DOROTHY RUSIREVI
and
TAKAWIRA ZEMBE
versus
ELISHA MURANDU JAIROS KABAYAHWARO
and
REGISTRAR OF DEEDS N.O.
and
GRACIOUS CHIROWODZA
HIGH COURT OF ZIMBABWE
BHUNU J
HARARE, 19 May 2010, 9 June 2010, 14 June 2010, 7 September, 2010, 24 September 2010 and 14 September 2011
Civil Trial
Miss Magorimbo, for the plaintiffs
MissKanyenze, for the 1stdefendant
Mr Jakachira, for the 3rddefendant
BHUNU J: There is no material dispute of facts on the bulk of the facts in this case. It is common cause that the first and third defendants were married in terms of customary law for 12 years. They divorced each other on 22 February 2002 where upon the Magistrate’s court issued an order distributing the former matrimonial home being Stand number 491 Prospect Township of stand 106 of Prospect registered in the first defendant’s name under deed of transfer 5963/87.
The magistrate’s order reads:
“The home in question to be evaluated and the plaintiff (the first defendant) to give the defendant 15% evaluated value of the house in question as part of her contribution towards the construction of that house.
The defendant to vacate the said house on receiving the 15% value of her contribution”.
Aggrieved by the magistrate’s determination the third defendant appealed to this court on 12 March 2002 under case number HC 33/02 claiming a bigger share of the property.
To protect her interest against the sale of the property without her consent she placed an XN Caveat 434/2006 on the title deeds in question. Despite the court order and the XN Caveat the first defendant sold the disputed property to the plaintiffs without the third defendant’s knowledge and approval on or about 5 July 2007.
On 25 February 2008 the plaintiffs issued summons against the first defendant and the registrar of deeds seeking transfer of the property into their names. Upon learning of this development the third defendant applied to be joined to the action to protect her interest. The application was granted by this court on 18 June 2009.
Both the first and third defendants have resisted the plaintiff’s claim on the basis of fraud. In short they both allege that the first defendant connived with the second plaintiff to fraudulently sell the house to each other behind the third defendant’s back without her consent to her loss and prejudice. They both connived to fraudulently sign a second bogus contract misrepresenting that the property had been sold for less than the actual purchase price.
It is beyond question and a matter of common cause that the plaintiff and the third defendant concluded a written contract of sale for the property, in the sum of Z$7 000 000 000-00 (Seven Billion Zimbabwean dollars) on 5July 2007 through Contact Real Estate Agents. Thereafter and on 11 July 2007 the same parties went on to sign a second contract of sale purporting to show that the property had been sold for Z$4 500 000 000-00 (Four Billion Five hundred million dollars) that much is not in dispute. See exhibits one, and three.
To put the matter into its correct perspective I have to restate what the second plaintiff Mr Farikai Takawira Zembe had to say under cross examination.
“Q. What’s your explanation for signing the second agreement on 11 July 2008.
A. I got a call from the estate agent saying that there was another agreement to be signed so as to reduce the capital gains.
Q. So you agreed to commit a dishonest offence.
A. It was the seller and his agent. I had paid the full purchase price. I had nothing to lose.
Q. You were entering into a contract.
A. I had already entered into a contract. Why they requested a second agreement is none of my business.
Q. Mr Mupuna called you and introduced you to Mr Kabayahwaro.
A. No he only referred me to the house.
Q. You were told there was a little deal involving the house.
A. No
Q. Your explanation for signing the second contract is not genuine. The seller was over the age of 60 years there was no way he was going to pay capital gains tax.
A. That is none of my business.”
The above exchanges show that the second plaintiff who was the prime mover in the whole transaction is a devious character who is prepared to misrepresent facts for his own benefit to the detriment of others including the fiscus. His testimony however found confirmation in the equally dubious evidence of Mr Wilfred Chatadzei Mukuna the estate agent who handled both transactions.
Mr Mukuna confirmed in open court that he drafted the second contract for the purpose of defrauding the fiscus by reducing the capital gains tax payable by the first defendant.
That the second contract was signed for the purpose of evading capitol gains tax cannot reasonably be true, for the simple reason that the first defendant was above the age of 60 years and as such not liable to pay capital gains tax.
Mr Mukuna is a qualified estate agent who has been practicing as a property consultant since 1996. In that capacity he could not possibly have failed to realize that the first defendant was not liable to pay capital gains tax. It is inconceivable that he could have taken the risk of committing a fraud and putting his job on the line when it was absolutely not necessary.
No reasonable court can believe both Mr Mukuna and the second defendant’s dubious story that they perpetrated the offence in order to help the first defendant to avoid payment of capitol gains tax in circumstances where he was not liable to pay such tax.
The first defendant told a simple and believable story to the effect that all the three of them agreed to defraud the third defendant by fraudulently concluding the second agreement so as to reduce the share she was supposed to get in terms of the first authentic agreement.
The first agreement though authentic was vitiated by the fact that it breached the condition of sale imposed by a court of law. The magistrate’s order required that the property be evaluated and sold with the third defendant’s approval. This was not done for the purpose of perpetrating a fraud on her. In any case the dispute between the spouses was still under appeal thereby rendering the property unselleable without leave of the court.
The estate agent was aware of the matrimonial dispute between the first and third defendants. Mr Mukuna confirmed that the first defendant approached him and disclosed to him that he wanted to sell the property because there was a matrimonial dispute. He also alerted him of the existence of the magistrates’ court order.
Conscious of the need to protect her interest, the third defendant took the trouble to protect her interest by placing an XN caveat over the property. The title deeds were produced and the caveat was there for everyone to see. It is therefore self evident that the second plaintiff is approaching the court with dirty hands in circumstances where he is seeking transfer in fraud of the law and a valid court order.
The first plaintiff is merely an appendage of the second plaintiff. She took no active part in the second plaintiff’s criminal conduct. Her claim therefore falls together with her husband’s claim.
In the result the plaintiff’s claim can only fail. The plaintiff’s conduct in seeking to enforce through the courts a contract in fraud of the law is reprehensible to such an extent that it must be visited with adverse costs.
It is accordingly ordered that the plaintiffs’ claim be and is hereby dismissed with costs at the attorney client scale.
Hongwe, Dzimirai & Partners,plaintiff’s legal practitioners
Kanyenze & Associates, 1stdefendant’s legal practitioners
Jakachira & Company, 3rddefendant’s legal practitioners
