PAMBANA KUDAKWASHE

versus

MUZIRA MATHIAS

and

CHITUNGWIZA MUNICIPAL COUNCIL

and

BLANDINA DZIVA

HIGH COURT OF ZIMBABWE

PATEL J

HARARE, 27 October 2005 and 11 May 2006

Opposed Application

Mr. Muchanyerei, for the applicant

Mr. Drury, for the 3^rd respondent, in forma pauperis

PATEL J: This is an application for an order evicting the 1^st respondent from Stand No. 15724, Unit “P” Seke, Chitungwiza, and all others claiming rights of occupation in the stand. The applicant also seeks cession of the 1^st respondent’s rights, interests and title in the stand to herself.

In her counter-application, the 3^rd respondent seeks an order setting aside the sale of the stand to the applicant and interdicting the cession or transfer of any right, interest or title in the stand unless and until certain events have occurred.

Both the applicant and the 3^rd respondent claim costs against the 1^st respondent.

The Facts

The 1^st and 3^rd respondents are married under customary law. The 1^st respondent is also married to the applicant as his second customary law wife.

The disputed property is owned by the 2^nd respondent (the Council). It was allocated to the 1^st respondent under a certificate of occupation issued in 1980. Thereafter, in June 1982, the Council and the 1^st respondent entered into a purchase/sale agreement (the Council Agreement) in terms of which the stand was to be purchased by instalments payable over a fixed period.

In January 2000, the applicant and the 1^st respondent entered into an agreement of sale (the Sale Agreement) whereby the former purchased the property for the sum of $120,000. The applicant paid the full purchase price in terms of the Sale Agreement and sought cession of title to the property.

On the 14^th of February 2000, the 3^rd respondent sought and obtained an interdict from the Magistrates Court restraining the 1^st respondent from selling the property. This order still stands and has not been set aside.

Subsequently, on the 15^th of March 2000, the applicant obtained an order from this Court evicting the 1^st respondent and compelling cession of title. The 1^st respondent was in default and the 3^rd respondent was not a party to the proceedings at that stage. On the 1^st of June 2000, pursuant to an urgent application by the 3^rd respondent, this default judgement and order were set aside and the 3^rd respondent was joined as a party to these proceedings.

The 3^rd respondent is currently residing in the property. She avers that she does not know the applicant and was not aware of the sale of the property to the applicant. She claims that the applicant and the 1^st respondent are acting in collusion to dislodge her from the property.

The 1^st respondent does not oppose the applicant’s claim to the property. He vacated the property on the 1^st of May 2000. He accepts that he is still married to the 3^rd respondent and states that he is prepared to accommodate her at his rural home.

The Arguments

For the applicant, Mr. Muchanyerei submits that the validity of the Sale Agreement itself has not been challenged and that the 3^rd respondent’s grounds for opposing this application do not vitiate the Sale Agreement. In this respect, he argues, in keeping with the decision in Muganga v Sakupwanya 1996 (1) ZLR 217 (S) at 219, that a wife cannot prevent the disposal of the matrimonial home where there is a genuine sale and transfer untainted by any fraud or attempt to defeat her rights. He also submits that the interdict in the Magistrates Court was granted after the Sale Agreement was concluded and cannot, therefore, affect the enforceability of that agreement.

Mr. Drury, for the 3^rd respondent, submits that the Sale Agreement is not binding for several reasons. Firstly, the 1^st respondent did not obtain the Council’s consent before concluding the Sale Agreement, as he was required to do in terms of clause 21 of the Council Agreement. The applicant has neither denied the absence of Council consent nor adduced any proof that the Council did in fact consent. Moreover, the 3^rd respondent’s views as the spouse in occupation of the property were not sought in respect of the proposed cession, in accordance with the prevailing administrative policy of the Council. The Sale Agreement is accordingly null and void and unenforceable.

In response, Mr. Muchanyereyi argues that the Council was given notice of the present application and, not having opposed it, must be regarded as having waived its rights and agreed to the sale of the property. He further states that when the default order granted on the 15^th of March 2000 was served on the Council it purported to approve the cession of the property in accordance with the order of this Court. However, this aspect was not canvassed in the applicant’s founding and answering affidavits and, therefore, there is no evidence properly before the Court in that regard.

As regards the equities of this matter, Mr. Drury submits that the 3^rd respondent has been in lawful and continuous occupation of the property with the Council’s consent since 1980. She has also paid all the rates, charges and levies due in respect of the property and has been largely responsible for the material improvements thereon. In these respects, it is argued that the balance of convenience is clearly in her favour and that her rights are eminently superior to those of the applicant.

