Court name
Harare High Court
Case number
HC 1543 of 2008
Case name
Katerere v Chiangwa & Ors
Law report citations
Media neutral citation
[2011] ZWHHC 122

                                                                                                           

DAVID KATERERE

versus

COSMA CHIANGWA

and

ROBERT ADRIAN CAMPBELL-LOGAN

and

ISRAELGUMUNYU

and

REGISTRAR OF DEEDS

and

EDMONDCHIVHINGE

and

MASTER OF THE HIGH COURT

 

 

 

HIGH COURT OF ZIMBABWE

MAVANGIRA J

HARARE4 MARCH 2010 AND 15 JUNE 2011

 

 

Opposed Application

 

G. E. Mandizha, for the applicant

L. Uriri, for the first, third and fifth respondents

No appearance for the second, fourth and sixth respondents

 

MAVANGIRA J: In 1999 the applicant herein entered into an agreement of sale in terms of which he purchased an immovable property from the estate of the late Johanna Maria Fransisca Logan as represented by the executrix testamentary of the estate. The immovable property, described as Stand 382 Good Hope Township of Subdivision B of Good Hope, was transferred to the applicant in April 2007 by deed of transfer number 1597/2007.

On or about 1 October 2006 one Tsungirai Musenha and the first respondent herein filed an application as co-applicants, in the magistrates court in Case No. 12060/06. They cited Robert Adrian Campbell-Logan (the second respondent herein), estate late Maria Johanna Campbell-Logan and the Registrar of Deeds (the fourth respondent herein) as the first, second and third respondents respectively. They contended therein that the second respondent herein had sold to them and they had purchased Stands Numbers 412 and 382. They further contended that the second respondent herein was avoiding them then for the purpose of passing transfer to them of the said properties. On or about 5 October 2006 a rule nisi was granted by the magistrates’ court in the following terms:

“A Rule Nisi be and is hereby issued returnable to this honourable court on the …………….. day of ………….. 2006 calling upon the first and second respondents to show cause if any why? (sic)

  1. first, second and third respondents and all those acting through them should not be barred from transferring to anyone other than first and second applicants Stand Numbers 412 and 382 respectively being subdivisions of the remainder of subdivision B of Good Hope held under Deed Number 6180/95. (sic)
  2. first, second and third respondents should not be ordered to effect transfer of Stand 412 and 382 to first and second applicants Stand Numbers 412 and 382 respectively being subdivisions of the remainder of subdivision B of Good Hope held under Deed Number 6180/95. (sic)
  3. first, second and third respondents and all those acting through them should not be barred from disposing first and second applicants in any way of their occupation of Stand numbers 412 and 382 respectively. (sic)
  4. first respondent should not be ordered to pay costs of this application. (sic)

 

 

 ………………………………………………………………………………………………

“INTERIM RELIEF:

………………………………………………………………………………………………

 

  1. Pending the return date all respondents and all those acting through them be and are hereby interdicted from disposing or transferring to anyone Stand Numbers 412 and 382 respectively being subdivisions of the remainder of subdivision B of Good Hope held under Deed Number 6180/95.”

On 8 November 2006 the magistrate granted default judgment in the same matter for an “interdict and compelling order” in favour of the applicants therein.

 

On 29 November 2006 the sixth respondent issued Letters of Administration appointing the third respondent as executor dative to administer the estate of the late Maria Johanna Fransisca Campbell-Logan, for the sole purpose of effecting transfer of “a certain piece of land situated in the District of Salisbury being a remainder of subdivision B of Good Hope being Stand Number 382 measuring 2200 square metres into the name of Cosma Chiangwa.” On 4 July 2007 the immovable property was transferred into the name of Cosma Chiangwa, the first respondent herein by deed of transfer 4079/2007.

 

The applicant now applies for an order in the following terms:

  1. “1. That the sale to the first respondent by the second respondent of Stand 382 Good Hope is null and void. (sic)
  2. That the registration of Stand 382 of Good Hope Township of Subdivision B of Good Hope into the name of first respondent is null and void. (sic)
  3. That the appointment of the third respondent as Executor Dative of the estate of the late Maria Johanna Fransisca Campbell-Logan is null and void.
  4. That the applicant is the sole lawful registered owner of Stand 382 Good Hope Township of Subdivision B of Good Hope.
  5. That the fourth respondent shall, within 3 days of service of this Order upon him, delete the name of the first respondent from the name of the applicant as the registered owner of Stand 382 Good Hope Township of subdivision B of Good Hope. (sic)
  6. That the first, second, third and fifth respondents shall pay costs of these proceedings jointly and severally, the one paying the others to be absolved.”

