Williams v Kroutz Investments (Prviate) Limited and Ors (HB 25 of 2006) [2006] ZWBHC 25 (15 March 2006)

Judgment No. HB 25/06 Case No. HC 417/06 STEVEN PETER WILLIAMS Versus KROUTZ INVESTMENTS (PRVIATE) LIMITED And TREVOR NCUBE And DAVE NCUBE And CARMELITA FAITH MARRISON And REGISTRAR OF DEEDS N. O. IN THE HIGH COURT OF ZIMBABWE NDOU J BULAWAYO 9 AND 16 MARCH 2006 Adv S Nkiwane, with B Ndove for applicant N Mathonsi for 1st, 2nd and 3rd respondent Urgent Chamber Application NDOU J: The applicant seeks an unusually detailed provisional order in the following terms: “Terms of the final order sought: It is ordered: That you show cause to this honourable court why a final order should not be made in the following terms: 1. Applicant be and is directed to institute action proceedings in this honourable court against first, second, third and fourth respondents for the setting aside of the purported agreement of sale between 2. 3. applicant and first respondent and for HB 25/06 incidental and/or ancillary relief in not later than ten(10) clear days after the granting of the interim order provided that applicant is at liberty to file such an action even before the granting of the interim order herein. Pending the final determination of the action to be instituted as contemplated in paragraph (1) hereof, the first respondent be and is hereby restrained from accepting, action, sunctioning [sic], approving or endorsing any documents from first, second, third and/or fourth respondents seeking to transfer the property in disputed being stand number 1332, Bulawayo Township situate in the District of Bulawayo, registered under Deed of Transfer Number 3258/95 also known as number 46 Lawley Road, Suburbs, Bulawayo (hereinafter referred to as “the property”) from the names of the applicant to those of first respondent or any other person. 2.1 In the event that transfer of the property would have been effected as at the date of the interim relief is granted, fifth respondent be and is hereby restrained from passing transfer of the property to any other person and such party as would have taken such transfer be and is hereby interdicted from pledging mortgage, hypothecating, selling and disposing or in anyway encumbering the property or suffering it to be encumbered until the finalisation of the action to be instituted as contemplated in paragraph (1) hereof. Pending the final determination of the action to be instituted by applicant as contemplated in paragraph (1) hereof, the applicant’s legal practitioners be and are hereby ordered and directed to obtain and retain possession of the original Deed of transfer Number 3258/95 and concerning the property which Deed of Transfer is held by either first, second and fourth respondents and/or their conveyancers. For the avoidance of doubt the said Deed of transfer to applicant’s legal practitioners forthwith. 3.1 Alternatively, and in the event that transfer has already passed to any of the respondents at the time the interim order is granted, such transferee be and is hereby ordered to deliver the original holding transfer Deeds to applicant’s legal practitioners within forty-eight (48) hours of the date of the confirmation of this order, in which event applicant’s legal practitioners are directed to retain possession of such Deed of Transfer until the finalisation of the action proceedings aforesaid. Pending the final determination of the action contemplated in paragraph (1) hereof, the first and/or second respondent or his executors, liquidators, assignees, nominees, curators or successors in title as may have an interest in the property HB 25/05 shall pay to the Registrar of this honourable court security on account of occupational holding over damages in the sum of twenty million dollars ($20 million) or such additional sums or amounts as shall from time be fixed by the Chairman of the registered Estate Agents Council or his nominees. Pending the final determination of the action contemplated in paragraph (1) hereof, first, second and third respondents or their nominees, appointees, agents, liquidators, curators, assignees, executors or successors in title be and hereby interdicted or restrained from pledging or leasing out the property to any other person except with the written approval and consent of applicant. First, second, third and fourth respondents be and are hereby ordered to pay costs of suit jointly and severally at Attorney-Client scale. 4. 5. 6. Interim relief granted Pending the determination of this matter, applicant is granted the following relief: It is ordered that- 1. First respondent be and is hereby restrained or interdicted from endorsing, sunctioning, accepting or approving any documents filed by first, second and or fourth respondents seeking to any other person including first, second and third respondents. 