Mukarakati v The Trustees of the Don Moyo Family Trust and 2 Others (677 of 2022) [2022] ZWHHC 677 (5 October 2022)

1 HH 677-22 HC 8664/19 REF CASES: SS 123/16 HC 7009/18 HC 7936/14 HC 518/20 DANIEL MUKARAKATI versus THE TRUSTEES OF THE DON MOYO FAMILY TRUST and RENIAS PASIPANODYA and THE REGISTRAR OF DEEDS N. O. HIGH COURT OF ZIMBABWE CHINAMORA J HARARE, 26 May 2022 & 5 October 2022 Opposed Application Adv B Magogo, for the applicant Adv TTG Musarurwa, for the 1st respondent Adv R Mabwe, for the 2nd respondent No appearance for the 3rd respondent CHINAMORA J: Background facts The background is that, in October 2017, the Master of the High Court advertised a judicial sale of the property known as Lot 1 of Lot 15 of Makabusi situate in the District of Salisbury, measuring 4047 square metres held under Deed of Transfer Number 7675/1997, otherwise known as Number 15A Ashburton Avenue, Chadcombe, Harare (“the property”). The said property was sold in execution on 3 November 2017 and the second respondent was declared the highest bidder on 7 November 2017. Subsequent to that, the second respondent was confirmed as the purchaser after the applicant failed to object to the sale in terms of the High Court Rules. In March 2018, the property was transferred and registered in the second respondent’s name. The applicant was HH 677-22 HC 8664/19 REF CASES: SS 123/16 HC 7009/18 HC 7936/14 HC 518/20 given three months’ notice to vacate the property, but only left when the second respondent obtained an order against him in the magistrates’ court under Case Number 7009/18. Then on 28 May 2019, the applicant brought a chamber application to place a caveat on the property under HC 4475/19, but the application was dismissed under HC 7126/19. On 22 October 2019, the applicant filed the present application. The Sheriff of Zimbabwe was the first respondent, the second respondent was Renias Pasipanodya, CBZ Bank Limited was the third respondent while the Registrar of Deeds was the fourth respondent. The applicant then fraudulently issued a warrant of ejectment using documents of a defunct law. From the papers before me, it is apparent that the applicant did not place any evidence to rebut the warrant of ejectment had been unlawfully obtained. As a result, and application for rescission was made and judgment was granted on 19 November 2019 under HC 4712/19 and HC 4110/20. Under HC 8664/19, the applicant filed an application seeking an order for the sale in favour of the second respondent to be set aside, and that the registration of Title Deed Number 1265/18 be cancelled. Additionally, he prayed for the revival of the prior Deed of Transfer Number 7675/1997. The applicant further asked for an order that the 3rd make all the necessary endorsements to cancel Deed of Transfer Number 1265/18 and to revive Deed of Transfer Number 7675/1997. Lastly, he sought the eviction of the second respondent and all those claiming occupation through him from Number 15A Ashburton Avenue, Chadcombe, Harare. In his founding affidavit heads of argument in HC 518/20, the applicant submitted that the property had been sold for an unreasonably low price at the sale in execution conducted by the Sheriff. It was also alleged that there was bad faith on the part of Mr Donovan Moyo, a trustee and founder of the first respondent. The applicant alleged that Mr Moyo is also a senior partner of the firm, Ngarava, Moyo and Chikono, the lawyers who represented the first respondent when the sale was conducted. In addition, the applicant argued that the applicant had an interest in the disputed property, which was sold to the second respondent. This application was opposed by both the first and second respondents. The first respondent denied any bad faith on its part, and asserted that the aforesaid law firm did not act for the second respondent at the sale in execution. The Sheriff’s HH 677-22 HC 8664/19 REF CASES: SS 123/16 HC 7009/18 HC 7936/14 HC 518/20 report, which is on pp 47-49 of the record, shows that the second respondent bid for the property on his own. Points in limine Adv Mabwe for the second respondent, submitted that the application before me was a typical abuse of process and raised some preliminary points. Firstly, Counsel argued that there had been a misjoinder and improper consolidation of matters. Secondly, the second respondent argued that the application did not disclose a cause of action. The third issue raised was that the basis for the relief sought had not been established. The first respondent also raised its own point in limine. It was submitted that the application was made