Soiling Julana Meadley [2025] ZWBHC 10 (11 June 2025)

1 HB 123/25 HC 2819/22 SOILING JULIANA MEADLEY Versus CARRACK INVESTMENTS (PVT) LTD And CHAL CYRIL CHICKSEN And THE REGISTRAR OF DEEDS (N.0.) IN THE HIGH COURT OF ZIMBABWE TAKUVA J BULAWAYO 18 OCTOBER, 19 NOVEMBER 2022; 28 FEBRUARY, 31 MARCH, 16 MAY & 30 JUNE 2023 & 11 JUNE 2025 T. Masiye-Moyo for the plaintiff Advocate P. Dube with H. Malinga for the 1st defendant 2nd defendant in person No appearance for the 3rd defendant Civil Trial TAKUVA J: The plaintiff issued summons against defendants claiming the following; “(1) A declaratory order confirming the invalidity of the agreement of sale purportedly entered into by the 1st defendant and plaintiff and signed by the 2nd defendant purportedly on behalf of the plaintiff on the basis that the said agreement is fraudulent, unlawful and illegal in that the said agreement was designed to defraud the Zimbabwean fiscus and the plaintiff.. (2) An order for the eviction of the 1st defendant and all those claiming rights after it, from subdivision E of Umvutshwa situate in the District of Bulawayo. Costs of suit on an attorney and client scale.” 3. HB 123/25 HC 2819/22 First defendant filed a plea and counter claim, while the 2nd defendant filed his plea denying the plaintiff’s claim. Pursuant to a pre-trial-conference the parties agreed to have the matter referred to trial on the following issues; “1. Whether or not the agreements of sale as read with the Cancellation of Deed of sale entered into by 1st defendant and 2nd defendants provided for the personal benefit of 2nd defendant in the payment of the purchase price? 2. Whether or not the agreements of sale as read with the Cancellation of Deed of Sale agreement contravenes the provisions of the Deeds Registries Act (Chapter 20:05)? 3. Whether or not the agreements of sale as read with the Cancellation of Deed of Sale constitute evasion of that? 4. Whether or not the agreement of the 18th and 19th September 2019 contravenes SI 212/19 in that it provides for payment of the purchase price in foreign currency? 5. Whether or not the Master’s consent to the sale of the property was a condition precedent as at the 17th November 2017. 6. Whether or not the illegalities complained of can be severed from the agreements of sale and Cancellation of Deed of Sale so as to enforce the agreements? 7. Whether or not the agreements complained of are a SCAM? 8. Whether the 1st defendant is entitled by an order for specific performance against the plaintiff to finalise the transfer of ownership of the immovable property at issue to 1st defendant’s name? Onus Upon plaintiff in issues 1, 2, 3, 4, 5, and 7 and upon 2nd defendant on issue number 8. Admissions by plaintiff Plaintiff admits having given the 2nd defendant Power of Attorney to act lawfully on her behalf.” HB 123/25 HC 2819/22 Plaintiff’s case Plaintiff gave evidence under oath as follows; She is presently residing in the United Kingdom. At the material time she did execute a power of attorney in favour of her. 2 nd defendant in which 2nd defendant was empowered to wind up the estate of the plaintiff’s late husband and thereafter dispose of the property in question on behalf of plaintiff and to account to the plaintiff, She further testified that after signing the power of attorney, 2nd defendant silent despite her specific instructions to be kept abreast of all developments involving the sale. From March 2017 when the power of attorney was signed to 2019, 2nd defendant did not communicate with her. This was despite sending- mails and text messages to the 2nd defendant. Later in 2019 she decided to send Mr Moon to check on what was happening on the farm. Plaintiff went on to say that she eventually contacted 2nd defendant who told her that he had “it’s under control”, stating further that he had sold the land for US$9 000,00 when 2nd defendant again went mum, plaintiff handed the will to her lawyers. It was plaintiff’s testimony that she did not expect her agent to act outside the law. Upon being shown the agreement of sale on page 9 of exhibit A, plaintiff said she only became aware of it after speaking to her lawyers. Plaintiff expressed total ignorance about the second agreement of sale, the cancellation agreement, the title deed on pages 22-25 and the agreement on page 26-33. Plaintiff confirmed revocation of her power of attorney to 2nd defendant on 5 November 2019. As regards tax evasion, plaintiff emphatically denied granting 2nd defendant authority to break the law in this transaction. HB 123/25 HC 2819/22 When asked under cross-examination why she failed to make a follow-up on 2nd defendant asking for an updated plaintiff said she sent an e-mail and there was no response from 2nd defendant. For two years she remained in the dark. Plaintiff alleged that the sale was not in accordance with the “terms of the power of attorney” in that she wanted a straight sale not a swap with other properties belonging to 3rd parties some of which properties were given to 2nd defendant. She said she was irked by the fact that whatever 2nd defendant sold 3rd parties was outside his mandate. Despite being requested to provide the full terms of the agreement of sale 2nd defendant kept these terms a grounded secret from the plaintiff. Plaintiff was not informed of the purchase price and the mode of payment, the existence of two immovable properties that 2nd defendant had received “possession” and control of the two properties and that 2nd defendant had actually sold one of the properties and received cash. When it was put to her that during the discussion with the 2 nd defendant she did not mention what terms she wanted and did not want, plaintiff said, “2 nd defendant said he had a customer with cash. I agreed with him. I trusted that 2nd defendant said that is cash and above board.” Still under cross-examination, it was put the plaintiff that the cancellation agreement was drawn up by her lawyers, she said her lawyers did so because Carl (2nd defendant) or Carrack (1st defendant) went to them. Under cross-examination by the 2nd defendant, plaintiff maintained her stance that she never received the terms of the agreement from 2nd defendant and that for two years, there was no communication from the 2nd defendant. HB 123/25 HC 2819/22 All-in-all, plaintiff said she did not expect 1st defendant to deal with 2nd defendant in any illegal manner and that if the contract is illegal then she would not be prepared to transfer the farm to the 1st