1

HH 222-17

HC 4440/08

ESTATE LATE CANAAN MOYO [being represented by

Lister Moyo in her capacity as the Executrix Testamentary]

and

LISTER MOYO

versus

ENOCK MAREZVA

and

STELLA BANDA

HIGH COURT OF ZIMBABWE

TAGU J

HARARE, 21 February, 9, 13 March and 5 April 2017

CIVIL TRIAL

D Halimani, for the plaintiffs

B Mufadza, for the defendants

                        TAGU J: The plaintiffs issued summons against the defendants claiming:

1. That the agreement of sale between the parties in respect of Lot 16 of Lot 20A of Waterfalls be and is hereby declared null and void.
2. That the Defendants and all those claiming right of occupation through them be and are hereby ordered to vacate the property within seven days of the service of this order upon them.
3. That it be declared that the Plaintiffs lawfully tendered the Defendants’ purchase price.
4. Costs of suit.

THE FACTUAL BACKGROUND

On or about the 9th September 2005 the plaintiffs entered into an agreement for the sale of a certain piece of land called Lot 16 of Lot 20A Waterfalls Induna, situate in the District of Salisbury, measuring 2000 square metres being subdivision of Lot 16 of Lot 20A, Waterfalls Induna. The agreed purchase price was in the old currency sum of two hundred and sixty three million four hundred and twelve thousand five hundred dollars ($263 412 500.00). However, unbeknown to either party, at the relevant date of the agreement of sale the plaintiffs’ subdivision permit had lapsed and had not been renewed by the relevant authorities. Apparently, the sale agreement entered into by and between the parties violated certain provisions of the Regional, Town and Country Planning Act [Chapter 29:12] in that at the date of the agreement of sale there was no valid permit. In their declaration the plaintiffs claimed that the agreement of sale between the parties was therefore null and void. Despite the fact that there was no valid subdivision permit at the time of the agreement, the defendants occupied plaintiffs’ property with intention to commence building without complying with the conditions of the lapsed permit being payment of 10% of the value of the land to the local authority and installation of a piped culvert to be installed by the City of Harare. On or about the 1st of November 2006 the plaintiffs through their erstwhile legal practitioners Messrs Mabulala & Motsi tendered a refund of the purchase price together with interest per annum at 30% from the date that the purchase price was paid and any proven expenses incurred by the defendants pursuant to the agreement of sale. The plaintiffs also demanded that the defendants vacate their property. Notwithstanding the plaintiffs, demand defendants have refused to vacate the plaintiffs’ property.

The defendants entered appearance to defend the claim. In their plea they averred that the subdivision permit was in fact extended by the relevant authorities and denied the perceived expiration thereof. They denied that the plaintiffs allowed them to have access to the purchased property other than for purposes of installing various infrastructures required to allow the sold piece to stand alone. They further pleaded that non-payment of the 10% endorsement if proven would only affect the status of the purchased property as to whether independent title may be obtained or not and not the validity of the sale agreement. As to the tender of refund they denied it and alleged that it would be anomalous for the plaintiffs to demand vacation of the property against defendants who had never assumed effective occupation of the purchased property. 

At the Pre -trial conference the parties agreed on the following issues to be decided:

1. Whether or not the agreement of sale between the plaintiffs and the defendants was lawful, valid and binding?
2. Whether or not the plaintiffs lawfully tendered the purchase price?
3. Whether or not the plaintiffs are entitled to an accompanying order for the eviction of the defendants from the property?

THE PLAINTIFFS’ EVIDENCE

Lister Moyo was the first to testify. Her evidence was to the effect that she is the surviving spouse to Canaan Moyo and was appointed executrix testamentary to his estate. During Canaan Moyo’s life time and as a married couple they became registered owners of the property called Lot 16 of Lot 20A Waterfalls Induna measuring 4164 square metres as per exh 1. In or around the year 1999 they applied to the local planning authority for a subdivision permit for their property in question. The subdivision permit was granted by the local planning authority on 27 July 2001. The permit contained certain terms and conditions, of which the most important one stated that:

“C. Where applicable, this permit should be handed to the Land Surveyor as authority to carry out the required survey and it should be noted that, in terms of subsection 5 (ii) of section 40 of the Act, you shall, within twelve months of the granting of this Permit or any extension of that period granted by the Local Planning Authority in writing, lodge with the Surveyor General such documents as he may require.”