outside the time specified in r 359 of the High Court Rules, 1971. Let me mention that I heard submissions on the points in limine before proceeding to deal with the merits of the application. I will address these preliminary objections, but not in the order they were dealt with by Counsel. Rather, I prefer to start with the issue of absence of a cause of action. No cause of action It was submitted that the applicant has failed to set out a cause of action in the proceedings before me. The pleadings must state in clear terms the applicant or, in the case of an action, the plaintiff’s cause of action. In my view, the purpose of pleadings is to clarify the issues between the parties that require determination by a court of law. This has been stressed by the courts in a number of cases. For example, in Durbach v Fairway Hotel Ltd 1949 (3) SA 1081 (SR), the court made the self-commending remarks that: “The whole purpose of pleadings is to bring clearly to the notice of the court and the parties to an action the issues upon which reliance is to be placed”. In the English jurisdiction, the same point was aptly made by Lord Edmund-Davies in Farrell v Secretary of State for Defence [1980] 1 All ER 166 at 173. HH 677-22 HC 8664/19 REF CASES: SS 123/16 HC 7009/18 HC 7936/14 HC 518/20 I proceed to point out that the law on what constitutes a cause of action is settled in this jurisdiction. In this respect, this court has stated time and again that a cause of action consists of all the facts that must be pleaded in order to establish the relief that is sought by that party. In Patel v Controller of Customs and Excise 1982 (2) ZLR (HC) 82 at 86C-E GUBBAY J (as he then was) stated that: "In Controller of Customs v Guiffre 1971 (2) SA 81 (R) at 84A, BECK J, in Abrahamse & Sons v SA Railways and Harbours 1933 CPD 626 at 637 WATERMEYER J stated: "The proper legal meaning of the expression 'cause of action' is the entire set of facts which gives rise to an enforceable claim and includes every act which is material to be proved to entitle a plaintiff to succeed in his claim. It includes all that a plaintiff must set out in his declaration in order to disclose a cause of action. Such cause of action does not 'arise' or 'accrue' until the occurrence of the last of such facts and consequently the last of such facts is sometimes loosely spoken of as the cause of action. (See Halsbury, vol 1, sec 3, and the cases there cited.) [My own emphasis]. The same point was reinstated in Peebles v Dairiboard Zimbabwe (Pvt) Ltd 1999 (1) ZLR 41 (H) at 54E-F, when the concept “cause of action” was defined by MALABA J (as he then was) to mean: “simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person”. See also, Abrahamse & Sons v SA Railways and Harbours 1933 CPD 626 at 637. To determine the validity of the point in limine raised by the second respondent, it is important to examine the principle established by the above authorities and the intricate link between a founding affidavit and cause of action. As with a lawsuit brought to court by way of summons, it is in the founding affidavit that an applicant makes averments that establish the relief that he desires the court to grant. In this connection, it has been stated in a number of judgments of this Court that an application stands or falls on its founding affidavit. For instance, in Muchini v Adams & Ors SC 47/13 at p 4, ZIYAMBI JA pertinently observed that: HH 677-22 HC 8664/19 REF CASES: SS 123/16 HC 7009/18 HC 7936/14 HC 518/20 “It is trite that an application stands or falls on the averments made in the founding affidavit. See Herbstein & van Winsen the Civil Practice of the Superior Courts in South Africa 3rd ed p 80 where the authors state: “The general rule, however, which has been laid down repeatedly is that an applicant must stand or fall by his founding affidavit and the facts alleged therein, and that although sometimes it is permissible to supplement the allegations contained in that affidavit, still the main foundation of the application is the allegation of facts stated therein, because these are the facts which the respondent is called upon either to affirm or deny. If the applicant merely sets out a skeleton case in his supporting affidavits any fortifying paragraphs in his replying affidavits will be struck out” With the compelling enunciation by the Supreme Court in mind, this court has to look at the applicant’s founding affidavit to ascertain whether or not the averments as pleaded disclose a cause of action. In other words, I have to decide if the applicant has alleged facts which meet the requirements