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The law & practice

Of

CONVEYANCING
In
ZIMBABWE

By
M. L. MHISHI
© 2004
1

FOREWORD

Conveyancing is a technical subject with specific legislation, rules and practices


applicable to each jurisdiction.

Generally, conveyancers only become proficient after years of experience and practice.
Very few text books cover conveyancing practice in Southern Africa and as far as I am
aware, this handbook by Lloyd Mhishi is the first and only book covering the practice of
conveyancing in Zimbabwe that has ever been written.

Lloyd Mhishi has covered conveyancing practice in Zimbabwe in this handbook from a
practical rather than an academic point of view. The handbook is a welcome addition to
the body of knowledge of the Law of Zimbabwe and I believe will soon become an
essential item in the library of every practising conveyancer in Zimbabwe. I congratulate
Lloyd Mhishi for undertaking and completing the arduous task of writing this handbook.

A. M. ROSETTENSTEIN.

December 2004.

PREFACE
2

The only major text book that is referred to and used by students of Conveyancing,
Conveyancers and Deeds Registry personnel in Zimbabwe at the moment, is Nel H. S.,
Jones’ Conveyancing in South Africa 4th ed. (Juta & Co Ltd.) 1991 (referred to herein as
“Jones”) There are now a number of differences between our law and South African law
on Conveyancing. Using Jones as a resource book has become akin to navigating a
minefield. It was with this in mind that the decision to work on a text on Conveyancing
targeting those individuals aforementioned and others interested in the subject was made.
This book is also meant to be of immense value to Conveyancing Executives, secretaries
and clerks who assist the Conveyancers in the various law firms.

The reader should however not be left under any illusion that this guide is a replacement
of Jones for various reasons. It was felt that producing a more comprehensive text on
Conveyancing would be a mammoth task taking a long period of time yet the yawning
gap in the field remains unfilled. This book has sought to clearly show those areas where
there are differences with South African law but has left out areas clearly elaborated on in
Jones. The first part of the guide contains text on various topics and the second part
contains precedents for most of the basic Conveyancing documents. The reader should
read the text with constant reference to the relevant precedent for each part for a better
understanding.

It is admitted that more work still needs to be done before this work can be described as a
full and comprehensive text book. There is still need to expand on some topics such as
deceased estate transfers and the introduction of other more complex Conveyancing
documents such as debenture Mortgage Bonds. It is hoped that through critiques and
suggestions and changes in the law this work will be updated and upgraded from time to
time.

I am deeply indebted to a number of people for their assistance and encouragement in the
production of this book. These include Professor Feltoe of the Faculty of Law at the
University of Zimbabwe who edited the initial draft manuscript and made
recommendations for its publication; Mr. L. A. Donnelly of Coghlan Welsh and Guest
and Ms. M. L. Coyne of Gill Godlonton and Gerrans for going through the draft and
making valuable comments; Mr. A. Musarurwa and Mrs B. Hargrove for enabling the
publication of this book; Mr. A. M. Rosettenstein for being my mentor, laying the basis
of my understanding of practical Conveyancing, meticulously editing the book and
agreeing to write a foreword; Mr. J. B. Meyburgh of Stumbles and Rowe for the lessons
both as a lecturer and external examiner; The senior Partner of DMH, Mr. C. F. Dube
and my other fellow partners for the encouragement and the ‘stolen time’; Rumbi
Wurayayi for typing part of the draft; Balbina Ngwandingwa and Fidelis Dzenga and my
Conveyancing staff for the assistance; Lovemore, Brian, Tonderai, Tsitsi and my other
students over the years, too numerous to mention by name, for their contribution; Gari
Bera and Pride Masamba for the encouragement and last but most importantly my wife
Leonita for typing the first draft and together with Tayana for almost everything.
Contents
3

_____________________________________________________________

1 OUTLINE OF LAND REGISTRATION SYSTEM


1 .1 Historical Background
1. 1. 1 Introduction
1. 1. 2 Origins of Land Registration
1. 1. 3 Historical Developments in South Africa
1. 1. 4 Historical Developments in Zimbabwe
1 .2 Land Registration System
1 .3 Functioning of the Deeds Office
1 .4 The Regulations
1 .5 Provisions relating to documents
1 .6 Identification of Persons
2 REAL AND PERSONAL RIGHTS
3 POWER OF ATTORNEY
3 .1 Introduction
3 .2 Breakdown of a special Power of Attorney
3 .3 Transfer to and from a minor
3 .4 Special provisions relating to women
4 DEED OF TRANSFER
4 .1 The analysis of a Deed of Transfer
4 .2 Documents and certificates to be lodged with the Deed of
Transfer.
4 .3 Extending clauses
4 .4 Conditions clause/Imposition of Restraints
4 .5 Deeds to follow sequence of their relative causes
4 .6 Undivided shares and partition Transfer
4 .6 .1 Undivided shares in land
4 .6 .2 Partition Transfer
4 .7 Transfer By Endorsement
4

