BURDOCK INVESTMENTS (PRIVATE) LIMITED v RUPERE and Others (256 of 2025) [2025] ZWHHC 256 (11 April 2025)

9 HH 256-25 R-HCH2966/05 BURDOCK INVESTMENTS (PRIVATE) LIMITED versus GRACE CHIWONISO RUPERE (1) and REGISTRAR OF DEEDS (2) and BRIAN CHRISTOPHER MANGWENDE (3) and BEVLINE ANGELINE CHIKAMHI (4) HIGH COURT OF ZIMBABWE DEMBURE J HARARE, 24 March & 11 April 2025 Stated case L Uriri with him B M Machanzi, for the plaintiff E T Matinenga for the 1st defendant No appearance for the 2nd, 3rd & 4th defendants. DEMBURE J: INTRODUCTION [1] This is a stated case filed in terms of rule 52 of the High Court Rules, 2021. The matter commenced on 6 July 2005 as a court application. The application was filed by Burdock Investments (Private) Limited, the plaintiff herein, against the first and second respondents, Grace Chiwoniso Rupere and the Registrar of Deeds, respectively. The third and fourth defendants were later joined to the proceedings. The first defendant subsequently opposed the application following her successful application for rescission of a default judgment entered in favour of the applicant. On 18 May 2017, the court, before Foroma J, referred the matter to trial on the papers filed with the court application and founding affidavit standing as summons and declaration, respectively and the opposing affidavit as the first defendant’s plea. [2] Before the commencement of the trial, this court, with the consent of the plaintiff, granted the first defendant leave to amend its papers by filing a claim in reconvention. The claim in reconvention was only contested by the plaintiff. The third and fourth defendants were all barred in the main action. They also did not contest the first defendant’s claim in reconvention despite their counsel, Mr Manyonga, being granted leave to file their plea on 21 October 2024. On 24 March 2025, the court heard oral arguments from the parties’ legal practitioners on the matter following their written submissions on the issues arising from the parties’ statement of agreed facts. FACTUAL BACKGROUND [3] On 10 February 2025, the parties filed a statement of agreed facts and turned the civil trial into a stated or special case. In terms of the statement of agreed facts, the following facts are not in dispute: [4] That on 5 December 1997, the plaintiff, a land developer, obtained a Subdivision Permit No. SD/404, which created several residential stands, including the immovable property subject to these proceedings, Stand Number 2926 Bluffhill Township of Stand 1120 Bluffhill Township measuring 942 square metres (“the property”). A copy of the Subdivision Permit is part of the plaintiff’s bundle of documents. [5] On 4 December 2000, the plaintiff and first defendant entered into an agreement of sale in terms of which the plaintiff sold to the said defendant, Stand 2932 Bluffhill Township of Stand 1120 Bluffhill. This initial agreement was mutually cancelled by the parties. [6] On 19 January 2001, the parties subsequently entered into another agreement of sale in terms of which the first defendant purchased the property subject to these proceedings from the plaintiff on the terms and conditions as are contained in the agreement of sale executed by the parties on the said date (“the agreement”). [7] In terms of the agreement, the purchase price of the property was $1,395,000.00, made up of a deposit of $595,000.00 and a balance of $800,000.00. As stated in clause 8 of the agreement, the balance of $800,000.00 could be secured by obtaining a loan from a financial institution, mortgaging the property as security, or financing the construction on a cash basis by progress payments. [8] It was further agreed that the first defendant would pay construction escalations occasioned by inflation. On the other hand, the plaintiff was obliged to deliver to the defendant a completely built principal dwelling on the property. At the time of concluding the sale, there was already built on the property a shell house, although fittings and fixtures were yet to be affected thereon. Due to the quality of materials demanded by the first defendant, she bought finishing materials valued at approximately $9,847,178.00 to complete the shell house. The plaintiff contended that the amount spent on the materials had been inflated, though admitting that certain materials were indeed bought. [9] It is also common cause that the first defendant did not pay the purchase price through the bank guarantee, which lapsed before transfer was effected. It was further recorded that the parties, as common to the purchase and sale of immovable properties, contemplated that the first defendant would seek and obtain assistance from a financial institution to finance the purchase. The first defendant indeed approached a financial institution in this regard, as evidenced by the letters from Zimbabwe Building Society dated 23 October 2002 and 11 November 2003. [10] The payments were made to meet the costs of the purchase price (inclusive of the deposit), escalation fees, local authority rates, building materials and transfer fees. The payments were made initially to Muzenda & Maganga, then to the plaintiff directly and to Ziweni & Company. The amounts were as follows: Muzenda & Maganga - $1,140,000.00, the plaintiff (directly) - $266,000.00 and Ziweni & Company - $2,138,000.00. In addition, $2,150,000.00 was paid as transfer fees to Ziweni & Company, the plaintiff’s legal practitioners and conveyancers. Reference was made to Annexure “D” – a schedule extracted from the first defendant’s application for rescission of default judgment in Case No. HC3843/06. [11] The plaintiff contended that the payments set out in the schedule were not all received by it, nor were they fully accounted to it. The first defendant took occupation of the property before transfer was effected in her favour in early 2001. On 28 February 2005, the property was registered in her name in the Deeds Registry office. [12] After the registration of the property in the first defendant's name, the plaintiff caused a letter of demand to be addressed to the first defendant at her Warren Park address, asserting that the property had not been fully paid for. Roughly two months later, the plaintiff cancelled the agreement and had the transfer in the first defendant's name set aside in default of her appearance. The court processes leading to the default judgment were served at the first defendant's Warren Park address (such service is disputed by the first defendant). The court handed down the default judgment on 17 August 2005. [13] On 1 September 2005, the plaintiff sold the property to the third and fourth defendants. On 5 December 2005, transfer was passed to them, leading to the attempted eviction of the first defendant from the property. The eviction was stayed by an order of this court handed down by MUSAKWA J. On 25 July 2007, the default judgment in favour of the plaintiff was set aside by Chatukuta J. The first defendant has been in occupation of the property since the attempted eviction in June 2006. [14] The parties identified the issues for determination as follows: “(a) Whether or not the parties contravened the Regional, Town and Country Planning Act in concluding the sale in the absence of a certificate of compliance. (b) Whether the 1st Defendant discharged all her obligations under the agreement. (c) Whether or not the agreement was properly cancelled. (d) Whether or not the disposal of the property to third parties was above board. (e) Which party to pay costs of suit and at what scale.” ISSUES FOR DETERMINATION 1. WHETHER OR NOT THE PARTIES CONTRAVENED THE REGIONAL, TOWN AND COUNTRY PLANNING ACT [CHAPTER 29:12] IN CONCLUDING THE SALE IN THE ABSENCE OF A CERTIFICATE OF COMPLIANCE? SUBMISSIONS MADE ON THE ISSUE [15] Mr Uriri, counsel for the plaintiff, submitted that s 39 of the Act is peremptory in nature and proscribes an agreement for the change of ownership of any property except in accordance with a permit issued under s 40. The judgment in X-Trend-A-Home (Pvt) Ltd v Hoselaw Investments (Pvt) Ltd 2000 (2) ZLR 348 (SC) is instructive. The argument in X-Trend-A-Home was that an agreement could be entered into with a suspensive condition that the approval of the subdivision can be done later. The argument was rejected as the court held that what is prohibited is the agreement itself. [16] It was further submitted that at p 4 of the plaintiff’s bundle of documents, there is a subdivision permit which has terms that must be complied with. At p 7 there is a certificate of compliance issued on 4 October 2001. It follows, therefore, that in January 2001, when the agreement was entered into, the suspensive condition relating to the permit had not been fulfilled, meaning that the agreement had not complied with the law. The argument from the heads of argument is further that the parties entered into the agreement of sale before the conditions of the subdivision permit were met, thereby invalidating the agreement. It was also submitted that the agreement from the very day it was entered into was of no force or effect. [17] On the other hand, Mr Matinenga, for the first defendant, submitted that the very first issue is whether or not the parties contravened the Regional, Town and Country Planning Act. He also submitted that he agrees that s 39 is peremptory. He argued that one looks at s 39 together with s 40. To understand the peremptory nature of s 39, one must start with s 40. Section 40 provides for an application for a permit. The applicant must apply for a permit in s 40 in order that he do what is in s 39. The plaintiff approached the local authority and obtained a permit to satisfy the requirements of s 39. [18] Counsel further argued that there are three juristic acts as set out in para 5.3 of the first defendant’s written submissions. In the X-Trends-A-Home judgment, the agreement in X-Trends-A-Home was not in compliance with s 39 as read with s 40. The permit must be fully complied with in order to have a change of ownership. Paragraph 5.4 of the first defendant’s heads of argument sets out the various para(s) of the permit to be complied with in order for the plaintiff to obtain a certificate of compliance. Having obtained the certificate of compliance, there was nothing to stop the transfer, and this is why we had the transfer in 2005. You have a permit to make the subdivisions and sell them. You then comply with the conditions of the permit for the transfer. The plaintiff fully complied with the legislation. Mr Matinenga also submitted that the argument that there was an illegality is misplaced. It was not seriously made. There is no basis in arguing that there was no agreement between the parties. [19] In his reply, Mr Uriri quoted extensively from p 355 of the X-Trend-A-Home judgment and stated that McNALLY JA went through the legislative history of s 39 and 40. The conclusion is that unless you have a subdivision permit that complies with s 40 you may not have a valid agreement. Section 40 does not simply relate to an application but to compliance with the conditions of the subdivision permit. At the time of the agreement, there was no compliance with the subdivision permit. Once there is no compliance certificate, there is no valid agreement. ANALYSIS OF THE LAW AND THE FACTS [20] The relevant s 39 of the Regional, Town and Country Planning Act [Chapter 29:12] (“the Act”) reads as follows: “39. No subdivision or consolidation without permit (1) Subject to subsection (2), no person shall— (a) subdivide any property; or (b) enter into any agreement— (i) for the change of ownership of any portion of a property; or (ii) … (iii) … (iv) … or (c) consolidate two or more properties into one property; except in accordance with a permit granted in terms of section forty…” [my emphasis] [21] The law is settled that at the conclusion of an agreement of sale, there must exist a permit granted in terms of s 40 of the Act, and that an agreement concluded in the absence of such a permit is illegal and unenforceable at law. This position was restated in Chioza v Siziba SC 4/15 where ziyambi JA (as she then was) stated as follows: “It is common cause that the agreement in casu was for the sale of an unsubdivided portion of a stand and that at the date of conclusion of the agreement, there was, in existence, no permit granted in terms of s 40 of the Act. Therefore, in terms of clear authority emanating from this Court, the agreement was illegal and unenforceable at law. See X-Trend-A-Home (Pvt) Ltd v Hoselaw Investments (Pvt) Ltd 2000(2) ZLR 348(SC) where McNALLY JA at 348F stated as follows: “... s 39 forbids