Scapelox Trading (Pvt) Ltd v Mashangwa Family Trust and Others

The applicant sold its property (Stand 655 Borrowdale Brooke Township) to the first respondent for $700,000 under a written agreement signed on 17 April 2012. The agreement stipulated that Atherstone and Cook would act as conveyancers. The purchase price was payable in installments: $300,000 on signature (paid to the Estate Agent), and $400,000 within 30 days (later varied by addendum). Atherstone and Cook issued a proforma invoice for transfer fees totaling $51,585 in May 2013, calculated according to the Law Society of Zimbabwe Conveyancing Tariff SI 24/13. On 21 August 2013, after being given time to pay the transfer fees, the second and third respondents allegedly forcibly seized the original title deed from the conveyancer's office. The applicant alleged the respondents manhandled staff, caused injuries, and threatened them, refusing to leave until they obtained the deed. The respondents intended to use a different conveyancer, presumably offering lower fees. The applicant sought return of the title deed and ancillary relief.

• Whether the respondents lawfully obtained possession of the title deed from the conveyancer
• Whether there were genuine disputes of fact precluding determination of the application
• Whether the purchaser of immovable property can unilaterally change the conveyancer appointed by the seller in the sale agreement
• Who has the right to appoint the conveyancer in a property transfer - the seller or the purchaser
• Whether undercutting of conveyancing fees prescribed by the Law Society tariff is lawful
• The validity and enforceability of the respondents' counter-claim for release of capital gains tax and signing of transfer documents

The court ordered: (1) The respondents' counter-claim dismissed with costs on a legal practitioner and client scale; (2) The first, second and third respondents to return the original title deed to Atherstone & Cook by close of business on the day they receive the order; (3) The Commissioner General of ZIMRA authorized to issue capital gains tax clearance only upon application by the applicant through Atherstone & Cook; (4) The Registrar of Deeds authorized to register transfer only from Atherstone & Cook as conveyancers; (5) The Sheriff authorized to take custody of the title deed and deliver it to Atherstone & Cook if compliance not effected; (6) The first, second and third respondents to bear costs jointly and severally on a legal practitioner and client scale.

The binding legal principles established are: (1) In conveyancing of immovable property, the seller has the right to appoint the conveyancer, not the purchaser, because the conveyancer requires power of attorney from the seller to transfer the property; (2) A conveyancer appointed in terms of a written sale agreement cannot be unilaterally replaced by the purchaser after the agreement is concluded; (3) Undercutting of conveyancing fees prescribed by the Law Society of Zimbabwe tariff (established under statutory authority pursuant to s 53 of the Legal Practitioners Act and the relevant regulations) is unlawful and constitutes dishonourable and unworthy conduct by legal practitioners; (4) Contracts freely and voluntarily entered into by competent parties must be enforced by courts and not lightly interfered with; (5) The Law Society's conveyancing tariff must be uniformly applied by all conveyancers as it is established under statutory authority for the purpose of defining and enforcing correct and uniform practice.

Mathonsi J made several significant obiter observations: (1) The court described the dispute as being about "undercutting" and compared it to "naked short selling" - describing both as "not only obscene but also unlawful"; (2) The court observed that the matter had progressed as far as it did "partly as a result of greed of legal practitioners who would like to undertake a lucrative conveyancing exercise"; (3) The judge noted that undercutting has become a "thorny" issue in Zimbabwe's jurisdiction, often pitting established law firms against small and upcoming firms in "cut-throat" competition; (4) The court warned that if legal practitioners continue to undercut and engage in malpractices, "such conduct by members of the Law Society may lead to the state taking away the self-regulating power of the legal profession in order to protect the transacting public"; (5) The court quoted Martin Luther King Jr. on moral relativism, emphasizing that "some things are right and some things are wrong. Eternally so, absolutely so"; (6) The court criticized legal practitioners who "sacrifice the values of the noble profession for pieces of silver" and stated they "must hang their hands in shame"; (7) The judge observed that members of the public rely on legal advisors to determine right from wrong, and it is improper for those advisors, "with their eyes firmly fixed on a big legal fee, to take leave of their senses."

This case is significant in Zimbabwean (and by extension Southern African) conveyancing law for establishing and affirming several important principles: (1) It confirms that in conveyancing transactions, the seller has the exclusive right to appoint the conveyancer, as the conveyancer acts as the seller's attorney to pass transfer; (2) It provides strong judicial condemnation of the practice of undercutting conveyancing fees set by the Law Society tariff, declaring such conduct unlawful and unethical; (3) It reinforces the principle of sanctity of contract and freedom of contract between competent parties; (4) It emphasizes the importance of the self-regulating nature of the legal profession and warns that unethical conduct could lead to state intervention; (5) It demonstrates the court's willingness to enforce professional ethics and standards in the legal profession. The judgment serves as both a practical guide to conveyancing practice and a stern warning against unprofessional conduct by legal practitioners.