VIRGINIA CHIKADAYA [in her capacity as

The Executrix Dative of Cyril Chikadaya]

versus

CLADIOS CHENGA

and

ZAKEYO CHIKADAYA

and

BEAUTY MPOFU

and

REGISTRAR OF DEEDS

HIGH COURT OF ZIMBABWE

KUDYA J

Harare, 21, 22, 29 June and 22 September 2010

Civil Trial

B. Diza, for the plaintiff

S. Chirorwe, for the first defendant

No appearance for second, third and fourth defendants

          KUDYA J:  On 24 March 2009, the first defendant consented to the substitution of the plaintiff for her husband who died after litis contestatio. The full history of this case is reported in Chikadaya v Chikadaya & Ors 2000 (1) ZLR 343 (HC) and its sequel cyclostyled judgments  of Chikadaya v Chikadaya & City Council of Harare SC 58/2001 and Chikadaya v Chikadaya & City Council of Harare HH 1 /2002.

At the time the plaintiff purchased the rights, title and interest in stand 6058 Glen View, the property in dispute, he owned another property in the municipal jurisdiction of the City of Harare. To circumvent the municipal prohibition against owning two properties in its jurisdiction he had the property registered in the name of the second defendant, his young brother Zakeyo Chikadaya.  On 25 September 1998 he sued his younger brother for the cession of rights in the property. The brother contested the action. On 1 March 2001, SMITH J of his own accord non-suited the plaintiff on the basis of the dirty hands principle and dismissed his claim without hearing the merits. The plaintiff noted an appeal to the Supreme Court on 29 March 2000. The notice of appeal was served on both his young brother’s legal practitioners Wintertons and the City of Harare. That the notice of appeal was served on the City of Harare is apparent from the order of the Supreme Court which indicates that at the hearing of the appeal on 4 June 2001, there was no appearance for the City of Harare. In a judgment delivered on 14 June 2001, the Supreme Court, upheld the appeal, set aside the order of the High Court and remitted the matter to the lower court for the continuation of the trial on the merits. The subsequent trial was held on 3 and 4 September 2001. In a judgment handed down on 20 February 2002, SMITH J ordered the younger brother to cede his rights, title and interest in the property to the plaintiff failing which the Deputy Sheriff was authorised to act in his stead. The second defendant noted an appeal in SC 85/02 which was dismissed on 15 November 2004 for want of prosecution.

When plaintiff sought to execute the judgment of 20 February 2002, he discovered that while the appeal was pending, the City of Harare had under Deed of Transfer No. 1284/2001 transferred the property to the second and third defendants. On 13 March 2001, in case No. 11 678/1998, the second defendant filed a letter dated 6 February 2001 of his change of address of service from the property in dispute to 15 733-75 Close Sunningdale 2. Attached to that letter were amongst other things correspondence dated 24 November 2000 from his conveyancers, Gambe and Associates, legal practitioners. On 6 December 2000 the second and third defendants executed an agreement of sale with the first defendant at Sommerfield Real Estate. On 5 February 2001, the second defendant inspected the appeal record in case HC 11 678/1998. On 14 February 2001 the second and third defendants passed transfer of the property in dispute to the first defendant.

          As a result of the discovery and in order to execute the judgment on the merits of SMITH J, the plaintiff filed a court application against the present defendants on 8 December 2004. He sought the cancellation of the sale and transfer of the property to the first defendant; the transfer of the property to him and the eviction of all parties claiming occupation through first defendant and costs on the scale of legal practitioner and client. Although the application was served on all the defendants, it was opposed by the first defendant only. On 20 March 2007, the application was by consent referred to trial due to the material disputes of facts that were replete in the pleadings. The founding affidavit stood as the summons while the first defendant’s opposing affidavit became the appearance to defend. The plaintiff was directed to file a declaration and thereafter the normal rules of court were to apply. The plaintiff averred in his declaration that the first defendant took transfer of the property when he was aware that the rights, title and interest in the property held by the second defendant were being challenged by him in the Supreme Court.