an agreement for the change of ownership of any portion of property except in accordance with a permit granted under s 40 allowing for a subdivision. The agreement under consideration was clearly an agreement for change of ownership of the unsubdivided portion of a stand. It was irrelevant whether the change of ownership was to take place on signing or on an agreed date, or when a suspensive condition was fulfilled. The agreement itself was prohibited.”” [22] In casu, there is no dispute that the permit creating the subdivisions, including the property in question, was granted on 5 December 1997. It is also common cause that the agreement of sale for the stand or property in question was concluded on 19 January 2001. There is no doubt that at the time the agreement of sale was entered into by the plaintiff and the first defendant, there was a subdivision permit granted in terms of s 40 of the Act. As stated in X-Trend-A-Home judgment supra, what s 39 prohibits is the agreement itself. Applying the principles in that case, it is clear that the agreement in this case duly complied with the provisions of s 39 of the Act. The present situation is clearly different from the scenario in the X-Trend-A-Home case, where the parties had entered into agreement in respect of an unsubdivided stand subject to the approval of the subdivision permit in the future. There was no subdivision permit in existence at the time the agreement was entered into. Thus, McNALLY JA at p 355 concluded that: “I have already quoted the section. The relevant words are: “no person shall . . . enter into any agreement for the change of ownership of any portion of a property . . . except in accordance with a permit granted in terms of section forty.” It seems to me to be clear that the legislature has simplified, but not modified, the previous wording. The statute no longer speaks of “a sale” or “an agreement of sale”. It uses the much wider expression “agreement for the change of ownership”. The agreement with which we are concerned is clearly “an agreement for the change of ownership” of the unsubdivided portion of a stand. What else could it be for? Whether the change of ownership is to take place on signing, or later on an agreed date, or when a suspensive condition is fulfilled, is unimportant. It is the agreement itself which is prohibited. The evil which the statute is designed to prevent is clear. Development planning is the function and duty of planning authorities, and it is undesirable that such authorities should have their hands forced by developers who say “but I have already entered into conditional agreements; major developments have taken place; large sums of money have been spent. You can’t possibly now refuse to confirm my unofficial subdivision or development”. [23] The present matter is clearly different. There was a subdivision permit when the contract was concluded, and that rendered the agreement compliant with s 39 and, therefore, valid. The plaintiff’s argument was further that there was no certificate of compliance at the time the agreement was entered into, and therefore, the conditions of the permit had not been complied with. It was argued that the contract was, therefore, void. I do not agree that s 39 requires that there be a certificate of compliance before the agreement itself is entered into. As confirmed in the X-Trend-A-Home case above, the provision covers an agreement for the change of ownership. It is the agreement itself which is prohibited and cannot be entered into without there being a permit issued under s 40. [24] The provisions of s 39 of the Act do not state that a certificate of compliance must exist at the time the agreement itself is concluded. I agree with Mr Matinenga that an agreement of sale and the transfer itself are two different juristic acts or processes. A sale like a donation of immovable property creates a personal right of action in favour of the purchaser, who can compel the seller to pass transfer. See Goto v Tsuro N.O & Ors SC 40/24 at p 13. Section 39 requires that there must be a subdivision permit before the contract is concluded. The juristic act of the transfer itself would only follow once the purchaser has discharged all his obligations, which mainly include payment of the purchase price. A mere agreement of sale does not, therefore, make the purchaser the owner of the property. [25] Further, for the transfer to be effected, the conditions of the permit must be complied with. In this case, the certificate of compliance was issued on 4 October 2001, and the transfer was lawfully registered on 28 February 2005. At the time the transfer was made, there was a certificate of compliance. There is no requirement under s 39 that the certificate of compliance itself must exist at the time the agreement of sale is entered into. The provision only requires, in peremptory language, the existence of a subdivision permit at the time the agreement is concluded. The agreement in casu, therefore, complied with s 39 of the Act as it was entered into when the stand was duly subdivided in terms of a permit issued under s 40. The agreement was, therefore, valid and enforceable at law. I agree with Mr Matinenga that the argument raised by the plaintiff in the face of the existence of the permit granted in terms of s 40 was not seriously made. It was completely misplaced and ill-advised. 2. WHETHER OR NOT THE FIRST DEFENDANT DISCHARGED ALL HER OBLIGATIONS UNDER THE AGREEMENT? SUBMISSIONS MADE ON THE ISSUE [26] Mr Uriri submitted that the second issue is a factual issue which can be resolved on the papers. The question is, did the first defendant make payments? In the affidavits, the submission by the first defendant is that the proof of payment is the acknowledgment in the deed of transfer. A transfer can be undertaken on the basis of a guarantee from a bank. At p 25 of the plaintiff’s bundle, there is an undertaking from a building society that certain funds are available. At p 34, there is a letter from Hove, Lemani & Associates dated 8 January 2004. At p 35, a letter from the plaintiff to the defendant says they have instructed their lawyers to proceed with the transfer. At p 26, in terms of the agreement between the parties, there was an escalation price, and there is an amount of $1,200,000.00 as part of the bond. [27] He further argued that it is common cause that the bond was not honoured after the transfer. The deed cannot be proof of payment when transfer was conditional on payment of the bond. At p 41 there is a schedule with all the payments that the plaintiff acknowledged receipt of, and these are consistent with receipts produced by both parties. On the column titled cheques, there is a bank guarantee of $1,2 million, which was never paid. Muzenda & Maganga were the defendant’s legal practitioners, and she must look to her lawyers for a remedy. The point made is that the monies paid to Muzenda and Maganga were never remitted. The allegation that they were remitted must be established by the person alleging that. See Book v Davidson 1988 (1) ZLR 365 (S). [28] Mr Uriri also submitted that the amount $2,150,000.00 was paid to Ziweni & Company as transfer fees and cannot be part of the purchase price. A simple addition would show that the amount was never paid. The defendant allowed the guarantee to lapse. When the court queried about the payment of $1,200,000.00 made on 1 March 20004 to Ziweni & Company, Mr Uriri insisted that the payment could not have been part of the payments for the purchase price. [29] Per contra, Mr Matinenga submitted that the first defendant discharged all her obligations. The plaintiff knows it. On the plaintiff’s papers, the payment was made. The plaintiff is greedy. From the schedule in the plaintiff’s bundle, the plaintiff said it is owed $1,2 million. This figure has consistently been mentioned by the plaintiff. Yes, a guarantee is as good as cash, but you don’t go for double payment. In October to November 2002, the plaintiff said what was outstanding was $1,200,000.00. In July 2005, when the plaintiff demanded payment, the amount of $1,200,000.00 was claimed. On the plaintiff’s schedule, the payment of $1,200,000.00 made by the first defendant on 1 March 2004 is conspicuously absent. The last payment recognized is a payment made in January 2004. [30] He further submitted that the payment made on 1 March 2004 is not reflected because deliberately so the plaintiff is cheating. At p 341 of the record, on para 5.4, there is an affidavit by the plaintiff who acknowledged that the money was receipted into Ziweni & Company’s business account. Where did it go? What did Ziweni & Company do with the money? The guarantee was allowed to lapse as it no longer served its purpose. When it was honoured, the plaintiff would have received a double payment. Ziweni & Company made a supplementary fee note, which the defendant paid. The plaintiff took advantage of the first defendant. If $1,200,000.00 was owed and then the payment of $1,200,000.00 was not reflected on the plaintiff’s ledger, then the question is what happened to it. The plaintiff cannot be seeking a double payment. [31] In his reply, Mr Uriri maintained that para 5.4 referred by Mr Matinenga cannot be read in isolation but in its context. He argued that one must read from para(s) 5.2 to 5.8 at p 342. The guarantee was allowed to lapse. The $1,200,000.00 guarantee should never have been withdrawn because that amount would have remained owing. ANALYSIS OF THE LAW AND THE FACTS [32] It is a settled principle of the law that for the purchaser to be entitled to possession and transfer of the property, he or she must have performed all his or her contractual obligations. patel J (as he then was) enunciated this position in Blumo Trading (Pvt) Ltd Nelmah Mining Company (Pvt) Ltd & Ors 2011 (1) ZLR 196 (H) when he said: “It is a fundamental premise of every contract that both parties will duly carry out their respective obligations. See Green v Lutz 1966 RLR 633; ESE Financial Services (Pty) Ltd v Cramer 1975 (2) SA 805 (C) at 808-809. As is explained by Christie: Business Law in Zimbabwe at pp. 106 & 119: “There is a presumption that in every bilateral or synallagmatic contract, i.e. one in which each party undertakes obligations towards the other, the common intention is that neither should be entitled to enforce the contract unless he has performed or is ready to perform his own obligations. … …Conversely, a party who has caused the other to commit a breach cannot found a claim on the breach ….” See also Divvyland Investments (Pvt) Ltd v Chiweza SC 138/21 at p 20, where the court held that: “It is a fundamental principle of every contract that both parties will duly carry out their respective obligations. In the event that a party fails to carry out its obligation this will amount to a breach of agreement…” [33] In the context of a sale of an immovable property, the court in River Ranch Ltd v Delta Corporation Ltd HH 1/10 further restated the law as follows: “Where the sale of immovable property is involved, the purchaser’s obligation to pay the purchase price is ordinarily reciprocated by the seller’s obligations to give occupation and effect transfer. See Pasha v Southern Metropolitan Local Council of the Greater Johannesburg Metropolitan Council 2000 (2) SA 455 (WLD) at 466. The parties’ obligations are reciprocal because they arise from what is essentially a bilateral or synallagmatic contract. See Christie: The Law of Contract in South Africa (3rd ed.) at 467-468”. [34] The second issue is basically whether or not the first defendant paid the purchase price in full. The amount payable as the purchase price in terms of the agreement was stated in para 4 of the statement of agreed facts as follows: “The purchase price of the property was $1 395 000.00 made up of:- a) A deposit of $595 000.00 and a balance of b) $800 000. The balance of $800 000, as provided for in clause 8 of the agreement could be secured by obtaining a loan from a financial institution, mortgaging the property as security, or financing the construction on a cash basis by progress payments. In addition, 1st Defendant agreed to pay construction escalations occasioned by inflation.” It was, therefore, accepted by the parties that the total price payable would escalate due to inflation. The same agreement permitted the first defendant to either pay the balance with a mortgage bond or by progress cash payments. The total purchase price as reflected in the deed of transfer and also acknowledged by the parties in their pleadings was the sum of $3,500,000.00. [35] There is no dispute that