BUYERS OF IMMOVABLE PROPERTY BEWARE!
The Southern Eye Edition of the 11th April, 2017 carried the following story;
“Bulawayo lawyer Russel Dzete has been arraigned before the courts after he allegedly facilitated the purchase of a housing Stand belonging to another resident.
The court heard that sometime in May last year, the Complainant, Obias Bidi, got interested in the Stand after it was advertised by Cavan Maibvise aka Sithole, who is still at large. Bidi called Maibvise on his mobile phone and they arranged for a meeting. A few days later, Maibvise went to Bidi’s office in the company of one Edgar Matungamire, whom he introduced as the owner of the Stand, which is located in Emganwini Suburb.
It is the State’s case that on May 9 last year, Maibvise went to Bidi’s office and together they went to Marondedze, Mukuku & Partners legal practitioners, where they met Matungamire before being directed to Dzete’s office. Bidi was allegedly shown a Memorandum of Agreement purportedly signed between the original owner of the Stand, Sibusisiwe Ndlovu and Matungamire. A new agreement of sale was then drafted by Dzete which was then allegedly signed by Memory Chatukuta, Bidi’s girlfriend, being the Purchaser and Matungamire as the Seller. Dzete then allegedly instructed Bidi to deposit $4 000.00 into the law firm’s Trust Account. On May 11 last year, $4 000.00 was transferred from Chatukuta’s CABS Account into the law firm’s CABS Account as per Dzete’s instructions Bidi then started construction work at the Stand. In October last year, Bidi was allegedly advised that the Stand belonged to someone else and was ordered to stop forthwith any developments”.
Buyers of immovable property, beware!
In another matter which was reported by Zimeye on the 19th April, 2017, Dzete (33) of Marondedze, Mukuku & Partners and Collet Dube (48) of Sizinda Suburb appeared before a Bulawayo Magistrate in facing a charge of fraud. Allegations against the two were that they allegedly sold Mr Ngorima a Stand belonging to one Nelson Ngwenya without his authority. The pair is alleged to have identified a vacant property belonging to Mr Ngwenya. An advert was placed and attracted Ngorima. Ngorima contacted Dube. On a later date Dube took Ngorima to Dzete’s workplace. The two accused persons acting in common purpose produced a National Identity Card in the name of Ngwenya that had Dube’s face inserted. Through the misrepresentation Ngorima was prejudiced of $22 600.00.
A few years ago, a client of mine had her Glen Lorne house sold by a fraudster who masqueraded as the lawful owner of the house after successfully applying for a replacement copy of the Title Deeds to the house. Apparently the sale was conducted through a reputable Estate Agent. The fraudster was able to pass transfer to the property to the innocent purchasers. My client had to go to court in order to have the transfer cancelled.
Buyers of immovable property, beware!
In 2015 Justice Mathonsi in the case of Cosmas Luckyson Zavazava and Vongai Zavazava vs Jonah Tendere and Tendai Idzai Anania Tendere and Thermo-Dynamics Real Estate and the Registrar of Deeds NO HH 740-15 had this to say;
“It would appear that conveyancing laws of this country are not foolproof because fraudsters continue to exploit the weaknesses in the procedure for registration of transfers to defraud innocent property seekers. The leakages in the system have meant that cases of unlawful transfers of immovable property continue to reach the courts with alarming frequency”.
What happened in the aforesaid case is this;
“Cosmas Luckyson Zavazava is employed by an international organization which posts him to various parts of the world and is currently stationed in Geneva Switzerland. He and his wife Vongai identified an underdeveloped piece of land, Stand 816 Ruwa Township of Stand 659 Ruwa Township (the property) and purchased it on 29 November, 1996. They took transfer on 20 March, 1997 and held title by Deed of Transfer Number 997/1997. They did not commence developing the property owing to their sojourn in foreign territories in pursuit of the husband’s employment. When they tried to do so in 2013, they discovered to their amazement that Jonah Tendere and Tendai Idzai Anania Tendere, husband and wife, who are the first and second respondents in this matter, were busy trying to develop the property.