            In his declaration the plaintif set his cause of action thus:

• First defendant is a mala fide purchaser who obtained defective title. As such plaintiff is entitled to recover this property as against this defendant.
• Alternatively, plaintiff is entitled to the relief of rei vindicatio as against the first defendant.
• Alternatively, plaintiff is entitled to such damages as shall constitute the replacement value of the property at the date of judgment as against first, second, and third defendants jointly and severally, the one paying the others to be absolved.
• Alternatively, plaintiff is entitled to such damages as shall constitute the replacement value of the property at the date of judgment as against second and third defendants jointly and severally.

            He prayed for transfer of the property from the first defendant to himself and in the alternative prayed for such damages as would constitute the replacement value of the property at the date of judgment and costs of suit.

           The first defendant denied that at the time he purchased the property he was aware of the pending legal wrangle between the two brothers. He averred that he was an innocent purchaser and prayed for the dismissal of the claim with costs.

           At the pre trial conference that was held on 1 April 2010 two issues were referred to trial. These were:

1. Whether the first defendant was a bona fide purchaser of the property in question
2. Whether the plaintiff is entitled to the remedy of rei vindicatio under the circumstances

         The plaintiff testified on 21 June 2010. She did not know the first defendant until she met him at the pre-trial conference. Before that date her late husband was the one who was personally attending to the case. She stated that the property in issue was purchased and developed by her husband. He built an 8 roomed house. She accurately related the court history of the legal wrangle between her husband and the second defendant. When her husband sought to take cession, he discovered that the first defendant had taken transfer of the property during the period that the appeal against the first judgment was pending. She averred that her late husband had told her that the first defendant had been a tenant at the property in dispute before he purchased it. She alleged that he was aware of the legal wrangle between the two brothers because her husband had alerted all tenants that the property belonged to him.

           Under cross examination she conceded that her husband did not protect his rights in the property by interdicting the second defendant and the City of Harare from undermining his claim by ceding it to third parties. She was adamant that the City of Harare was served with the notice of appeal which would have alerted it against the transfer of the property to the second and third defendants. She was shown the deed of sale between the second and first defendant dated 6 December 2000 and the deed of transfer into first defendant’s name dated 14 February 2001. She challenged their authenticity and averred that the second defendant fraudulently sold the property which was the subject of litigation between the two brothers.

           She was shown the second defendant’s instructions to Sommerfield Real Estate to sell; copies of the advertisements flighted in the Herald of 30 November 2000; the offer made by the first defendant for the purchase of the property and the acceptance form signed by the second defendant. She remained adamant that the first defendant was aware of the legal dispute that was raging between her husband and the second defendant.

            The first defendant gave evidence, produced four documentary exhibits and called the further evidence Chiedza Chemere. He told the court that he saw, exhibit 1, an advertisement in the Herald of 30 November 2000 for the sale of a four bed roomed house with title deeds in Glen View 3 that had been flighted by Sommerfield Real Estate. An employee of the estate agency, Mr Machudze, directed him to the property in issue. It was a seven roomed house which was not painted, its windows were incomplete and some were broken, some roofing asbestos were cracked and the verandah was not fully roofed, some doors were missing and others were broken, it had no gate and dura wall. He was satisfied from his discussions with the tenants at the property that it was for sale. After viewing the property he completed exhibit 2, an offer form, on 1 December 2000 and offered $500 000.00 for the property. The estate agent showed him exhibit 4, a document dated 15 November 2000 from the City of Harare to the second defendant’s conveyancers authorizing them to transfer the property into the joint names of the second and third defendants. An agreement of sale between the second defendant and his wife as sellers and the first defendant as the purchaser, exhibit 3, was signed by the parties at the offices of the estate agent on 6 December 2000.

          He borrowed the purchase price from his pension fund. It was a requirement for the loan that title be registered in his name. He took title on 14 February 2001 and surrendered it to his pension fund. He took occupation at the end of February 2001. As soon as he took occupation the plaintiff’s husband came to the property and laid claim to it. He denied ever renting the property before taking occupation. He further stated that before he purchased the property he was not aware of the legal dispute that raged between the plaintiff’s husband and the second defendant.

