News / Local
Pumula South Housing Scheme members smile all the way to BCC
21 Jul 2012 at 04:15hrs | Views
THE Bulawayo City Council has been directed to immediately transfer the interests, rights and title into the names of 381 members of the Pumula South Housing Scheme.
Confirming a provisional order granted on 17 November last year, Bulawayo High Court judge Justice Martin Makonese ordered Bopse Land Developers (Pvt) Ltd in Liquidation and Waterbuck Trust (Pvt) Ltd represented by Ms Thabani Lihle Siziba, the liquidator, to pay the costs of the application on an attorney and client scale.
Justice Makonese confirmed Justice Nicholas Mathonsi's provisional order debarring Waterbuck Trust from holding any future creditors' meeting, which meeting is expected to include Mr Stanford Nyoni and 380 stand holders of Pumula South Housing Scheme.
Any such meeting should exclude Mr Nyoni and the other 380 stand holders.
The Assistant Master of the High Court, Mr Njabulo Mabuya, the 3rd respondent, is compelled not to entertain any future creditors' meeting, which involves and includes Mr Nyoni and 380 others.
Bopse Land Developers (Pvt) Ltd, the 1st respondent and Waterbuck Trust, the 2nd respondent through their lawyer Mr Nduduzo Dube, of Cheda and Partners had opposed the confirmation of the provisional order. The city council is the 4th respondent.
Bopse Land Developers acquired some land for development from the city council on 2 December 2002. The land was duly surveyed by Bopse Land Developers in liaison with the local authority resulting in 381 residential stands, two local authority areas, two places of assemble and an open space land being demarcated.
Bopse was contracted by the city council to develop the area for the residential stands.
Bopse ran into financial difficulties and subsequently failed to develop the 381 surveyed vacant stands.
Mr Nyoni and 380 others indicated an interest to purchase the said stands in order to build houses.
Bopse agreed to sell the 381 stands and agreements of sale were accordingly prepared in favour of the interested buyers.
Each purchaser of the surveyed vacant stands was charged a fee for the preparation of the agreement of sale, inclusive of legal fees for the transfer of rights, title and interest to the purchaser.
They received written confirmation that they had satisfied all the requirements for the city council to effect transfer into the names of the buyers.
The purchasers were issued development permits authorising them to commence construction work on the surveyed land. By April this year, the purchasers were at different stages of construction of their houses.
Justice Makonese said it would seem clear that at that stage Bopse had effectively relinquished its rights, title and interest to the stands. The High Court of Zimbabwe granted a provisional order for the liquidation of Bopse on 21 July 2007 and the same court granted a final order on 4 March 2010.
The first meeting of creditors was held on 12 May 2010 and Ms Siziba was duly appointed liquidator.
On 2 September last, Ms Siziba wrote to creditors indicating that her company Waterbuck had elected to adopt the contracts that they entered into with Bopse.
This meant that the company was prepared to abide by the terms and conditions that were stated in the contracts and was to facilitate transfers of the properties into the creditors' names.
Ms Siziba told a second creditors' meeting held in January last year and chaired by Mr Mabuya that only 15 creditors out of 167 residential stands owed transfers by Bopse had responded to her letter.
She told the creditors that she had obtained a High Court order to advertise the shortened version of the letter of election in terms of Section 48 of the Insolvency Act (Chapter 6:04). Ms Siziba said once the advertisement was placed and that if the creditors failed to comply by 31 March last year, an order to sell the stands would be sought as they would be deemed not to belong to anyone.
After the company had gone into liquidation, the liquidator sought to include the 381 stands allocated to the stand purchasers as part of the assets under liquidation.
The stand holders through their lawyer, Ms Caroline Mudenda, of Mudenda Attorneys then filed an urgent chamber application seeking an order barring Bopse from including their stands in the liquidation process.
Justice Makonese ruled out Bopse and Waterbuck Trust's point in limine that Mr Nyoni had no locus standi in deposing an affidavit, ruling that the facts of the case proved that Mr Nyoni does have a locus standi to act on behalf of his colleagues in bringing the legal suit.
The 1st and 2nd respondents had argued that the order being sought by the stand purchasers asked the High Court to take away powers vested in the Assistant Master of the High Court by the law.
"There is clearly no merit in the argument that the order sought seeks to strip the Assistant Master of his powers. In other words, what prompted this application is the attempt by the liquidator to include property which had been sold to the applicants in the liquidation process.
"At the time the stands were sold to the stand holders and the process of the transfer of rights, title and interest thereto commenced, the 1st respondent divested itself of any ownership in regards to the stands. It stands to reason, therefore, that the liquidator is entitled to list all other assets belonging to the 1st respondent but there is no legal basis for seeking to include in the list of assets property that had been sold to third parties prior to the liquidation process," said Justice Makonese.
He was of the view that the order sought by the applicants was sound and competent at law, as it is specially aimed at preventing the liquidator from including assets or property which the 1st respondent is not entitled to at law. The judge concluded that on the facts that the stand holders bought and paid for the stands from the 1st respondent and that the applicants not only signed agreements of sale by the 1st respondent also relinquished all its rights, title and interest in the stands.
He added that the desire by the 1st and 2nd respondents to include the 381 stands as part of the property under liquidation has no other explanation other than a desire to cause real prejudice to the applicants.
Added the judge: "It is clear that the applicants risk losing their investments in the form of dwelling houses if the 1st and 2nd respondents are not interdicted from including the stands in the liquidation proceedings and dealing with such stands as if they still belong to 1st respondent.
