the first respondent had acquired an interest in the house. No “bills and documents” were attached to the affidavit. This, in my view, is not sufficient proof that the first respondent acquired any interest in the house. Had the applicant obtained a deed of assignment from the second respondent in favour of the first respondent, the question would have been clearly answered. That question, however, remains unanswered and it is difficult to persuade this court to grant the order sought. The agreement of sale between the first and second respondents is not proof that the first respondent had any interest in the house which he could dispose of. It is proof however that the first respondent purported to sell his interest in the house to the applicant, but that is not sufficient to establish the first respondent’s entitlement to deal with the property in the manner that he is alleged to have done.

Section 3 of the Act is concerned, as is the concern of the whole Act, with ensuring that a person who has acquired the just and lawful right to the ownership of any immovable property the owner of which is either dead, or is mentally incapacitated or insolvent or is absent from Zimbabwe, is enabled to register the property in his name upon application to the High Court. The prerequisite for the grant of such order are clear:

(a) the applicant must have acquired the just and lawful right

to ownership of the property in question;

2. the person in whose name the property is registered is

either dead, or mentally incapacitated, or insolvent or is

absent form Zimbabwe.

2. Any other cause.

The founding affidavit, as I have shown, did not conclusively establish that the applicant acquired the just and lawful right to ownership of the house because no evidence was placed before the court to show that the person from whom the applicant purports to have acquired the right was himself possessed of that right. The founding affidavit did not address the requirement that the person in whose name the house is registered is either dead, mentally incapacitated, insolvent or absent from Zimbabwe. It did not give any other sufficient cause. The applicant’s interest in the house cannot be a just and lawful right to ownership of the house if the first respondent had no interest in the house in the first place. It is common cause that the house is legally owned by the second respondent which owns the land on which the house stands. Until such time as the first respondent had legitimately inherited the house and had had the rights in the house passed on to him, he could not be said to have acquired a just and lawful any rights in the house. Consequently the applicant could not be said to have acquired such a right either. In any case, Section 3 of the Act applies where the person in whose name the property in registered has died etc. The second respondent, being a legal persona and a local authority cannot be the subject of the criteria set out in Section 3 of the Act. That criteria applies only to a natural being, a human being who may be absent from Zimbabwe or may die, become mentally incapacitated or insolvent.

The definition section of the Act defines “immovable property: thus:

“means, in addition to all property included under the ordinary acceptance of the term –

1. (not relevant)

2. all stands in townships held under certificate or occupation

3. (not relevant)

4. (not relevant)

If the house concerned in this matter is covered by the definition of “immovable property” which it probably is, Section 3 of the Act would still not apply for the reasons I have given above. It would have been a different situation if the person in whose name the certificate of occupation was issued was either dead, mentally incapacitated, insolvent or absent from Zimbabwe or some other cause was shown to exist to warrant the application in casu.

The normal procedure in addressing the problem which was faced by the applicant i.e that he could not locate the first respondent was to seek substituted service after attempts were made to serve the court application to compel the first respondent to cede his interest in the house to the applicant was unsuccessful. This is permissible under the Rules of this Court.

The present application cannot succeed because s 3 of the Act is not applicable to the facts of the matter in particular the application does not establish any of the criteria set out in s 3 of the Act nor does it indicate who or how the first respondent is the person in whose name the certificate of occupation was issued. If it was merited that the applicant should be registered by the second respondent as the holder of the certificate of occupation of the house, the proper approach was to simply seek to compel the second respondent to issue a deed of assignment of rights in the house in favour of the applicant after the court application was served by way of substituted service. If the issue of the first respondent’s rights in the house had been beyond any doubt, I probably would have regarded the publication of the court application as substituted service and granted confirmed the order that, however, is not the case. These then are the reasons for which I refused to grant the order prayed for and for which I now discharge the provisional order. I make no order as to costs as that was not argued

before me. Accordingly the provisional order is discharged. There will be no order of costs.

Sawyer and Mkushi, legal practitioners for the Applicant