defendant. On the basis of the above evidence, plaintiff contented as follows; The purported agreements of sale and cancellation of deed of sale by mutual consent entered into by the 1st defendant on one hand and 2nd defendant purportedly on behalf of the plaintiff on the other hand or one or more of them are illegal, fraudulent, unlawful and contrary to legislation and therefore null and void for the following reasons; (a) The agreement of sale or cancellation of provides for the payment of the purchase price for the personal benefit of the 2nd defendant contrary to and entailed the mandate contained in the power of attorney granted to the 2nd defendant. (b) The agreements of sale and or cancellation of the agreement of sale or one or none of them are in contravention of the Deeds Registries Act (Chapter 20:05) in that the agreement sought to violet the requirements that transfer of immovable property shall follow the sequence of the cause. (c) The agreements of sale and or cancellation agreement or one or more of them were intended to evade tax in that the properties forming part of the purchase price were in terms of the agreements of sale or cancellation agreement or one or more of them to be transferred directly from 3rd parties, without being first transferred into the name of the purchaser and then the seller but were to be sold by the 2nd defendant on behalf of 3rd parties. HB 123/25 HC 2819/22 (d) The agreement of sale of the 18th and 19th violates statutory instrument SI 212/19 as read with the Finance Act (No. 2) 2019 in that it provides for payment in foreign currency for a local transaction without an exemption having been applied for and obtained from the Exchange Control Authority. (e) As at the effective date of agreement, the property in question was in the name of the Estate Late Paul Meadley and the 2nd defendant had no consent from the Master of the High Court for disposal of the property. Neither did the 2nd defendant have any power to act for and on behalf of the Estate Late Paul Meadley. As regards 1st defendant’s counter claim, plaintiff whilst admitting that the parties purportedly entered into an agreement of sale alleged avers that the agreement of sale as alleged avers that the agreement relied upon is invalid or illegality. The point made is that the sale is void ab initio for want of legality. Further, plaintiff averred that the alleged cancellation was a sham to cancel the illegality of the sale agreement and therefore if no consequence as plaintiff is not bound by an illegal agreements. Plaintiff denied that the 1 st defendant is entitled to order sought out prays the court to dismiss the counter claim with costs on a higher scale. The 1st defendant’s case Mr Sheunesu Chando gave evidence on behalf of 1st defendant. His testimony goes as follows; (1) At the relevant time he was the General Manager of the 1st defendant. The company learnt of the sale of the property in dispute through an advertisement in a newspaper. It settled on HB 123/25 HC 2819/22 purchasing the property since it was a land developer. The contract of sale was drawn by Messrs Job Sibanda & Associates. (2) The purchase price was US$390 000,00. A deposit of US$100 000,00 was paid. He further said they agreed with 2nd defendant that the latter was received the value of two properties for US$65 000,00 for each property. (3) One of the properties belonged to Muchazoreka Nyamunyama while the other belonged to Guardforce (Pvt) Ltd. The balance of the purchase price was paid in instalment. After payment of the full purchase price the two properties namely stand 7189 Bulawayo Township (the Northern house) and stand31 of Harrisvale Township were transferred to 2nd defendant. (4) Pursuant to the payment of the full purchase price, he said 2nd defendant went to Webb, Low & Barry for purposes of transfer of the farm to first defendant. Documents of tax assessment were prepared and that two of them took the documents to ZIMRA for those purposes. (5) ZIMRA refused to assess the tax payable as the purchase price consisted partly of two immovable properties registered in the names of the different parties. (6) He was the informed by “Webb, Low & Barry that there was a new contract. Mr Chando did not participate in the negotiation of the second contract, he only signed it as a witness on the 18th and 19th September 2019. He testified that he was not afforded an opportunity to read or comment on the contract. He understood Webb, Low & Barry to be the agents of the seller. HB 123/25 HC 2819/22 Under cross-examination, his evidence when asked about the purpose of the two houses was that; “Mr Chicksen (2nd defendant) was supposed to sell the houses. He was mandated to find the buyer and negotiate the price and only to conform us to transfer once he would have sold the properties.” He went on to state that the Harrisvale and Northend properties were given to 2nd defendant to “hold as security” while a purchase was being sought and once found, the purchase price of these houses, irregardless of whatever that purchase price was would constitute the balance of the purchase price for the farm. Later he said the two properties were “donated” to 1st defendant to utilize as a part of the purchase price for the farm in the agreement of sale with plaintiff. He failed to produce the Deed of Donation which he said he had executed. He admitted that he understood that consequent upon a donation to 1st defendant by Guardforce Investments (Pvt) Ltd, of the Northend property, Capital Gains Tax was due to ZINWA upon transfer to 1st defendant. He admitted that the same applied in respect to the donation by Mr Nyamungawa of the Harrisvale property donated to 1st defendant. He also made an admission that in either of the donations between Nyamungawa and Guardforce Investments (Pvt) Ltd, on one hand and 1st defendant on the other, there was no declaration of these matters to ZIMRA and assessment of or Capital Gains Tax paid. He did not dispute that such donation of the two properties would have in the ordinary course attracted payment of stamp duty to the Registrar of Deeds upon transfer. It was also his testimony that the sale of the Northend property recorded on page 26 of Exhibit “A” as having been concluded by Guardforce and Ratidzo and Sibanda was fake. The sale was in fact a sale by plaintiff represented by 2 nd HB 123/25 HC 2819/22 defendant as that property had already been “given” to 2nd defendant. To his belief the fact that 2nd defendant had been