1.1 In the event that the transfer of the property in dispute would have been effected at the granting of this order, the fifth respondent be and is hereby ordered, restrained or directed not to allow, endorse, approve, sunction or accept any documents filed by such person as would have received transfer of the property in dispute 2. seeking to further transfer the property on dispute to a third party. First, second and fourth respondents as these may be, be and are hereby ordered and directed jointly and severally the one to perform the rest t be absolved to deliver to applicant’s legal practitioners the original copies of the Deeds of transfer Number 3258/95 within forty-eight (48) hours from the date of this interim order. 2.1 In the even that the said original Deed of Transfer has already been passed to or lodged with the fifth respondent for purposes of passing transfer of the property to first or second respondents, the fifth respondent be and is hereby ordered to deliver such HB 25/06 original Deed of transfer No 3258/95 to applicant’s legal practitioners within forty-eight (48) hours from the date of this order without failure provided that such transfer would not have been affected at the time of the granting of this interim order…” Most facts of this case are common cause or at least beyond dispute. Such salient facts are the following. On 2 November 2004 the applicant granted a general power of attorney to the fourth respondent, inter alia, “to buy and sell immovable or mining property” on his behalf. He also gave 4th respondent the title deeds and keys to house number 46 Lawley Road, supra. The fourth respondent subsequently advertised the house for sale and first respondent responded to the advertisement resulting in a sale agreement conducted and signed on 15 July 2005. The full purchase price of $820 000 000,00 was paid to the fourth respondent, the applicant’s duly appointed agent and occupation was given early in August 2005. Subsequent to that applicant became aware that the property had been sold to first respondent which had taken occupation and that transfer was pending. This is clear from the applicant’s duly appointed agent in these proceedings Rutendo Muneta dated 31 January 2006. When applicant made this discovery he sought to revoke the power of attorney given to fourth respondent by letter dated 5 August 2005. This purported revocation was done after the sale agreement had already been concluded and even ex facie did not have a retroactive effect. 25/06 HB Although applicant became aware of sale and pending transfer in August 2005, it was not until 6 February 2006 that he approached the Magistrates’ Court, on an ex parte basis seeking an order stopping the transfer. His unsuccessful campaign in the Magistrates’ Court came exactly six(6) months after he learnt of the sale and sought to revoke the power of attorney. His application in the Magistrates’ Court was dismissed on 21 February 2006. After that legal practitioners representing first, second and third respondents addressed a letter to applicant’s legal practitioners asking the applicant to ratify fourth respondent’s signature on the transfer papers. From the tone of that letter it was clear that respondents had no intention on lodging the transfer documents on the strength of fourth respondent’s signature. Notwithstanding that, the applicant’s legal practitioners went ahead with this application. In order to ally whatever fears applicant may have had, first, second and third respondents’ legal practitioners again addressed a letter to the Registrar which was copied and delivered on applicant’s legal practitioners on 2 March 2006 in which they categorically stated that:- “… there is no intention to proceed with transfer on the basis of signature by the fourth respondent when her authority has been put in issue. Indeed, transfer will not take place until this matter has been resoled by agreement between the parties or by order of court.” HB 25/06 This is a satisfactory remedy so one of the requirements of an interdict has not been fulfilled – Mabhodho Irrigation Group v Kadye HB-8-03 and Knox D’Archy Ltd & Ors v Jamieson & Ors 1996(4) SA 348 AD. In spite of that letter, by letter of the same date, applicant’s legal practitioners maintained that:- “We need to point out that our client is only comfortable and secure if he has a court order against respondents”. Owing to this stance the matter has had to come before me. In limine, the first, second and third respondents raised the issues of urgency. They submit that the application is neither urgent nor completely necessary. In this case the fourth respondent has had the power of attorney for over