the deposit of $595,000.00 was paid. The receipts show that the payments towards that deposit were made through Muzenda & Maganga. The only issue relates to the balance of the purchase price factoring in the escalations. What is clear from the plaintiff’s own schedule of payments at p 41 of the plaintiff’s bundle is that the plaintiff indicates the sum of $1,200,000.00 as the balance which the defendant allegedly failed to pay. This is the same amount covered by the bank guarantee from the Zimbabwe Building Society. In the letters dated 23 October 2002 and 11 November 2003 addressed to Ziweni & Company, the said Zimbabwe Building Society confirmed the bank guarantee for the mortgage bond facility to cover the sum of $1,200,000.00. [36] In the said letters from the bank, it is recorded that the transfer of the property would be registered simultaneously with the registration of the mortgage bond. The guarantees were issued through Hove, Lemani & Associates. On 8 January 2004, a new guarantee was further communicated to the conveyancers. In the said letter from Hove, Lemani & Associates, it was again recorded that there would be simultaneous registrations of the bond and the transfer. The said legal practitioners, therefore, concluded in the letter that: “We are ready to lodge and may we know when you shall be in a position to lodge your documents.” In a letter dated 10 January 2004 from the plaintiff to the first defendant, the same issue of the guarantee covering the balance of the purchase price was raised. In the letter, the plaintiff concluded that: “In the event that you fail to renew the guarantee we shall proceed to cancel the agreement of sale.” [37] What is clear from all these correspondences is that the amount alleged by the plaintiff to be outstanding as the balance of the purchase price was $1,200,000.00, which was the amount covered by the bank guarantee. This is the same position emanating from the plaintiff’s letter dated 15 March 2005, giving the defendant thirty days to have that balance paid or they would cancel the agreement and seek a reversal of the transfer. I quote the said letter verbatim: “RE: ZBS GUARANTEE I.F.O OURSELVES REF: AGREEMENT OF SALE – TRANSFER 2926 WESTGATE We refer to the above matter and advise that our lawyers completed the transfers but failed to receive the respective payment in respect of the guarantee. Z.B.S said that you allowed the guarantee to lapse and you refused or neglected to renew the guarantee. You are therefore in default. We are therefore notifying you that should we not receive the outstanding payment within 30 days of this letter we shall proceed to cancel the agreement and seek the assistance of the courts to reverse the transfers.” [my emphasis] [38] Even in the notice of cancellation of the agreement directed by the plaintiff’s legal practitioners, Ziweni & Company, to the first defendant dated 5 July 2005, the following is said: “We have instructions from the Seller aforestated to advise that the Sale Agreement has been effectively cancelled for breach, in that despite incessant demand for payment you have neglected to comply with the Sale Agreement. You misrepresented to the Seller that the balance of the purchase price was payable by way of a guarantee issued by the Zimbabwe Building Society. That guarantee lapsed and the Seller was not paid in consequence. A copy of that guarantee is annexed hereto. Consequently, our client shall by force of litigation seek the cancellation of the title deed on account of such default henceforwith. Our client’s notice of cancellation is predicated upon the provisions of clause 14(b) of the Sale Agreement…” [my emphasis] It is, therefore, beyond any doubt that the plaintiff’s position has always been that the balance that was outstanding was $1,200,000.00 and that is the amount it alleged the first defendant failed to settle, leading to the cancellation of the agreement. The argument by Mr Uriri about the payments made to Muzenda & Maganga as being unaccounted for was clearly inconsistent with the evidence before me. [39] The issue to be resolved is simply whether or not the amount covered by the bank guarantee, being the sum of $1,200.000.00, was paid by the first defendant. This issue is easily resolved from the evidence on record. There is a receipt confirming the payment of the said sum of $1,200,000.00 at p 38 of the first defendant’s bundle of documents. The receipt shows that on 1 March 2004, the first defendant paid $1,200,000.00 to Ziweni & Company. The amount is not accounted for in the schedule by the plaintiff. That this amount was paid cannot be seriously challenged given the clear evidence thereof. Also, at p 431 of the record in para 5.4 of the plaintiff’s opposing affidavit to the application for rescission of default judgment filed by the first defendant, the following is stated: “On her own admission the 1st Respondent paid $1200000 (one million two hundred thousand dollars] to Messrs Ziweni & Company, Legal Practitioners on 1 March 2004 which amount was paid into the business account of that firm of Legal Practitioners.” [40] There is no dispute that Ziweni & Company Legal Practitioners were the plaintiff’s legal practitioners and had also received several other payments on behalf of the plaintiff. There is no issue that the payment was made. It is also clear it was not a payment towards the transfer fees. There is clear evidence that this payment fully discharged what the plaintiff had acknowledged was outstanding on 10 January 2004 in its letter. Once the amount was paid through the plaintiff’s legal practitioners who had such mandate to receive the payment on behalf of the plaintiff, the fact that they decided to receipt the amount into a business account instead of a trust account cannot concern the defendant. [41] Ziweni & Company had a duty to account to the plaintiff, not the first defendant. The law firm acted as the agent of the plaintiff, their principal. If they failed to account for it to the plaintiff or misappropriated that payment, it cannot be said that the first defendant did not discharge her obligations fully. In this court’s judgment rescinding the default judgment handed down on 25 July 2025, at p 5 chatukuta J, correctly made the following remarks: “The applicant made payments to the first respondent’s legal practitioners, Ziweni & Company. It was not her responsibility to check in which of the legal firm’s account the payments were receipted neither should blame be placed on the applicant’s door steps that the payments were not remitted to the first respondent.” I fully associate myself with the above remarks, which reflect the correct conclusion which can be made from the evidence on record. The payment made by the first defendant to Ziweni & Company and acknowledged in the sum of $1,200,000.00 clearly covered the balance outstanding from the bank guarantee on 1 March 2004. [42] I agree with Mr Matinenga that after that payment, it would amount to a double payment for the plaintiff to have sought to be paid the same amount from the bank guarantee. The mortgage bond became unnecessary following that cash payment. This may reasonably explain why the said Ziweni & Company proceeded with the registration of the transfer thereafter without the simultaneous registration of the bond, as had been the position emphasised in the bank guarantee. The same legal practitioners further confirmed in the deed of transfer that the full purchase price of $3,500,000.00 had been paid. This is the context in which the court, in the judgment rescinding the default judgment, had to conclude that: “In any event, it is acknowledged in the deed of transfer in favour of the applicant (which was reversed in case No. HC 2966/05) that the whole purchase price had been paid.” [43] The above conclusion is supported by the evidence placed on record. The acknowledgment in the deed of transfer was not, however, the sole basis for the first defendant’s argument that she had paid contrary to Mr Uriri’s argument. The first defendant’s case did not entirely rely on the said acknowledgment in the deed. It was also backed by the evidence on record, including the receipt issued by Ziweni & Company for the payment of the balance of $1,200,000.00, which could have been paid through a mortgage bond. The amount due was fully paid on 1 March 2004. Clause 8 of the agreement gave her the option of making such cash payments as opposed to paying through the bond. The fact that the sum was receipted by the seller’s legal practitioners into a business account is neither here nor there. She fully discharged her obligation by paying what the plaintiff had acknowledged was due in its letter dated 10 January 2004. Hence, the registration of the transfer to the first defendant without the simultaneous transaction of registering the mortgage bond. [44] In light of the evidence as alluded to above, it is clear that the first defendant fully discharged her obligations in terms of the contract. There was no breach of contract to talk about. The second issue is also resolved in favour of the first defendant. 3. WHETHER OR NOT THE AGREEMENT WAS PROPERLY CANCELLED. SUBMISSIONS MADE ON THE ISSUE [45] On the third issue, Mr Uriri submitted that the notice was served on the domicilium executandi in terms of the agreement. He referred the court to the submissions in the plaintiff’s heads of argument. In the said written submissions, it is argued for the plaintiff that the agreement was properly cancelled. It was further submitted that the letter dated 15 March 2005 notified the defendant of the breach of contract occasioned by her failure to renew the bank guarantee. That the letter was properly served and the caveat subscriptor rule applies against the first defendant. It was further argued that the court must uphold the sanctity of the contract and the principle that it cannot rewrite a contract for the parties. Several authorities were cited on these principles, including inter alia the case of Book v Davidson supra and Magodora v Care International 2014 (1) ZLR 397 (S). [46] On the other hand, Mr Matinenga submitted that he adopted the remarks by CHATUKUTA J that at the time the property is transferred, that is the end of the contract. There is no reason why one serves papers at an address set out in a contract which had been terminated. The plaintiff was aware that the first defendant had been staying at the property. The reason to serve papers at a Warren Park address was to cheat. Two weeks later, they were already selling. The property was sold and transferred to the third parties. One can conclude that this was a sham transaction. ANALYSIS OF THE LAW AND THE FACTS [47] The law on the remedy of cancellation is settled that it is available to the innocent party in the event there is a breach of contract committed by the other party. In Zimbabwe Electricity Transmission & Distribution Company v Tecpal Creative International (Pvt) Ltd HH 34/11 GOWORA J (as she then was) put the position aptly as follows: “A contract may contain a forfeiture clause expressly stating that if one of the parties fails to perform a particular obligation by a certain date or period the other party would be entitled to cancel the contract. However, the contract may not contain a forfeiture clause, in which event it becomes pertinent to determine whether or not the breach is of such a nature as to entitle the other party to the contract to cancel the contract or whether some other relief other than cancellation is the appropriate remedy. It is generally accepted that the serious breach of a ‘sufficiently’ important term of the contract will justify cancellation at the instance of the wronged party without the need to prove an intention to repudiate the contract on the part of the defaulter. It is therefore trite that the breach of a material term of the contract, or a breach that goes to the root of the contract, or a fundamental breach, or breach of a vital term of the contract justifies cancellation. In Oatorian Properties (Pty) Ltd v Maroun 1973 (3) SA 799 POTGIETER JA enunciated the principle justifying cancellation based on breach in the following terms: “According to the well-known principles there enunciated rescission of a contract is only permissible if a breach occurred of a term which goes to the root of the contract and the materiality of the breach is according to those authorities also a relevant factor in the determination of whether rescission should be ordered or not (c.f. Spies v Lombard 1950 (3) SA 469 (A.D) at p 488.”” [48] Given my finding above that the first defendant fully discharged