STEPHEN ZINGWE

versus

SYNODIA GWANZURA (nee CHETENI)

and

PETTION ELTON GWANZURA

HIGH COURT OF ZIMBABWE

KUDYA J

HARARE, 22, 23 and 24 November 2010

and 24 and 25 January and 2 February and 22 June 2011                                                               

Civil Trial

B Mugomeza,for the plaintiff

T Mawere,for the first defendant

Second defendant in person

KUDYA J: The plaintiff concluded an agreement of sale with the second defendant on 20 January 2003 and took registered title of the immovable property, stand number 2946 Gwelo Township of Gwelo Township Lands, also known as 40 Mcllwaine Southdowns, Gweru, on 19 February 2003.

          The first defendant, Mrs Gwanzura, is the former wife of the second defendant, Mr Gwanzura. Their marriage of 19 years was dissolved by the High Court sitting at Bulawayo on 23 July 2002 in case number HC 2877/98. The divorce order, inter alia, apportioned the house between the defendants. The relevant part of the order reads:

“a) That the immovable property known as 40 Mcllwaine road Southdowns

      Gweru shall be valued by CC Sales (Pvt) Ltd within a month from the date of

       this order.

1. That after the valuation either party shall pay the other 50% of the valuation fine (sic) of the property and whichever party shall pay the other first will secure the property.
2. In the event that either party is not able to raise the half share will (sic) three months from the date of valuations (sic) the property shall be sold by Trevor Dollar Estate agents at the best advantage of the parties and the purchase price shall be shared equally between the parties.
3. In the event that the plaintiff has been paid his half share in terms of the divorce order he shall sign the transfer of guardianship (sic) documents within (sic) from the date of transfer failure (sic) which the Deputy Sheriff Gweru is hereby authorised to sign the transfer papers to effect transfer of ownership of 40 Mcllwaine road, Southdowns, Gweru, to the defendant.”

The property was duly valued by CC Sales Ltd Gweru on 28 November 2002 at ZW$8.4 million. The report gives a full description of the property. It, inter alia, describes the swimming pool as non functional, badly cracked and in a bad state of repair. The main bedroom, one other bedroom and the garage had structural cracks. Some sections of the walls were damp and the roof leaked. In terms of the court order either party had until 28 February 2003 to buy the other out failing which the house would be sold to best advantage and the proceeds shared equally between the parties.

          Mrs Gwanzura remained in occupation of the house with the children of the marriage after Mr Gwanzura deserted them in 1997 and settled in Kwekwe with another woman. She has been residing in the house ever since the divorce order was granted.

          The plaintiff issued summons out of this court on 31 March 2003 seeking the eviction of Mrs Gwanzura, holding over damages and costs of suit. He based his claim on ownership. Mrs Gwanzura contested the claim and filed her plea and counterclaim on 16 April 2003. She averred that the plaintiff, with prior knowledge of her rights in the immovable property, fraudulently and criminally connived with Mr Gwanzura to defeat her of those rights. She prayed for the dismissal of the claim and for the cancellation of the Deed of Transfer 373/03. On 19 May 2003, the plaintiff disputed the averments made in the counterclaim.

          Mr Gwanzura was joined in the matter with the consent of the parties on 28 January 2004 as the second defendant in reconvention. He filed his plea to the counterclaim on 27 February 2004. He averred that he had fully abided by the terms of the divorce order by buying out the defendant of her share in the immovable property before disposing it to the plaintiff; and denied acting fraudulently, contemptuously or in connivance with the plaintiff.

          At the pre-trial conference of 23 June 2004, the following three issues were referred to trial:

1. Whether or not the plaintiff was aware that the property was the subject of a matrimonial dispute.
2. Whether or not the agreement between the plaintiff and second defendant was done fraudulently to defeat the court order under case 2877/98.
3. Whether the defendant is entitled to cancellation of title deeds.