which establish the relief that he is seeking. My attention was drawn to paragraphs 14-17 of the applicant’s founding affidavit (on pages 6-7 of the record), which aver that service had been effected by affixing in the gate, and that this manner of service did not comply with the Rules and infringed the applicant’s right to be heard. In para 19 (on page 7 of the record), the applicant stated that the sale had been unprocedurally, irregularly and unlawfully conducted, because he had not been advised of the confirmation proceedings. Paragraph 18 of the applicant’s affidavit (on page 7 of the record) has not escaped my attention. He argues that the Sheriff did not comply with the provisions of r 348A (2) (a) of the r in that he did not advise the Secretary of Housing of the sale in execution which is the subject of this application. I will return to this. Let me examine the law on setting aside of sales in execution in this jurisdiction. It should be recalled that in Chiwanza v Matanda & Ors 2004 (2) ZLR 203 (H), MAKARAU J (as she then was) said: “The issue of how to approach this court to set aside a sale in execution has been before these courts in a number of cases. It would appear to me that three distinct positions obtain. The first position is specifically provided for in the rules of this court. Rule 359 provides that any person who has an interest in the sale of a property in execution may approach the Sheriff to have the sale set aside on grounds specified in the rule. The approach to the Sheriff must be made before the sale is confirmed. Any person aggrieved by the decision of the Sheriff may within one month, approach the court to have such decision set aside. … HH 677-22 HC 8664/19 REF CASES: SS 123/16 HC 7009/18 HC 7936/14 HC 518/20 The approach to this court after a sale has been confirmed and in the absence of a prior approach to the Sheriff in terms of the rules is, in my view, to be based on the general grounds of review as provided for at common law. These would include such considerations as gross unreasonableness, bias and procedural irregularities, but cannot include such grounds as an unreasonably low price or that the sale was not properly conducted as provided for under the rule, unless such can be subsumed in the recognized grounds of review under common law. It is my further view that this, which presents itself to me as the second approach, only obtains after confirmation of the sale but before transfer is effected”. [My own emphasis] I respectfully agree with the learned judge’s erudite exposition of the law. From a proper reading of r 359 of the High Court Rules, there is no doubt that it is, indeed, the starting point if one wishes to challenge a sale in execution. In casu, it is common cause that there was no objection made to the Sheriff as contemplated by r 359. That takes me to the third position referred to in Chiwanza v Matanda & Ors supra,, which GUBBAY CJ succinctly explained in Mapedzamombe v Commercial Bank of Zimbabwe and Anor 1996 (1) ZLR 257 (S) at 260D as follows: “When the sale of the property has not only been properly confirmed by the Sheriff, but transfer effected by him to the purchaser against payment of the price, any application to set aside the transfer falls outside Rule 359 and must conform strictly with the principles of the common law … under the common law, immovable property sold by judicial decree after transfer has been passed cannot be impeached in the absence of an allegation of bad faith, or knowledge of the prior irregularities if the sale in execution, or fraud”. [My own emphasis] Similarly, in Makuyana and Anor v Standard Bank of Zimbabwe and Ors HB 52-07, NDOU J stated the law as follows: “Once transfer has been effected, the person seeking to impeach the sale and transfer must allege and prove fraud, bad faith or knowledge of any defect on the part of the purchaser when he bought the property at such sale – Sookdeyi & Ors v Sahadeo & Ors 1952(4) SA 568(A) at 571H-572A and also 569H; Twine Wire Agencies (Pvt) Ltd v CABS, supra and Mapedzamombe v CBZ, supra, at 260E-H”. [My own emphasis] As I have already observed, the applicant did not allege and give particulars which show that there was fraud, bad faith or knowledge of any defect on the part of the purchaser. The authorities are clear that these are the allegations which necessarily establish a cause of action for HH 677-22 HC 8664/19 REF CASES: SS 123/16 HC 7009/18 HC 7936/14 HC 518/20 an applicant who makes an application to impeach a sale in execution and title after transfer has been effected, having failed to challenge the sale