her obligations in terms of the contract by paying what was due, it follows that the purported cancellation of the contract was unlawful and, consequently, null and void. There was no factual or legal basis for the cancellation. There was no breach of contract, and the remedy of cancellation was accordingly not available to the plaintiff. [49] In any case, on the issue of service at the Warren Park address, the law is clear that once the contract is properly performed, it is discharged. There would be no reason to resort to the terms of such a contract to seek to reverse the transfer, which was perfectly and validly registered. I fully associate myself with CHATUKUTA J’s remarks in the judgment in the application for rescission where it was stated at p 4 as follows: “A contract subsists up to the time of transfer. Thereafter the provisions of the agreement establishing the relationship between the parties cease to apply to the applicant. The provision relating to the domicilium citandi equally cease to bind the parties … This is best illustrated by R. H. Christie in The Law of Contract in South Africa, 3rd ed where at page 447 he says: “It follows that proper performance by one party will discharge the contract if he is the only party upon whom it casts obligations, and proper performance by all the parties will discharge any other contract. Once discharged, the contract is no longer enforceable and passes into history.” Also apparent from the application is the fact that the 1st respondent was aware that the applicant no longer resided in Warren Park but had taken occupation of the property…” [50] In casu, para 8 of the statement of agreed facts records that the first defendant took occupation of the property following the agreement in early 2001. There was no reason to serve the notice of cancellation at the Warren Park address. The principles of sanctity of contracts and the caveat subscriptor rule argued by the plaintiff no longer apply as the contract had been discharged by proper performance by the parties. In any event, the first defendant having properly performed and discharged her contractual obligations, the transfer of the property into her name was proper and lawful. It should stand. The purported cancellation was unlawful, and the title deed registered in favour of the third and fourth defendants ought to be cancelled and the first defendant’s title deed restored. 4. WHETHER OR NOT THE DISPOSAL OF THE PROPERTY TO THIRD PARTIES WAS ABOVE BOARD. [51] This issue has already been resolved by my finding that the cancellation of the agreement of sale was unlawful and that the transfer of the property to the first defendant was valid. It follows that the subsequent sale of the property by the plaintiff to the third and fourth defendants was null and void. It is trite that nothing can flow from a nullity. An invalid act is void for all times, and it does not matter when and by whom the issue of its validity is raised; nothing can depend on it. In MacFoy v United Africa Co Ltd [1961] 3 All ER 1169 at 1172, LORD DENNING was very emphatic that: “If an act is void, then, it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of court for it to be set aside. It is automatically null and void without more ado, although it is sometimes more convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.” [52] While the circumstances of the sale of the property to the third and fourth defendants raise serious questions including that the sale was hurriedly concluded in just less than two weeks after the default judgment was entered on 17 August 2005, the fact that the first defendant had discharged her obligations fully meant that there was no valid sale in the first place. The plaintiff could also not give any better title than he had. The nemo dat quod non habet principle would also apply. It is settled that where the person is not the owner and possesses no mandate to do so, purports to sell or transfer the property such sale or transfer is a nullity. See Moyo v Nyamukonda & Anor HB 41/18. [53] In any case, the third and fourth defendants did not defend the first defendant’s claim in reconvention despite this court allowing them the opportunity to do so on 21 October 2024. The transfer to the first defendant remained valid, and the purported transfer of the same property to the third and fourth defendants cannot stand. For the above reasons, the court finds that the main claim by the plaintiff cannot succeed as it is the first defendant’s counterclaim that has merit. The first defendant’s claim in reconvention ought to be granted. 5. WHICH PARTY SHOULD PAY THE COSTS OF SUIT AND AT WHAT SCALE? SUBMISSIONS MADE ON THE ISSUE [54] It was submitted for the plaintiff that costs should follow the cause. That the award of costs remains at the discretion of the court. The plaintiff sought costs on a legal practitioner and client scale. The basis was that the first defendant, knowing well she failed to meet her obligations in terms of the agreement of sale, continued to defend the matter even when there was no merit. Mr Uriri added that a party that does not pay and surreptitiously withdraws the guarantee and shifts the story that the deed of transfer is the proof of payment must be penalised with an order for costs on a punitive scale. He also argued that there was no basis for the claim for costs de bonis propriis claimed by the first defendant. [55] On the other hand, Mr Matinenga submitted that costs on a legal practitioner and client scale de bonis propriis are justified. Lawyers act on instructions. When analysing those instructions, they must inform their client what he cannot possibly stand by. From 2005, this case has been on simply because the plaintiff wanted to double dip, and he cannot be allowed to do so. It was also argued in the heads of argument submitted for the first defendant that there was no factual or legal basis for the plaintiff’s conduct. It can only be attributed to greed. ANALYSIS [56] The decision as to whether costs should be awarded to or against a party is made in light of the outcome of a matter or in special circumstances, such as the conduct of a party in the course of the litigation. Generally, the principle is that costs follow the cause. See Ndewere v President of Zimbabwe and Ors SC 57/22 at p 23, para 66; Mbatha v Ncube and Anor SC 109/22 at p 13, para 31, and Marange Resources (Pvt) Ltd & Anor v Muchengwa SC 155/21 at p 14. [57] It is also settled law that the granting of costs is at the discretion of a court. A court must exercise its discretion judiciously in accordance with settled principles regulating costs in legal proceedings. In this case, there is no reason for me to depart from the general rule that costs shall follow the cause. The successful party, who is the first defendant in casu, is entitled to her costs. [58] The further issue that arises is whether or not the costs should be awarded on the higher scale as claimed or on the ordinary scale. It is settled that costs on a legal practitioner and client scale are awarded only in exceptional circumstances. In Nel v Waterberg Landbouwers Ko-operative Vereeninging 1946 AD 597 at 607 TINDAL JA stated: “The true explanation of awards of attorney and client costs not authorized by statute seems to be that, by reason of special considerations arising either from the circumstances which give rise to the action or from the conduct of the losing party, the courts in case considers it just, by means of such order, to ensure more effective than it can do by means of judgment for party and party costs that the successful party will not be out of pocket in respect of the expenses caused to him by the litigation .” Further, A. C. Cilliers in The Law of Costs 2nd ed at p 66, classified the grounds upon which the court would be justified in awarding the costs as between attorney and client to include inter alia; (a) vexatious and frivolous proceedings; (b) dishonesty or fraud of litigant; (c) reckless or malicious proceedings and (d) the litigant’s deplorable attitude towards the court. [59] The circumstances when costs de bonis propriis are awarded were enunciated in South Africa Liquor Traders Association & Ors v Chairperson, Gauteng Liquor Board & Ors 2009 (1) SA 565 (CC) at para 54, where the court had this to say: “An order of costs de bonis propriis is made against attorneys where a court is satisfied that there has been negligence in a serious degree which warrants an order of costs being made as a mark of the court’s displeasure. An attorney is an officer of the court and owes a court an appropriate level of professionalism and courtesy.” Courts do not make an order for costs de bonis propriis against legal practitioners lightly. They are awarded only in serious cases of misconduct, negligence or dishonesty. See also Masama v Borehole Drilling (Pvt) Ltd 1993 (1) ZLR 116 (S) at 120G; O-marshah v Kasara 1996(1) ZLR 584(H) at 591 F and Matamisa v Mutare City Council (Attorney-General intervening) 1998 (2) ZLR 439; [60] In the circumstances of this case, I do not consider costs de bonis propriis to be appropriate. This is not a case where it can be said there is negligence by the counsel of a severe degree. There is also no serious misconduct or dishonesty by the plaintiff’s legal practitioners for them to be mulcted with such costs. In his submissions on this issue, Mr Matinenga mainly attacked the conduct of the plaintiff as being motivated by nothing else but ravenousness. While he also submitted that lawyers must not take up cases they know may not stand, that alone is insufficient to constitute an exceptional circumstance for the court to make an award for costs against the lawyers themselves in this case. [61] I, however, find the conduct of the plaintiff to have been unreasonable. Since 2005, it has pursued a path clearly not supported by the evidence available. The plaintiff has stubbornly refused to give the first defendant peaceful and vacant possession she deserves, having fully discharged her obligations in terms of the contract. [62] There was no factual or legal basis for any cancellation of the contract. The plaintiff’s claim was clearly an abuse of the court process. To seek to benefit twice from the same transaction after evidence showed that the balance of $1,200,000.00 was paid through its legal practitioners amounts to unreasonable behaviour worthy of an award of punitive costs. The plaintiff’s legal practitioners, Ziweni & Company, acknowledged receipt of the said sum on 1 March 2004. If the amount was ever not accounted for or remitted to it, that has nothing to do with the first defendant. It could only have demanded an account from its agent, Ziweni & Company. The first defendant has been put out of pocket unnecessarily in an unwarranted litigation instigated by the plaintiff. The matter had dragged on for close to two decades since the court application was launched in 2005. That notice of motion by the plaintiff was completely groundless and unnecessary. It would be proper, just and fair in the circumstances that the costs of suit be awarded to the first defendant on a legal practitioner and client scale. DISPOSITION [63] In the premises, the main claim by the plaintiff cannot succeed. It has no merit. The first defendant properly and fully discharged her contractual obligations, and the purported cancellation was a nullity. The transfer to the first defendant was above board. The purported agreement of sale between the plaintiff and the third and fourth defendants and the transfer thereof is a nullity. The deed of transfer registered in their favour ought to be cancelled and the first defendant’s title revived as it was properly and lawfully registered. There was no legal reason for its reversal in the first place. Accordingly, the first defendant’s claim in reconvention ought to be granted. [63] In the result, it is ordered as follows: 1. The plaintiff’s claim is dismissed. 2. The first defendant’s claim in reconvention is granted. 3. Title Deed No. 10187/2005 registered in the names of Brian Christopher Mangwende and Bevline Angeline Chikamhi, the third and fourth defendants respectively, in respect of Stand 2926 Bluffhill Township of Stand 1120 Bluffhill Township measuring 942 square metres is cancelled and the second defendant is directed to reinstate Title Deed No. 1875/2005 in the name of the first defendant, Grace Chiwoniso Rupere. 