          He was cross examined. He maintained his version that he was oblivious of the dispute between the two brothers before he purchased the property. After he took transfer and residence at the property the plaintiff’s husband visited the property three times when he was at work. When he confronted the second defendant he assured him that the property belonged to him and not to his difficult brother. He conceded that as the property was municipal property it was not registered with the deeds registry and therefore no caveat could be registered over the property.

          He called Chiedza Chemere. She alleged that she resided at the property as a tenant with two other tenants. She stated that the plaintiff’s late husband used to visit the property on a motor bike and at times by car. He would come early in the morning, sprinkle some water and lay claim to the property. Her landlord, the second defendant, had instructed the tenants to give him access to the property and thereafter ignore him. She alleged that all the tenants were notified by the second defendant at the end of December 2000 that the house was for sale and were instructed to allow prospective purchasers to view the property. She stated that she used to see the first defendant in 2000 when her child was in grade one. When she was asked when she first saw him she stated that she first saw him in February 2001 when the second defendant introduced him as the new owner of the property in issue.

         Under cross examination she said she resided at the property from February 2000 until February 2001. She was confused on whether she ever saw first defendant when he came to view the property. She prevaricated. In one breath she averred that she first saw him in February 2001 when he was introduced as the new owner and in another breath averred that she first saw him in 2000 when he came to view the property. She then further contradicted herself by averring that she could not recall when he first came to view the house as many potential buyers came to see the property in December 2000 and January and February 2001. She did not know whether the plaintiff’s husband ever met the first defendant before he purchased the house. She denied that the first defendant was ever a tenant at the house.

        Chiedza contradicted herself. I formed the opinion that she had been couched on what to say. She however gave evidence which established that the tenants were aware of the plaintiff’s claim over the property. Her testimony further established that during the duration of her tenancy the plaintiff’s husband constantly visited the property and laid claim over it. It was also the evidence of the first defendant that even after he took occupation; the plaintiff’s husband continued to visit and did not relent in laying claim over it.

Whether the first defendant was aware of the legal wrangle between plaintiff and second defendant and third defendant and thus a mala fide or a bona fide purchaser of the property

       This issue arose from the averment that was first made by the plaintiff’s husband in his founding affidavit that the first defendant was a tenant at the property at the time he had the legal dispute with the second defendant. The plaintiff’s husband further averred that he had personally alerted the defendant of the dispute and warned him against purchasing the property. He labeled the first defendant a mala fide purchaser. The first defendant disputed the allegations in his opposing affidavit and deposed that he was a bona fide purchaser. The onus to show that the first defendant was a mala fide purchaser lies on the plaintiff. She was not personally involved in the dispute between her husband and his brother. She did not know the first defendant until the pre-trial conference of 1 April 2010. Her husband who alleged that he alerted the first defendant of the dispute at the time that he appealed to the Supreme Court against the first judgment died before he could testify.

        Section 27 and 28 of the Civil Evidence Act [Cap 8:01] provide:

27 First-hand hearsay evidence

(1)        Subject to this section evidence of a statement made by any person, whether orally or in writing or otherwise, shall be admissible in civil proceedings as evidence of any fact mentioned or disclosed in the statement, if direct oral evidence by that person of that fact would be admissible in those proceedings.

(2)        ………………. (Not relevant)

 (3)       If a statement referred to in subsection (1)—

(a)        ……………….. (Not relevant)

(b)        is contained in a document, no evidence of the statement shall be admissible except the document itself, or a copy of the document if such copy is admissible in terms of this Act or any other law.

(4)        In estimating the weight, if any, to be given to evidence of a statement that has been admitted in terms of subsection (1), the court shall have regard to all the circumstances affecting its accuracy or otherwise and, in particular, to—

(a)        whether or not the statement was made at a time when the facts contained in it were or may reasonably be supposed to have been fresh in the mind of the person who made the statement; and

(b)        whether or not the person who made the statement had any incentive, or might have been affected by the circumstances, to conceal or misrepresent any fact.