given occupation of the two properties held by third parties meant that 1st defendant had discharged its obligations in terms of the agreement of the 18th and 19 September 2019. The 1st defendant counter claimed against the plaintiff specific performance of the agreement of sale concluded by the parties on the 18th and 19th of September 2019 as read together with the cancellation agreement of the same dates and the original agreement of sale of 16th November 2017. Specifically, the order sought is to the effect that; (a) The agreement of sale entered into by the plaintiff and the 1 st defendant on the 18th and 19th of September 2019 is valid and binding on the parties thereto; (b) The plaintiff be and is hereby ordered within seven days of this order to take all necessary steps to finalise the transfer of ownership of the immovable property known as subdivision E of Umvutshwa situate in the District of Bulawayo measuring 69,1039 hectares, held under Deed of Transfer number 150/2018 dated 15 February 20018 from the plaintiff’s name to that of the 1st defendant failing which; (c ) The Sheriff of the High Court, Bulawayo be and is hereby ordered and authorized to sign all necessary documents in the plaintiff’s name to the 1st defendant’s name. (d) The plaintiff o pay the costs of suit on an attorney and client scale.” 1st defendant’s submissions HB 123/25 HC 2819/22 (1) It was submitted that section 120 of the Administration of Estates Act is inapplicable in this case in that the Master had already given the plaintiff the go-ahead to distribute the property to herself under section 52 (iv) of the Administration of Estates Act. In any event the onus to prove lack of authority which negatively lies on the plaintiff. (2) Further 1st defendant argued that the agreement of sale signed in November 2017 was legal as was the September 2019 agreement. In fact the November 2017 agreement was fully performed by the 1st defendant. Actually, the September 2019 agreement sought to simply record the status quo as at September 2019, viz that the 1st defendant had rendered to the 2nd defendant all that it needed to in terms of the agreement. In other words the 2019 agreement did not create any new obligations for the 1st defendant. (3) It was also submitted that the following is clear testimony of the fact that the 1st defendant had fully met its obligation; (a) Chando’s evidence that the case moved to Webb, Low & Barry after the 1st defendant had fully performed its obligation, viz payment of the $260 000,00 in cash and surrender of the two immovable properties; (b) Chicksen’s evidence is that the cash portion of the purchase price was paid in full and that the two houses were surrendered to him; (c) The conduct of both Webb, Low & Barry who accepted instructions to commence the transfer and of Job Sibanda & Associates, who allowed the matter to proceed to transfer. HB 123/25 HC 2819/22 These law firms would have done so that there been one outstanding obligation on the part of the 1st defendant. (4) It was submitted that besides possessing no first hand evidence on the circumstances surrounding the signing of the agreements. The plaintiff was also, clearly an unreliable and strongly self-serving witness. (5) The cancellation agreement was drawn by agents of the plaintiff in order to get the plaintiff out of the predicament that the plaintiff’s agent had created by refusing to take transfer of and held in trust for her, the Harrisvale and Northend properties. Therefore, the plaintiff is not an innocent arty in so far as any lack of clarity or illegality if found as concerned. The total effect of the cancellation was that the plaintiff through her agent would acknowledge receipt of cash to the sum of $260 000,00 (6) The plaintiff did not lead any evidence as to the intention to deceive ZIMRA in that Chicksen (2nd defendant) said that on the sale which he orchestrated, as for his decision captivated by Webb, Low &Barry in cancellation agreement of the Northend property, capital gains tax was paid and he received the net proceeds which he held for the plaintiff. Therefore no loss of taxes occurred in these circumstances. (7) The 1st defendant did not make any declaration at ZIMRA and it had no such obligation in that it was not the seller. The plaintiff was the party to account to ZIMRA for tax for the disposal of an asset. She made the declaration through her agents, Chicksen (2nd defendant) and Webb, Low & Barry. If there was breach of any HB 123/25 HC 2819/22 law therefore, it works to the detriment of the plaintiff not the 1st defendant. (8) The second agreement of sale was neither illegal nor a ruse as it simply reduced into cash terms, the purchase price. The cancellation agreement created a new mode of remedy on the $130 000,00 portion of the purchase price by Chicksen. (9) The 1st defendant did not breach the provisions of the Deeds Registries Act in that it was not necessary for the 1st defendant to take transfer of the properties in order to transfer them to 2nd defendant in light of the agreement. The properties were to be transferred to Chicksen and not reduced to cash. Chicksen would hold them as norminal owner. That was the stark intention of the parties. The second agreement of sale was not illegal due to the mistake made by Webb, Low & Barry or due to any contravention of the Income Tax or Deeds Registries Act. (10) The reservation of currency clause in the agreement of sale does not contravene the law as it stood in 20019 in that the plaintiff had been paid through her agent. The September 2019 agreement of sale simply recorded the payments. There was no failure obligation created as it simply provided that payments already made and completed in US dollars would remain expressed in USS dollars. No illegality arises therefrom. In any event, the principle of severability allows the court to cement on illegal portion and to save the balance of the document. (11) It is submitted that the plaintiff is bound by the September 2019 agreement signed her behalf by her agent, which agreement HB 123/25 HC 2819/22 recorded full discharge of 1st defendant’s previously agreed obligations to the plaintiff. The 1st defendant is an innocent party which contracted with an authorized agent, and breaches of that agent’s fiduciary distress to his principal should not have any legal consequences for it. Accordingly, the plaintiff’s claim must be dismissed with costs and judgment entered for the 1st defendant on its counter claim with costs. The second defendant’s case Mr Carl Cyril Chicksen gave evidence on his own behalf as 2nd defendant. He is plaintiff’s cousin and his evidence ran as follows; 1. He was granted a power of attorney by plaintiff to sell Subdivision E Umvutshwa Farm. There were illegal settlers on the farm at that time. 2. He engaged Messrs Job Sibanda & Associates to carry out evictions. Since plaintiff had not sent any money for the purpose, he used his own resources to evict the land invaders. 