Judgment No. HB 15/2002
Case No. HC 1904/2001
GLADYS DUBE Applicant
LOVEMORE HLONGWANE 1st Respondent
THE REGISTRAR OF DEEDS 2nd Respondent
HIGH COURT OF ZIMBABWE
BULAWAYO 18 OCTOBER 2001 & 11 APRIL 2002
Nyathi for applicant
No appearance for respondent
CHEDA J: The parties entered into a written agreement in which 1st
respondent agreed to sell, and applicant agreed to purchase 1st respondent’s house for
the price of $155 000,00. The purchaser was to pay $135 000,00 as a deposit and the
balance was payable within three months from thereon.
The agreement was signed by the appellant, but 1st respondent did not sign.
Instead he had authorised the directors of Lonet Engineering and Suppliers, trading as
Lonet Construction (the company) to sell on his behalf. A copy of the document
which he signed for that purpose was filed and is dated 29 November 1999.
Mr Timile, one of the directors of the company who acted for the 1st
respondent filed an affidavit explaining what happened and how the respondent spent
some of his money from the proceeds of the sale.
When 1st respondent would not assist the applicant with transfer the applicant
issued summons asking for an order to compel the 1st respondent t do so. The
respondent entered appearance to defend. The applicant has now applied for summary
judgment on the claim with costs.
When the notice of the application was served on the 1st respondent’s
legal practitioners they advised that they could not locate their client and they believed
that he was in South Africa. The same response came from them when a further
notice of set down was served later.
I have considered the prejudice to the applicant caused by any further delay if
the matter is not finalised, and I am of the view that I should finalise the matter
(a) When the 1st respondent disappeared he was already aware of the case as he had arranged for appearance to defend.
(b) There is no plea to indicate what his defence to the claim is, and as such he is in default.
(c) There is no dispute that he authorised the sale, and that he was paid the full price.
In the circumstances there is no good reason to deny the applicant the relief
she seeks as she was given possession of the house and she has paid the purchase
I therefore grant summary judgment in favour of the applicant as follows:
1. The 1st respondent is ordered to sign all the necessary documents to enable the applicant to take transfer of the property, namely number 5210, Cowdray Park, Bulawayo, failing which the Deputy Sheriff is authorised to do so in respondent’s place.
2. The respondent is to pay the costs of suit on attorney and client scale.
Sibusiso Ndlovu, applicant’s legal practitioners
James, Moyo-Majwabu & Nyoni, 1st respondent’s legal practitioners