Paul Sithole and Paul Sithole (Junior) v Steward Bank Limited and Others

The applicants sought upliftment of caveat number 421/2014 placed on Stand 143 Northwood Township, and an order compelling transfer of the property to them. They claimed to have purchased the property from Mangeya (second respondent) on 28 May 2013 for US$170,000, allegedly paid in full. Steward Bank (first respondent) had obtained a provisional order on 4 August 2014 (confirmed on 14 January 2015 unopposed) attaching the property to found jurisdiction in a loan repayment dispute against Mangeya, who stood as surety for a company that went into liquidation. The property remained registered in Mangeya's name. The applicants had been in occupation since 2014. Evidence of payment consisted of rand deposits into an Inter Link Trading 37 CC account in South Africa (allegedly controlled by Mangeya) and one US$50,000 deposit into Wintertons' CBZ Bank trust account, rather than payments in accordance with the purported agreement of sale which specified US dollar payments directly to Mangeya and into Wintertons' Standard Chartered Bank account. The applicants admitted they had no proof of paying the final US$13,605.

• Whether the applicants proved on a balance of probabilities that they purchased the property and paid the purchase price in full
• Whether special circumstances existed to justify upliftment of the caveat and an order for transfer
• Whether the purported agreement of sale was genuine or a sham
• Whether there was connivance between the applicants and Mangeya to evade Steward Bank's attachment of the property
• Whether Mangeya's supporting affidavit was properly before the court

Application dismissed with costs

To succeed in an application for upliftment of a caveat based on a claim of purchase, an applicant must prove on a balance of probabilities: (1) the existence of a genuine agreement of sale; (2) payment of the full purchase price; and (3) special circumstances justifying the relief. Documentary evidence must be consistent with the alleged transaction and internally coherent. Where documentary evidence contradicts the pleaded case, or where essential proof of payment is missing or contradictory, the court will find that the burden of proof has not been discharged. A purchaser who has not proved payment of the full purchase price is not entitled to transfer. Vigilance in protecting alleged property rights when those rights come under threat is a relevant consideration in assessing the genuineness of a claimed purchase. A respondent who fails to file a notice of opposition and opposing affidavit within the time prescribed by Rule 233 of the High Court Rules, 1971 is barred, and cannot remedy this by filing an irregular supporting affidavit.

The court observed that the case illustrated connivance between Mangeya and the applicants to defeat Steward Bank's lawful attachment of the property, constituting abuse of court process. The court noted that in proper conveyancing practice, the purchase price should be paid into the conveyancer's trust account and released to the seller only upon registration of title in favor of the purchaser. The court expressed sympathy for not imposing punitive costs on the applicants, recognizing that Mangeya appeared to be the "brains behind this suit" and that the applicants may have been used as instruments of abuse rather than being primary wrongdoers. The court also commented on Mangeya's pattern of obstructive litigation tactics in related proceedings (HH 474/16), including taking frivolous and vexatious exceptions to thwart trials.

This case is significant in Zimbabwean property and procedural law as it: (1) reinforces the principle that documentary evidence must be consistent and coherent to discharge the burden of proof on a balance of probabilities; (2) establishes that purchasers claiming special circumstances to uplift caveats must demonstrate both genuine purchase and full payment, as well as vigilance in protecting their interests; (3) confirms that supporting affidavits by respondents are irregular and unknown to the High Court Rules; (4) demonstrates judicial willingness to scrutinize transactions that appear designed to defeat lawful attachments and creditors' rights; (5) illustrates the application of the principle that he who alleges must prove, particularly in conveyancing disputes; (6) shows that courts will draw adverse inferences from failure to produce documentary evidence that should ordinarily exist (such as lawyers' trust account receipts); and (7) affirms that courts may refuse punitive costs against litigants who appear to have been used by others to abuse court process.