          The plaintiff testified on his own behalf and called the further evidence of his elder brother Tawona Zingwe. In addition he produced exh 1, a 16 paged bundle of documents. Mrs Gwanzura gave evidence on her own behalf and called the evidence of Mr Dzimba, the senior partner of the Dzimba, Jaravaza and Associates, legal practitioners, who was her legal practitioner of record during and after the divorce proceedings. In addition she produced three bundles of exhibits that were marked as exh 2, 4 and 5. Mr Gwanzura also testified on his own behalf and produced exh 3, a three paged copy of an agreement of sale dated 11 July 2003 concluded between Mrs Gwanzura and Elizabeth Sithole purportedly for the sale of the immovable property.

          The plaintiff has lived in the Untied Kingdom for the past 11 years where he works as a research development officer. He flew into the country on 6 December 2002.  He instructed Trevor Dollar Estate agents of Gweru to buy a property in the low density suburbs of Gweru for him. He paid into their trust account ZW$15 million for that purpose. He left the country for the United Kingdom on 3 January 2003 before a suitable property had been found.

          He mandated his late father Saul Zingwe to act on his behalf during his absence. He was not personally present during the preliminary stages before the purchase of the immovable property. He did not physically participate in the purchase and transfer of the property to his name. He, however, received periodic progress reports over the telephone from his father. He was, however, unable to describe the house he purchased. When his father failed to receive vacant possession, he issued summons out of the Gweru Magistrate’s court, on his behalf, on 5 November 2004 for the eviction of Mrs Gwanzura. When default judgment for the cancellation of his title was entered against him on 24 October 2005, his father filed the founding affidavit for rescission on 23 February 2007. He denied possessing prior knowledge of Mrs Gwanzura’s rights personally or through his agents.

          The plaintiff’s father died after the closure of pleadings but before trial. He called the evidence of his elder brother Tawona Zingwe to testify on the events that took place on the day he accompanied his father to inspect the immovable property. Tawona stated that they met Mr Gwanzura for the first time at Trevor Dollar Estate Agents on that day. He could not recall when they went for the visit but estimated it to have been between 14 and 15 January 2003. Mr Gwanzura accompanied them to the property. At the gate he observed that the house had a swimming pool and a cottage. They were met at the entrance to the house by Mrs Gwanzura who took them into the lounge. He inspected the house whilst seated in the lounge and noted that it had a big kitchen and three bedrooms. He was impressed by the state of the lounge and excited at the prospect of finding a house after a long search that he dispensed with the inspection of the three bedrooms.  He stated that his father did not inspect the house. They went away in the euphoria of finding a suitable house after a long search. He was not present when the agreement of sale was concluded. After taking transfer, Mrs Gwanzura refused to vacate. It was at that stage that Chakanetsa and Partners, legal practitioners for Mr Gwanzura during the divorce proceedings and sale and transfer of the property showed him and his father the divorce order.

          During cross examination, he disputed that Mrs Gwanzura informed them that the house could not be sold because it was encumbered by a divorce order issued by the High Court and refused them entrance into and inspection of the house. Although he disputed it, the impression that I gathered from his responses under cross examination was that a tense atmosphere prevailed at the immovable property on the day of inspection. He stated that no introductions were done by Mr Gwanzura; that whilst they sat down on the sofas Mrs Gwanzura remained standing and that no inspections were done. He confessed that he neither saw nor inspected the kitchen but relied on the description he received from Trevor Dollar Estate Agents. He revealed that he was unaware that the first room of entry into the house from the verandah where he averred they were received by Mrs Gwanzura was the dining room. He was also oblivious that they sat in a sunken lounge.

          Tawona was not a credible witness. He gave contradictory evidence. He supplied a false date of the inspection. The reasons he gave for failing to conduct an inspection were proved false by Mrs Gwanzura and unwittingly by Mr Gwanzura. His lack of knowledge of the structure of the house from the verandah to the lounge demonstrated that he did not enter the house. He was oblivious of the structural defects on the property that were noted in the valuation report.