in execution in terms of r 359 of the High Court Rules. Before I conclude, let me return to comment on r 348A (2) (a) of the High Court Rules in order to demonstrate that the application before me should have complied with the requirements set out in Mapedzamombe v Commercial Bank of Zimbabwe and Anor supra and Chiwanza v Matanda & Ors (supra. For completeness of the record and put the issue into context, this provision reads: “Upon receiving documents and particulars in terms of rule 348 relating to the attachment of a dwelling, the sheriff shall forthwith send the Secretary – (a) written notification that the dwelling has been attached in terms of this Order and is to be sold in execution; and (b) copies of all documents and particulars relating to and shall take no further steps in regard to the sale of the dwelling or the eviction of the occupants for a period of 10 days”. My reading of r 348A tells me that it is meant for those cases where the judgment debtor intents to have a sale in execution postponed or suspended in order to facilitate settlement of a claim or claims. In this respect, the rule sets out what must be done to enable a judgment debtor to benefit from the provisions of s 348A, and the applicant’s own papers disclose that he was aware of its import. The applicant did not object to the sale in execution within 15 days as required by r 359 (2), a fact he conceded since para 12 of his founding affidavit (at page 6 of the record) states: “Upon enquiring from our lawyers who were representing us at that moment, Messrs Mutumbwa and Mugabe Partners, we then discovered for the first time that they had renounced agency without informing us. We then approached Messrs Makuwaza and Magogo to seek postponement of sale in terms of Rule 348A (5a) of the High court Rules, who advised us the application we were seeking to enforce can only be filed within ten days of receiving the sale in execution notice”. Two comments arise from the above averments. Firstly, it is evident that neither the applicant nor his lawyers paid attention to the proviso in r 359 (2) which provides: HH 677-22 HC 8664/19 REF CASES: SS 123/16 HC 7009/18 HC 7936/14 HC 518/20 “A request in terms of subrule (1) shall be in writing and lodged with the sheriff within 15 days from the date on which the highest bidder was declared to be the purchaser in terms of rule 356 or the date of the sale in terms of rule 358, as the case may be: Provided that the sheriff may accept a request made after that 15 day period but before the sale is confirmed, if he is satisfied that there is good cause for the request being made late”. [My own emphasis] It is obvious that the proviso to r 359 (2) allows a party with an interest in a sale in execution (such as the applicant) to object to the sale after the 15 day period if he gives good reasons for the lateness. Put differently, the Sheriff is permitted to condone a late objection upon demonstration of a good cause. Quite clearly, the applicant could have utilized this provision to file his objection despite the lapse of the 15 days stipulated in r 359 (2). This was not done and the sale was confirmed. Also pertinent to note is that, having realized that he was outside the 10 day period for r 348A (a) chamber application, the applicant did not apply to this court for condonation of late filing of such an application. That could have been done on the basis of r 4C of the Rules then in existence which provided for condonation or extension of time in the interest of justice. Thus, the factual reality remains that both the applicant and his lawyers, Makuwaza and Magogo Partners were content to do nothing when they realized that they were outside the dies induciae for objecting to the sale in terms of r 359 or to make an application under r 348A (5a). I have already related to the applicant’s contention that he was not served with process in terms of the High Court Rules. Going by the decision in Chiwanza v Matanda and Ors supra, the applicant having failed to make a challenge to the sale in terms of r 359 and as the sale had been confirmed, had to file an application for review to this court on the basis of common law. The grounds that applicant could have relied on are gross unreasonableness, bias and procedural irregularities bedeviling the sale in execution. However, in casu, not only had the sale been confirmed without any challenge being made, but the property had been transferred to a third party. That did not preclude the applicant from approaching this court to have the sale set aside the transfer reversed. Nevertheless, as stated both in