It turns out that, unbeknown to the Zavazava family, who are the Applicants in this matter, a stranger by the name Wilson Madziva who is now deceased and was running an estate agency known as Thermo-Dynamics Real Estate (what a name), which is the third Respondent in this matter , had advertised the property through the agency of another estate agent, Elite Real Estate (Pvt)( Ltd, attracting the interest of the first and second respondents. A sale agreement was entered into between them and the third respondent and signed on 17 July, 2009 in terms of which the property was sold for $8 500.00. It was subsequently transferred from the third respondent to the first and second respondents with the active involvement of the late Wilson Madziva, by Deed of Transfer No. 204/2011.
The third respondent had itself taken transfer of the property by Deed of Transfer No. 1680/09. The conveyance of the property from the applicants to the third respondent was handled by one Walter Bherebhende, a conveyancer practising at Mavhunga and Sigauke legal practitioners of Harare. The applicants say they never sold their property and never instructed Bherebhende to transfer it to the third respondent”.
What we have here is therefore an unfortunate situation indeed borne out of laxity and inattention. The conveyancer was remiss in a big way and only succeeded in transferring property belonging to the applicants unlawfully. A fraudster took that transfer and later sold the same property to the first and second respondents who are also victims of a fraud.
The question which arises therefore is what was the legal effect of all that activity and where does it leave the parties? The papers before me clearly demonstrate that the applicants did not sell their property to the third respondent. They did not transfer it either. That was done by someone else without their knowledge or consent. The position of the law in that regard is aptly stated by the learned author R H Christie, Business Law in Zimbabwe, 2nd Ed, Juta & Co Lt at page 149-150 :-
“An owner whose property has been sold and delivered without his consent remains the owner, as the seller cannot pass ownership that was not his. The true owner can bring a vindicatory action to recover his property from anyone, including a bona fide buyer in whose hands he finds it. The general rule that the seller can give no better title that he has operates in favour of the true owner, unless the purchaser proves that the true owner is estopped from denying the seller’s authority to sell”.
McNally JA developed that point further in Mashave vs Standard Bank of South Africa Ltd 1998 (1) ZLR 436 (S) 438 C when he pronounced :
“The Roman-Dutch law protects the right of an owner to vindicate his property, and as a matter of policy favours him against an innocent purchaser. See for instance Cheity vs Naidoo 1974 (3) SA 13 (A) at 20 a-c. The innocent purchaser’s only defence is estoppel”.
The nemo dat quod non labet and nemo plus iuris and alium transferre potest quam ipse habit, that is, no one can give what he does not have and no one can transfer any right greater than he himself possesses are firmly rooted in our legal science. Therefore, where a person who is not the owner and possesses no mandate to do so purports to transfer property, such transfer is a nullity. See Silberberg and Schoeman; The Law of Property, 2nd ed, p 72.
The applicants therefore have a vindicatory right against whomsoever is in possession of their property, even an innocent purchaser. The action rei vindication is available to the owner whose property is in the possession of another without his authority or consent. Its concept is that an owner cannot be deprived of his property against his will. Such owner is entitled to recover the property from any person who is in possession of it without his consent. All the owner is required to prove is that he is the owner and that the property is in the possession of another at the commencement of the action. Proof of ownership shifts the onus to the possessor to prove a right of retention; see Jolly vs A Shannon & Anor 1998 (2) ZLR 78 (11) 88 A-B, Chetty vs Naidoo 1974 (3) SA 13 (A) 20 A-C; Stanbic Finance Zimbabwe Ltd vs Chivhungwa 1999 (1) ZLR 262 (11).
It is regrettable that the possessors of the applicants’ property are an innocent couple which was trying to find a home for themselves and have lost their money to a trickster who has already met his maker.
You cannot, when buying immovable property, afford to be casual. You must engage the services of an honest lawyer who knows what they are doing, to carry out the necessary checks for you before you sign any Sale Agreement. Whilst this may be an extra cost to you, it is a necessary cost which is nothing compared to the financial loss you will suffer in the event of a fraudulent sale.
By Davison Kanokanga BL, LLB, AA ARB
Arbitrator with the Harare Commercial Arbitration Centre and an Associate with the Association of Arbitrations, Southern Africa NPC.Next Step