She told the court that they did not lodge any documents with the Surveyor General for land survey within twelve months and or at all as required by the subdivision permit. Instead they instructed an estate agent called Borm Real Estate to sell the portion which was intended to be the subject of the subdivision. On or about the 9th September 2005 they signed an agreement of sale with the defendants (exh 4). In or around April 2006 they then received exh 5, a letter of demand from the defendants’ legal practitioners in which the defendants put them on notice to secure the subdivision as undertaken within 14 days failing which the defendants were either going to invoke their right to seek specific performance or consequential damages emanating from their breach of agreement.

It was her evidence that upon receipt of the letter they took it to Born Real Estate which referred them to Mabulala  Motsi legal practitioners. On 1 November 2006 Mabulala & Motsi legal practitioners generated a letter exh 6 to the defendants wherein they stated among other things that at the time of the agreement of sale there was no valid subdivision permit in place hence the agreement was null and void. She said Mabulala and Motsi further tendered a refund of the purchase price together with interest per annum at 30% from the date the purchase price was paid together with any proven expenses incurred by the defendants pursuant to the agreement of sale. The defendants rejected the tender through exh 10 insisting on holding the parties to the agreement of sale stating that at the time that the agreement of sale was entered into there was indeed a valid subdivision permit in place.

Lister Moyo’s contention was that according to the plaintiffs at the time the agreement was signed the permit to subdivide the property had lapsed while the defendants contented that the permit was extended and remained valid up to 1st December 2007 per exhs11 and 12 respectively. Due to this disagreement they lodged this claim.

The plaintiffs called a second witness one Mr Samuel Nyabezi who is the Chief Town Planner for the City of Harare. He is responsible for the preparation of master and local Plans, plan management and development, enforcement of town planning regulations and by-laws, providing advice to Council on town planning matters, processing of subdivisions and consolidation applications. His evidence was to the effect that the subdivision permit granted to the plaintiffs on 27 July 2001 expired on 27 July 2002 because the plaintiffs did not lodge diagrams with the Surveyor General’s Office within the period of 12 months specified in the permit. The witness said the 12 months period was not extended but expired. The attempt to extent the permit retrospectively in December 2005 was a nullity. According to this witness from a legal point of view an application for extension could not be done as it had lapsed and the applicants were supposed to start afresh. He stated further that the City Council had no power to extend the life of a permit which was not there. To use his words the Council acted outside its legal limits and that its actions may be considered moral but ultra –vires when it purportedly extended the permit in December 2005. He supported his position by referring to s 40 (5) (a) (ii) of the Regional Town and Country Planning Act which reads as follows:

“a permit authorizing the subdivision of any property shall require that the survey records concerned which are required in terms of the Land Survey Act [Chapter 20.12] shall be submitted to the Surveyor –General within the period specified in the permit or such extension of that period as the local planning authority may authorize.”

Under cross examination the witness was adamant that the City Council had erred and acted outside the confines of its limits by purportedly extending the subdivision permit which was dead and was of the view that whoever extended the permit did not apply herself fully by not interrogating the law before issuing the letter of extension. The witness who is still employed by the City Council described this as a typical case of a planning authority exercising its powers outside its powers. He summed his evidence by saying that the act was invalid and the local planning authority did not have the power to resuscitate a permit that had long died.

