McCay & Anor v Nondo & Anor (HC 7229 of 2016; HH 209 of 2017) [2017] ZWHHC 209 (29 March 2017)

1 HH 209-17 HC 7229/16 DAVE PORTER McCAY and ALANA JADE McCAY versus RUMBIDZAI NONDO and WELLINGTON NONDO HIGH COURT OF ZIMBABWE MATANDA-MOYO J HARARE, 14 & 29 March 2017 Opposed Matter D N Ngwerume, for the applicants T M Kanengoni, for the respondents MATANDA-MOYO J: This is an application for rei vindicatio. The first and second applicants are husband and wife. On 4 April 2016, the applicants bought the property in question namely Stand No. 256 Glenlorne Township 8 of Lot 40 A of Glenlorne measuring 5 026 square metres, otherwise known as 126 Folyjon Crescent, Glenlorne. On 20 June 2016 the applicants got title of the property – Title Deed No. 2940/16 refers. The first and second respondents are the previous owners of the property and are still residing on the property. Whilst it is correct that transfer of the property is now with the applicants, the Sheriff has admitted that he failed to follow the procedures relating to a Sheriff sale. In particular the Sheriff made a grave error in sending all process relating to the sale to number 216 Folyjon Crescent, Glenlorne instead of 126 Folyjon Crescent. As a result the respondents could not raise any objections to the sale. Of interest also is that the Sheriff had authorised that the property be sold by private treaty. That respondents as a result had secured a purchaser at a price of $235 000.00. On attending at the Sheriff’s offices to advise of the availability of such purchaser, the HH 209-17 HC 7229/16 respondents were advised that the Sheriff had confirmed the sale by the applicants. Apparently unbeknown to the respondents the Sheriff had approached Hammer and Tongues to act as agents in a sale by private treaty. The applicants bought through Hammer and Tongues the property for $130 000.00. The respondents subsequently field an application for setting aside of the Sheriff’s sale, HC 3764/16 refers. Such application is still pending before this court. Rei vidnicatio relates to the enforcement of the right of ownership by recovering possession. It is a remedy available to the owner of some property to reclaim that property from whoever is unlawfully holding it (my own underlining). The remedy is founded on the nemo plus iuris rule. The remedy is available to the owner in the form of eviction. For a party to be successful in a claim for rei vindicatio, he must prove the following: 1) Ownership of the property to be vindicated; 2) Existence of the property in question; 3) Possession of that property must be with the respondent. See Indium Inv (Pvt) Ltd v Kingshaven (Pvt) Ltd & Others SC 40/2015, Chetty v Naidoo 10734 (3) SA 3, Airport game Park (Pvt) Ltd & Another v Kenny Karidza & Another SC 18/04, Steenkamp v Mienies En Andere 1987 (4) SA 186. There are basically four main defences to a claim for rei vindicatio; which are; (i) (ii) that the applicant is not the owner of the property in question. that the property in question no longer exist and can no longer be identified (iii) that the respondent’s possession of such property is lawful or (iv) that the respondent is no longer in physical control of the propetrty – see Chetty v Naidoo (supra), Residents of Joe Slovo Community v Thabelisha Homes 2010 (3) SA 454 (CC). Applying the above principles to the present matter it is clear that the applicants are indeed registered owners of number 126 Folyjon Crescent. In terms of the Deeds Registries Act [Chapter 20:05] ownership of immovable property is determined by registration of title. Therefore indeed the applicants are the owners of the property. HH 209-17 HC 7229/16 The property in question is inexistence and easily identifiable. It is also not in issue that the respondents are in possession of that property. It can therefore be said that the applicant have discharged the onus on them. I move on to determine whether the respondents have raised any recognizable defence to the claim by the applicants. In order to succeed the respondents must show some legal entitlement to hold on to the property. It is common cause the respondents owned the property before it was transferred to the applicants. It is also common cause that the property was attached following a judgment of this court. Such property became the subject of a Sheriff sale. It is also not in dispute that the respondents have applied before this court for an order setting aside the Sheriff’s sale on the basis that such sale was conducted irregularly. Such application is still pending before this court. The Sheriff has accepted irregularities in the conduct of the sale. In particular the Sheriff accepted having send all correspondences relating to the sale to number 216 Folyjon Crescent and not 126 Folyjon Crescent. As a result the respondents could not challenge the sale as they were not aware of it. It is also in the common arena cause that the respondents had secured a purchaser for the property for $235 000-00. The applicants bought the property for $130 000-00. Amongst other challenges the respondents are challenging the sale on the basis that the property was sold at an unreasonably low price. The respondents argued therefore that their possession of the property is lawful. The Sheriff having admitted proceeding irregularly to sell the property, the court is likely to set aside the sale. Rule 359 of the High Court rules gives respondents the right to challenge confirmation of a Sheriff’s sale. It provides; “359 (1) subject to this rule, any person who has an interest in a sale in terms of this order may request the Sheriff to set it aside on the ground that: (a) (b) (2) the sale was improperly conducted or the property was sold for an unreasonably low price; or on any other good ground. A request in terms of subrule (1) shall be in writing and lodged with the Sheriff within fifteen days from the date on which the highest bidder was declared to be the purchaser in terms of r 356 or the date of the sale in terms of r 358 as the case may be……..” The respondents failed to exercise their rights in terms of r 359 above, due to the fact that the Sheriff did not advise them of the sale. Their rights were definitely breached and there is HH 209-17 HC 7229/16 great likelihood that the sale will be set aside. Failure by the Sheriff to afford the respondents an opportunity to challenge confirmation of sale amounts to an irregularity. The respondents are therefore challenging the applicant’s ownership of the property, such ownership having been obtained through an irregular Sheriff’s sale. I am of the view that such ground is a reasonable ground to a claim for eviction under the rei vindicatoi principle. There is no prejudice or irreparable harm which will be suffered by the applicants if they wait for outcome of the challenge. Accordingly, I order as follows; The application for eviction fails and is dismissed with costs. Mukwewa & Ngwerumw Law Chambers, applicants’ legal practitioners Nyika Kanengoni & Partners, respondents’ legal practitioners