4. The plaintiff shall pay the first defendant’s costs of suit on a legal practitioner and client scale. DEMBURE J: …………………………………………… Maruwa Machanzi Attorneys, plaintiff’s legal practitioners Musunga & Associates, first defendant’s legal practitioners 9 HH 256-25 R-HCH2966/05 9 HH 256-25 R-HCH2966/05 BURDOCK INVESTMENTS (PRIVATE) LIMITED versus GRACE CHIWONISO RUPERE (1) and REGISTRAR OF DEEDS (2) and BRIAN CHRISTOPHER MANGWENDE (3) and BEVLINE ANGELINE CHIKAMHI (4) HIGH COURT OF ZIMBABWE DEMBURE J HARARE, 24 March & 11 April 2025 Stated case L Uriri with him B M Machanzi, for the plaintiff E T Matinenga for the 1st defendant No appearance for the 2nd, 3rd & 4th defendants. DEMBURE J: INTRODUCTION [1] This is a stated case filed in terms of rule 52 of the High Court Rules, 2021. The matter commenced on 6 July 2005 as a court application. The application was filed by Burdock Investments (Private) Limited, the plaintiff herein, against the first and second respondents, Grace Chiwoniso Rupere and the Registrar of Deeds, respectively. The third and fourth defendants were later joined to the proceedings. The first defendant subsequently opposed the application following her successful application for rescission of a default judgment entered in favour of the applicant. On 18 May 2017, the court, before Foroma J, referred the matter to trial on the papers filed with the court application and founding affidavit standing as summons and declaration, respectively and the opposing affidavit as the first defendant’s plea. [2] Before the commencement of the trial, this court, with the consent of the plaintiff, granted the first defendant leave to amend its papers by filing a claim in reconvention. The claim in reconvention was only contested by the plaintiff. The third and fourth defendants were all barred in the main action. They also did not contest the first defendant’s claim in reconvention despite their counsel, Mr Manyonga, being granted leave to file their plea on 21 October 2024. On 24 March 2025, the court heard oral arguments from the parties’ legal practitioners on the matter following their written submissions on the issues arising from the parties’ statement of agreed facts. FACTUAL BACKGROUND [3] On 10 February 2025, the parties filed a statement of agreed facts and turned the civil trial into a stated or special case. In terms of the statement of agreed facts, the following facts are not in dispute: [4] That on 5 December 1997, the plaintiff, a land developer, obtained a Subdivision Permit No. SD/404, which created several residential stands, including the immovable property subject to these proceedings, Stand Number 2926 Bluffhill Township of Stand 1120 Bluffhill Township measuring 942 square metres (“the property”). A copy of the Subdivision Permit is part of the plaintiff’s bundle of documents. [5] On 4 December 2000, the plaintiff and first defendant entered into an agreement of sale in terms of which the plaintiff sold to the said defendant, Stand 2932 Bluffhill Township of Stand 1120 Bluffhill. This initial agreement was mutually cancelled by the parties. [6] On 19 January 2001, the parties subsequently entered into another agreement of sale in terms of which the first defendant purchased the property subject to these proceedings from the plaintiff on the terms and conditions as are contained in the agreement of sale executed by the parties on the said date (“the agreement”). [7] In terms of the agreement, the purchase price of the property was $1,395,000.00, made up of a deposit of $595,000.00 and a balance of $800,000.00. As stated in clause 8 of the agreement, the balance of $800,000.00 could be secured by obtaining a loan from a financial institution, mortgaging the property as security, or financing the construction on a cash basis by progress payments. [8] It was further agreed that the first defendant would pay construction escalations occasioned by inflation. On the other hand, the plaintiff was obliged to deliver to the defendant a completely built principal dwelling on the property. At the time of concluding the sale, there was already built on the property a shell house, although fittings and fixtures were yet to be affected thereon. Due to the quality of materials demanded by the first defendant, she bought finishing materials valued at approximately $9,847,178.00 to complete the shell house. The plaintiff contended that the amount spent on the materials had been inflated, though admitting that certain materials were indeed bought. [9] It is also common cause that the first defendant did not pay the purchase price through the bank guarantee, which lapsed before transfer was effected. It was further recorded that the parties, as common to the purchase and sale of immovable properties, contemplated that the first defendant would seek and obtain assistance from a financial institution to finance the purchase. The first defendant indeed approached a financial institution in this regard, as evidenced by the letters from Zimbabwe Building Society dated 23 October 2002 and 11 November 2003. [10] The payments were made to meet the costs of the purchase price (inclusive of the deposit), escalation fees, local authority rates, building materials and transfer fees. The payments were made initially to Muzenda & Maganga, then to the plaintiff directly and to Ziweni & Company. The amounts were as follows: Muzenda & Maganga - $1,140,000.00, the plaintiff (directly) - $266,000.00 and Ziweni & Company - $2,138,000.00. In addition, $2,150,000.00 was paid as transfer fees to Ziweni & Company, the plaintiff’s legal practitioners and conveyancers. Reference was made to Annexure “D” – a schedule extracted from the first defendant’s application for rescission of default judgment in Case No. HC3843/06. [11] The plaintiff contended that the payments set out in the schedule were not all received by it, nor were they fully accounted to it. The first defendant took occupation of the property before transfer was effected in her favour in early 2001. On 28 February 2005, the property was registered in her name in the Deeds Registry office. [12] After the registration of the property in the first defendant's name, the plaintiff caused a letter of demand to be addressed to the first defendant at her Warren Park address, asserting that the property had not been fully paid for. Roughly two months later, the plaintiff cancelled the agreement and had the transfer in the first defendant's name set aside in default of her appearance. The court processes leading to the default judgment were served at the first defendant's Warren Park address (such service is disputed by the first defendant). The court handed down the default judgment on 17 August 2005. [13] On 1 September 2005, the plaintiff sold the property to the third and fourth defendants. On 5 December 2005, transfer was passed to them, leading to the attempted eviction of the first defendant from the property. The eviction was stayed by an order of this court handed down by MUSAKWA J. On 25 July 2007, the default judgment in favour of the plaintiff was set aside by Chatukuta J. The first defendant has been in occupation of the property since the attempted eviction in June 2006. [14] The parties identified the issues for determination as follows: “(a) Whether or not the parties contravened the Regional, Town and Country Planning Act in concluding the sale in the absence of a certificate of compliance. (b) Whether the 1st Defendant discharged all her obligations under the agreement. (c) Whether or not the agreement was properly cancelled. (d) Whether or not the disposal of the property to third parties was above board. (e) Which party to pay costs of suit and at what scale.” ISSUES FOR DETERMINATION 1. WHETHER OR NOT THE PARTIES CONTRAVENED THE REGIONAL, TOWN AND COUNTRY PLANNING ACT [CHAPTER 29:12] IN CONCLUDING THE SALE IN THE ABSENCE OF A CERTIFICATE OF COMPLIANCE? SUBMISSIONS MADE ON THE ISSUE [15] Mr Uriri, counsel for the plaintiff, submitted that s 39 of the Act is peremptory in nature and proscribes an agreement for the change of ownership of any property except in accordance with a permit issued under s 40. The judgment in X-Trend-A-Home (Pvt) Ltd v Hoselaw Investments (Pvt) Ltd 2000 (2) ZLR 348 (SC) is instructive. The argument in X-Trend-A-Home was that an agreement could be entered into with a suspensive condition that the approval of the subdivision can be done later. The argument was rejected as the court held that what is prohibited is the agreement itself. [16] It was further submitted that at p 4 of the plaintiff’s bundle of documents, there is a subdivision permit which has terms that must be complied with. At p 7 there is a certificate of compliance issued on 4 October 2001. It follows, therefore, that in January 2001, when the agreement was entered into, the suspensive condition relating to the permit had not been fulfilled, meaning that the agreement had not complied with the law. The argument from the heads of argument is further that the parties entered into the agreement of sale before the conditions of the subdivision permit were met, thereby invalidating the agreement. It was also submitted that the agreement from the very day it was entered into was of no force or effect. [17] On the other hand, Mr Matinenga, for the first defendant, submitted that the very first issue is whether or not the parties contravened the Regional, Town and Country Planning Act. He also submitted that he agrees that s 39 is peremptory. He argued that one looks at s 39 together with s 40. To understand the peremptory nature of s 39, one must start with s 40. Section 40 provides for an application for a permit. The applicant must apply for a permit in s 40 in order that he do what is in s 39. The plaintiff approached the local authority and obtained a permit to satisfy the requirements of s 39. [18] Counsel further argued that there are three juristic acts as set out in para 5.3 of the first defendant’s written submissions. In the X-Trends-A-Home judgment, the agreement in X-Trends-A-Home was not in compliance with s 39 as read with s 40. The permit must be fully complied with in order to have a change of ownership. Paragraph 5.4 of the first defendant’s heads of argument sets out the various para(s) of the permit to be complied with in order for the plaintiff to obtain a certificate of compliance. Having obtained the certificate of compliance, there was nothing to stop the transfer, and this is why we had the transfer in 2005. You have a permit to make the subdivisions and sell them. You then comply with the conditions of the permit for the transfer. The plaintiff fully complied with the legislation. Mr Matinenga also submitted that the argument that there was an illegality is misplaced. It was not seriously made. There is no basis in arguing that there was no agreement between the parties. [19] In his reply, Mr Uriri quoted extensively from p 355 of the X-Trend-A-Home judgment and stated that McNALLY JA went through the legislative history of s 39 and 40. The conclusion is that unless you have a subdivision permit that complies with s 40 you may not have a valid agreement. Section 40 does not simply relate to an application but to compliance with the conditions of the subdivision permit. At the time of the agreement, there was no compliance with the subdivision permit. Once there is no compliance certificate, there is no valid agreement. ANALYSIS OF THE LAW AND THE FACTS [20] The relevant s 39 of the Regional, Town and Country Planning Act [Chapter 29:12] (“the Act”) reads as follows: “39. No subdivision or consolidation without permit (1) Subject to subsection (2), no person shall— (a) subdivide any property; or (b) enter into any agreement— (i) for the change of ownership of any portion of a property; or (ii) … (iii) … (iv) … or (c) consolidate two or more properties into one property; except in accordance with a permit granted in terms of section forty…” [my emphasis] [21] The law is settled that at the conclusion of an agreement of sale, there must exist a permit granted in terms of s 40 of the Act, and that an agreement concluded in the absence of such a permit is illegal and unenforceable at law. This position was restated in Chioza v Siziba SC 4/15 where ziyambi JA (as she then was) stated as follows: “It is common cause that the agreement in casu was for the sale of an unsubdivided portion of a stand and that at the date of conclusion of the agreement, there was, in existence, no permit granted in terms of s 40 of the Act. Therefore, in terms of clear authority emanating from this Court, the agreement was illegal and unenforceable at law. See X-Trend-A-Home (Pvt) Ltd v Hoselaw Investments (Pvt) Ltd 2000(2) ZLR 348(SC) where McNALLY JA at 348F stated as follows: “... s 39 forbids an agreement for the change of ownership