 

In the main, the applicant contends that the appointment by the sixth respondent of the third respondent as the executor dative of the estate during the lifetime of the executrix testamentary and during a period of time when the executrix testamentary was still holding office and was not incapacitated is not valid in law. He further contends that when the second respondent sold Stand 382 to the first respondent, he (the second respondent had no title to pass and that the sale by the second respondent was done in the second respondent’s personal capacity and was also done without authority. He also contends that when the second respondent sold the property (to the first respondent) he knew that it had already been sold to the applicant as he had co-signed the agreement of sale between the applicant and the executrix testamentary.

It is also contended by the applicant that the fourth respondent registered the property into the name of the first respondent without checking his register. Furthermore, the fifth respondent, who was the conveyancer of the property into the first respondent’s name did not conduct any checks as to title to the property before drafting and lodging conveyancing papers with the Deeds Registry. If he had exercised care he would have discovered that the immovable property belonged to the applicant as it had already been registered into the applicant’s name more than two months earlier.

The applicant further contends that the position stated by the executrix testamentary in the letter of 1 September 2007 is the correct position at law. The letter raised with the sixth respondent the invalidity of the appointment of the executor dative as it was done when the executrix testamentary had not been removed from the office by a competent court or judge. The contention then was that the sixth respondent acted without authority when he appointed the third respondent as executor dative and consequently all acts done by the executor dative in relation to the transfer of the property is of no force or effect. The property was thus illegally transferred into the name of the first respondent. He also contends that the third respondent ought to have known that the sale by the second respondent to Tsungirai Musenha and the first respondent was defective.

It is the applicant’s contention that there is sufficient justification for this court to grant him the relief that he seeks.

The respondents on the other hand contend that the application ought not to succeed for various reasons. Firstly, that the applicant is alleging fraud, on the part of the persons who prepared and authored the documents which are being challenged and that such persons would need to be cross examined in trial proceedings. They contend, secondly, that there are disputes of fact which cannot be resolved on the papers, such disputes being in relation to how two agreements of sale could have been concluded for the same property with the fourth respondent. These, issues it is contended, cannot be adequately addressed in affidavits.

The third reason stated is that the applicant has not challenged or caused the suspension of the “compellation orders authorising transfer of the property in issue emanating from Case No 1206/06 granted by the Magistrates Court.” They contend that the court therein decided that the property belonged to the first respondent and until that order is suspended, this court cannot hear the applicant’s case. The fourth reason stated is that the applicant has no real rights over Stand 382 Good Hope Township of subdivision B of Good Hope and that the Registrar of Deeds has confirmed by letter that the property belongs to the first respondent. It is contended that the applicant’s supposed title deed is not a valid title deed and does not confer any rights on him. Consequently, the applicant cannot challenge the registration of a property which he does not own. They contend that there is no double registration of the immovable property in issue.

The fifth reason stated is that the applicants purported agreement of sale dated 1999 with the executrix testamentary is invalid because the executrix testamentary did not then have authority from the sixth respondent to sell the property, such authority only having been granted by the sixth respondent on 27 February 2006. The applicant has in any event sued the wrong party as he should sue the estate from which his rights emanate in terms of the agreement of sale.

Finally, it is stated that the relief prayed for by the applicant is impracticable and unprocedural as he may not sue to remove an executor or challenge the Master’s decision in these proceedings.

In addition to the above the first respondent states that he has been in occupation of the property since July 1998 and has built a two bedroomed house thereon. He has also been paying all utility bills and rates. Even before transfer of the property to him, he used to pay the bills. The first respondent also says that at the time of the alleged sale to the applicant he was already in occupation of the property and if the applicant had been diligent he could easily have found that out. Furthermore, the second respondent could sell the property to him as he was the beneficiary and he had full authority to do so.

The respondents thus contend that the application should be dismissed with costs on the higher scale.

The papers before this court reveal the following. The agreement of sale in terms of which the applicant purchased the property in issue was executed in 1999. The seller of the property in terms of that agreement being the estate late Johanna Maria Fransisca Logan was represented therein by the executrix testamentary of the estate. The executrix testamentary was granted authority in terms of section 120 of the Administration of Estates Act, [Cap 6:01] to sell the property otherwise than by public auction. The date of issue of such authority is unclear as the only discernible part reads “2005”.