THE DEFENDANTS’ EVIDENCE

The defendants led evidence from one Enock Marezva who testified on his own behalf as well as that of the second defendant who is his wife. His evidence was brief and to the effect that he and his wife Stella Banda entered into an agreement of sale with the plaintiffs for the portion of Lot 16 of Lot 20A Waterfalls Induna. That they made full payment of the purchase price but were not able to get title to the property. It was his evidence that some of the terms and conditions of sale were met such as the installation of the septic tank and the culvert. He confirmed facilitating the extension of the subdivision permit through Borm Real Estate which he described as the agent of the plaintiffs. He produced exh 15 to that effect. He further produced exhs 16, 17 and 18 to do with survey diagrams, application for extension and approval plans respectively. He maintained that the subdivision permit was legally acquired and that it had not expired but was extended. Lastly he confirmed that the plaintiffs tendered the purchase price which they rejected because the amount tendered was not enough.

ANALYSIS OF THE EVIDENCE

The evidence adduced before the court showed that the circumstances of the matter were not subject of a real contest. The facts in this matter were largely common cause. It is common cause that the parties signed an agreement of sale of a property called Lot 16 of Lot 20A Waterfalls Induna on 9 September 2005. The full purchase price was paid by the defendants. Prior to the signing of the agreement of sale the plaintiffs had applied to the local planning authority for a subdivision permit for the said property sometime in 1999. The subdivision permit was granted by the local planning authority on 27 July 2001 well before the parties signed the agreement of sale. The subdivision permit contained certain terms and conditions, the most important of which for the purpose of this trial stated that the permit should be handed to the Land Surveyor as authority to carry out the required survey and that in terms of subs 5 (ii) of s 40 of the Act shall be lodged with the Surveyor General with such documents as he may require within twelve months of the granting of the permit or any extension of that period granted by the Local Planning Authority in writing. It is common cause that the plaintiffs did not lodge any documents with the Surveyor General for land survey within twelve months. It is further common cause that the defendants applied and facilitated the extension of the subdivision permit through Borm Real Estate which extension was granted by the City of Harare official on 20 December 2005. The defendants later put the plaintiffs to terms in order to secure the subdivision as undertaken within 14 days failing which the defendants were to invoke their right to seek specific performance or consequential damages emanating from the breach aforesaid. The plaintiffs reacted by alleging that the agreement of sale was null and void and tendered refund of the purchase price on the ground that the subdivision permit had expired by the time it was extended. The defendants declined to accept the tender and alleged that the subdivision permit was retrospectively extended. The parties therefore merely differed in respect of the legal conclusions commensurate with the accepted facts.

The court will therefore address the legal issues at stake.

Was the Agreement of Sale by the parties lawful?

It must be noted in terms of the Regional, Town and Country Planning Act [Chapter 29:12] that it is a requirement that there be a subdivision permit in place for parties to lawfully enter into an agreement of sale. The permit is issued with conditions, the most important of which in casu, is the one requiring lodgement of the survey diagrams with the Surveyor –General‘s office within 12 (twelve) months. Crucial to observe with relation to this clause is the opportunity for the extension of the given timeline by application. Section 40 (5) (a) (ii) of the Regional, Town and Country Planning Act [Chapter 29:12] provides that:

“a permit authorising the subdivision of any property shall require that the survey records concerned which are required in terms of the Land Survey Act [Chapter 20.12] shall be submitted to the Surveyor-General within the period specified in the permit or such extension of that period as the local planning authority may authorize;”

In the present case the plaintiffs applied for a subdivision permit in 1999 before the agreement of sale was concluded. The subdivision permit was accordingly granted on 27 July 2001. The subdivision permit exh 3 contained the following provision:

“…in terms of subsection 5 (ii) of section 40 of the Act, you shall within twelve months of the granting of this permit or any extension of that period granted by the Local Planning Authority in writing, lodge with the Surveyor General such documents as he may require.”

The inescapable interpretation of s 40 (5) (a) (ii) of the Act as read together with the subdivision permit is that the plaintiffs were obliged to submit requisite documents to the Surveyor General within a period of 12 months of the date of the permit and if not, within an extension of the stipulated 12 months period. Such extension could only be sought and granted within the 12 months of the issuing of the permit failing which the permit would be revoked for want of compliance with its conditions. See subs (9) which reads as follows:

“(9) Where the requirements referred to in proviso (ii) to paragraph (a) of subsection (5) in relation to a permit are not complied with within the specified period or such extension of that period as the local planning authority may grant, the permit shall be deemed to be revoked.”