of any portion of property except in accordance with a permit granted under s 40 allowing for a subdivision. The agreement under consideration was clearly an agreement for change of ownership of the unsubdivided portion of a stand. It was irrelevant whether the change of ownership was to take place on signing or on an agreed date, or when a suspensive condition was fulfilled. The agreement itself was prohibited.”” [22] In casu, there is no dispute that the permit creating the subdivisions, including the property in question, was granted on 5 December 1997. It is also common cause that the agreement of sale for the stand or property in question was concluded on 19 January 2001. There is no doubt that at the time the agreement of sale was entered into by the plaintiff and the first defendant, there was a subdivision permit granted in terms of s 40 of the Act. As stated in X-Trend-A-Home judgment supra, what s 39 prohibits is the agreement itself. Applying the principles in that case, it is clear that the agreement in this case duly complied with the provisions of s 39 of the Act. The present situation is clearly different from the scenario in the X-Trend-A-Home case, where the parties had entered into agreement in respect of an unsubdivided stand subject to the approval of the subdivision permit in the future. There was no subdivision permit in existence at the time the agreement was entered into. Thus, McNALLY JA at p 355 concluded that: “I have already quoted the section. The relevant words are: “no person shall . . . enter into any agreement for the change of ownership of any portion of a property . . . except in accordance with a permit granted in terms of section forty.” It seems to me to be clear that the legislature has simplified, but not modified, the previous wording. The statute no longer speaks of “a sale” or “an agreement of sale”. It uses the much wider expression “agreement for the change of ownership”. The agreement with which we are concerned is clearly “an agreement for the change of ownership” of the unsubdivided portion of a stand. What else could it be for? Whether the change of ownership is to take place on signing, or later on an agreed date, or when a suspensive condition is fulfilled, is unimportant. It is the agreement itself which is prohibited. The evil which the statute is designed to prevent is clear. Development planning is the function and duty of planning authorities, and it is undesirable that such authorities should have their hands forced by developers who say “but I have already entered into conditional agreements; major developments have taken place; large sums of money have been spent. You can’t possibly now refuse to confirm my unofficial subdivision or development”. [23] The present matter is clearly different. There was a subdivision permit when the contract was concluded, and that rendered the agreement compliant with s 39 and, therefore, valid. The plaintiff’s argument was further that there was no certificate of compliance at the time the agreement was entered into, and therefore, the conditions of the permit had not been complied with. It was argued that the contract was, therefore, void. I do not agree that s 39 requires that there be a certificate of compliance before the agreement itself is entered into. As confirmed in the X-Trend-A-Home case above, the provision covers an agreement for the change of ownership. It is the agreement itself which is prohibited and cannot be entered into without there being a permit issued under s 40. [24] The provisions of s 39 of the Act do not state that a certificate of compliance must exist at the time the agreement itself is concluded. I agree with Mr Matinenga that an agreement of sale and the transfer itself are two different juristic acts or processes. A sale like a donation of immovable property creates a personal right of action in favour of the purchaser, who can compel the seller to pass transfer. See Goto v Tsuro N.O & Ors SC 40/24 at p 13. Section 39 requires that there must be a subdivision permit before the contract is concluded. The juristic act of the transfer itself would only follow once the purchaser has discharged all his obligations, which mainly include payment of the purchase price. A mere agreement of sale does not, therefore, make the purchaser the owner of the property. [25] Further, for the transfer to be effected, the conditions of the permit must be complied with. In this case, the certificate of compliance was issued on 4 October 2001, and the transfer was lawfully registered on 28 February 2005. At the time the transfer was made, there was a certificate of compliance. There is no requirement under s 39 that the certificate of compliance itself must exist at the time the agreement of sale is entered into. The provision only requires, in peremptory language, the existence of a subdivision permit at the time the agreement is concluded. The agreement in casu, therefore, complied with s 39 of the Act as it was entered into when the stand was duly subdivided in terms of a permit issued under s 40. The agreement was, therefore, valid and enforceable at law. I agree with Mr Matinenga that the argument raised by the plaintiff in the face of the existence of the permit granted in terms of s 40 was not seriously made. It was completely misplaced and ill-advised. 2. WHETHER OR NOT THE FIRST DEFENDANT DISCHARGED ALL HER OBLIGATIONS UNDER THE AGREEMENT? SUBMISSIONS MADE ON THE ISSUE [26] Mr Uriri submitted that the second issue is a factual issue which can be resolved on the papers. The question is, did the first defendant make payments? In the affidavits, the submission by the first defendant is that the proof of payment is the acknowledgment in the deed of transfer. A transfer can be undertaken on the basis of a guarantee from a bank. At p 25 of the plaintiff’s bundle, there is an undertaking from a building society that certain funds are available. At p 34, there is a letter from Hove, Lemani & Associates dated 8 January 2004. At p 35, a letter from the plaintiff to the defendant says they have instructed their lawyers to proceed with the transfer. At p 26, in terms of the agreement between the parties, there was an escalation price, and there is an amount of $1,200,000.00 as part of the bond. [27] He further argued that it is common cause that the bond was not honoured after the transfer. The deed cannot be proof of payment when transfer was conditional on payment of the bond. At p 41 there is a schedule with all the payments that the plaintiff acknowledged receipt of, and these are consistent with receipts produced by both parties. On the column titled cheques, there is a bank guarantee of $1,2 million, which was never paid. Muzenda & Maganga were the defendant’s legal practitioners, and she must look to her lawyers for a remedy. The point made is that the monies paid to Muzenda and Maganga were never remitted. The allegation that they were remitted must be established by the person alleging that. See Book v Davidson 1988 (1) ZLR 365 (S). [28] Mr Uriri also submitted that the amount $2,150,000.00 was paid to Ziweni & Company as transfer fees and cannot be part of the purchase price. A simple addition would show that the amount was never paid. The defendant allowed the guarantee to lapse. When the court queried about the payment of $1,200,000.00 made on 1 March 20004 to Ziweni & Company, Mr Uriri insisted that the payment could not have been part of the payments for the purchase price. [29] Per contra, Mr Matinenga submitted that the first defendant discharged all her obligations. The plaintiff knows it. On the plaintiff’s papers, the payment was made. The plaintiff is greedy. From the schedule in the plaintiff’s bundle, the plaintiff said it is owed $1,2 million. This figure has consistently been mentioned by the plaintiff. Yes, a guarantee is as good as cash, but you don’t go for double payment. In October to November 2002, the plaintiff said what was outstanding was $1,200,000.00. In July 2005, when the plaintiff demanded payment, the amount of $1,200,000.00 was claimed. On the plaintiff’s schedule, the payment of $1,200,000.00 made by the first defendant on 1 March 2004 is conspicuously absent. The last payment recognized is a payment made in January 2004. [30] He further submitted that the payment made on 1 March 2004 is not reflected because deliberately so the plaintiff is cheating. At p 341 of the record, on para 5.4, there is an affidavit by the plaintiff who acknowledged that the money was receipted into Ziweni & Company’s business account. Where did it go? What did Ziweni & Company do with the money? The guarantee was allowed to lapse as it no longer served its purpose. When it was honoured, the plaintiff would have received a double payment. Ziweni & Company made a supplementary fee note, which the defendant paid. The plaintiff took advantage of the first defendant. If $1,200,000.00 was owed and then the payment of $1,200,000.00 was not reflected on the plaintiff’s ledger, then the question is what happened to it. The plaintiff cannot be seeking a double payment. [31] In his reply, Mr Uriri maintained that para 5.4 referred by Mr Matinenga cannot be read in isolation but in its context. He argued that one must read from para(s) 5.2 to 5.8 at p 342. The guarantee was allowed to lapse. The $1,200,000.00 guarantee should never have been withdrawn because that amount would have remained owing. ANALYSIS OF THE LAW AND THE FACTS [32] It is a settled principle of the law that for the purchaser to be entitled to possession and transfer of the property, he or she must have performed all his or her contractual obligations. patel J (as he then was) enunciated this position in Blumo Trading (Pvt) Ltd Nelmah Mining Company (Pvt) Ltd & Ors 2011 (1) ZLR 196 (H) when he said: “It is a fundamental premise of every contract that both parties will duly carry out their respective obligations. See Green v Lutz 1966 RLR 633; ESE Financial Services (Pty) Ltd v Cramer 1975 (2) SA 805 (C) at 808-809. As is explained by Christie: Business Law in Zimbabwe at pp. 106 & 119: “There is a presumption that in every bilateral or synallagmatic contract, i.e. one in which each party undertakes obligations towards the other, the common intention is that neither should be entitled to enforce the contract unless he has performed or is ready to perform his own obligations. … …Conversely, a party who has caused the other to commit a breach cannot found a claim on the breach ….” See also Divvyland Investments (Pvt) Ltd v Chiweza SC 138/21 at p 20, where the court held that: “It is a fundamental principle of every contract that both parties will duly carry out their respective obligations. In the event that a party fails to carry out its obligation this will amount to a breach of agreement…” [33] In the context of a sale of an immovable property, the court in River Ranch Ltd v Delta Corporation Ltd HH 1/10 further restated the law as follows: “Where the sale of immovable property is involved, the purchaser’s obligation to pay the purchase price is ordinarily reciprocated by the seller’s obligations to give occupation and effect transfer. See Pasha v Southern Metropolitan Local Council of the Greater Johannesburg Metropolitan Council 2000 (2) SA 455 (WLD) at 466. The parties’ obligations are reciprocal because they arise from what is essentially a bilateral or synallagmatic contract. See Christie: The Law of Contract in South Africa (3rd ed.) at 467-468”. [34] The second issue is basically whether or not the first defendant paid the purchase price in full. The amount payable as the purchase price in terms of the agreement was stated in para 4 of the statement of agreed facts as follows: “The purchase price of the property was $1 395 000.00 made up of:- a) A deposit of $595 000.00 and a balance of b) $800 000. The balance of $800 000, as provided for in clause 8 of the agreement could be secured by obtaining a loan from a financial institution, mortgaging the property as security, or financing the construction on a cash basis by progress payments. In addition, 1st Defendant agreed to pay construction escalations occasioned by inflation.” It was, therefore, accepted by the parties that the total price payable would escalate due to inflation. The same agreement permitted the first defendant to either pay the balance with a mortgage bond or by progress cash payments. The total purchase price as reflected in the deed of transfer and also acknowledged by the parties in their pleadings was the sum of $3,500,000.00. [35] There is no dispute that the deposit of $595,000.00 was paid. The