Judgment No. HB 15/2002

 

                                          Case No. HC 1904/2001

 

 

 

GLADYS DUBE                   Applicant

 

 

 

and

 

 

 

LOVEMORE HLONGWANE            1st Respondent

 

 

 

and

 

 

 

THE REGISTRAR OF DEEDS        2nd Respondent

 

 

 

HIGH COURT OF ZIMBABWE

 

CHEDA J

 

BULAWAYO 18 OCTOBER 2001 & 11 APRIL 2002

 

 

 

Nyathi for applicant

 

No appearance for respondent

 

 

 

      CHEDA J:    The parties entered into a written agreement in which 1st

 

 

 

respondent agreed to sell, and applicant agreed to purchase 1st respondent’s house for

 

 

 

the price of $155 000,00.  The purchaser was to pay $135 000,00 as a deposit and the

 

 

 

balance was payable within three months from thereon.

 

 

 

      The agreement was signed by the appellant, but 1st respondent did not sign. 

 

 

 

Instead he had authorised the directors of Lonet Engineering and Suppliers, trading as

 

 

 

Lonet Construction (the company) to sell on his behalf.  A copy of the document

 

 

 

which he signed for that purpose was filed and is dated 29 November 1999.

 

 

 

      Mr Timile, one of the directors of the company who acted for the 1st

 

 

 

respondent filed an affidavit explaining what happened and how the respondent spent

 

 

 

some of his money from the proceeds of the sale.

 

 

 

      When 1st respondent would not assist the applicant with transfer the applicant

 

 

 

issued summons asking for an order to compel the 1st respondent t do so.  The

 

 

 

respondent entered appearance to defend.  The applicant has now applied for summary

 

 

 

judgment on the claim with costs.

 

                                                      15/02

 

                              -2-

 

 

 

      When the notice of the application was served on the 1st respondent’s  

 

 

 

legal practitioners they advised that they could not locate their client and they believed

 

 

 

that he was in South Africa.  The same response came from them when a further

 

 

 

notice of set down was served later.

 

 

 

      I have considered the prejudice to the applicant caused by any further delay if

 

 

 

the matter is not finalised, and I am of the view that I should finalise the matter

 

 

 

because:

 

 

 

      (a)  When the 1st respondent disappeared he was already aware of the               case as he had arranged for appearance to defend.

 

      (b)   There is no plea to indicate what his defence to the claim is, and as               such he is in default.

 

      (c)   There is no dispute that he authorised the sale, and that he was paid the           full price.

 

 

 

      In the circumstances there is no good reason to deny the applicant the relief

 

 

 

she seeks as she was given possession of the house and she has paid the purchase

 

 

 

price.

 

 

 

      I therefore grant summary judgment in favour of the applicant as follows:

 

 

 

      1.    The 1st respondent is ordered to sign all the necessary documents to          enable the applicant to take transfer of the property, namely  number         5210, Cowdray Park, Bulawayo, failing which the Deputy Sheriff is             authorised to do so in respondent’s place.

 

      2.    The respondent is to pay the costs of suit on attorney and client scale.

 

 

 

 

 

 

 

 

 

Sibusiso Ndlovu, applicant’s legal practitioners

 

James, Moyo-Majwabu & Nyoni, 1st respondent’s legal practitioners