HOSEA OZIAH NCUBE

versus

SIMBARASHE MUPINGA

HIGH COURT OF ZIMBABWE

CHAREWA J

HARARE, 2 March & 25 April 2018                        

Opposed Application – Leave to execute pending appeal

Advocate Regina Mabwe, for the applicant

Mr A Mugandiwa, for the respondent

CHAREWA J: This matter emanates from a judgment I granted, with costs, in favour of the applicant on 13 September 2017 in HH614/17 (HC9698/17). Therein, applicant had sued defendant claiming possession of certain piece of land situate in the District of Salisbury called the Remainder of Subdivision B of Marshlands of Delft of Hopley (the Remainder) and payment of the sum of two thousand three hundred and eighty United States Dollars (USD 2 380) per month calculated from 10 July 2013. After a full trial, I granted the applicant the order he sought.

The facts

 The parties entered into an agreement of sale sometime in 2005 wherein the applicant sold, and the respondent purchased Stand 694 of subdivision B of Marshlands of Delft of Hopley (Stand 694). It later became evident that, during the sale transaction, the parties had used a wrong map, rather than CG 2907, which was duly approved by the Surveyor General on 1 November 2003. As a result, the respondent in fact purchased a road, stand 694 having become a thoroughfare upon completion of the survey plan by the Surveyor General.

Efforts to rectify the error were unsuccessful, mostly due to the respondent’s intransigence, who spurned the offer of a replacement stand and cash adjustment or a refund of the purchase price. Ultimately, the respondent approached this court for an order compelling applicant to transfer to him, Stand 694, which was duly done. Case number HC 1205/07 and DT502/2011 dated 18 February 2011being apposite.