The papers also show that on 29 November 2006 letters of administration were issued by the sixth respondent in terms of which the third respondent was appointed as the executer dative of the same estate and an endorsement was made therein that the letters were issued for the sole purpose of effecting transfer of the same property to the first respondent.

It is also shown by the papers that there are two deeds of transfer in favour of the applicant and the first respondent respectively, in respect of the same property being Stand 382 Good Hope Township of Subdivision B of Good Hope. The only difference between the two deeds appears to be in relation to the extent of the property. Deed of Transfer 1597/2007 in favour of the applicant records the extent of the property as 1 998 square meters whilst deed of transfer 4079/2007 in favour of the first respondent records the extent of the property as 2 200 square metres.

It is a fact borne out by the papers therefore, that there are two deeds of transfer in favour of two different persons in respect of the same property. The first respondent has sought to rely, inter alia, on the letter written on 3 April 2008 by the Assistant Registrar of Deeds addressed to the third respondent and which reads in part:

“Ref: Deed Number 1597/2007 and 4079/2007

Reference is made to your letter dated 28 March 2008 where you wanted this office to clarify the position of Deed of Transfer 1597/2007 and 4079/2007. (sic)

 

Our investigation has shown that both deeds refer to Stand 382 Good Hope Township of Subdivision B of Good Hope. There are two records in our database. One in the name of David Katerere under transfer p11…1597/2007, dated 2 April 2007, and the other in names of Cosma Chianwa under transfer 4079/2007 dated 4/7/2007. (sic)

 

On further investigation we noted that Deed of Transfer 4079/2007 was deducted first at the surveyor General’s office and 1597/2007 was rejected because the stand was already registered.

 

It is not clear why deed 4079/2007 was deducted first at the surveyor General. But this is not unusual since work is allocated to various examiners whose performances differ. What it now means is that Deed 4079/2007 has completed all the processes while transfer 1597/2007 has not, making it invalid. (sic)

 

However ownership of the property and cancellation of invalid deed has to be done by the courts in line with section 8 of the Deeds Registries Act [Cap 20:05].”

 

            At the hearing of this matter Mr. Mandizha submitted that the appointment of the executor dative was for the sole purpose of transferring Stand 412 into Tsungirai Musenha’s name. He submitted that it was not clear how Stand 382 was transferred into the first respondent’s name without letters of administration having been issued for that purpose. He submitted that the letters of administration in relation to Stand 382 were issued to the agent of the executrix testamentary and the third respondent was not such an agent. Yet, the transfer of Stand 382 into the first respondent’s name was based inter alia, on the papers prepared and signed by the third respondent as executor dative and the fifth respondent as conveyancer. This, he submitted, must be viewed in conjunction with the fact that the fourth respondent registered the property into the first respondent’s name notwithstanding the fact that the applicant’s name appeared on the register as the registered owner of that property. At p 89 of the papers appears the letters appointing third respondent as executor dative of the estate and for the sole purpose of transferring Stand 382 into first respondent’s name.

It was also submitted that the letter written by the Registrar of Deeds indicating that the applicant’s deed is invalid ought not to be admitted as evidence as the registrar is one of the respondents and cannot be viewed as being entirely objective. Furthermore, that in any event, declaring a deed invalid is the prerogative of the court and the registrar was thus usurping the court’s power when he wrote the letter.

Regarding the case of X-Trend-A-Home (Pvt) Ltd v Hoselaw Investments (Pvt) Ltd 2000 (2) ZLR 348 (S) which was cited in the respondents’ heads of argument, Mr. Mandizha submitted that what is prohibited by law is an agreement for the transfer of ownership before the granting of a subdivision permit. He submitted that such agreement is not proscribed by the Deeds Registries Act and that the Regional, Town and country Planning Act has no relevance in matters of registration of title as title as title does not flow from the agreement but is a product of the powers conferred on the Registrar of Deeds and is regulated by the Deeds Registries Act. The provisions of the Deeds Registries Act are not affected by the Regional, Town and Country Planning Act.

