Judgment No. HB 104/14

                                                                                                            Case No. HC 2184/12

MICHEAL HANYANI

Versus

TAPERA BAULINE

And

CLINGWRAP INVESTMENTS (PVT) LTD t/a

UNTU FINANCE

And

REGISTRAR OF DEEDS N.O.

And

D.T. MATIPANO N.O.  as Deputy Sheriff, Harare

IN THE HIGH COUR OF ZIMBABWE

KAMOCHA J

BULAWAYO 14 MAY & 10 JULY 2014

M. Nzarayapenga for applicant

Mrs H. Moyo for 2^nd respondent

Opposed Court Application

            KAMOCHA J:   The germane facts in this matter are briefly these.  On 12 March 2012 Tapera Bauline the 1^st respondent in the present matter was ordered to pay US$18 491,00 which was due and payable in respect of money lent and advanced to the then plaintiff Clingwrap Investments (Pvt) Ltd which is the 2^nd respondent in the present matter.  The order was issued in the High Court, Harare.

            The 2^nd respondent’s legal practitioners issued a writ of execution and instructed the Deputy Sheriff – Kwekwe to attach Tapera Bauline’s property in execution of the said writ.

            On 10 May, 2012 the deputy sheriff served Michael Hanyani, as occupant, with notice of attachment of Tapera Bauline’s immovable property.  On 11 May, 2012 the Sheriff, Harare duly attached Tapera Bauline’s immovable property known as Lot 3 of Subdivision 15 of Lot 14 Chicago, situate in the district of Que Que, held under Deed of Transfer No. 4356/2002 – “the immovable property”.  The Sheriff placed a caveat on the title deeds of the said property as C.V.T. 64/12 on attachment of the property.

            Michael Hanyani – “Hanyani” and Tapera Bauline – “Bauline” purported to enter into an agreement of sale on 21 March 2012 of the said property for the sum of US11 000, but the buyer had not yet taken transfer of ownership of the property.  What is significant to note is that Hanyani failed to produce proof of payment of the purchase price for the property.  Yet despite that fact Hanyani contended that he was the owner of the said property by virtue of the purported agreement of sale entered into with Bauline.

            Hanyani sought and was granted a provisional order on 5 July 2012 interdicting the sale of the property.  He now seeks a final order cancelling the caveat placed by the Sheriff against the said immovable property and compelling the Registrar of Deeds to transfer ownership to him.

            Clingwrap Investments (Pvt) Ltd t/a UNUTU FINANCE opposed the confirmation of the interim relief granted.  The 2^nd respondent contended that Hanyani had failed to satisfy all the requirements of an interdict.

            Firstly, he had failed to prove that he had paid the alleged purchase price of US$11 000.  The sale of an immovable property is not an insignificant matter.  When payment for such a property is made, there shall be evidence of such payment.  Hanyani failed to produce such evidence.  The 2^nd respondent contended that the alleged sale was in fact a sham or elaborate scam conceived by Hanyani and Bauline to defeat the lawful sale in execution of the said property.

            Quite clearly Hanyani has failed to establish a clear and definite right over the property.

            Further, since he has failed to prove that he actually purchased the property and paid the purchase price of US$11 00,00 there is no conceivable injury to be suffered or suffered by him following the sale of the property in execution.  There is simply no harm suffered or to be suffered by him.

            Furthermore, if it had been held that he had indeed bought and paid for the property he still had a remedy to sue Bauline for the recovery of his US$11 000,00.

            Hanyani’s application is devoid of any merit and must fail.

            This is a proper case were an award of punitive costs is appropriate.  Hanyani obtained a provisional order on the basis that the property was owned by him when he knew that his assertion was not correct.  He was challenged to produce any evidence showing that he paid the purchase price of $11 000,00 but did nothing about that thereby giving rise to the conclusion that the purported sale was nothing but a sham.

            Consequently, the provisional order granted to him is hereby discharged with costs on an attorney and client scale.

Messrs Dube-Banda, Nzarayapenga & Partners, applicant’s legal practitioners

Dazinger & Partners, 2^nd respondent’s legal practitioners