3. He advertised the property for sale but there were no takers. Later 1st defendant expressed interest in the property and they entered into an agreement of sale in which the agreed purchase price was US$370 000,00. 4. Part of the purchase price was in the form of two immovable properties namely, the Harrisvale and Northend houses. The agreed price was US$65 000,00 each. Second defendant was to sell the properties. HB 123/25 HC 2819/22 5. Upon submission of the documents at ZIMRA for Capital Gains Tax assessment. ZIMRA refused to accept them as the agreement of sale included two properties not registered in 1st defendant’s name. 6. The 2nd defendant and Mr Chando returned to Webb, Low & Barry where they were the advised to enter into a cancellation agreement and a new agreement. He testified that he and Mr Chando submitted the second agreement to ZINRA for purposes of Capital Gains Tax Assessment. 7. However, 2nd defendant altered his evidence to the agent that he never went to ZIMRA to submit the 2nd agreement. 8. Second defendant admitted that he did not remit any money from the proceeds of the sale to the plaintiff and that despite lack of communication between him and the plaintiff, he went ahead with the sale. 9. As regards Capital Gains Tax, he appreciated that it was payable in the donation of the Harrisvale and Northend properties to 1st defendant as would be the stamp duty upon transfer. 10. He conceded that the Cancellation Agreement was never intended to be a cancellation of the contract since it was purposed to address ZIMRA’s concerns. 11. He also admitted that the second agreement was a ruse in so far as it provided for instalment payments of US10 000,00 for 13 months. According to him that was a falsehood as nothing of the sort have happened. HB 123/25 HC 2819/22 12. He secured a purchaser for the Northend property whose agreement of sale is on page 26 of Exhibit “A”. He negotiated and received the proceeds of the sale of this property. However, Guardforce Investments (Pvt) Ltd signed all the necessary papers for the sale and transfer of the Northend property but the real seller was the 2nd defendant. He admitted so. 13. His testimony was also to the effect that transfer of the Northend property was done in March 2020 after the Power of Attorney giving him the mandate had already been recorded. 14. Whilst he initially stated that he had surrendered control of the Harrisvale property back to 1st defendant upon the termination of his mandate, he later changed course and testified that he still has control of that property. Second defendant’s submissions 1. It was 2nd defendant’s submission that no under-hand dealings were made as capital gains tax was paid in respect of the Northend house. 2. Further, he submitted that the second agreement of sale was not unlawful as it was meant to facilitate the transfer and “speed up the process.” This could entail “removing the house from the agreement of sale but show instead the value of the house at US$20 000,00. 3. Plaintiff displayed a lack interest in the process and any lack of communication is her own doing. HB 123/25 HC 2819/22 4. There was no intention or notice to defraud ZIMTA because 2nd defendant was acting as an agent and there would be no personal gain by doing so. There was no collusion and if there is anything amiss with the paperwork it was not intentional. 5. Finally, 2nd defendant submitted that the court should find the agreements of sale lawful and allow 1st defendant which paid in good faith to take transfer of the farm. Analysis It is trite law that a court will not enforce an illegal contract. The consequences of an illegal contract were traversed in Silonda vs Nkomo SC 6/22. The court stated on page 18 of the judgment that; In our law, a court is precluded from enforcing an illegal contract which has not been performed in whole or part. The rule is of absolute application. It emanates from the maxim ex turpi causi non oritu actio. It is based on the principle of public policy that prohibits the recognition and enforcement of illegal contract that are contrary to law. The in pari delicto patio rest conditio pessidentis roughly translated as the loss lies where it falls has been described as the fraternal turn to the ex turpi causa rule. See Dube vs Khumalo 1986 (2) ZLR 103; Chidza vs Siziba SC-4- 15. The position of the law is that in appropriate circumstances, the court would relax the in peri delicto maxim in order to do justice between man and man. The relaxation is borne out of a recognition that are many not be unjustly enriched at the expense of another. In so doing the court has to be careful not to directly recognize an illegal contract. The in firm delicto principle was explained in Mkambo vs Chikata HH-134-15 wherein the court said; HB 123/25 HC 2819/22 “Plaintiff in casu is not asking for a refund of what he paid for the partitioning of land which he alleges was not delivered. Instead, he is asking for a specific performance, in that he wants an order for delivery of one acre of land. Plaintiff makes an alternative claim for payment of damages. In other words, the plaintiff is not asking for relaxation of the par delictum rule but is seeking enforcement of the agreement. If the court was to grant that relief which is for specific performance or payment of damages, then it would be lending relief to an illegality. That the court will not do.” I shall return to this point later in this judgment. I now deal with the issues seriatim 1. Whether or not the agreement of sale as read with the cancellation of Deed of Sale entered into by 1st and 2nd defendants provided for the personal benefit of 2nd defendant in the payment of the purchase price? In order to resolve this issue, the court must examine the provisions of these agreements closely. The 1st agreement was entered into on 16 November 2017. The Power of Attorney granted to 2nd defendant’s beneficially states that the acts to be done by the 2nd defendant are “in my name, place and stead and for any account