          Mrs Gwanzura stated that her former husband came to the house for the first time after his 1997 desertion on the day of inspection. It was on the morning of 5 January 2003. He was in the company of an old man and a young man who he did not identify and who refused to identify themselves but who she later knew as Saul Zingwe and Tawona Zingwe, respectively. She met them in the verandah. They wanted to inspect the property on the instructions of Trevor Dollar Estate Agents. She alleged that she warned the old man not to be deceived by Mr Gwanzura who under the terms of a High Court divorce order could not dispose of the property before he had bought her out. Mr Gwanzura shouted at her. He went away arguing with the two strangers. She immediately contacted her legal practitioners who in turn dispatched letters to both Trevor Dollar Estate agents and Mr Gwanzura’s legal practitioners Chakanetsa and Partners on 6 January 2003. The letters pointed out that the sale of the immovable property and especially through Trevor Dollar Estate Agents was unlawful and premature as three months had not yet elapsed from the date of evaluation. The letters were not responded to.  

          Later, her legal practitioners informed her of the payment of ZW$4.2 million from Chakanetsa and Partners of 20 January. The news prompted her to deposit an equivalent amount with her legal practitioners on 22 January 2003 who on 28 January dispatched a bank certified trust cheque in the same amount with a covering letter to Mr Gwanzura’s legal practitioners. The letter and cheque were received at Chakanetsa and Partners on 30 January 2003. She did not know what became of the bank cheque after it was received by Mr Gwanzura’s legal practitioners. The money was paid over in expectation that the cheque deposited by Mr Gwanzura’s legal practitioners on 20 January would be dishonored. As it turned out, that cheque was honoured by the drawee bank on 22 January.

          She produced exh 4. It consists of the declarations by the purchaser, the plaintiff and seller, Mr Gwanzura and the power of attorney to make transfer by Mr Gwanzura. They were all deposed to on 20 January 2003. The declarations were signed in Kwekwe while the power of attorney to pass transfer was deposed to in Bulawayo. All the three documents stated the purchase price of the immovable property as ZW$5 million. The declarations provided the date of sale and purchase as 20 January 2003.

          She convincingly demonstrated that exh 3, the purported agreement of sale of the property by her to Elizabeth Sithole was forged. The first page originally bore the description of an undeveloped property and the date stamp of her legal practitioners Maputsenyika and Associates that appear on the other two pages. For what it is worth, exh 3 was a red herring and was irrelevant to the present proceedings.

          She filed an urgent chamber application on 25 February against the second defendant, his lawyers and the Registrar of Deeds, which was served on 27 March 2003, to stop transfer of the property in ignorance that transfer had already passed on 19 February 2003. She maintained that the transfer be cancelled for breach of a court order averring that her legal practitioners accepted payment from Mr Gwanzura in good faith without knowledge of the breach.

          Mrs Gwanzura was a truthful witness. That the inspection took place on 5 January as opposed to 14 or 15 January was confirmed by the letter written by her legal practitioners on 6 January. Her version of the events of that day was confirmed by the shortcomings in the testimony of Tawona and Mr Gwanzura. That she denied them entry into the house was confirmed by Tawona’s failure to describe the house. Had he entered the house he would have remembered its structural features such as the dining room and sunken lounge. Unlike Tawona, Mr Gwanzura confirmed that he indicated to his former wife that they were under instruction from Trevor Dollar Estate Agents to inspect the house. Gwanzura testified that the atmosphere was pregnant with tension. He said his former wife was shouting at him but he did not listen to what she was saying. Tawona stated that the atmosphere was calm and serene. It would not accord with human experience for Mrs Gwanzura to have kept quiet when she knew that the house was not yet ripe for sale. When she stated that she advised Saul and Tawona Zingwe of the existence of a court order she must have been telling the truth. That the probabilities favour her version is further demonstrated by the inclusion in the agreement of sale of clause 1b to the effect that the balance of the purchase price would be paid after the inspection of the house or transfer. I believed her testimony on the events of 5 January 2003.