receipts show that the payments towards that deposit were made through Muzenda & Maganga. The only issue relates to the balance of the purchase price factoring in the escalations. What is clear from the plaintiff’s own schedule of payments at p 41 of the plaintiff’s bundle is that the plaintiff indicates the sum of $1,200,000.00 as the balance which the defendant allegedly failed to pay. This is the same amount covered by the bank guarantee from the Zimbabwe Building Society. In the letters dated 23 October 2002 and 11 November 2003 addressed to Ziweni & Company, the said Zimbabwe Building Society confirmed the bank guarantee for the mortgage bond facility to cover the sum of $1,200,000.00. [36] In the said letters from the bank, it is recorded that the transfer of the property would be registered simultaneously with the registration of the mortgage bond. The guarantees were issued through Hove, Lemani & Associates. On 8 January 2004, a new guarantee was further communicated to the conveyancers. In the said letter from Hove, Lemani & Associates, it was again recorded that there would be simultaneous registrations of the bond and the transfer. The said legal practitioners, therefore, concluded in the letter that: “We are ready to lodge and may we know when you shall be in a position to lodge your documents.” In a letter dated 10 January 2004 from the plaintiff to the first defendant, the same issue of the guarantee covering the balance of the purchase price was raised. In the letter, the plaintiff concluded that: “In the event that you fail to renew the guarantee we shall proceed to cancel the agreement of sale.” [37] What is clear from all these correspondences is that the amount alleged by the plaintiff to be outstanding as the balance of the purchase price was $1,200,000.00, which was the amount covered by the bank guarantee. This is the same position emanating from the plaintiff’s letter dated 15 March 2005, giving the defendant thirty days to have that balance paid or they would cancel the agreement and seek a reversal of the transfer. I quote the said letter verbatim: “RE: ZBS GUARANTEE I.F.O OURSELVES REF: AGREEMENT OF SALE – TRANSFER 2926 WESTGATE We refer to the above matter and advise that our lawyers completed the transfers but failed to receive the respective payment in respect of the guarantee. Z.B.S said that you allowed the guarantee to lapse and you refused or neglected to renew the guarantee. You are therefore in default. We are therefore notifying you that should we not receive the outstanding payment within 30 days of this letter we shall proceed to cancel the agreement and seek the assistance of the courts to reverse the transfers.” [my emphasis] [38] Even in the notice of cancellation of the agreement directed by the plaintiff’s legal practitioners, Ziweni & Company, to the first defendant dated 5 July 2005, the following is said: “We have instructions from the Seller aforestated to advise that the Sale Agreement has been effectively cancelled for breach, in that despite incessant demand for payment you have neglected to comply with the Sale Agreement. You misrepresented to the Seller that the balance of the purchase price was payable by way of a guarantee issued by the Zimbabwe Building Society. That guarantee lapsed and the Seller was not paid in consequence. A copy of that guarantee is annexed hereto. Consequently, our client shall by force of litigation seek the cancellation of the title deed on account of such default henceforwith. Our client’s notice of cancellation is predicated upon the provisions of clause 14(b) of the Sale Agreement…” [my emphasis] It is, therefore, beyond any doubt that the plaintiff’s position has always been that the balance that was outstanding was $1,200,000.00 and that is the amount it alleged the first defendant failed to settle, leading to the cancellation of the agreement. The argument by Mr Uriri about the payments made to Muzenda & Maganga as being unaccounted for was clearly inconsistent with the evidence before me. [39] The issue to be resolved is simply whether or not the amount covered by the bank guarantee, being the sum of $1,200.000.00, was paid by the first defendant. This issue is easily resolved from the evidence on record. There is a receipt confirming the payment of the said sum of $1,200,000.00 at p 38 of the first defendant’s bundle of documents. The receipt shows that on 1 March 2004, the first defendant paid $1,200,000.00 to Ziweni & Company. The amount is not accounted for in the schedule by the plaintiff. That this amount was paid cannot be seriously challenged given the clear evidence thereof. Also, at p 431 of the record in para 5.4 of the plaintiff’s opposing affidavit to the application for rescission of default judgment filed by the first defendant, the following is stated: “On her own admission the 1st Respondent paid $1200000 (one million two hundred thousand dollars] to Messrs Ziweni & Company, Legal Practitioners on 1 March 2004 which amount was paid into the business account of that firm of Legal Practitioners.” [40] There is no dispute that Ziweni & Company Legal Practitioners were the plaintiff’s legal practitioners and had also received several other payments on behalf of the plaintiff. There is no issue that the payment was made. It is also clear it was not a payment towards the transfer fees. There is clear evidence that this payment fully discharged what the plaintiff had acknowledged was outstanding on 10 January 2004 in its letter. Once the amount was paid through the plaintiff’s legal practitioners who had such mandate to receive the payment on behalf of the plaintiff, the fact that they decided to receipt the amount into a business account instead of a trust account cannot concern the defendant. [41] Ziweni & Company had a duty to account to the plaintiff, not the first defendant. The law firm acted as the agent of the plaintiff, their principal. If they failed to account for it to the plaintiff or misappropriated that payment, it cannot be said that the first defendant did not discharge her obligations fully. In this court’s judgment rescinding the default judgment handed down on 25 July 2025, at p 5 chatukuta J, correctly made the following remarks: “The applicant made payments to the first respondent’s legal practitioners, Ziweni & Company. It was not her responsibility to check in which of the legal firm’s account the payments were receipted neither should blame be placed on the applicant’s door steps that the payments were not remitted to the first respondent.” I fully associate myself with the above remarks, which reflect the correct conclusion which can be made from the evidence on record. The payment made by the first defendant to Ziweni & Company and acknowledged in the sum of $1,200,000.00 clearly covered the balance outstanding from the bank guarantee on 1 March 2004. [42] I agree with Mr Matinenga that after that payment, it would amount to a double payment for the plaintiff to have sought to be paid the same amount from the bank guarantee. The mortgage bond became unnecessary following that cash payment. This may reasonably explain why the said Ziweni & Company proceeded with the registration of the transfer thereafter without the simultaneous registration of the bond, as had been the position emphasised in the bank guarantee. The same legal practitioners further confirmed in the deed of transfer that the full purchase price of $3,500,000.00 had been paid. This is the context in which the court, in the judgment rescinding the default judgment, had to conclude that: “In any event, it is acknowledged in the deed of transfer in favour of the applicant (which was reversed in case No. HC 2966/05) that the whole purchase price had been paid.” [43] The above conclusion is supported by the evidence placed on record. The acknowledgment in the deed of transfer was not, however, the sole basis for the first defendant’s argument that she had paid contrary to Mr Uriri’s argument. The first defendant’s case did not entirely rely on the said acknowledgment in the deed. It was also backed by the evidence on record, including the receipt issued by Ziweni & Company for the payment of the balance of $1,200,000.00, which could have been paid through a mortgage bond. The amount due was fully paid on 1 March 2004. Clause 8 of the agreement gave her the option of making such cash payments as opposed to paying through the bond. The fact that the sum was receipted by the seller’s legal practitioners into a business account is neither here nor there. She fully discharged her obligation by paying what the plaintiff had acknowledged was due in its letter dated 10 January 2004. Hence, the registration of the transfer to the first defendant without the simultaneous transaction of registering the mortgage bond. [44] In light of the evidence as alluded to above, it is clear that the first defendant fully discharged her obligations in terms of the contract. There was no breach of contract to talk about. The second issue is also resolved in favour of the first defendant. 3. WHETHER OR NOT THE AGREEMENT WAS PROPERLY CANCELLED. SUBMISSIONS MADE ON THE ISSUE [45] On the third issue, Mr Uriri submitted that the notice was served on the domicilium executandi in terms of the agreement. He referred the court to the submissions in the plaintiff’s heads of argument. In the said written submissions, it is argued for the plaintiff that the agreement was properly cancelled. It was further submitted that the letter dated 15 March 2005 notified the defendant of the breach of contract occasioned by her failure to renew the bank guarantee. That the letter was properly served and the caveat subscriptor rule applies against the first defendant. It was further argued that the court must uphold the sanctity of the contract and the principle that it cannot rewrite a contract for the parties. Several authorities were cited on these principles, including inter alia the case of Book v Davidson supra and Magodora v Care International 2014 (1) ZLR 397 (S). [46] On the other hand, Mr Matinenga submitted that he adopted the remarks by CHATUKUTA J that at the time the property is transferred, that is the end of the contract. There is no reason why one serves papers at an address set out in a contract which had been terminated. The plaintiff was aware that the first defendant had been staying at the property. The reason to serve papers at a Warren Park address was to cheat. Two weeks later, they were already selling. The property was sold and transferred to the third parties. One can conclude that this was a sham transaction. ANALYSIS OF THE LAW AND THE FACTS [47] The law on the remedy of cancellation is settled that it is available to the innocent party in the event there is a breach of contract committed by the other party. In Zimbabwe Electricity Transmission & Distribution Company v Tecpal Creative International (Pvt) Ltd HH 34/11 GOWORA J (as she then was) put the position aptly as follows: “A contract may contain a forfeiture clause expressly stating that if one of the parties fails to perform a particular obligation by a certain date or period the other party would be entitled to cancel the contract. However, the contract may not contain a forfeiture clause, in which event it becomes pertinent to determine whether or not the breach is of such a nature as to entitle the other party to the contract to cancel the contract or whether some other relief other than cancellation is the appropriate remedy. It is generally accepted that the serious breach of a ‘sufficiently’ important term of the contract will justify cancellation at the instance of the wronged party without the need to prove an intention to repudiate the contract on the part of the defaulter. It is therefore trite that the breach of a material term of the contract, or a breach that goes to the root of the contract, or a fundamental breach, or breach of a vital term of the contract justifies cancellation. In Oatorian Properties (Pty) Ltd v Maroun 1973 (3) SA 799 POTGIETER JA enunciated the principle justifying cancellation based on breach in the following terms: “According to the well-known principles there enunciated rescission of a contract is only permissible if a breach occurred of a term which goes to the root of the contract and the materiality of the breach is according to those authorities also a relevant factor in the determination of whether rescission should be ordered or not (c.f. Spies v Lombard 1950 (3) SA 469 (A.D) at p 488.”” [48] Given my finding above that the first defendant fully discharged her obligations in terms of the