and benefit.” (my emphasis) Notwithstanding this express provision the agreement of sale of 16 November 2017 violates the Power of Attorney ex facie in so far as it provides that for the sale and purchase part of the purchase price in so far be in the form of immovable properties which properties shall be registered in second defendant’s name. The 2nd defendant was clearly exacting his authority and 1st defendant ought to have realized this straightway. Obviously, the idea of using immovable properties as part of the HB 123/25 HC 2819/22 purchase price came from 1st defendant. The reason given by Mr Chando was that 2nd defendant did not have “cash”. Clearly this agreement is for the benefit of the 2nd defendant in the payment of the purchase price. The principle of ostensible or apparent authority recognizes that a principal is bound by the unauthorized actions of his agent as long as it is evident that agents in that capacity would generally portion such acts. In Senior Services (Pvt) Ltd vs Nyoni 1986 (2) ZLR 293 (S), the court said; “The principles on which a seller or principal can be bound by the ostensible authority of an agent have been set out recently by this court in the case of Reeding N. O. vs Sager’s Motors (Pvt) Ltd 197 (1) CA 521 (RAP). The headnote to that case which accurately sets out the judgment, is as follows; if a principal employs a servant or agent in a certain capacity and it is generally recognized that servants or agents employed in that capacity have authority to do certain acts, then any of these acts performed by such servant or agent will bind the principal because they are within the steps of his apparent authority.” (emphasis added) In my view that is different from the scenario in casu in that 2nd defendant with the convenience of 1st defendant exceeded his authority. The question is why was it necessary for the two swapped properties to be registered in the name of the 2nd defendant in light of the express provisions of the Power of Attorney that “all sale is for the benefit of plaintiff”. The 2nd agreement was also meant to benefit the 2nd defendant instead of the plaintiff. 2. Whether or not the agreements of sale as read with the cancellation of Deed of Sale agreement contravenes the provisions of the Deeds Registries Act [Chapter 20:05]. HB 123/25 HC 2819/22 The staking point is outline the relevant provisions of the Deeds Registries Act [Chapter 20:05]. In terms of section 11 thereof: “11. Deed to follow sequence of their relative cause; i. Save as otherwise provided in this Act or as directed by the court – (a) Transfer of land and accessions of real rights therein should follow the sequence of successive transactions in purchase of which they are made, and if made in pursuance of testamentary disposition or intestate succession they shall follow the sequence in which the right to ownership or other real right in the land acquired to the persons successfully becoming vested with such right. (b) It shall not be lawful to depart from any such sequence in recording in any Deeds Registry, any change in ownership in such land or of such real rights unless the Registrar is satisfied that the circumstances are exceptional and has consented to such departure.” (emphasis mine) In the present case, both Carl Chicksen and Sheunesu Chando’s testimony is to the effect that the two properties were donated to the 1 st defendant. It is common cause that 1st defendant did not take transfer following the donation, rather 1st defendant simply handed over the properties to second defendant Mr Chicksen. According to Mr Chando’s evidence after the handover they made it clear to Mr Chicksen that they would have nothing to do with the properties and that “the deal was irreversible”. HB 123/25 HC 2819/22 Second defendant confirmed his knowledge of the “house” deal by testifying that he really was not convinced about where and from when the properties were coming. He was satisfied with the properties and he advertised the Northend property for sale. He is the one who negotiated the purchase price and personally received the net purchase price while Guardforce’s role was to pretend to be the seller. The agreement on page 26 of Exhibit “A” shows that indeed the property was sold directly by Guardforce (Pvt) Ltd to Masoney Allan Chitsi Kandiano and Bongiwe Sibanda. The property was later transferred directly to the two individuals by Guardforce in March 2020 in clear violation of section 11 (1)(b) of the Deeds Registries Act. As regards the Harrisvale house, it is common cause that the 1st defendant has divested itself of all control of it preferring to give all control to 2 nd defendant who hesitantly conceded in evidence to having taken control of same. The 2nd defendant is expected to secure a purchaser for that property where after the parties would again pretend that the registered owner Muchazoreka Nyamugama was selling the property while in essence, 2nd defendant was so doing. Such conduct is a clear violation of the statute in my view. 3. Whether or not the agreement of sale as read with the cancellation of Deed of Sale constitute evasion of tax? The 1st defendant contends that it does not. However, it is not disputed that upon a sale of immovable property, the seller is liable for Capital Gains Tax upon assessment. What is contested is whether the conduct of the 1 st and 2nd defendants amounted to tax evasion. Both defendants stated that when the 1st agreement was presented by both of them at ZIMRA, it was rejected. The reason for the rejection is that transfer must further the cause in sequence. In other words, ZIMRA would have wanted to assess the tax payable in the transfer from Mr Nyamungawa and from Guardforce Investments (Pvt) ltd to 1st HB 123/25 HC 2819/22 defendant. In order to avoid that two decided to falsify the true nature of their transaction by coming up with the agreement of sale of the 18 and 19 September 2017 in which is a fraud. It is admitted by both defendants that this agreement was a ruse coupled solely to mislead ZIMRA. See 1st defendant’s pleadings in paragraph 6 of its plea in which it states; “The agreement of sale of the 18th and 19th September 2019 was in substance a variation of the original agreement of sale of 16th November 2017 to reflect the ownership of the property sold per the Title Deed in plaintiff’s name and to remove the inclusion of two immovable properties by third parties as a component of the purchase price per ZIMRA objection”. (my emphasis) Evidently, the