Mr. Mandizha submitted that s 5 (b) of the Deeds Registries Act requires the registrar to examine all deeds or other documents submitted to him for execution or registration, and after examination reject any such deed or other such document the execution or registration of which is not permitted by this Act or by other law, or to the execution or registration of which any other valid objection exists. He submitted that there is no requirement in this provision for the contract of sale of a piece of land to be submitted to the registrar together with the deed for examination. Neither does it require the Registrar not to register transfer of a property the sale agreement of which contains a suspensive condition. He submitted that the Deeds registries Act does not require the registrar to do so, and the registrar should not, concern himself with the agreement of sale as it is not his duty to do so. It was further submitted that in any event, there is no counter-application before this court for the setting aside of the Deed of Transfer registered in favour of the applicant. This, it was submitted, must be taken as an indication that the first respondent knew or must have known that his title was defective.

It was also Mr. Mandizha’s submission that the only question that this court must concern itself with is whose property is Stand 382. He submitted that the answer to this question is to be found in s 10 of the Deeds Registries Act which provides that once real rights have been registered in a person’s name he shall be deemed to be the owner of the property. He submitted that the use of the word “deemed” in the said section gives room for any party to challenge the ownership conferred on the person registered in the Deeds Registries office. Furthermore, that incasu, the first respondent has opted to use a shield instead of an offensive weapon as he has resorted to merely defending himself without seeking to assert his own title. He also submitted that in terms of s 11 of the same Act transfers of land should follow the sequence of registration. Thus whenever ownership is being changed, the registered owner must first divest himself of the ownership of the property or the court should divest him of it and then declare as owner the person who has challenged such title. On this basis, it was submitted, it is very clear that the first respondent’s deed is unlawful and therefore null and void as his registration as owner was subsequent to that of the applicant, over the same property. It was submitted that this is sufficient justification for this court to declare the registration of the first respondent as owner to be null and void. It was submitted that while the transfer to the first respondent purported to be transfer from the estate of the late Joanna Maria Fransisca Campbell-Logan, the property was at the time no longer a part of the deceased estate because it had already been transferred to applicant. Furthermore, s 11 (1) (b) of the same Act provides that it shall not be lawful to depart from any such sequence in recording in any Deeds registry any change in the ownership in such land or of such real right unless the registrar is satisfied that the circumstances are exceptional and has consented to such departure.

Mr. Mandizha’s final submission was that the property was sold by the heir, that is the second respondent, at a time when the property had not yet resided in the heir and thus he had no power whatsoever to deal with the property as he did. He submitted that while the sale of another person’s property is not unlawful, transfer or delivery of that property is unlawful and is null and void.   

Mr. Uriri on the other hand made submissions to the following effect. The submissions by Mr. Mandizha about the inapplicability of the Regional, Town and Country Planning Act have already been considered and rejected by the Supreme Court in the X-Trend-A-Home case. In casu, on deed of transfer 1597/07 the causa is given as a sale. He also highlighted that both the Deeds Registries Act and the regulations made in terms thereof require that each deed of transfer must on the face of it disclose the cause of the transfer and that this is what in conveyancing terms is referred to as the causa clause. Such causa must be valid otherwise the resultant deed if based on an invalid causa is necessarily invalid. The Deeds Registries Act and the Regional, Town and Country Planning Act are complementary and a causa which is invalid by reason of breach of the Regional, Town and Country Planning Act is necessarily invalid for purposes of the Deeds Registries Act. He quoted the famous “you can not put something on nothing and expect it to stay there” statement by Lord Denning in Macfoy v United Africa Co Ltd [1961] 3 ALL ER 1169 (PC) at 1121. Mr. Uriri submitted that the applicant is in fact seeking to enforce an illegal contract and that that is another reason why the application must fail as the maxim ex turpi causa applies and cannot be relaxed in the circumstances.

Mr. Uriri also submitted that the applicant bases his case on facts which are in fact in dispute. The applicant claims that his title was registered first whereas it is clear from the papers that the first respondent’s deed of transfer has gone through all the processes and the applicant’s has not. In this regard reliance was being placed on the letter from the fourth respondent’s office already referred to earlier in this judgment. He submitted that this dispute of fact cannot be resolved on the papers. Furthermore that this is a dispute which should have been foreseen at the outset as the applicant was aware at the time of instituting this application that the first respondent was registered in terms of deed of transfer 4079/07 as the owner of the same property.