(5)        ……………….. (Not relevant)

28 Evidence in previous legal proceedings

(1)        Where a person has previously—

(a)        given evidence; or

(b)        made an affidavit that was produced in evidence;

in any legal proceedings, whether civil or criminal, and he has died or cannot be found or compelled to give evidence or for some other good and sufficient cause cannot reasonably be called to give evidence in or make an affidavit for the purposes of any subsequent civil proceedings, a document which purports to be—

(i)         a transcript of his evidence or a copy of his affidavit, as the case may be, in the former legal proceedings; and

(ii)        certified by the official having custody of the record of the former legal proceedings as a true transcript of the evidence or copy of the affidavit, as the case may be,

shall be admissible on its production by any person as evidence of the fact stated therein.

(2)        …………………… (Not relevant)

In terms of s 27 (1) and s 28 (1) of the Civil Evidence Act, supra, the affidavits made by the plaintiff’s husband are admissible. The only rider placed by s 27 (4) (b) of the same Act is the weight to be attached to them regard being had to the incentive he might have had to conceal or misrepresent any fact.

          There was no evidence demonstrating that the first defendant was a tenant at the property or that he was aware of the pending appeal in the Supreme Court other than the averments to that effect in the answering affidavit of the plaintiff’s husband. The evidence of the first defendant’s witness Chiedza showed that the plaintiff’s husband regularly visited the property in 2000 riding a motor cycle or driving a car; and on such visits he would advise the tenants thereat that the property was his before sprinkling some water thereon. This period of his incessant and relentless visits coincided with the period of the appeal that was pending in the Supreme Court. The first defendant confirmed that these visits and claims continued even after he took occupation. Further, the first defendant averred that he talked to the tenants when he viewed the property. He made the offer to purchase after he was shown exhibit 4, the document from the City of Harare which identified the second defendant and his wife as the holder of the rights, title and interest in the property. No evidence was called by either party on the report that the first defendant received from the tenants. Regard being had to the evidence of Chiedza Chemere on the behaviour and claims of ownership of the house by the plaintiff’s husband; it seems to me that the tenants would naturally have advised him of that conduct and those claims. In addition, his avowed disinterest in visiting the property between the date of purchase and occupation betrayed his prior knowledge of the plaintiff’s claim in the property. He only went to the property after the registration of title because he believed that would defeat the plaintiff’s entitlement in the property.

         The probabilities confirm that he must have been aware of the claims of the plaintiff’s husband to the property when he purchased the rights in the property on 6 December 2000. The plaintiff averred that she was told by her husband that the first defendant was aware of his claims to the property. The onus to prove that the first defendant was a tenant at the property rested on the plaintiff. She did not call any evidence to show that he resided at the property. She did not know the tenants at the property. She thus relied on the first hand hearsay of her husband. While the plaintiff failed to prove that the first defendant was a tenant, I am satisfied that that she has proved on a balance of probabilities that he was aware of the claim of the plaintiff’s husband to the ownership of the rights, title and interest in the property.

            A consequence of this finding is that the first defendant was a mala fide purchaser.

The above finding would form an adequate ground to grant judgment in favour of the plaintiff. However, it is on the basis that I might be wrong in holding that the first defendant was a mala fide purchaser, that I proceed to determine the second issue referred to trial.

           Whether the plaintiff is entitled to the rei vindicatio

The rei vindicatio is a remedy that is available to the owner of property for its recovery from the possession of any other person. The two essential elements of the remedy are firstly, proof of ownership and secondly possession of the property by another person.

       Mr Chirorwe, for the first defendant, on the one hand, submitted that the remedy was not available to the plaintiff because the first defendant is the registered holder of title in the property. The first defendant took registered title on 14 February 2001. He took occupation on 28 February 2001. He holds title in the property and he possesses it.

          Mr Diza, for the plaintiff, on the other hand, contended that the transfer of title by the City of Harare to the second and third defendants and the subsequent registration of title in the first defendant’s name were based on the fraud perpetrated by the second defendant who took title on the basis of an assignment to him of the rights, title and interest of the plaintiff. He therefore submitted that as the plaintiff was the true owner of the rights, title and interest in the property he was entitled to vindication.