contract by paying what was due, it follows that the purported cancellation of the contract was unlawful and, consequently, null and void. There was no factual or legal basis for the cancellation. There was no breach of contract, and the remedy of cancellation was accordingly not available to the plaintiff. [49] In any case, on the issue of service at the Warren Park address, the law is clear that once the contract is properly performed, it is discharged. There would be no reason to resort to the terms of such a contract to seek to reverse the transfer, which was perfectly and validly registered. I fully associate myself with CHATUKUTA J’s remarks in the judgment in the application for rescission where it was stated at p 4 as follows: “A contract subsists up to the time of transfer. Thereafter the provisions of the agreement establishing the relationship between the parties cease to apply to the applicant. The provision relating to the domicilium citandi equally cease to bind the parties … This is best illustrated by R. H. Christie in The Law of Contract in South Africa, 3rd ed where at page 447 he says: “It follows that proper performance by one party will discharge the contract if he is the only party upon whom it casts obligations, and proper performance by all the parties will discharge any other contract. Once discharged, the contract is no longer enforceable and passes into history.” Also apparent from the application is the fact that the 1st respondent was aware that the applicant no longer resided in Warren Park but had taken occupation of the property…” [50] In casu, para 8 of the statement of agreed facts records that the first defendant took occupation of the property following the agreement in early 2001. There was no reason to serve the notice of cancellation at the Warren Park address. The principles of sanctity of contracts and the caveat subscriptor rule argued by the plaintiff no longer apply as the contract had been discharged by proper performance by the parties. In any event, the first defendant having properly performed and discharged her contractual obligations, the transfer of the property into her name was proper and lawful. It should stand. The purported cancellation was unlawful, and the title deed registered in favour of the third and fourth defendants ought to be cancelled and the first defendant’s title deed restored. 4. WHETHER OR NOT THE DISPOSAL OF THE PROPERTY TO THIRD PARTIES WAS ABOVE BOARD. [51] This issue has already been resolved by my finding that the cancellation of the agreement of sale was unlawful and that the transfer of the property to the first defendant was valid. It follows that the subsequent sale of the property by the plaintiff to the third and fourth defendants was null and void. It is trite that nothing can flow from a nullity. An invalid act is void for all times, and it does not matter when and by whom the issue of its validity is raised; nothing can depend on it. In MacFoy v United Africa Co Ltd [1961] 3 All ER 1169 at 1172, LORD DENNING was very emphatic that: “If an act is void, then, it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of court for it to be set aside. It is automatically null and void without more ado, although it is sometimes more convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.” [52] While the circumstances of the sale of the property to the third and fourth defendants raise serious questions including that the sale was hurriedly concluded in just less than two weeks after the default judgment was entered on 17 August 2005, the fact that the first defendant had discharged her obligations fully meant that there was no valid sale in the first place. The plaintiff could also not give any better title than he had. The nemo dat quod non habet principle would also apply. It is settled that where the person is not the owner and possesses no mandate to do so, purports to sell or transfer the property such sale or transfer is a nullity. See Moyo v Nyamukonda & Anor HB 41/18. [53] In any case, the third and fourth defendants did not defend the first defendant’s claim in reconvention despite this court allowing them the opportunity to do so on 21 October 2024. The transfer to the first defendant remained valid, and the purported transfer of the same property to the third and fourth defendants cannot stand. For the above reasons, the court finds that the main claim by the plaintiff cannot succeed as it is the first defendant’s counterclaim that has merit. The first defendant’s claim in reconvention ought to be granted. 5. WHICH PARTY SHOULD PAY THE COSTS OF SUIT AND AT WHAT SCALE? SUBMISSIONS MADE ON THE ISSUE [54] It was submitted for the plaintiff that costs should follow the cause. That the award of costs remains at the discretion of the court. The plaintiff sought costs on a legal practitioner and client scale. The basis was that the first defendant, knowing well she failed to meet her obligations in terms of the agreement of sale, continued to defend the matter even when there was no merit. Mr Uriri added that a party that does not pay and surreptitiously withdraws the guarantee and shifts the story that the deed of transfer is the proof of payment must be penalised with an order for costs on a punitive scale. He also argued that there was no basis for the claim for costs de bonis propriis claimed by the first defendant. [55] On the other hand, Mr Matinenga submitted that costs on a legal practitioner and client scale de bonis propriis are justified. Lawyers act on instructions. When analysing those instructions, they must inform their client what he cannot possibly stand by. From 2005, this case has been on simply because the plaintiff wanted to double dip, and he cannot be allowed to do so. It was also argued in the heads of argument submitted for the first defendant that there was no factual or legal basis for the plaintiff’s conduct. It can only be attributed to greed. ANALYSIS [56] The decision as to whether costs should be awarded to or against a party is made in light of the outcome of a matter or in special circumstances, such as the conduct of a party in the course of the litigation. Generally, the principle is that costs follow the cause. See Ndewere v President of Zimbabwe and Ors SC 57/22 at p 23, para 66; Mbatha v Ncube and Anor SC 109/22 at p 13, para 31, and Marange Resources (Pvt) Ltd & Anor v Muchengwa SC 155/21 at p 14. [57] It is also settled law that the granting of costs is at the discretion of a court. A court must exercise its discretion judiciously in accordance with settled principles regulating costs in legal proceedings. In this case, there is no reason for me to depart from the general rule that costs shall follow the cause. The successful party, who is the first defendant in casu, is entitled to her costs. [58] The further issue that arises is whether or not the costs should be awarded on the higher scale as claimed or on the ordinary scale. It is settled that costs on a legal practitioner and client scale are awarded only in exceptional circumstances. In Nel v Waterberg Landbouwers Ko-operative Vereeninging 1946 AD 597 at 607 TINDAL JA stated: “The true explanation of awards of attorney and client costs not authorized by statute seems to be that, by reason of special considerations arising either from the circumstances which give rise to the action or from the conduct of the losing party, the courts in case considers it just, by means of such order, to ensure more effective than it can do by means of judgment for party and party costs that the successful party will not be out of pocket in respect of the expenses caused to him by the litigation .” Further, A. C. Cilliers in The Law of Costs 2nd ed at p 66, classified the grounds upon which the court would be justified in awarding the costs as between attorney and client to include inter alia; (a) vexatious and frivolous proceedings; (b) dishonesty or fraud of litigant; (c) reckless or malicious proceedings and (d) the litigant’s deplorable attitude towards the court. [59] The circumstances when costs de bonis propriis are awarded were enunciated in South Africa Liquor Traders Association & Ors v Chairperson, Gauteng Liquor Board & Ors 2009 (1) SA 565 (CC) at para 54, where the court had this to say: “An order of costs de bonis propriis is made against attorneys where a court is satisfied that there has been negligence in a serious degree which warrants an order of costs being made as a mark of the court’s displeasure. An attorney is an officer of the court and owes a court an appropriate level of professionalism and courtesy.” Courts do not make an order for costs de bonis propriis against legal practitioners lightly. They are awarded only in serious cases of misconduct, negligence or dishonesty. See also Masama v Borehole Drilling (Pvt) Ltd 1993 (1) ZLR 116 (S) at 120G; O-marshah v Kasara 1996(1) ZLR 584(H) at 591 F and Matamisa v Mutare City Council (Attorney-General intervening) 1998 (2) ZLR 439; [60] In the circumstances of this case, I do not consider costs de bonis propriis to be appropriate. This is not a case where it can be said there is negligence by the counsel of a severe degree. There is also no serious misconduct or dishonesty by the plaintiff’s legal practitioners for them to be mulcted with such costs. In his submissions on this issue, Mr Matinenga mainly attacked the conduct of the plaintiff as being motivated by nothing else but ravenousness. While he also submitted that lawyers must not take up cases they know may not stand, that alone is insufficient to constitute an exceptional circumstance for the court to make an award for costs against the lawyers themselves in this case. [61] I, however, find the conduct of the plaintiff to have been unreasonable. Since 2005, it has pursued a path clearly not supported by the evidence available. The plaintiff has stubbornly refused to give the first defendant peaceful and vacant possession she deserves, having fully discharged her obligations in terms of the contract. [62] There was no factual or legal basis for any cancellation of the contract. The plaintiff’s claim was clearly an abuse of the court process. To seek to benefit twice from the same transaction after evidence showed that the balance of $1,200,000.00 was paid through its legal practitioners amounts to unreasonable behaviour worthy of an award of punitive costs. The plaintiff’s legal practitioners, Ziweni & Company, acknowledged receipt of the said sum on 1 March 2004. If the amount was ever not accounted for or remitted to it, that has nothing to do with the first defendant. It could only have demanded an account from its agent, Ziweni & Company. The first defendant has been put out of pocket unnecessarily in an unwarranted litigation instigated by the plaintiff. The matter had dragged on for close to two decades since the court application was launched in 2005. That notice of motion by the plaintiff was completely groundless and unnecessary. It would be proper, just and fair in the circumstances that the costs of suit be awarded to the first defendant on a legal practitioner and client scale. DISPOSITION [63] In the premises, the main claim by the plaintiff cannot succeed. It has no merit. The first defendant properly and fully discharged her contractual obligations, and the purported cancellation was a nullity. The transfer to the first defendant was above board. The purported agreement of sale between the plaintiff and the third and fourth defendants and the transfer thereof is a nullity. The deed of transfer registered in their favour ought to be cancelled and the first defendant’s title revived as it was properly and lawfully registered. There was no legal reason for its reversal in the first place. Accordingly, the first defendant’s claim in reconvention ought to be granted. [63] In the result, it is ordered as follows: 1. The plaintiff’s claim is dismissed. 2. The first defendant’s claim in reconvention is granted. 3. Title Deed No. 10187/2005 registered in the names of Brian Christopher Mangwende and Bevline Angeline Chikamhi, the third and fourth defendants respectively, in respect of Stand 2926 Bluffhill Township of Stand 1120 Bluffhill Township measuring 942 square metres is cancelled and the second defendant is directed to reinstate Title Deed No. 1875/2005 in the name of the first defendant, Grace Chiwoniso Rupere. 4. The plaintiff shall pay the first defendant’s costs of suit on a legal practitioner and client scale. DEMBURE J: …………………………………………… Maruwa Machanzi Attorneys, plaintiff’s legal practitioners Musunga & Associates, first defendant’s legal practitioners