The counsel for the plaintiffs Mr Halimani submitted that the agreement of sale entered into by the parties on 9 September 2005 was null and void and unenforceable for a number of reasons. His argument was that the use of the word “shall” in s 40 (5) (a) (ii) of the Act connotes the compulsory nature of the act to be done. The sub-rule with which we are concerned is couched in peremptory terms. He said if a statutory command is couched in such peremptory terms it is a strong indication, in the absence of considerations pointing to another conclusion, that the issuer of the command intended disobedience to be visited with nullity. See Crispen Hativagone v Cag Farms (Private) Limited SC -42-15 at p12.

 It was his contention that the diagrams for the subdivision ought to have been submitted within 12 months of the granting of the permit or an extension of that 12 months period. It is common cause that the plaintiffs never submitted any diagrams to the Surveyor –General within the 12 months period stipulated in the permit and never sought the extension of that period. Hence there can be no doubt that the subdivision permit was revoked by reason of failing to comply with the prescribed time limit. This meant that when the parties entered into the agreement of sale, there was no valid subdivision permit in existence as it had been revoked in terms of s 40 (9) of the Regional, Town and Country Planning Act.

The subdivision permit having been revoked meant that there was no subdivision permit when the parties purportedly entered into an agreement of sale on 9 September 2005. He said the law prohibits the entering of an agreement of sale without a subdivision permit. In Honeycomb Hill v Herentals College HH-265-16 at p 8 of the cyclostyled judgment, Mafusire J said:

“I find that the parties had indeed entered into an agreement of sale. However, it is manifestly obvious that the agreement was contrary to section 39 of the Regional Town and Country Planning Act. The section says that, among other things, no person shall subdivide any property, or enter into any agreement for the change of ownership of any portion of a property, except in accordance with a permit issued in terms of the Act. Any contravention of this prohibition is an offence punishable by a fine or imprisonment, or both a fine and imprisonment.

In X-Trend-A-Home v Hoselaw Investments 2000 (2) ZLR 348(S) the Supreme Court interpreted s 39 of the Act to mean that what is prohibited is the agreement itself that may lead to a change of ownership of any portion of a property, irrespective of the time of signing of that agreement.

See also Crispen Hativagone v Cag Farm (Private) Limited SC-42-15 at p 13 where it was stated as follows:

“Where such contract is proscribed by statute, it is invalid and non-compliance with the condition invalidates the whole contract. The principle is well enunciated in X-Ttrend-A-Home (Pvt) Ltd v Hoselaw Investments (Pvt) Ltd wherein Macnally JA (as he then was) quoted with approval the words of Lewis ACJ in York Estates Ltd Wareham 1949 SR 197who remarked as follows:

“As a general rule a contract or agreement which is expressly prohibited by statute is illegal and null and void even when, as here, no declaration of nullity has been added by statute.”

Mr Hlimani further cited the case of Agson Mafuta Chioza v Smokin W Siziba SC -04-15 at p 9 of the cyclostyled judgement where the Court held that:

“It is common cause that the agreement in casu was for the sale of an undivided portion of a stand and that at the date of conclusion of the agreement, there was, in existence, no permit granted in terms of section 40 of the Act. Therefore, in terms of clear authority emanating from this Court, the agreement was illegal and unenforceable at law. See X-Trend-A-Home (Pvt) Ltd v Hoselaw Investments (Pvt) Ltd 2000 (2) ZLR 348 SC where McNally JA at 348 stated as follows:

“…s 39 forbids an agreement for the change of ownership of any portion of property except in accordance with a permit granted under s 40 allowing for a subdivision. The agreement under consideration was clearly an agreement for change of ownership of the unsubdivided portion of a stand. It was irrelevant whether the change of ownership was to take place on signing or in an agreed date, or when a suspensive condition was fulfilled. The agreement itself was prohibited.”

