Judgment No. HB 78/13

                                                                                                                              Case No. HC 16/08

                                                                                  X REF HC 896/11; 1021/08; 2343/07; 1582/11

ALFRED MPFUMBATWA

Versus

BARBARA MURASIRANWA

And

EDGAR MBWEMBWE

And

REGISTRAR OF DEEDS

And

VICTORIA FALLS CITY COUNCIL

IN THE HIGH COURT OF ZIMBABWE

KAMOCHA J

BULAWAYO 28 FEBRUARY 2013

N. Mashayamombe for applicant

Mrs S. Ngwenya for 1^st respondent

Court Application – Ex Tempore

            KAMOCHA J:   This is an application for rescission of a judgment granted to Barbara Murasiranwa on 16 October 2008 wherein she was declared the owner of stand number 4935 Chinotimba Township, Victoria Falls.  The respondents in that case were directed to do all things necessary to transfer stand number 4935 Chinotimba Township, Victoria Falls into the name of Barbara Murasiranwa within 60 days of the court order.

            The circumstances giving rise to this matter are briefly these:

            On 6 October 1999 the applicant Alfred Mupfumbatwa sold the property at the centre of this dispute to Edgar Mbwembwe the second respondent.   A dispute relating to their agreement of sale ensued resulting in Mupfumbatwa instituting proceedings against Mbwembwe under HC 1083/02.  He went on to apply for summary judgment which he subsequently abandoned by withdrawing it.  He made no further claim against Mbwembwe.  Following that withdrawal Mbwembwe sold the property to Barbra Murasiranwa in 2001.

In 2008 which was 8 years later Barbara filed an application under case number HC 16/08 seeking an order for transfer of the property to her name which order was granted on 16 October 2008.  It was then that Mupfumbatwa challenged the application on the basis that he had cancelled the agreement between himself and Mbwembwe.

            Mupfumbatwa’s claim against Mbwembwe has been prescribed in terms of section 15(d) of the Prescription Act [Chapter 8:11].  The matter between the two is therefore, non- existent.  Mupfumbatwa’s rights were prescribed by operation of law and are non-existent.  He cannot try to assert his non-existent rights against Barbara either.  The explanation for failing to file the application timeously is also not convincing.  I am unable to accept it.

            In the light of the foregoing this application is hereby dismissed with costs.

Mashayamombe & Company, applicant’s legal practitioners

Coghlan & Welsh, 1^st respondent’s legal practitioners