one(1) year and four(4) months. As alluded to above the power of attorney authorised the fourth respondent to sell the property and that explains why she was also handed over the title deed of this said property. I say so because fourth respondent does not need title deeds to let out the property or manage it. If what the applicant is saying is correct (that the authority although authorising the sale of the property, this was erroneous) then the time the need to act was in August 2005 when he became aware that the disputed power of attorney is being used to sell the property. He did not act from that date until 24 February 2006. If he knew by 5 August that fourth respondent was “misrepresenting” facts to third parties about the terms of the power of attorney he should have acted then. Even the apparently ill conceived suit in the Magistrates’ Court was only instituted in HB 25/06 February 2006 is about five(5) months after he became aware of the “misuse” of the power of attorney by his appointed agent, fourth respondent. From the facts of this case, urgency stems from a deliberate or careless absention from action. This is not the type of urgency contemplated by the rules – Kuveraga v Registrar General & Anor 1998(1) ZLR 188(HC); General Transport & Engineering (Pvt) Ltd and Ors v Zimbabwe Corp (Pvt) Ltd 1998(2) ZLR 301(HC); Granspeak Investments (Pvt) Ltd v Delta Operations (Pvt) Ltd & Anor, 2001 (2) ZLR 551 (HC); Silvers Trucks (Pvt) Ltd & Anor v Director of Customs & Excise 1999 (1) ZLR 490 (H). There is no explanation in founding affidavit as to why the matter underwent metamorphosis and suddenly became urgent some six (6) months after the applicant became aware of the sale (or in his version became aware of that fourth respondent was using the power of attorney to sell the property). Litigants, their legal practitioners in particular should bear in mind the instructive words of MAKARAU J in Musunga v Utete & Anor HH-90-03. The learned judge rightly pointed out- “It is trite that no litigant is entitled as of right to have his or her matter heard urgently … The test for urgency as provided for under the rules is that the matter must be so urgent and the risk of irreparable damage … so great that the matter cannot proceed within the normal time frame provided for in the rules … To assist the court in assessing the urgency of the matter legal practitioners as officers of the court are required to give their honest opinion of why they consider the matter urgent. In my view, the purpose of the certificate is not to repeat facts of the matter as contained in the affidavits but to highlight the urgency of the matter and to give conclusions as to why there will be irreparable harm to the applicant if the application is not treated outside the normal time frame … The practitioner gives assurance not only on the strength of his/her arguments but also his/her own honour and name.” 25/06 From the facts outlined above there is no marked degree of urgency in this matter. Legal practitioners who parrotically and HB superficially repeat the contents of founding affidavits whose facts they are not familiar with run the risk of the judge concluding that they acted wrongfully if not dishonestly in giving the certificate of urgency. Such a conclusion comes with it the likelihood of cost de bonis propriis on a punitive scale. In casu, the legal practitioner in question did not explain the inaction of around six months. He has misrepresented facts on a number of issues. He, for instance states that transfer documents have been lodged with the fifth respondent when the applicant was aware as far back as 21 February 2006 that the papers had been withdrawn. Further he does not explain why he says the applicant will suffer irreparable harm when the Deeds Registries Act [Chapter 20:05} provides for cancellation of an improperly registered deed of transfer. Ex facie, the legal practitioner certified the matter urgent a day before the applicant’s founding affidavit was deposed to. So the certificate of urgency was compiled a day before the founding affidavit when did the legal practitioner certify such as urgent? Although the legal practitioner had no hesitation in certifying the matter urgent, there is nothing to suggest that he indeed read the application. From the above, the application is not urgent. On this issue alone the application is dismissed with costs on a legal practitioner and client scale. This legal practitioner misunderstood the provisions of the Deed Registry Act. I will spare the certifying legal practitioner an award of costs asked by the respondents. HB 25/06 Messrs T Hara & Partners, applicant’s legal practitioners Atherstone & Cook c/o Coghlan & Welsh, 1st, 2nd and 3rd respondents’ legal practitioners