          Mr Peter Dzimba, her legal practitioner at the time, also confirmed her testimony. He wrote the letters of 6 January addressed to Trevor Dollar and Mr Gwanzura’s legal practitioners. He confirmed that on 20 January Mr Gwanzura paid the half share of the immovable property that would entitle him to full ownership rights in the property. He reluctantly conceded that the cheque was honored on 22 January.  He wrongly believed that the payment date would be the date on which the cheque was honoured as opposed to the date of payment. That payment is deemed to have been made on the day of payment is clear from the observations made in Sibbald vDakota Motors 1956 (3) SA 307 (T) at 207; Colley vUDC Rhodesia Limited 1976 (1) SA 821 (RAD) at 825F-826A; and B & H Engineering vFirst National Bank of SA Ltd 1995 (2) SA 279 (A) at 286B. He confirmed the accuracy of the information in exh 5 that demonstrated that the money paid by Mr Gwanzura was invested by him with Trust Bank and then Beverly Building Society on the instructions of and for the account of Mrs Gwanzura to hedge against loss in the event that her counterclaim failed. By 26 September 2005 it had grown to $16 824 954-90.

          He stated that the bank certified cheque paid to Mr Gwanzura’s legal practitioners was not returned. Despite the fact that the present case commenced in March 2003 and his former client counterclaimed in April 2003, he failed to produce the invoice from Mr Gwanzura’s legal practitioners, a copy of the cleared cheque or his own bank statements indicating debit entries in his trust account.

          Mr Gwanzura stated that he made payment for his former wife’s half share to his legal practitioners on 2 January 2003 who advised him that he could thereafter sell the immovable property. He instructed them to sell the property and they in turn instructed Trevor Dollar Estate Agents to do so. On 14 January his legal practitioners contacted him. Acting on the information they relayed, he went to Trevor Dollar Estate Agents on 15 January where he met his legal practitioner, the late Mr Mutandi, Saul Zingwe and his wife and son Tawona. He went with the two prospective buyers to the house. His former wife led them into the lounge where they sat down. The prospective purchasers did not inspect the house but left soon thereafter expressing satisfaction with what they had seen. His legal practitioners wrote out the cheque to Dzimba, Jaravaza and Associates on 8 January but for reasons unknown to him they only delivered the cheque on 20 January. While he failed to produce proof that he indeed paid in the money on 2 January, the image of the cheque produced at the back of the bank statement dated 25 January 2003 of his former legal practitioners is dated 8 January. It was common cause that it was receipted at Dzimba, Jaravaza and Associates who banked it and invested the proceeds. He further stated that he signed the agreement of sale on 20 January at Trevor Dollar’s offices in Gweru.  On 25 January he then signed the declaration of the seller and power of attorney to pass transfer. He asked his wife to vacate the property but she refused.

          He was cross examined by the plaintiff’s counsel. He stated that when he informed his former wife why they were at the house she was visibly angered by his explanation. He stated that he did not inform the Zingwe family about the court order but left the task to his legal practitioners and the estate agents. On the sequence of signing the agreement and payment of the money to Mrs Gwanzura’s legal practitioners he repeated twice that he signed first before he proceeded to deposit the cheque at their offices.