agreement was designed to conceal the true nature of the transaction from ZIMRA especially that the two properties ad been donated to 1st defendant who in turn had handed them over to the 2nd defendant. The 1st defendant conceded the fact that the two properties were used as part of the purchase price. The agreement of the 18thh and 19th September 2019 violates the Capital Gains Tax Act, (Chapter 23:01). Section 8(9)(g) thereof provides that; “(g) where a person transfers to another person his or her rights in a residential, commercial or industrial stand whether or not the stand is service and whether or not his or her title to the stand is registered under the Deeds Registries Act (Chapter 20:05) he or she shall be deemed to have sold a specified asset to that other person for an amount equal to the whole amount received by or accruing to him or her as a result of the transfer.” HB 123/25 HC 2819/22 In the present matter, the evidence is that Guardforce Investments (Pvt) Ltd and Mr Nyamungawa donated the Northend and Harrisvale properties specifically to 1st defendant. Having transferred the rights to another person, they are liable to pay Capital Gains Tax. The two seller’s failure to pay tax with the blessing of 1st and 2nd defendants in my view amounts to tax evasion. In terms of section 86 (1) of the Income Tax Act (Chapter 23:06) “(1) Any person who with intent to evade or assist any other person to evade assessment or taxation – (a) Makes or causes or allows to be made any willfully false statement or entry in any return rendered in terms of this Act, or signs any statement or return so rendered without reasonable grounds for believing the same to be true; or (b) Gives any willfully false answer, whether verbally or in writing, of any request for information under this Act made by the Commissioner or any person duly authorized by him; or (c) Prepares or maintains or authorizes the preparation or maintenance of any false books of account or other records or falsifies or authorizes the falsification of any books of account or records; or It is clear from the evidence that Mr Chicksen, Mr Chando and Mr Nyamugawa contravened sections 85 to 86 (a), (b) and (c) of the Income Tax Act by falsifying the true nature of the transactions at hand. These offence are applicable to the provisions of the Capital Gains Act with the same force. HB 123/25 HC 2819/22 I find that the preparation and signing of that agreement constitutes a violation of the law in that the so called “correction” was unlawful. Further Mr Chando and 2nd defendant presented the agreement of sale to ZIMRA. I take note of the fact that Mr Chando strongly denied this. In my view Mr Chando’s version is improbable for the following reasons; 1. The purpose of drafting and signing this agreement was to present it to ZIMRA as a “correction” of the 1st agreement and no other reason. 2. Mr Chando attended at ZIMRA to present the 1st agreement. Why would he not be intended in presenting the second agreement in light of his previous role in drafting the agreement? 3. Mr Chicksen insisted in his evidence that he and Mr Chando presented the second agreement of sale to ZIMRA. 4. Whether or not the agreement of the 18th and 19th September 2019 contravenes SI 212/19 in that it provides for payment of the purchase price in foreign currency? The 1st defendant denied that the reservation of currency clause contravenes the law because the plaintiff had already been paid when that agreement was signed in September 2019. It was further submitted that there was no future obligation to pay in United States dollars. The contention was that the cause simply provided that payments already made and completed in US dollars would remain expressed in US dollars. It is on this desire that the 1 st defendant distinguished the Farai Bwatikon Zizhou vs The Taxing Master & Anor SC 7/20. The September agreement states; HB 123/25 HC 2819/22 “For the avoidance of doubt, notwithstanding any re-denomination or charges in the currency used in Zimbabwe during the validity of the agreement, the purchase price is set herein shall prevail and contend to be reckoned calculated expressed and paid in United States dollars. (my emphasis) In the Zizhou case supra, the court states that; “with respect, the second respondent is in error. Statutory Instrument 213/19 amended the Exchange Control Act to enforce the exclusive use of the Zimbabwean dollar in domestic transactions by creating civil offences and penalties. The Statutory Instrument merely provided sections for contravening the law that decreed the local currency as the sole legal tender in domestic transactions. The law that declared the local currency as the sole legal tender in all domestic transactions was Statutory Instrument 142/19 and Statutory Instrument 213/19.” It was further stated that; “In light of the prevailing legal position at the time the bill was taxed, its denomination in United States dollars was in contravention of the law. The 1st respondent therefore erred in passing under his hand a bill that contravened the law … it is a settled position of law that anything done in direct conflict with a statute as a nullity.” (my emphasis) It should be noted that Statutory Instrument 142/19 was promulgated in June 2019. The argument that the full purchase price for the farm had “already been paid” has no merit in my view in that both Mr Chando and Mr Chicksen testified that the two houses were tendered as part of the purchase price. The second defendant testified that the purchase price of the farm had not been fully paid. According to him, it would be fully paid up once the Harrisvale property is sold and the proceeds therefrom channeled towards the purchase of the farm. HB 123/25 HC 2819/22 The two properties belonging to third parties had not been sold to realise the purchase price of the farm. Further the two properties had not and were subsequently not transferred to the plaintiff to confer ownership upon her as part payment of the purchase price of the farm. In my view, this provision for the agreement that set the price solely in United States dollars was illegal. 