Mr. Uriri submitted that before instituting this application the applicant was aware that limited letters of administration had been issued to the third respondent by the sixth respondent for purposes of transferring the property in issue from the estate. Such letters of administration can only be set aside in terms of the procedure stipulated in the Administration of Estates Act, [Cap 6:01]. As that has not been done the relief sought by the applicant in paragraph 3 of his draft order cannot be granted. He further submitted that the limited letters of administration were issued pursuant to a compelling order issued by the magistrates’ court. As that order has not been set aside and cannot be set aside in these proceedings, the applicant would need first to seek a nullification of that order if so advised. He submitted that from the papers it appears that having become aware of the order, the applicant neither sought rescission of it nor a declaratory order to the effect that it was obtained by fraud, if that be his contention. He submitted the instant proceedings are certainly not the process by which the magistrate’s order could be rescinded or set aside.

It was submitted that in view of the applicant’s persistent denial that there are grave disputes of fact in this matter when there clearly are, the applicant cannot now ask the court to refer the matter for the hearing of evidence as the applicant clearly ought to have proceeded by way of action in the first place. He submitted that there is no justification for interference with the first respondent’s registration as owner of the property and that for all the reasons stated above the application must be dismissed with costs on the scale stated earlier in this judgment.

 

Section 14 of the Deeds Registries Act provides:

            “Subject to this Act or any other law-

(a) the ownership of land may be conveyed from one person to another only by means of a deed of transfer executed or attested by a registrar.”

 

Section 8 of the Deeds Registries Act which is referred to in the above quoted letter provides as follows:

“(1) Save as is otherwise provided in this Act or in any other enactment, no registered deed of grant, deed of transfer, or conveying title to land, or any real right in land other than a mortgage bond, and no cession of any registered bond not made as security, shall be cancelled by a registrar except upon an order of court.”

 

The letter by the Assistant Registrar of Deeds does not constitute cancellation of the Deed of Transfer in favour of the applicant. In my view, it expresses the author’s opinion on the matter. In any event there is no application or counter application before this court for the cancellation of the said deed of transfer. It does not, in my view, support the first respondent’s contention that there is no double registration of the property. The fact is that there is double registration of the property in issue; the one registration being in favour of the applicant and effected on the 2 April 2007 whilst the other registration is in favour of the first respondent and was effected on 4 July 2007, some three months later.

 

Section 10 of the Deeds of Registries Act provides

“(1) Deeds executed or attested by a registrar shall be deemed to be registered upon the affixing of the registrar’s signature thereto…”

Thereafter section 11 provides:

            “(1) Save as otherwise provided in this Act or as directed by the court-

  1. transfers of land and cessions of real rights therein shall follow the sequence of the successive transactions in pursuance of which they are made…”

 

 

The fourth respondent is of the opinion that the deed of transfer in favour of the applicant is invalid for the reasons stated in the letter from his office which letter has already been quoted above. This aspect will be dealt with later in this judgment.

The respondents represented herein raised the point that the applicant’s case is premised on an agreement of sale which is void ab initio for the reason that the sale was conditional upon the grant of a subdivision permit in terms of the Town and Country Planning Act, [Cap 29:12]. It was submitted that the said Act specifically proscribes such agreements and that both the Supreme Court and the High Court have held such agreements are void ab initio. It was submitted that it follows therefore, that nothing can be founded thereon and the applicant cannot seek to enforce that which he does not have. In support of these submissions the following cases were cited inter alia: Macfoy v United Africa Co Ltd [1961] 3    ER 1169 (PC) at 1121 where Lord Denning stated:

            “If an act is void, then it is in law a nullity. It is not only bad, but incurably bad.

There is no need for an order of the court to set it aside. It as automatically null and void without more ado, although it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

 

In Muchakata v Netherburn Mine 1996 (1) ZLR 153    Korsah JA stated:

“If the order was void ab initio it was void at all times and for all purposes. It does not matter when and by whom the issue of its validity is raised; nothing can depend on it.”

 

In X-Trend-A-Home (Pvt) Ltd v Hoselaw Investments (Pvt) Ltd 2000 (2) ZLR 348 (S) McNally JA having revisited the history of s 39 of the regional, Town and Country Planning Act sated at 355 A-D

“The agreement with which we are concerned is clearly “an agreement for the change of ownership” of the unsubdivided portion of a stand. What else could it be for? Whether the change of ownership is to take place on signing, or later on an agreed date, or when a suspensive condition is fulfilled, is unimportant. It is the agreement itself which is prohibited.

The evil which the statute is designed to prevent is clear. Development planning is the function of planning authorities, and it is undesirable that such authorities should have their hands forced by developers who say “but I have already entered into conditional agreements; major developments have taken place; large sums of money have been spent. You can’t possibly now refuse to confirm my unofficial subdivision or development.”