          Under questioning by Mrs Gwanzura’s legal practitioner he confirmed that he deposited the money with his own legal practitioners using a cheque from one of his companies P and Elton Investments on either 2 or 3 January 2003. He was issued with a trust account receipt. He admitted that by 25 March 2003, when he was served with the urgent chamber application, he knew the basis upon which his wife challenged the sale. Notwithstanding this admission he failed to produce proof that he indeed paid the amount to his legal practitioners. He would have done so by producing the trust account receipt he received or the honoured cheque that he paid or P and Elton Investments bank statements for the relevant period.  He also made out that he signed the agreement before he deposited the ZW$4,2 million with Dzimba, Jaravaza and Partners. He must have realized the implication of his answer for he quickly changed and alleged that he actually paid first before he signed the agreement of sale.  He conceded under searching cross examination that the Zingwe family members left the house prematurely before inspection because his former wife refused them permission to do so.

          I found Mr Gwanzura an unreliable and untruthful witness. He gave conflicting versions on when he gave instructions for the sale of the house. In one vein he said it was after 8 January 2003 and in another said it was actually either on 28 or 29 December 2002. Contrary to his evidence in chief, he denied in his opposing affidavit of 28 March 2003 filed in the urgent chamber application that Trevor Dollar sold the house on his behalf. Contrary to all other evidence he was to aver that Saul Zingwe’s wife was present at the inspection. His failure to advise his former wife that he was selling the house because he had already bought her out was telling against him. I found myself in agreement with the contention by Mr Mawere, for Mrs Gwanzura, that Mr Gwanzura used some of the proceeds paid by the plaintiff to buy her out. He conceded that he knowingly cheated the fiscus by declaring a low value for the purchase of the property.

        After assessing the evidence of the plaintiff, Tawona and Mr Gwanzura against that of Mrs Gwanzura, I was satisfied that she told the truth. I accept her testimony wherever it differs with their testimonies.

         It is on the basis of these facts that I proceed to determine the three issues referred to trial.

Whether or not the plaintiff was aware that the property was the subject of a   matrimonial dispute

A comparison of the testimony of Mrs Gwanzura and that of Tawona and Mr Gwanzura demonstrated that the plaintiff’s representatives were aware of the existence of the divorce order when the agreement of sale was concluded. The plaintiff’s father and brother were advised by Mrs Gwanzura not to be duped by Mr Gwanzura as the sale of the house was encumbered by a divorce order of the High Court. In addition, Mr Mugomeza, for the plaintiff, conceded that Trevor Dollar were the agents of the plaintiff in the transaction. On 6 January 2003, Trevor Dollar was advised of the existence and effect of the divorce order. They nonetheless proceeded headlong to purchase the property for the plaintiff. I am satisfied that the plaintiff through his representatives and agents was aware that the property was subject of a matrimonial dispute between Mr and Mrs Gwanzura.

Whether or not the agreement between the plaintiff and second defendant was done fraudulently to defeat the court order under case 2877/98

          The date on which the agreement of sale was executed was in dispute. The confusion was caused by the defendant’s late father who in an affidavit filed on 23 February 2007 in the action that was brought in the Gweru Magistrates’ court and later withdrawn averred twice that the agreement of sale was concluded on “2^ndJanuary 2003”. The affidavit was contrary to the agreement produced in court and the declaration by seller signed by Mr Gwanzura and the declaration by purchaser signed by him that provided the date of 20 January 2003. 2 January coincidentally coincides with the date on which Mr Gwanzura alleged he deposited the purchase price with his legal practitioners. The double repetition of the date as “2^nd January 2003” in one affidavit is inconsistent with a typographical mistake and points to a positive statement of fact. I accept that the 2 January was not the date on which the contract of sale was concluded. It is contrary to the agreement itself and the other documents that I have already referred to. It is also contrary to the plaintiff’s evidence that he was still in the country on that date and would have executed the agreement in person. It is contrary to the evidence of Mr Gwanzura, the other party to the agreement. I find the conclusion inescapable that it was a deliberate falsehood designed to support Mr Gwanzura’s averment that he deposited ZW$4, 2 million with his own legal practitioners on that day. Such a conclusion paints the plaintiff’s representative in poor light as a person who was prepared to connive with Mr Gwanzura to mislead Mrs Gwanzura.