The judgment of SMITH J on the merits of the dispute between the two Chikadaya brothers awarded the rights, title and interest in the property in dispute to the plaintiff. It determined as between them that the plaintiff was the holder of the rights, title and interest in the property, which rights he had warehoused in the second defendant’s name. In other words, the plaintiff was the principal while his brother was his agent. The purported disposal of the rights, title and interest in the property by the agent was carried out outside the mandate given to him by his principal. The second defendant purported to be the owner and disposed of the property in the full knowledge that the property did not belong to him. He did so in order to cheat and defeat the true owner of his rights in the property.

Wille and Millin’sMercantile Law in South Africa 17^thed at p 149 states that:

“If, however, a vendor, knowing himself not to be the true owner of one thing, represents himself to be the owner and sells it to a person ignorant of the truth so as willfully to expose the latter to the danger of having the possession taken away from him by the true owner, the law regards such conduct on the part of the vendor as fraudulent; and the buyer is entitled to repudiate the contract and sue the seller for damages even before he is evicted: Kleynhans Bros v Wessels’ Trustee 1927 AD 271; and see Van der Westhuizen v Yskor Werknemers 1960 (4) SA 8903 (T).”

         It seems to me that these sentiments are pertinent to the present matter. The plaintiff was the true owner of the rights, title and interest in the property which his young brother purported to dispose to the first defendant.  He disposed of the rights in the property, which rights he did not have. As was pointed out by LORD DENNING in MacFoy v United Africa Co Ltd [1961] 3 All ER 1169 (PC) at 1172:

“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 court to set it aside. It is automatically null and void without more ado, though 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 the same vein are the words of MAKARAU JP, as she then was, inKatirawu v Katirawu & Ors HH 58/07 at page 5 of the cyclostyled judgment that:

“Nothing legal can flow from a fraud. His appointment was null and void ab initio on account of the fraud. It is as if it was never made. It is a nothing and upon which nothing of consequence can hang.”

        It is apparent from the sentiments expressed by MALABA J, as he then was, in Stanbic Finance Zimbabwe Ltd v Chivhungwa 1999 (1) ZLR 262 (H) at 265G -266E that the true owner of the property is entitled to recover it from any person who has possession of it without his consent. In the present matter, I am satisfied that the plaintiff has established that her husband was the true owner of the rights, title and interest in the property and the first defendant has possession of it. She is entitled to the remedy of vindication.

       Mr Chirorwe further contended that the plaintiff was estopped from vindicating the property because of his negligence in failing to protect his rights in the property. He was alive to the fact that the incidence of onus to establish estoppel fell on the second defendant. He relied on the factors of estoppel that are set out in Stanbic Finance Zimbabwe Ltd v Chivhungwa, supra, at 266F-G that:

 “Estoppel depends upon an allegation that a representation was made by the owner (Mashave's case supra at p 438D). In OaklandNominees supra at p 452A-G Holmes JA said:   

"(i)       There must be a representation by the owner, by conduct or otherwise, that the person who disposed of his property was the owner of it or was entitled to dispose of it. A helpful decision in this regard is Electrolux (Pty) Ltd v Khota & Anor 1961 (4) SA 244 (W) with its reference at p 247 to the entrusting of possession of property with indicia of dominium or jus disponendi.

1. The representation must have been made negligently in the circumstances.
2. The representation must have been relied upon by the person raising the estoppel.

1. Such person's reliance upon the representation must be the cause of his acting to his detriment."

MrChirorwe contended that the plaintiff misrepresented to the first defendant that the second defendant was the holder of the rights, title and interest in the property by his inaction in that he did not interdict him from disposing of those rights to unsuspecting members of the public. It was common cause that at the time the second defendant sold the rights in the property, he was engaged in litigation with the plaintiff over the ownership of those rights. Although SMITH J had dismissed the plaintiff’s case on technicalities on 1 March 2000, the matter was still extant by virtue of the notice of appeal filed by the plaintiff on 29 March 2000. The notice of appeal was served on both the second defendant and the City of Harare. It was common cause that the effect of the notice of appeal was to suspend the judgment of 1 March 2000. 

