Danisa Masuku, [email protected]
THE High Court has dismissed an application by the administrators of William Trust seeking to stop the transfer of three properties sold for a combined US$650 000, alleging that proceeds from the transactions have not been fully remitted to the Trust.
The application cited lawyer Professor Welshman Ncube, Estrier Private Limited, the Seventh-Day Adventist (SDA) Association of Southern Africa and the Registrar of Deeds as respondents.
The matter was heard by Bulawayo High Court judge Justice Bongani Ndlovu following an urgent chamber application filed by the William Trust administrators through their lawyers, Calderwood, Bryce Hendrie and Partners.
Prof Ncube’s law firm, Mathonsi Ncube Law Chambers, were the appointed conveyancers to facilitate the transfer of the properties.
Justice Ndlovu dismissed the application with costs on an attorney-and-client scale, saying the applicants had failed to establish a proper case for the relief they were seeking.
“I find that no proper case for a declaratur was made before me as against the respondents. The contracts are clear and contain built-in remedy mechanisms. The applicant admitted it had been paid in full,” he said.
The judge said the admissions corroborated the position taken by the SDA Association of Southern Africa and also noted that Section 14 of the High Court Act had not been fully complied with.
On the claim involving Estrier, Justice Ndlovu said Prof Ncube had pleaded that he received US$240 000 of the US$260 000 purchase price and disbursed the money in accordance with the instructions of the Trust’s representative, Mr Reginald Dawson, before the applicant terminated his mandate.
“The first respondent (Estrier Private Limited) did not file any opposing papers. However, the third respondent (Prof Ncube) pleaded that he received US$240 000 of the US$260 000 purchase price from it and disbursed it per Mr Dawson (the applicant’s representative)’s directions before the applicant relieved him of his mandate and as such, no order against it shall be granted,” ruled Justice Ndlovu.
“Accordingly, the application against all the respondents is hereby dismissed, with costs on an attorney-and-client scale.”
According to the court papers, the three properties were sold to two purchasers.
Lot 1 of 11A of Matsheumhlope, measuring 5 323 square metres, was sold to Estrier for US$260 000.
The second property, 136 Marimba Road, Matsheumhlope, was sold to the SDA Association of Southern Africa for US$250 000.
The third property, the remainder of Lot 3 of Lot 11A measuring 8 670 square metres, was also sold to the SDA Association of Southern Africa for US$140 000.
The three properties therefore had a combined sale value of US$650 000.
In their court papers, the trustees of William Trust, represented by Mr Dawson, alleged that the purchase proceeds paid to Mathonsi Ncube Law Chambers had not been fully remitted to the Trust.
“Professor Ncube was appointed the conveyancer and he breached the contract. We did not receive the proceeds from the sale of the three properties. No money was remitted to us and we therefore, demand our money,” the trustees submitted.
They argued that the alleged failure to remit the proceeds constituted a breach of the agreements of sale and sought an interdict stopping the transfer of the properties to the purchasers.
However, Advocate Lucas Nkomo, instructed by Masamvu and Da Silva Gustavo Law Chambers for the SDA Association of Southern Africa, argued that his client had fulfilled its obligations under the agreements of sale by paying the full purchase price.
“The SDA Association of Southern Africa paid the full purchase price into the bank account of the appointed conveyancer and that of Mr Dawson. We followed the terms of the agreement of sale. The seller has to deal with the conveyancer. We are an innocent purchaser,” argued Adv Nkomo.
Prof Ncube, represented by Mr Zibusiso Ncube of Ncube and Partners, opposed the application, arguing that it was irregular and lacked a proper cause of action.
“The applicant is being dishonest. One does not require a court order to cancel an agreement. The court does not supervise agreements between parties. Notably, the applicant does not even specify the amount it claims is outstanding and acknowledges that it received money from the third respondent,” he submitted.