          Mr Mugomeza submitted that the agreement of sale was not concluded in fraud of the divorce order. Mr Mawere made a contrary submission.

          In Pretorius NO vSmith &Ors 1971 (1) SA 459 (T) at 461A-C COLMAN J stated that:

 “It is clear that the word “fraud”, when used in relation to the type of disposition which can be attacked in a case of this kind, does not bear the same meaning as it bears in criminal law, or in the context of a contract induced by fraud. There need be no false representation or deceit by the husband in order to lay the disposition open to attack. It is equally clear, however, that not every disposition that has prejudiced the interests of the wife will be set aside at her instance, or that of her estate or heirs. Every donation made out of the assets of a joint estate diminishes the estate, and so prejudices the wife. And the same applies to a transaction, other than a donation, which results in loss to the joint estate. But such dealings, simpliciter, are not open to attack.”

And at 462C:

“I am of the opinion that the plaintiff in an action of this kind must prove dolus, in the sense of an intention to prejudice the wife’s interests. I base that conclusion on Voet’s use of the term “fraud”, and upon DavisvBrisley’s Minors 18 SC 407, where the ACTING CHIEF JUSTICE, relying, apparently, on van den Linden, equated the concept “fraud of the wife” to “willful intention to prejudice the wife”. A bona fide transaction, it seems to me, is not open to attack, however unwise it may be.”

I understand COLMAN J to be saying that fraud of the wife’s rights cannot simply be implied from the mere fact that prejudice has been occasioned to the wife but must be proved by showing that her husband carried out the transaction clandestinely or in deliberate disregard of the wife’s rights.

          Several cases have dealt with the same issue in this jurisdiction. These are Muzanenhamo & Anor vKatanga & Ors 1991 (1) ZLR 182 (S) at187A;Crundall Brothers (Pvt) Ltd vLazarus NO & Anor 1991 (2) ZLR 125 (S) at 129D-F Muganga vSakupwanya 1996 (1) ZLR 217 (S) at 219H-220A; Tewe vHanoki & Ors SC 55/03 at p 4 of the cyclostyled judgment.  In the Muzanenhamo case, and Muganga case, supra, McNALLY JA equated the fraudulent intent with intent to defeat the wife’s just claim. In Crundall Brothers, supra at 133C the Supreme Court stated that:

“The doctrine of notice, as it is called, requires nothing more than notice or knowledge of the prior claim. It is not necessary to prove mala fides or fraud.”

In Tewe’s case, supra, the purchasers were unaware of the dispute between the wife Tewe and her husband Hanoki at the time of purchase or transfer. ZIYAMBI JA stated at p 4 of the cyclostyled judgment that:

“Since the rights of husband and wife are personal and do not as a matter of law affect third parties, for the appellant (wife) to succeed against the second and third respondents (purchasers) she had to show not only that they were aware of her rights in the property but that they were attempting to defeat her rights.”

          I have already found that the plaintiff was aware of Mrs Gwanzura’s rights in the property. Those rights were that she was firstly entitled to a one half share in the value of the property and secondly that she had three months within which to buy out her husband’s half share and take title. The first leg of the formulation by ZIYAMBI JA is answered in Mrs Gwanzura’s favour, that is, that the plaintiff was aware of her rights in the property.

