Richard Mudhanda v Adrienne Staley Pearce and Registrar of Deeds

On 4 May 2002, the plaintiff entered into an alleged agreement of sale with the first defendant to purchase stands 296 and 297 Colne Valley Township held under Deeds of Transfer numbers 1597/69 and 1602/69. The plaintiff claimed the first defendant was refusing to transfer ownership. In 2009, the plaintiff had the stands registered in the name of his company, Prototel Enterprises (Pvt) Ltd. In 2011, the first defendant successfully applied to court under case HC6908/11 to set aside these transfers on grounds of fraud, alleging the transfers were done without her knowledge or consent and that a power of attorney had been forged. The plaintiff initially opposed but later abandoned his opposition, and the transfers were cancelled on 28 October 2014. The first defendant disputed ever entering into an agreement of sale with the plaintiff and raised a special plea of prescription.

• Whether the plaintiff's claim for transfer of ownership had prescribed under sections 14 and 15 of the Prescription Act [Chapter 8:11]
• When prescription begins to run in respect of a claim for transfer of ownership where the agreement of sale does not specify a date for transfer
• The distinction between an agreement of sale and an agreement to transfer ownership
• Whether fraudulent transfers can interrupt the running of prescription

The special plea of prescription raised by the first defendant was dismissed with costs awarded to the plaintiff.

1. An agreement of sale and an agreement to transfer ownership are separate agreements. An agreement of sale requires only three essential elements: agreement, the thing to be sold, and the price - it does not require delivery or transfer of ownership. 2. A contract of sale obliges the seller to pass vacuo possessio (vacant possession) of the property, not transfer of ownership. 3. In terms of section 16(1) of the Prescription Act, prescription begins to run as soon as a debt is due. 4. Where parties have not agreed on a time for transfer of ownership, the purchaser must demand transfer from the seller by a specified date to place the seller in mora (default) before prescription can begin to run. 5. In the absence of a demand for transfer, prescription cannot begin to run. It is erroneous to start counting the prescription period from the date the agreement of sale was signed. 6. Fraudulent transfers cannot interrupt the running of prescription as they constitute a non-event at law - courts cannot sanction illegal acts.

The court made obiter observations that: (1) even a person who is not the owner of property can enter into a valid agreement of sale; (2) the court hearing the main matter on transfer will be the appropriate forum to determine the validity of the purported agreement of sale - the court dealing with the special plea was not mandated to make that determination; (3) the order cancelling the fraudulent transfers to Prototel Enterprises (Pvt) Ltd did not nullify the purported agreement of sale itself. The court also cited the principle from Asharia v Patel and Others 1991 (2) ZLR 276 (SC) regarding mora ex persona, noting that where time for performance has not been agreed, performance is due immediately or as soon as reasonably possible, but the debtor does not fall into mora automatically - a demand (interpellatio) must be made either judicially or extra-judicially, allowing reasonable time for performance.

This Zimbabwean High Court case provides important guidance on the distinction between agreements of sale and agreements to transfer ownership in property law, and clarifies when prescription begins to run in claims for transfer of immovable property. It establishes that where no date for transfer is specified in an agreement of sale, the purchaser must make a demand for transfer (interpellatio) to place the seller in mora before prescription can commence. The case also confirms that fraudulent acts cannot be recognized at law for purposes of interrupting prescription periods. While this is a Zimbabwean judgment, it draws on South African legal principles and authorities, particularly regarding the law of sale and prescription.