5. Whether or not the Master’s consent to the sale of the property was a condition precedent as at the 17th November 2017 The dispute here centers on the applicability of section 120 of the Administration of Estates Act (Chapter 6:01). In terms of the law in testate estates maybe concluded within the consent of the Master. It is plaintiff’s submission that section 120 of the Administration of Estates Act applies. On the other hand, the 1st respondent submitted that the consent of the Master was not needed in that at the date of September 2019 sale, and indeed, of September 2017 sale, the Master had approved the first and final Distribution Account of the Estate as filed by the plaintiff herself. In so doing the Master accepted that the benefit of the rights in the property now vested in the plaintiff. The plaintiff in other words, intended the property at the time she sold it. The 1st respondent relied in Firstrand Bank Ltd v Geote Clarence Gibbons N. O. & Anor (RPM 104 (2018) [2021] ZANWH (2011 June 2021] for the proposition that the rights arising out of the administration of deceased estate vest on the Master’s approval of the final liquidation and distribution account. The argument by the 1st respondent is that upon approval of the final distribution account by the Master, the rights vest in the beneficiaries. Put differently, a sale by an executor requires such consent, but a sale by a beneficiary clearly does not. HB 123/25 HC 2819/22 See also De Leef Family Trust & Others vs Commissioner for Inland Revenue (562/91) [1993] ZASCA 46 1993 (3) SA S45 Plaintiff on the other hand argued that both defendants admitted that the Master’s consent was not sought as it was not required. This is a negative assertion forming part of this defence. Both defendants bear the burden of proving it. See also Delta Corporation Ltd vs Forward Mutyonho HH 53/17, the court said; “However, where a negative assertion can be said to be an essential element of a party’s claim or defence, that party bears the burden of proving it … When a person against which a claim is made is not content with a mere denial, but sets up a special defence or raises a fresh issue (when he confesses and avoids) then he is regarded in that defence to be applied he bears the onus of satisfying the court that as is entitled to succeed on it.” Further plaintiff argued that the Firstrand Bank Ltd case is distinguishable in that it is not authority for the proposition that where a distribution account has been approved by the Master but before transfer to a beneficiary, the Master’s consent is not required. The time test, it was argued lies in establishing whether at the time of the sale plaintiff would have had the ability to transfer the property to a purchaser without the consent of the Master? In my view, the Master’s consent would have been required at the time of sale. The Master’s approval of the distribution account did not alter the ownership status of the farm. The approval was to distribute and not sell. In terms of the law, the Executor was still under the control of the Master when the 2017 agreement was entered into. Section 521 (10) of the Administration o Estates Act (Chapter 6:01) provides that, “When no objection is made to a final HB 123/25 HC 2819/22 distribution account presented by an Executor in terms of that Act may then proceed to pay out the creditors and heirs and then lodge vouchers with the Maters as support of the account; (11) Upon the final and complete liquidation of the Estate to the satisfaction of the Master, the Executor shall be entitled to obtain his discharge from the Master as such Executor.” (my emphasis) In the present matter, it is common cause that the transfer of the farm from plaintiff’s husband only occurred in 202. For that reason the Executor could not have been released from the Master’s control before the date of the transfer of the farm. Since both the defendants contended that the 2007 agreement is the substantive one and that the 2019 agreement was merely to address the issues raised by ZIMRA, the 2017 agreement is a nullity for want of the consent of the Master in terms of the law. Put differently, the agreement of sale of the farm is illegal in that it violates statute. 6. Whether or not the illegalities complained of can be severed from the agreements of sale and cancellation of Deed of Sale so as to enforce the agreements? The 1st defendant’s contention is that the principle of severability allows the court to sever an illegal portion and to save the balance of the documents. In casu it was argued that what the impugned clause simply did was to prove that payment already made and completed in US dollars would remain expressed in US dollars. No illegality arises therefrom. Reliance was placed on Afrisure CC and Anor v Watson NO and Anor [2008] ZASCA 89; 2009 (2) SA 127 (SCA); Abedneco Sibanda & Helen Sibanda vs Pentaville Investments (Pvt) Ltd HH 14/23 where it was stated that; HB 123/25 HC 2819/22 It is a settled position in our law that a contract may be severed in a proper case. So settled is the position at law that in the case of Middleton vs Cart, Scheumer JA held at page 391 that there is no need to resort to the authorities to show that in a proper case the legal part of a contract may be treated as separate from the illegal part and be enforced.” The test for severability is basically whether the offending clause is substantially at the core of the contract or its subsidiary. If it is subsidiary and the parties would still have entered into the contract without the offending part of the clause, then that part is severable. See Delta Beverages (Pvt) Ltd vs Bulrely Investments (Pvt) Ltd SC 57/22. In my view this is not a proper case to apply the principle of severability in that the illegalities are not subsidiary but are at the core of the contract. 7. Whether or not the agreements complained of are a scam? It is trite that a court will not enforce an illegal contract. The consequences of an illegal contract in our law were spelt out in Silonda vs Nkomo SC-6-22 in the following words; “In our law, a court is precluded from enforcing an illegal contract, which has not been performed in whole or in part. The rule is of absolute application. It emanates from the maxim ex turpi causa non actor action. It is based on the principle of public policy that prohibits the recognition and enforcement of illegal contracts that are contrary to law.” See also Dube v Khumalo 1986 (2) ZLR 103 Linked to the ex turpi causa rule is the in pari delicto patio rest conditio which means roughly that the loss lies where it falls. The in pari delicto rule HB 123/25 HC 2819/22 This rule was applied in Mlambo vs Chikata HH-134-15 thus; “Plaintiff in casu is not asking for a refund of what he paid for the portion of land which he alleges was not delivered. Instead, he is asking