5 MORTGAGE BOND/DEED OF HYPOTHECATION


5 .1 Introduction
5 .2 Special Power of Attorney to pass a Mortgage Bond
5 .3 Analysis of the Mortgage Bond.
5 .4 Other types of Mortgage Bonds
5 .4 .1 Collateral Mortgage Bond
5 .4 .2 Surety Bond
5 .4 .3 Indemnity Bond
5 .4 .4 Participation Bond
5 .5 Rights of Mortgagees (Section 50-54) and Consents
5 .5 .1 Consent to cancellation of Mortgage Bond
5 .5 .2 Consent to release
5 .5 .3 Part payments and reduction in cover
5 .5 .4 Consent to Substitution of Debtor
5 .5 .5 Waiver of preference
5 .5 .6 Cession of Mortgage Bonds
5 .5 .7 The variation of terms of a Bond
6 MISCELLANEOUS TRANSACTIONS AND REGISTRATIONS
6 .1 Agreements of Sale
6 .2 Registration of change of name
6 .3 Attestation of Powers of Attorney
6. 4 Titles Registration and Derelict lands Act (Chapter 20:20)(formerly
Chapter 158)
6 .5 Caveats, attachments and Sales in execution
6 .6 Suggestions on Titles regularisation after the fast track land resettlement
programme
6 .7 Forced Sales
6 .8 Certificate of Title in terms of section 26A of the Land Survey Act
5

(Chapter 20:12)

7 CERTIFICATE OF TITLE OR SUBSTITUTED TITLE


7 .1 Introduction
7 .2 Certificates of registered title of an unregistered undivided share
7 .3 Certificates of registered title of an aggregate share
7 .4 Certificates of registered title of 1 or more properties held under Deed.

7 .5 Certificates of registered title taking place of lost or destroyed Deed.


7 .6 Certificates of registered title to correct error in registration.
7 .7 Certificates of registered title of portion of piece of land
7 .8 Certificates of consolidated title of 2 or more pieces of land.

8 COPIES OF DOCUMENTS
8 .1 Application for copies
8 .2 Copies to replace originals
8 .2 .1 Copies of damaged or defaced Deeds
8 .2 .2 Copies of lost or destroyed Deeds
8 .3 Cancellation of lost or destroyed Mortgage Bonds

9 STAMP DUTY, RATES AND TAX


9 .1 Stamp Duty
9 .1 .1 Introduction
9 .1 .2 Stamp duty on the registration of transfer of immovable
property
9 .1 .3 Exemption to duty on acquisition of property
9 .1 .4 Stamp duty on the registration of Bonds
9 .1 .5 Exemption to duty on registration of Bonds
9 .2 Registration fees
6

9 .3 Rates
9 .4 Taxes
10 ESTATE TRANSFERS
10 .1 General
10 .2 Additional supporting documents in Estate transfer:
11 FINANCIAL ARRANGEMENTS IN CONVEYANCING
11 .1 Introduction
11 .2 Financial Arrangements
11 .3 Lodging
12 SUBDIVISIONS AND CONSOLIDATIONS
12 .1 Introduction
12 .2 Permit to subdivide or consolidate land
12 .3 Land Survey
12 .4 Procedure to obtain title to a subdivision
12 .4 .1 Subdivisional Transfer
12 .4 .2 Certificate of Registered Title
12 .5 Certificate of Consolidated Title
12 .6 Renumbering of properties
13 UNDIVIDED SHARES COUPLED WITH EXCLUSIVE RIGHT OF
OCCUPATION
13 .1 Introduction
13 .2 The block-share system.
13 .3 Sectional Title
13 .4 Registration Process of Sectional Title Notarial Deed
13 .5 Transfer of Units

14 LIST OF PRECEDENTS

14 .1 Power Of Attorney to Make Transfer (Simple Transfer)


14 .2 Deed of Transfer (Simple Transfer)
14 .3 Estate Transfer (Customary Law)
14 .4 Donation Transfer
14 .5 Power Of Attorney to make a Donation Transfer
14 .6 Company resolution to make a Donation Transfer
14 .7 Resolution to accept Donation Transfer
14 .8 Power of Attorney to accept Donation
14 .9 Sheriff's Transfer
7

14 .10 Short Power of Attorney (Sheriff’s Transfer)