          The issue that falls for determination is whether the plaintiff intended to defeat her rights. Mr Mugomeza contended that Mr Gwanzura first paid out his former wife before he concluded the agreement of sale with the plaintiff. He relied on the evidence of Mr Gwanzura to that effect. Mr Gwanzura’s testimony does not support the contention. Firstly, by 5 January 2003 he was disposing of the property before he had bought out his former wife’s share. I found from his evasiveness on the point that even on 20 January 2003 when he concluded the agreement, he signed it before making payment of the half share due to Mrs Gwanzura. He failed to prove that he deposited the money on 2 January. The reason why the cheque dated 8 January was paid on 20 January was demonstrated clearly by his legal practitioners trust account bank statement issued on 25 January 2003. The opening balance on 22 January was ZW$20 000-00. Two deposits, one cash and another by cheque boosted the balance to ZW$48 399-00 before a large transfer of ZW$7 224 166-40 pushed the credit balance to ZW$7 272 565-40. The plausible explanation of the source of those funds appears to be the nett amount due to Mr Gwanzura from the deposit of ZW$7,5 million made by the plaintiff at the conclusion of the sale agreement. It was not within the contemplation of the order that he would sell the property to raise the money to buy out his former wife’s share. I am satisfied that Mr Gwanzura intended to defeat Mrs Gwanzura’s rights. He acted clandestinely and with deliberate intention to defeat his former wife’s rights. Mr Gwanzura, thus, acted fraudulently.

          I am also satisfied that the plaintiff’s actions also fall into the same category as those of Mr Gwanzura. He purchased a property with the defects noted by CC Sales (Pvt) Ltd without inspecting the property. His representatives falsely stated that they inspected the house. They inserted an unusual clause that they would pay the balance after inspection or transfer. They could not insist on their right to inspect before concluding the agreement because they knew that they were trampling upon Mrs Gwanzura’s rights, which she had advised them of on 5 January 2003. That the plaintiff’s agents were acting mala fide was further reinforced by the connivance they embarked upon with Mr Gwanzura to cheat the fiscus by under declaring the purchase price. The plaintiff benefited by paying lower stamp duty and Mr Gwanzura by paying less capital gains tax.

          I hold that the agreement of sale was executed to defraud Mrs Gwanzura of her just rights that she was awarded in the divorce order.

Is the first defendant entitled to cancellation of the title deed?

          It seems to me that the answer to the last question must be in the affirmative. In Mvududu vMvududu NO & Ors 1981 ZLR 397 at 405G-H McNALLY AJ, as he then was, held that:

“A registered deed may be cancelled by order of court, on the authority of s 8 of the Deeds Registries Act [Cap 139]. Such action cannot be lightly taken, but it seems to me that where there has been justus error, as here, and the rights of Rhoda have been entirely overlooked, and those of Mwashinga and Enoch misconceived, so that a false certificate was issued by the District Commissioner, the court must intervene.”

I am thus empowered by s 8 (1) of the Deeds Registries Act [Cap 20:05] to cancel a registered deed. In the Mvududu case, supra, it was cancelled because there had been a justus error. In the present case there has been fraudulent intent on the part of the registered holder. Failure to cancel would be in the words of KORSAH JA in Hattingh & Ors vvan Kleek 1997 (2) ZLR 240 (SC) at 246B “deprive the innocent person of his rights … benefit the guilty and put a premium on deceit.”

          Mrs Gwanzura prayed for costs on the scale of legal practitioner and client. Costs are in the discretion of the court. I would have granted them because of the deceit exhibited in the present case by the plaintiff and Mr Gwanzura. The facts demonstrated that Mrs Gwanzura appropriated the payment made by Mr Gwanzura from the proceeds of the purported sale. They also show that an equivalent amount she paid to Mr Gwanzura reached his legal practitioners even though there is no record of what became of it. The ultimate loser in the present case was the plaintiff who lost all his money and the house. It is in the light of this loss that I would award Mrs Gwanzura costs on the ordinary scale.

          Accordingly, it is ordered that:

1. The plaintiff’s claim be and is hereby dismissed with costs.
2. The Deed of Transfer No 373/03 registered on 19 February 2003 in favour of Stephen Zingwe of Stand 2946 Gwelo Township of Gwelo Township Lands be and is hereby cancelled.
3. The plaintiff shall pay the first defendant’s costs of suit in the counter claim.

Mutezo & Mugomeza, plaintiff’s legal practitioners

Mawere & Sibanda, first defendant’s legal practitioners