Mapedzamombe v Commercial Bank of Zimbabwe and Anor (supra) and Chiwanza v Matanda and Ors supra the applicant had a more HH 677-22 HC 8664/19 REF CASES: SS 123/16 HC 7009/18 HC 7936/14 HC 518/20 onerous hurdle to overcome. Both GUBBAY CJ and MAKARAU J (as she then was) are in agreement that, in those circumstances, the sale can only be impeached under the common law. Thus, one had to file an application for review alleging bad faith, fraud or knowledge of the prior irregularities if the sale in execution. These requirements had to be met by the applicant, and MAKARAU J (as she then was) in Chiwanza v Matanda and Ors (supra) emphatically stated: “Each approach has its own peculiar requisites and, in my view, a failure to meet the requisites of the elected approach may be fatal to the application brought”. It is in this context that I considered the point in limine sein respect of the cause of action set out in the founding affidavit. In other words, the question that must be posed answered is: The application before me, being an application filed after confirmation and transfer of the property, does it meet the requirements set out in both Mapedzamombe v Commercial Bank of Zimbabwe and Anor supra and Chiwanza v Matanda and Ors supra. To meet these requirements which establish the cause of action, the applicant’s founding affidavit had to allege bad faith, fraud or knowledge of the prior irregularities in the sale in execution itself. An examination of para(s) 14- 19 of the applicant’s founding affidavit (at pages 6-7 of the record) reveals that the aforesaid common law requirements were not pleaded. It was not averred that there was bad faith on the part of the purchaser or that he had prior knowledge of any irregularities which might have surrounded the sale. In fact, the entire affidavit is silent on the purchaser being aware of any irregularities. Additionally, the applicant did not plead that there was fraud by any of the parties in the transaction. The applicant attempted to argue that the Sheriff committed fraud in its Heads of Argument. Two points must be made. The first one is that such a fundamental requisite which is a foundation of his cause of action should have been pleaded in the founding affidavit. This court has on numerous occasions emphasized the impropriety of this practice. In this context, MATHONSI J pointed out in Mutasa v Telecel Zimbabwe & Anor HH 331-14, that: “The bulk of what the applicant relies upon in making out a case for the relief that she seeks is contained in Heads of Argument filed by her counsel. It is not only improper but also wrong, utterly HH 677-22 HC 8664/19 REF CASES: SS 123/16 HC 7009/18 HC 7936/14 HC 518/20 absurd and completely unacceptable to purposely avoid presenting evidence in affidavits which would put the other party on guard and enable that party to respond to such evidence in its opposing affidavit, in the forlon hope of influencing the court by placing it in arguments. It is an undesirable ambush”. [My own emphasis]. The second point is exactly the same one made by Adv Musarurwa for the first respondent, namely, that the allegation of fraud was made against the Sheriff and not the first respondent. Crucially, Counsel submitted that the Sheriff is not a party in HC 518/20, meaning that reliance on fraud breaks the causal chain in these circumstances. I agree with Counsel. At any rate, I have been not find anything in the applicant’s founding affidavit in HC 518/20 which specifically alleges fraud. In para 7 (at page 5 of the record), the applicant avers that the process was mired with lots of irregularities, misrepresentations, bad faith and fraudulent activities. Nevertheless, the applicant did not plead the particulars of the misrepresentations, fraud and irregularities, which is what constitutes the cause of action. The importance of pleading facts which establish the relief that one is seeking has previously been emphasized by the courts in this jurisdiction and elsewhere. In this regard, in Courtney–Clarke v Bassingthwaighte 1991 (1) SA 684 (Nm) at 698, the Namibian High Court said: “In any case there is no precedent or principle allowing a court to give judgment in favour of a party on a cause of action never pleaded, alternatively there is no authority for ignoring the pleadings … and giving judgment in favour of a plaintiff on a cause of action never pleaded. In such a case the least a party can do if he requires a substitution of or amendment of his cause of action, is to apply for an amendment”. [My own emphasis] The pronouncement in the above case is commendable and worth of emulation, and