 

I will shortly deal with this submission.

 

The substantive part of the Master’s report (the sixth respondent) states as follows:

“The estate of the late Maria Johanna Francisca Logan who died testate is registered with me under DR1617/98 and Brenda Carol Leeper of Veritas Executor (Private) Limited as the appointed executrix testamentary. I also confirm that my office authorised the sale of Stand No. 382 Good Hope Township in terms of Section 120 of the Administration of Estates Act [Cap 6:01]. My office unaware of the double sale and in compliance with the court order under Case No. 12060/06 consented to the transfer of the disputed property in favour of the first respondent.

According to information on file there appear to be material disputes which needs (sic) to be determined so as to establish which between the two sales is valid and legal.”

 

            In my view, this report does not detract from the facts which are established by the papers. The following are the facts which emerge from the papers and upon which this matter will be determined. Firstly, the applicant purchased the property in issue from the estate as represented by the executrix testamentary. The first respondent on the other hand purchased the same property purportedly from the same estate but in his case the estate was represented by the executor dative. It is an undisputed fact that the executor dative was appointed to the office while the executrix testamentary was still alive, holding office, not incapacitated and still sane. Neither had the executrix testamentary been removed from office. Secondly, the applicant’s agreement of sale preceded that of the first respondent. thirdly, it is also clear from the papers that the property was registered into the applicant’s name on 2 April 2007 by deed of transfer 1597/2007 while the transfer to the first respondent  was done 3 (three) months later on 4 July 2007 by deed of transfer 4079/2007.

            The relevant law applicable to the instant matter with particular regard to the registration of real rights as provided in the following sections of the Deeds Registries Act is:

            “10 When registration takes place

(1) Deeds executed or attested by a registrar shall be deemed to be registered upon the affixing of the registrar’s signature thereto:

Provided that no such deed which is one of a batch of interdependent deeds, intended for registration together, shall be deemed to be registered until all the deeds of the batch have been signed by the registrar.

(2) If by inadvertence the registrar’s signature has not been affixed to a deed at the time at which the signature should have been affixed in the ordinary course, the registrar may affix his signature thereto when the omission is discovered, and the deed shall thereupon be deemed to have been registered at the time at which the signature should have been affixed.

(3) All endorsements or entries made on title deeds or in registers in connexion with the registration of any deed executed or attested by a registrar shall be deemed to have been effected simultaneously with the registration of such deed, although in fact they may have been made subsequent thereto. (emphasis added)

 

Section 11 then provides:

“11 Deeds to follow sequence of their relative causes

(1) Save as otherwise provided in this Act or as directed by the court—

(a) transfers of land and cessions of real rights therein shall follow the sequence of the successive transactions in pursuance of which they are made, and if made in pursuance of testamentary disposition or intestate succession they shall follow the sequence in which the right to ownership or other real right in the land accrued to the persons successively becoming vested with such right;

(b) it shall not be lawful to depart from any such sequence in recording in any deeds registry any change in the ownership in such land or of such real right unless the registrar is satisfied that the circumstances are exceptional and has consented to such departure:

Provided that— ………”. (emphasis added)

 

Section 14 provides:

            “14 How real rights shall be transferred

Subject to this Act or any other law—

(a) the ownership of land may be conveyed from one person to another only by means of a deed of transfer executed or attested by a registrar;

(b) other real rights in land may be conveyed from one person to another only by means of a deed of cession attested by a notary public and registered by a registrar:

Provided that attestation by a notary public shall not be necessary in respect of the conveyance of real rights acquired under a mortgage bond.” (emphasis added)

 

            On a perusal of s 10, it follows therefore that when the registrar affixed his signature to the deed of transfer in favour of the applicant on 2 April 2007, the deed was with effect from that date deemed to be registered. Furthermore, and on a perusal of s 14, ownership was conveyed from the estate of the late Maria Johanna Francisca Campbell-Logan to the applicant. Thus the applicant became or was henceforth deemed to be the owner and the property and no longer formed part of the deceased estate. It therefore follows that when in deed of transfer 4079/2007 on 4 July 2007, it was purported to convey ownership of the property from the estate to the first respondent, the estate at that stage was no longer the owner thereof and it thus had no rights to transfer to the first respondent. The agreement of sale purportedly in favour of the first respondent cannot therefore be valid. In any event, the third respondent having been appointed as executor dative whilst the executrix testamentary was still alive, holding office, not incapacitated and still sane, was improperly appointed. The deceased had left a will in which the executrix testamentary was appointed. The sixth respondent was thus not dealing with an intestate estate. The third respondent’s appointment as executor dative was in the circumstances irregular and any acts carried out by him in the name of the estate would thus be of no legal consequence.