for specific performance, in that he wants an order for delivery of one acre of land. Plaintiff makes an alternative claim for payment of damages, in other words, the plaintiff is not asking for relaxation of the parties delictum rule but is seeking enforcement of the agreement. If the court was to grant that relief which is for specific performance or payment of damages then it would be lending itself to an illegality. That the court will not do.” See also Murphy v Tengende 1982 (2) ZLR (1) where the court refused compensatory damages to a plaintiff who had been defrauded while attempting to illegally purchase foreign currency. It is clear from the record in casu that the 1st defendant is not asking for a relaxation of the par delictum rule. The evidence shows that plaintiff received no payment from the defendants. Accordingly there cannot be a question of unjust enrichment. In Callender Enterprises & Anor vs Econet Wireless HH-232-18, the elements of unjust enrichment were listed as; (a) An enrichment (b) An impoverishment (c) A connection between enrichment and impoverishment (d) Absence of a justification for enrichment and impoverishment (e) Absence of a remedy provided by law In casu, no evidence was led to prove enrichment in plaintiff’s estate. Instead, the evidence shows that the plaintiff’s estate was impoverished in that HB 123/25 HC 2819/22 1st defendant occupied and used plaintiff’s property since 2017 without any compensation. While 2nd defendant’s evidence was to the effect that the bulk of the money used to evict illegal settlers came from 1st defendant, no figures were provided. The summary of 2nd defendant’s evidence is that he received part of the purchase price in the form of money. Further, he said at the time of trial, he was holding US$200 000,00 which he is able to pay to whomsoever the court may award some compensation. He also testified that he is in control of the Harrisvale property registered in Mr Nyamgawa’s name. Plaintiff did not received as she put it ”not even a penny” from the proceeds of the sale of the farm. In my view, plaintiff’s case on the relief sought is good. I find also that the maxim in peru delicto patio rest condition preceentis ought to be related only to the extent that an order for eviction be granted in her favour. The counter claim The 1st defendant’s counter claim is based on the submission that it can plead with the terms of the agreement and therefore at law it is entitled to specific performance namely to transfer. The alleged compliance arises from the 1st defendant’s contention that it “delivered the two houses” to the 2nd defendant. It is trite that delivery in immovable property is by registration of transfer. In Frank Wumber vs Desmond Muchina & Anor SC-81-21, the court said thus; “To that should be added the hallowed principle of our law that the conveyance of ownership in immovable for party from person to person is achieved though the registration of transfer at the Deeds Registry. HB 123/25 HC 2819/22 In the present case, the 1st defendant’s attempt to elevate the grant of occupation to “delivery” as in passing of ownership is lame. The concept of registration of transfer is distinct from that of possession. In any event it is common cause that one of the houses has not yet been disposed of and registered in Mr Nyamungawa’s name. That being the case the submission that the 1st defendant has fulfilled its obligations in terms of the agreement it lacks merit. Implication in the 1st defendant’s evidence is that it is seeking to enforce the 2nd agreement. Yet 1st defendant in its submissions urged the court to ignore this second agreement of sale on the basis that it “was a mere recording of what had already transpired,” whatever this means legally? The evidence shows that the 2nd agreement is false and the question becomes why the court should enforce a falsehood. The second agreement does not disclose the true nature of the transaction between the parties. It was submitted that the plaintiff has benefitted by inheriting a clean Deed of Transfer and a farm without invaders. This agreement is weak for the simple reason that not evidence was led on the actual amount spent on the farm for the plaintiff’s benefit. Both Mr Chando and 2nd defendant speculated on the source and extent of the contents purportedly used to fund certain projects. Also, the 1st defendant’s benefit from the farm in financial terms from the date it took occupation has not been disclosed. In the result, I found that, 1st defendant’s counter claim lacks merit. It is accordingly dismissed. Second defendant’s submissions The 2nd defendant in his closing submissions attempts to lead fresh evidence on how and what he spent on the purchase price he received. It is impermissible at law to lead fresh evidence in the closing submissions because HB 123/25 HC 2819/22 of the obvious prejudice to the opposing party. He distanced himself from the 2nd agreement of sale or laying all the blame on Webb, Low & Barry. He alleged that the agreement was an unsolicited master stroke by Webb, Low & Barry devoid of the instructions of the parties. Surprisingly, neither 1st defendant nor 2nd defendant called Webb, Low & Barry to testify. Obviously the agreement was drafted after the parties gave full instruction to the lawyers. As regards 2nd defendant’s submissions, I find that nothing material arises from his submissions. In any event I find the evidence of the 2nd defendant to be unsatisfactory in many respects. In my view, 2nd defendant is an incredible witness. In the result it is ordered that; 1. A declaratory order be and is hereby granted confirming the invalidity of the agreement of sale purportedly entered into by the 1st defendant and plaintiff and signed by the 2nd defendant purportedly on behalf of the plaintiff on the basis that the said agreement is fraudulent, unlawful and illegal in that the said agreement was designed to defraud the Zimbabwean fiscus and the plaintiff. 2. An order for eviction of the 1st defendant and all those claiming rights after it from subdivision E of Umvutshwa situate in the District of Bulawayo 3. 4. The 1st defendant’s counter claim be and is hereby dismissed. The 1st and 2nd defendants shall pay costs of suit on an ordinary scale jointly and severally the one paying the other to be absolved. HB 123/25 HC 2819/22 TAKUVA J…………………………………. Masiye-Moyo & Associates, plaintiff’s legal practitioners Malinga and Mpofu Legal Practitioners, 1st defendant’s legal practitioners