The High Court has called for an urgent reform of immovable property conveyancing laws to protect scores of home-owners and home-seekers who lose their cash to fraudsters and negligent lawyers.
Justice Nicholas Mathonsi said loopholes in the immovable property transfer and registration system, coupled with incompetency and negligence by some lawyers involved in conveyance work, had triggered a slew of lawsuits over property disputes.
Justice Mathonsi said the loopholes needed to be plugged urgently.
The judge said the courts were inundated with cases of home-seekers crying foul after paying for houses and residential stands without the knowledge of the owners. Some property owners have sued after discovering that their properties had been fraudulently sold and that lawyers were engaged to effect transfer of ownership.
Justice Mathonsi made the remarks while nullifying a transaction in which a foreign-based Zimbabwean couple, Mr Cosmas Zavazava and his wife Vongai Zavazava, were duped of their Ruwa property.
The couple, based in Switzerland, bought an undeveloped piece of land, Stand Number 816 Ruwa in November 1996. Seventeen years later, they discovered that the stand had been fraudulently sold to a young couple, Mr Jonah Tendere and his wife Tendai Tendere, by an agent — Thermo-Dynamics Real Estate — owned by the late fraudster, Wilson Madziva.
Madziva presented fake agreement of sale documents and engaged a lawyer who facilitated the change of ownership to Mr and Mrs Tendere.
Advocate Thabani Mpofu, instructed by Coghlan Welsh and Guest law firm, convinced the judge that Mr and Mrs Zavazava had been duped of their property and that they were the legitimate owners.
Justice Mathonsi was furious over the porous transfer system. “It would appear that conveyancing laws of this country are not foolproof because fraudsters continue to exploit the weaknesses in the procedure for registration of transfers to defraud innocent property seekers,” said the judge.
“The leakages in the system have meant that cases of unlawful transfers of immovable property continue to reach the courts with alarming frequency,” he said.
“For how long will these fraudsters, who strut among commodities, continue to hold sway, to make mockery of transfer rules to milk unsuspecting home-seekers dry in order to make a dishonest living?” he asked.
“These shameless individuals bring the whole process of private ownership of immovable property and registration of title into disrepute.
“There is a pressing need for reforms to be introduced in conveyancing rules in order not only to modernise the system, but also to render the system foolproof and hopefully protect property owners,” said Justice Mathonsi.
Lawyers, according to the judge, at times blindly effect transfer of properties without verifying true ownership and the correct identity of those selling the properties.
“A conveyancer is the agent of the seller and undertakes transfer at the instance of the seller and not the purchaser,” he said.
“As long as legal practitioners in this jurisdiction do not grasp that basic fact, we will continue to have fraudulent transfers of property as occurred in this matter.
“I must add that as long as law firms continue to relegate conveyancing practice to clerks and paralegals, the rot that is presently manifesting itself will perpetuate,” he said.
Justice Mathonsi said conveyancers executed their job without verifying or making the necessary checks for so long as they got payment.
“No effort is made to verify the documentation and to ensure compliance with the rules.
“In short, the rules are adulterated for expediency and the most important element in legal practice, conveyancing, is reduced to a mockery,” said the judge.
“Once signed, the deeds are taken to the Deeds Registry by a lodging clerk for lodgement and although the contents announce to the world that the conveyancer appeared before the registrar of deeds to convey the transfer, in practice, the conveyancer never does that,” said Justice Mathonsi.
The judge questioned the security and reliability of the property transfer system, wondering how criminals succeeded in changing ownership of property that did not belong to them.
“Just how does a fraudster, and a thief converting another person’s property, succeed to advertise the property, attract a buyer, sign a sale agreement and engage a conveyancer to successfully transfer that property from the true owner to the buyer before gleefully skipping with the proceeds?”
The court declared Mr and Mrs Zavazava the legitimate owners of the stand and ordered off Mr and Mrs Tendere and all those who had occupied the property.
Justice Mathonsi said Mr and Mrs Tendere had the option to claim their money back from the late Mr Madziva’s firm, Thermo-Dynamics Real Estate.