According to the affidavit placed before the magistrate in 12060/06, the second respondent, who is the heir to the deceased estate, sold the property in issue to the first respondent. It thus appears that the second respondent purported to sell the property before the property had vested in him; hence arises the illegality and nullity of the purported sale to the second respondent. Thus, both the agreement of sale and the deed of transfer in favour of the first respondent are in the circumstances null and void.

None of the arguments raised by the first respondent as detailed earlier in this judgment can be of any avail to the first respondent in the face of the above stated and established facts. It would appear to me that the issue of whether or not the provisions of the Regional, Town and Country Planning Act are applicable and if so with what effect, cannot be of any avail to the respondents in the circumstances of this case. Neither can it be the basis for this court in these proceedings, to declare invalid the agreement of sale in favour of the applicant. That agreement has not been subjected to scrutiny by this court. The fact is that the applicant is currently registered as the owner of the property and there is no basis for the court, in these proceedings, to deny the relief sought by the applicant. The first respondent cannot herein ask the court to declare the agreement invalid. The submission that the agreement of sale in favour of the applicant was subject to a suspensive condition based on a proposed or desired subdivision of the main property and therefore illegal, has been the mainstay of the first respondent’s stance. There is no application before this court challenging or impugning the said agreement of sale. Thus the dicta quoted from the X-trend-A-Home in support of the first defendant’s case are not of any relevance in the circumstances of this matter. The rule nisi in terms of which the Magistrates’ Court granted in favour of the first respondent and another interim relief in the form of an interdict barring the disposal or transfer of the property in issue has also been heavily relied on by the first respondent. However a perusal of the rule nisi reveals that no return day was endorsed. Theoretically, therefore, even though the interdict was granted as interim relief, it is in effect for an indefinite period. That would be unconscionable and could not certainly have been the intention of the magistrates’ court. In any event the applicant was not a party to the proceedings in that matter. Furthermore, as correctly pointed out by the applicant, the magistrates’ court did not authorise an illegal transfer of the property. The purported transfer to the first respondent was invalid as already discussed above. On the other hand the prior registration of the applicant’s ownership in the deeds registry is the strength of or fortifies the applicant’s case.

It appears to me that there is no material dispute of fact to justify either the dismissal of the applicant’s application or to refer it to trial.

Although the deed of transfer in favour of the applicant was registered first, the fourth respondent’s opinion is that the deed is invalid for the reasons stated in the letter from his office already quoted above. It would appear to me that this can only be viewed as the registrar’s opinion and not a statement or declaration of the legal position. I am fortified in this assessment by the provisions of s 8 (1) of the Act already quoted above, in terms of which any deed of transfer shall not be cancelled by a registrar except upon an order of court. There has been no order of court which has cancelled or authorised the cancellation of the applicant’s deed of transfer. 

The applicant has established justification for the granting of the order which he seeks and he must therefore succeed. Costs will follow the cause. For the above reasons the following is the order of this court.

IT IS ORDERED:

  1. That the sale to the first respondent by the second respondent of Stand 382 Good Hope Township of Subdivision B of Good Hope is null and void.
  2. That the registration of Stand 382 Good Hope Township of Subdivision B of Good Hope into the name of the first respondent is null and void.
  3. That the appointment of the third respondent as executor dative of the estate of the late Maria Johanna Fransisca Campbell-Logan is null and void.
  4. That the applicant is the sole registered owner of Stand 382 Good Hope Township of Subdivision B of Good Hope.
  5. That the fourth respondent shall within 3 (three) days of service  of this order upon him, delete the name of the first respondent from the deeds register and retain the name of the applicant as the registered owner of Stand 382 Good Hope Township of Subdivision B of Good Hope.
  6. That the first, second, third and fifth respondents shall pay the costs of these proceedings jointly and severally, the one paying the others to be absolved. 

 

 

 

 

 

Chigwanda Legal Practitioners, applicant’s legal practitioners. 

Chivhinge & Company, first, third and fifth respondents’ legal practitioners