I called for the record in case number HC 11 678/98. My perusal of the record revealed the following information. The second defendant and the plaintiff were called upon to inspect the appeal record firstly on 22 September 2000 and later on 26 January 2001. On 5 February 2001 the second defendant certified the accuracy of the record of proceedings while the plaintiff did so on 23 February 2001. The second defendant wrote to the Registrar on 6 February 2001 notifying him of his new address of service and informing him that he had sold the property in dispute to the first defendant. He attached with the letter the full agreement of sale to the first defendant executed at Sommerfield Real Estate on 6 December 2000; and a letter written to him by Gambe and Associates on 24 November 2000 to effect transfer of the property from the City of Harare to him and his wife together with the statement of account for such transfer, the rates clearance certificate and the tax clearance certificate. He filed the letter on 13 March 2001.  The appeal was argued in the Supreme Court on 4 June 2001 and judgment granting the appeal was issued on 14 June 2001. The case was heard on the merits on 3 and 4 September 2001 and judgment delivered on 20 February 2002.  The rights, title and interest in the property were awarded to the plaintiff. The second defendant noted an appeal on 13 March 2002.  It was dismissed on 15 November 2004 by the Supreme Court for want of prosecution by the second defendant. In all court process the City of Harare was cited. The award to the plaintiff still stands, hence the present suit to recover the rights in the property from the defendants.

It was unclear to me why the plaintiff should have interdicted both the second defendant and the City of Harare from transferring the property from the second defendant. The first defendant did not lead any evidence to show that the plaintiff was aware that the second defendant and the City of Harare could do so. The vigor with which the second defendant contested the appeal and action and noted an appeal reasonably led the plaintiff to believe that he was holding onto the disputed rights. The first defendant did not demonstrate by way of evidence that the plaintiff was aware of the disposal of rights in the property. If anything once the City of Harare was served with the notice of appeal, it ought to have forestalled the transfer of title to the second and third defendants. The evidence gathered from case no. 11 678/98 shows that the second defendant only revealed the sale on 13 March 2001 after he had transferred the property to the first defendant. The fact that the plaintiff only became aware of the sale when he wanted to enforce the judgment on the merits is proof that the letter of 6 February 2001 which was filed on 13 March 2001 was never served on him. That the sale of the property was advertised in the Herald of 30 November 2000 was a fact that could not reasonably have been known by the plaintiff. The description in the advertisement was inadequate for any one to identify it with the property in issue. It seemed to me that the second defendant was more interested in convincing prospective purchasers of his good title to the property rather than in notifying the plaintiff of his intention to dispose it. It is clear to me that the second defendant acted in haste to obtain registered title behind the plaintiff’s back and entered into an agreement of sale with the first defendant even before he had received title. Both the second defendant and the City of Harare had been served with the notice of appeal which notified them that the rights, title and interest in the property were still the subject matter of litigation.

I am satisfied that the first defendant has failed to prove any misrepresentation by conduct or otherwise by the plaintiff. The other three factors noted in Stanbic Finance Zimbabwe Ltd case, supra, are dependent on misrepresentation. In the absence of misrepresentation they all fall away.

In the alternative, Mr Chirorwe sought to rely  on para (b) found in Oakland Nominees (Pty) Ltd v Gerlia Mining & Investment Co. (Pty) Ltd 1976 (1) SA 441 (AD) at 452A- B where HOLMES JA stated that:

“Our law jealously protects the right of ownership and the correlative right of the owner in regard to his property, unless, of course, the possessor has some enforceable right against the owner. Consistent with this, it has been authoritatively laid down by this Court that an owner is estopped from asserting his rights to his property only-

1. where the person who acquired his property did so because, by the culpa of the owner, he was misled into the belief that the person from whom he acquired it, was the owner or was entitled to dispose of it; or
2. (possibly) where, despite the absence of culpa, the owner is precluded from asserting his rights by compelling considerations of fairness within the broad concept of the exception doli.”

He submitted that in the absence of negligence, the plaintiff was precluded from asserting his rights by compelling considerations of fairness. He contended that the compelling grounds of fairness were that the first defendant has continuously resided at the property from 28 February 2001. He purchased the property using a loan from his employer which he fully repaid. He has made improvements on the property. That may be so. Like the plaintiff, he was cheated by the second defendant.  I however do not think that these are compelling considerations of fairness. These must be counterpoised against the judgment of 20 February 2002 which declared the plaintiff as the true owner of the rights, title and interest in the property. The plaintiff started as long ago as in 1998 to assert his rights. Even when the first defendant purchased the rights that the second purported to have in the property the plaintiff asserted his rights to him. When he took title and occupation, the plaintiff continued to assert his rights. Whatever improvements he made, he did so fully aware of the plaintiff’s claim. The compelling considerations of fairness are in favour of the plaintiff.