I fully agree with it. While the applicant says that the manner of service was irregular, I observe that s 20 (3) of the High Court Act [Chapter 7:06] states that the return of service is prima facie evidence of how the sheriff effected service. In fact, this provision restates the common law doctrine of preasumuntur rite esse acta (meaning official acts are presumed to have been duly performed). HH 677-22 HC 8664/19 REF CASES: SS 123/16 HC 7009/18 HC 7936/14 HC 518/20 (See Gundani v Kanyemba 1988 (1) ZLR 226 (S). Similarly, in TM Supermakerts (Pvt) v Avondale Holdings (Pvt) Ltd and Anor SC 37-17, the CHIDYAUSIKU CJ appositely observed: “The law is settled that in order to disprove the contents of a return of service prepared by the Sheriff, there is need for positive evidence to rebut the presumption of regularity of a return of service which is in the prescribed format”. At any rate, there is nothing irregular about service of process by affixing on the outer door or gate of premises is provided for in the Rules of the High Court. In this regard, Rule 40 of the Rules then applicable reads: “Service where person to be served prevents service or cannot be found Where any process is to be served, and – (a) the person upon whom it is to be served keeps his residence, place of business or employment, address for service or registered office closed and thus prevents the process from being served; or (b) the person seeking to effect service of any process is unable, after diligent search at the residence, place of business or employment, address for service or office of the person to be served, to find that person or a responsible person referred to in paragraph (b), (d), (e) or (f) of subrule (2) of rule 39, it shall be sufficient service to leave a copy of the process in a letter-box at or affixed to or near the outer or principal door of, or in some other conspicuous position at, the residence, place of business or employment, address for service or office, as the case may be”. [My own emphasis] Consequently, no irregularity can be founded on a mode of service that the law has seen fit to permit. This argument has no legal basis. More importantly, the applicant has not adduced evidence to rebut the presumption that service was properly effected. In any event, I am prepared to go so far as to say that failure to serve does not ipso facto render a sale to a bona fide purchaser susceptible to setting aside. See Erasmus v Michael James (Pty) Ltd 1994 (2) SA 258 (C). In this connection, my view is that the applicant has not, in his founding affidavit, alleged bad faith on the part of the purchaser or fraud by any of the parties to the sale. In fact, while allegations imputing bad faith on the part of a trustee of the 1st respondent, particularly, that the trustee bid on behalf of the 2nd respondent at the sale in execution, they are not borne out by the Sheriff’s report. HH 677-22 HC 8664/19 REF CASES: SS 123/16 HC 7009/18 HC 7936/14 HC 518/20 Conclusion Taking into account all of the foregoing, I am satisfied that a good case has been made in support of the point in limine on absence of a cause of action and I intend to uphold it. Having come to the conclusion that this preliminary point has merit, I have decided not to delve into the rest of the points in limine. I will decide this application on the basis of this point alone. For the same reason I will not deal with the merits. Accordingly, I uphold the preliminary point. Additionally, I have no reason to depart from the general rule that costs follow the result. However, in the exercise of my discretion costs will be granted on the higher scale of attorney and client. There are reasons for this approach. The facts of this matter reveal that the application was filed after the property in dispute had been transferred to a third party. It is also common cause that an object to the sale in execution was not done within 15 days in terms of r 359 of the High Court Rules, nor was it filed after 15 days as permitted by the proviso to r 359. Additionally, the applicant failed to plead and prove facts required for an application filed in these circumstances to succeed. Disposition Accordingly, I grant the following order. 1. The point in limine on absence of a cause of action be and is hereby upheld. 2. The application be and is hereby dismissed. 3. The applicant shall pay the respondents’ costs on an attorney and client scale. TK Kadhau Law Chambers, applicant’s legal practitioners Moyo Chikono & Gumiro, first respondent’s legal practitioners Muchengeti & Company, second respondent’s legal practitioners