See also Shem Chivhumba Mlambo v Isaac Mutambi Phiri Chikata, HH-134/15; Nyasha Crispen Gwatidzo v Munashe Nkomo HB-101/12; Merjury Kanduru v Charles Masimba Chihumbiri and Registrar of Deeds HH-53/02 and Mikesome Investments (Private) Limited t/a Sommerfield Real Estate v Silcocks Investments (Pvt) Ltd HH-107/03.

On the basis of the above authorities Mr Halimani submitted that the court should accept the evidence of the plaintiffs, in particular that of the impeccable Samuel Nyabezi who is a high ranking serving official of the local planning authority ‘City of Harare’ responsible for such matters. This witness, according to him was candid and forthright in his condemnation of the actions of his own department and employer. Moreover, the defendants conceded that the subdivision permit was indeed not extended within 12 months of its granting. The defendants contended that it was retrospectively extended in December 2005 as reflected by exh 15. Mr Halimani submitted that there is no provision in the Regional, Town and Country Planning Act for the retrospective extension of a subdivision permit that had been revoked. He further submitted that it was not legally competent for the local planning authority to extend that which had been revoked. The extension should have been sought whilst the original period of the permit was still running and there is no room for an ex post facto extension. See Consolidated Textile Mills Limited v President of the Industrial Court and Ors 1987 (4) SA 665 (E); Port Elizabeth Divisional Council v Muller and Anor 1963 (1) SA 99 (E).

In Walls v Walls 1996 (2) ZLR 117 (H) at p 138 A-C Bartlett J (as he then was) said:

“…The principle that [in the absence of express provision to the contrary] no statute is presumed to operate retrospectively is one recognised by the civil law.”

This means that everything that was purportedly done following the purported extension of the permit was of no force and effect and a nullity. To borrow from the enduring words of Lord Denning in McFoy v United Africa Co. Ltd [1961] 3 ALL ER 1169 (PC) at 11721:

“every proceedings 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.”

Hence the subsequent lodging of the diagrams and approvals and independent water connection by the defendants are of no consequence as these were founded on nullity, which could not be rectified nor condoned since there was no subdivision permit in place to warrant such actions.

Finally, Mr Halimani attacked the manner in which the defendants went about seeking the extension of the subdivision permit without the consent and knowledge of the plaintiffs. He therefore prayed for an order in terms of the summons as well as costs on a higher scale because the defendants from the onset had been stubborn and refusing to accept the immutable fact that there was no valid subdivision permit.

On the other hand P Mufadza the counsel for the defendants submitted that two crucial aspects are discernable from a reading of s 40 (5) (a) (ii) of the Act, namely:

1. that it is the Local Planning Authority that is empowered to consider extensions of the timeliness within which to have the survey diagram lodged, and
2. that the modus for such extension does not appear ex facie the provision itself.

The defendants therefore submitted that in the present matter, the Local Planning Authority actually extended the concerned permit. They said it must be noted that the Authority’s conduct in proceeding to extend the permit in the circumstances clearly assists in the determination of the procedure usable in applying the extensions envisaged. In other words, the correct approach ought to be that it is possible to grant an extension which will have a retrospective effect as obtained herein. The defendants submitted further that if the issuer of the permit could retrospectively extent the permit, the implication becomes that there was always a permit in place from whenceforth the original one was issued up to at least the 7th of December 2007, the latter of which was the new deadline date. To them there was nothing ex post facto about the extension concerned because it was done in terms of a pre-existing law which always provided for the possibility of these extensions being done. They argued that in casu what was given retrospective effect was the action as opposed the law and no rule of law could possibly be deemed to have been offended. This is because accepting such retrospectivity would not:

“take(s) away or impair(s) vested rights acquired under existing laws, or create(s) a new obligation or impose(s) a new duty, or attach(es) a new disability in respect of transactions already past…” per Lopes L.

            They prayed that the agreement between the parties ought to be validated.