It does not appear to me that the fraudulent behaviour of the second defendant would ever find refuge in estoppel. The first defendant’s title based as it was on fraud cannot stand. The second defendant disposed of the rights, title and interest in the property that he did not hold. All subsequent proceedings that were based on such disposal were void.

There is another basis for determining this matter in favour of the plaintiff. At the request of the Court both counsel made further oral submissions on whether a res litigiosa could be alienated. The World Dictionary of Foreign Expressions at page 344 defines res litigiosa as “disputed things”. It states that under Roman law it meant “things, rights or properties which were involved in a pending suit.” In Waikiki Shipping Co Ltd v Thomas Barlow and Sons (Natal) Ltd and Another 1978 (1) SA 671 (A) at 676H res litigiosa were defined as “things that are the subject-matter of litigation.”

Both counsel submitted on the authority of Zimbabwe Banking Corporation Ltd & Anor v Shiku Distributors (Pvt) Ltd & Ors Anor 2000 (2) ZLR 11 (H) at 18F that a thing that is the subject matter of litigation could not be sold after the institution of action. Zeffertt in an article entitled The Sale of a Res Litigiosa in the 1971 (88) South African Law Journal at p. 407 suggested that Roman Dutch writers such as Voet indicated that “all personal actions have the effect of rendering their subject matter res litigiosa at the stage of litis contestatio. The relevant stage is not the time of commencement of action, but the time of litis contestatio.”  Zeffertt’s view in this regard was affirmed by BERMAN J in Opera House (Grand Parade) Restaurant (Pty) Ltd v Cape Town City Council 1986 (2) SA 656 (C). The LEARNED JUDGE held that in a real action (action in rem) the land becameres litigiosa on the service of summons while in a personal action that status was achieved at the closure of pleadings.

In the present matter, it is unnecessary for me to determine whether the rights in issue were real or personal rights as at the time of alienation summons had been served and pleadings closed. Under either heading, the contested rights were res litigiosa.

BERMAN J further held that a res litigiosa could not be alienated after litis contestatio without protecting the rights of the non-alienating party. His decision was rooted in the doctrine of effectiveness whose underlying rationale is to protect the power of the court to execute its own judgment and thereby uphold and maintain its dignity. I hold that the sale of the rights in the property after the closure of pleadings without protecting the plaintiff’s rights therein rendered it a nullity.

The plaintiff’s main claim was for the transfer of the property in issue from the first defendant. It seems to me that the competent order that can be granted is not the transfer of the property to the plaintiff; but the cancellation of the first defendant’s title. The result of the cancellation would be to return the property to the holder of title before the transfer was effected. It appears from the papers that the second defendant and his wife Beauty Mpofu took title before they transferred it to second defendant. It would be necessary to cancel their title too. Thereafter title would revert to the City of Harare while the cession held by the second respondent would be restored. The effect of this judgment would be to restore the prevailing position contemplated by the judgment of SMITH J of 20 February 2002. The plaintiff would then have to execute that judgment in the proper way.

Accordingly, it is ordered that:

1. The transfer of Stand 6058 Glen View Township to Cladios Chenga under Deed of Transfer No. 1285/2001 be and is hereby cancelled.
2. The transfer of Stand 6058 Glen View Township to Zakeyo Chikadaya and Beauty Mpofu under Deed of Transfer No. 1284/2001 be and is hereby cancelled.
3. The plaintiff shall execute the order of 20 February 2002 granted in case no HC 11 678.
4. The first, second and third defendants shall pay the plaintiff’s costs of suit on a legal practitioner and client scale, jointly and severally, the one paying the others to be absolved.

Musunga and Associates,plaintiff’s legal practitioners

Gambe and Associates, first defendant’s legal practitioners