"There is no other remedy satisfactory enough to protect the applicants. This court is enjoined to afford protection to innocent purchasers of land such as applicants."
He ruled that the matter was properly before the court and that the order sought by the applicants was competent at law.
Confirming a provisional order granted on 17 November last year, Bulawayo High Court judge Justice Martin Makonese ordered Bopse Land Developers (Pvt) Ltd in Liquidation and Waterbuck Trust (Pvt) Ltd represented by Ms Thabani Lihle Siziba, the liquidator, to pay the costs of the application on an attorney and client scale.
Justice Makonese confirmed Justice Nicholas Mathonsi's provisional order debarring Waterbuck Trust from holding any future creditors' meeting, which meeting is expected to include Mr Stanford Nyoni and 380 stand holders of Pumula South Housing Scheme.
Any such meeting should exclude Mr Nyoni and the other 380 stand holders.
The Assistant Master of the High Court, Mr Njabulo Mabuya, the 3rd respondent, is compelled not to entertain any future creditors' meeting, which involves and includes Mr Nyoni and 380 others.
Bopse Land Developers (Pvt) Ltd, the 1st respondent and Waterbuck Trust, the 2nd respondent through their lawyer Mr Nduduzo Dube, of Cheda and Partners had opposed the confirmation of the provisional order. The city council is the 4th respondent.
Bopse Land Developers acquired some land for development from the city council on 2 December 2002. The land was duly surveyed by Bopse Land Developers in liaison with the local authority resulting in 381 residential stands, two local authority areas, two places of assemble and an open space land being demarcated.
Bopse was contracted by the city council to develop the area for the residential stands.
Bopse ran into financial difficulties and subsequently failed to develop the 381 surveyed vacant stands.
Mr Nyoni and 380 others indicated an interest to purchase the said stands in order to build houses.
Bopse agreed to sell the 381 stands and agreements of sale were accordingly prepared in favour of the interested buyers.
Each purchaser of the surveyed vacant stands was charged a fee for the preparation of the agreement of sale, inclusive of legal fees for the transfer of rights, title and interest to the purchaser.
They received written confirmation that they had satisfied all the requirements for the city council to effect transfer into the names of the buyers.
The purchasers were issued development permits authorising them to commence construction work on the surveyed land. By April this year, the purchasers were at different stages of construction of their houses.
Justice Makonese said it would seem clear that at that stage Bopse had effectively relinquished its rights, title and interest to the stands. The High Court of Zimbabwe granted a provisional order for the liquidation of Bopse on 21 July 2007 and the same court granted a final order on 4 March 2010.
The first meeting of creditors was held on 12 May 2010 and Ms Siziba was duly appointed liquidator.
This meant that the company was prepared to abide by the terms and conditions that were stated in the contracts and was to facilitate transfers of the properties into the creditors' names.
Ms Siziba told a second creditors' meeting held in January last year and chaired by Mr Mabuya that only 15 creditors out of 167 residential stands owed transfers by Bopse had responded to her letter.
She told the creditors that she had obtained a High Court order to advertise the shortened version of the letter of election in terms of Section 48 of the Insolvency Act (Chapter 6:04). Ms Siziba said once the advertisement was placed and that if the creditors failed to comply by 31 March last year, an order to sell the stands would be sought as they would be deemed not to belong to anyone.
After the company had gone into liquidation, the liquidator sought to include the 381 stands allocated to the stand purchasers as part of the assets under liquidation.
The stand holders through their lawyer, Ms Caroline Mudenda, of Mudenda Attorneys then filed an urgent chamber application seeking an order barring Bopse from including their stands in the liquidation process.
Justice Makonese ruled out Bopse and Waterbuck Trust's point in limine that Mr Nyoni had no locus standi in deposing an affidavit, ruling that the facts of the case proved that Mr Nyoni does have a locus standi to act on behalf of his colleagues in bringing the legal suit.
The 1st and 2nd respondents had argued that the order being sought by the stand purchasers asked the High Court to take away powers vested in the Assistant Master of the High Court by the law.
"There is clearly no merit in the argument that the order sought seeks to strip the Assistant Master of his powers. In other words, what prompted this application is the attempt by the liquidator to include property which had been sold to the applicants in the liquidation process.
"At the time the stands were sold to the stand holders and the process of the transfer of rights, title and interest thereto commenced, the 1st respondent divested itself of any ownership in regards to the stands. It stands to reason, therefore, that the liquidator is entitled to list all other assets belonging to the 1st respondent but there is no legal basis for seeking to include in the list of assets property that had been sold to third parties prior to the liquidation process," said Justice Makonese.
He was of the view that the order sought by the applicants was sound and competent at law, as it is specially aimed at preventing the liquidator from including assets or property which the 1st respondent is not entitled to at law. The judge concluded that on the facts that the stand holders bought and paid for the stands from the 1st respondent and that the applicants not only signed agreements of sale by the 1st respondent also relinquished all its rights, title and interest in the stands.
He added that the desire by the 1st and 2nd respondents to include the 381 stands as part of the property under liquidation has no other explanation other than a desire to cause real prejudice to the applicants.
Added the judge: "It is clear that the applicants risk losing their investments in the form of dwelling houses if the 1st and 2nd respondents are not interdicted from including the stands in the liquidation proceedings and dealing with such stands as if they still belong to 1st respondent.
"There is no other remedy satisfactory enough to protect the applicants. This court is enjoined to afford protection to innocent purchasers of land such as applicants."
He ruled that the matter was properly before the court and that the order sought by the applicants was competent at law.
Source - Chronicle