COURT’S FINDING

The court found it to have been proved that in or about the year 1999 the plaintiffs applied for a subdivision permit in respect of the property in question. On 27 July 2001 the subdivision permit was granted by the local authority with conditions. The permit in question together with the necessary documents should have been lodged with the Surveyor General on or about the 27th July 2002 unless the period had been extended. No extension was made within 12 months of the date of issue of the subdivision permit by the plaintiffs. On 9 September 2005 the parties then signed the current agreement of sale. The subdivision permit was only extended on 20 December 2005 by the local authority after an application to have it extended was made and facilitated by the defendants without the consent of the plaintiffs. In my view the subdivision permit had been revoked in terms of s 40 (9) of the Regional, Town and Country Planning Act. Consequently, when the permit was extended with retrospective effect, it had ceased to exist. This means that when the parties signed the agreement on 9 September 2005 there was no subdivision permit in existence.

I therefore agree with the counsel for the plaintiffs that, on the strength of the authorities they cited the agreement of sale between the plaintiffs and the defendants was unlawful, null and void. The defendants did not cite any authorities to the effect that a revoked subdivision permit could be extended. I therefore agree with Mr Samuel Nyabezi that the local authority acted outside its powers by extending a non –existent permit. The official who extended it did not apply her mind to the law.

Was the tender of the purchase price lawful?

The purchase price for the property in question was the old currency of Z$ 263 412 500.00. This is the amount paid by the defendants at the time of the conclusion of the agreement of sale. When the plaintiffs realised that the agreement of sale in question was null and void, they tendered a refund in an amount of Z$260 000.00. This tender was rejected by the defendants. The court took judicial notice of the fact that at the time the tender was made it was during the period of runaway inflation and the Governor of the Reserve Bank had slashed several zeros. It is however, not clear why an amount of Z$260 000.00 was tendered instead of Z$263 000.00. Be that as it may I am of the view that the tender was lawful given the fact that the agreement was null and void and the plaintiffs were prepared to pay it with interest per annum at 30% from the date the purchase price was paid together with any proven expenses the defendants had incurred in pursuant of the agreement of sale.

Are the plaintiffs entitled to an order for the eviction of the defendants from the property?

The defendants in their closing submissions averred that an order for the eviction of the defendants is not necessary as the defendants were never really in occupation of the property at the time the current proceedings were instituted. However, the plaintiffs in para 10 of their declaration said:

“Inspite of the fact that there was no valid subdivision permit at the time of the agreement, Defendants occupied Plaintiffs’ property with intention to commence building without complying with the conditions of the lapsed permit being payment of 10% of the value of the land to the local authority and installation of a piped culvert to be installed by the City of Harare.”

However, if at all the defendants are currently physically not on the stand in question correspondences between the plaintiffs’ legal practitioners and the defendants’ legal practitioners show that the defendants actually ferried some bricks onto the land in question which are currently there for purposes of constructing a building. This is supported by exh 9, the letter dated 23rd November 2006 from Mabulala and Partiners to Mufadza and Associates which read as follows:

                 “RE: E. MAREZVA AND L.C.MOYO

Further to our letter of the 1st of November 2006, to which we did not get a response please be advised that our client considers the sale invalid and advises yours to remove his bricks which are at the premise forthwith failing which our client will have them removed by the Messenger of Court.” (my underlining)

In response to the above letter Mufadza and Associates said among other things, in exh 10, a letter dated 4th December 2006 to Mabulala and Motsi that:

“….In view of the above, may we get confirmation from you as to whether yours is prepared to allow ours to commence his constructions without impediment or not…..”

In view of the above exchanges it is clear that the defendant had taken occupation of the property in question and ferried bricks with the intention of commencing construction.  Since the agreement is illegal, null and void the defendants are supposed to be evicted from the said property. For these reasons the plaintiffs are entitled to an order for eviction of the defendants from the property.

In the result the following orders are granted:

1.  That the agreement of sale between the parties in respect of Lot 16 of Lot 20A of Waterfalls be and is hereby declared null and void;
2. That the Defendants and all those claiming right of occupation through them be and are hereby ordered to vacate the property within seven days of the service of this order upon them;
3. That it be declared that the Plaintiffs lawfully tendered the Defendants’ purchase price;
4. The defendants to pay costs of suit.

Wintertons, plaintiffs’ legal practitioners

Mufadza & Associates, defendants’ legal practitioners