Decision

Clause 1 of the Sale Agreement declares the agreement of sale between the applicant and the 1^st respondent. Clauses 5 and 9 respectively provide for the giving of vacant possession and the transfer or cession of the property upon payment of the full purchase price.

Clause 21 of the Council Agreement stipulates as follows:

“The purchaser shall not part with possession of the property or any part thereof nor cede nor assign nor hypothecate this Agreement or any rights hereunder to any person without the previous consent in writing of the Council”.

Having regard to the facts of this matter, I am of the view that the Sale Agreement is invalid for two distinct but related reasons. Firstly, it is not disputed that the proposed cession or transfer of the property constituted an essential component of the Sale Agreement. The 1^st respondent agreed to cede the property without having obtained the Council’s previous consent in writing. Without the Council’s consent, it would not have been possible to effect cession or to compel compliance with the 1^st respondent’s undertaking to do so. Thus, the agreement to effect cession was clearly unenforceable at the time that the Sale Agreement was entered into. In this respect, the fact that the Council might have subsequently approved the proposed cession does not assist the applicant. This is so because the Council would simply have been acting in compliance with the earlier order of this Court, which order was subsequently set aside and rendered defunct. Moreover, such approval would have been given well after the sale agreement had already been concluded. In any event, as I have already indicated, there is no evidence before the Court that the Council did in fact approve the cession of the property as averred by applicant’s counsel.

Secondly, clauses 8, 12 and 13 of the Council Agreement impose various conditions pertaining to the sub-letting and maintenance of the property which the purchaser is obliged to comply with “until title to the property has been granted to the Purchaser by the Government”. Clauses 17 and 18 provide for the transfer of title to the purchaser only after the fulfilment of stipulated conditions relating to the completion of specified improvements and the payment of principal and interest outstanding and other charges.

It is trite that nemo dat quod non habet and that nemo plus iuris ad alium transferre potest quam ipse habet : no one can give what he does not have and no one can transfer any right greater than he himself possesses. See Silberberg and Schoeman: The Law of Property (2^nd ed.), at pp. 72-73. Transfer or delivery effected by a person who is not the owner, or who is not authorised by express mandate or authority to act for the owner, is ineffectual to pass ownership to the transferee. See Massdorp’s Institutes of South African Law, Volume II: The Law of Property (10^th ed.), at p. 62.

Having regard to the provisions of the Council Agreement, it is clear that title to the property in casu has not as yet vested in the 1^st respondent. In terms of the Sale Agreement, the 1^st respondent undertook to sell and transfer title to something which at that time undoubtedly did not belong to him. His undertakings in regard to the property were clearly incapable of being performed or enforced at the time that he concluded the Sale Agreement.

For the reasons stated above I conclude that the Sale Agreement in casu between the applicant and the 1^st respondent was null and void ab initio. It is therefore unenforceable and the applicant’s claim for cession of title to the disputed property and the eviction of the 3^rd respondent therefrom must fail. The application is accordingly dismissed.

Turning to the 3^rd respondent’s counter-application, her averments in support of her contributions and claim to the property, and her consequent right to continue in occupation thereof, were not meaningfully challenged by the applicant or the 1^st respondent in their respective affidavits. Having regard to her uncontroverted evidence and the balance of convenience as between the parties, I am satisfied that she is entitled to the relief she seeks.

Costs

It is clear from the evidence before the Court that the 1^st respondent entered into a transaction with full knowledge of his inability to deliver what he had promised at the relevant time. By virtue of his reckless conduct, he has invited the institution of the proceedings in casu. In my view, it is just and equitable that he should bear the costs of the application as well as the counter-application.

Order

In the result, it is ordered that:

1. The agreement of sale, transfer and cession between the applicant and the 1^st respondent concluded on the 7^th of January 2000, in respect of Stand 15724, Unit “P” Seke, Chitungwiza (the Property), be and is hereby set aside.

2. The 1^st respondent be and is hereby interdicted from entering into or concluding any agreement with any person for the sale, transfer or cession of any right, title or interest in the Property unless and until:

1. the prior written permission and consent of the 2^nd and 3^rd respondents are first obtained; or

2. an order of a competent court as to the distribution of matrimonial property, arising from any action for the dissolution of the marriage between the 1^st and 3^rd respondents, is obtained.

3. The 2^nd respondent be and is hereby interdicted from attending to the transfer or cession of any right, title or interest in the Property unless and until either of the events referred to in paragraph 2 occurs.

4. The 1^st respondent shall pay the costs of the application and the counter-application in this matter.

Hungwe & Partners, applicant’s legal practitioners

Gollop & Blank, 3^rd respondent’s legal practitioners