14 .11 Sheriff’s Transfer (following foreclosure proceedings)
14 .12 Power of Attorney (Sheriff’s Transfer)
14 .13 Power of Attorney And Agreement To Partition Land
14 .14 Deed of Partition Transfer
14 .15 Certificate of Registered Title
14 .16 Certificate of Consolidated Title
14 .17 Warrant/Writ of Execution
14 .18 Power of Attorney to pass Mortgage Bond
14 .19 Mortgage Bond
14 .20 Surety Mortgage Bond
14 .21 Surety Mortgage Bond
14 .22 Collateral Mortgage Bond
14 .23 Indemnity Mortgage Bond
14 .24 Participation Mortgage Bond
14 .25 Waiver of Preference
14 .26Variation of Terms of Bond
14 .27 Consent to Cancellation of Mortgage Bond
14 .28 Consent to cancellation of a cession of a Mortgage Bond made as
security
14 .29 Consent to release
14 .30 Consent to Substitution of Debtor
14 .31 Consent to registration of Part Payment
14 .32 Consent to registration of a reduction in cover
14 .33 Consent In Terms Of Section 64 of the Act
14 .34 An Example of a Capital Gains Tax Calculation
14 .35 General Power of Attorney
14 .36 Application for a copy of lost Deed
14 .37 Application for cancellation of a lost Mortgage Bond
14 .38 Declaration in terms of Section 6(b) of the Act

14 .39 Affidavit in terms of Section 73 of the Act


8

1 Outline of Land Registration System.

1 .1 Historical Background

1. 1. 1 Introduction

In Zimbabwe the registration of rights in land is regulated by the Deeds Registries Act
[Chapter 20:05]. It is a piece of legislation which prescribes the rights to land through a
process of registration whose preparation and execution requires the services of a
Registrar as well as a Conveyancer in professional practice. The system of registration is
based on juristic and long-standing practices and procedures which make it a system of
registration that has the effect of guaranteeing title. The systems and processes of
examination and registration, its control and monitoring, public register and information
systems and methods of preservation all contribute towards providing security of the title
in the eyes of the law, financial institutions and the public.1 The system is based on the
principles of private law accommodating and giving effect to statutory, case and common
law in so far as it relates to vested ownership in land and other real rights. The Deeds
Registries Act and its Regulations2 form the basis of land registration in Zimbabwe.

The legal certainty provided by the Title Deed issued under the registration process is of
great significance to financial institutions and township developers. The rationale behind
the system of land registration is to provide an efficient system of registration calculated
to give and afford security of title to land and rights in land. In other words it buttresses a
conviction entrenched in the constitution that of the fundamental right to property and
that no one may be deprived of property except in terms of the law and that no such law
may permit arbitrary deprivation of property3. The reliance placed on the title afforded
on the owner by due registration is aptly summarized in the relevant South African case
by HOEXTER J.A in the Appellate Division case of FRYES (PTY) V RIES 1957 (3)
SA 575 at 582 where he said the following, “as far as the effect of registration is
concerned there is no doubt that the ownership of a real right is adequately protected by
its registration in the Deeds Office. Indeed the system of land registration was evolved
for the very purpose of ensuring that there should not be any doubt as to the ownership of
the persons in whose names real rights are registered. Generally speaking, no person can
successfully challenge the right of ownership against a particular person whose right is

1
See the Legislative Debates of the 4th February 1959. The then Minister of Justice and Internal Affairs,
Mr. Knight while introducing the second reading of the Deeds Registries Bill, stated in column 1246 the
following: “…the whole aim of the Bill is to maintain that security of title which is so necessary for the
confidence of investors in landed property and the mortgage of immovable property…”
2
The Deeds Registries Act (Chapter 20:05) shall be referred to in this book as “the Act” and the Deeds
Registries Regulations, Rhodesia Government Notice No. 249 of 1977, shall be referred to as “the
Regulations”.
3
See section 16 of the Constitution of Zimbabwe.
9

duly and properly registered in the Deeds Office. If the registered owner asserts his right
of ownership against a particular person he is entitled to do so not because that person is
deemed to know that he is in fact the owner but by virtue of the registration of
ownership.”

1. 1. 2 Origins of Land Registration

Our system of land registration was unknown to the Romans. The roots of our system are
found in Germanic customary law4. In Germanic law, for a transfer of land, the parties
would gather on the land itself, and in the presence of witnesses the Transferor would
declare his intention to transfer his right to the land (traditio or sala). Thereafter the
Transferee would be put in possession of the property or land (investitura) which
constituted the handing over of, for example, a blade of grass or clod symbolising the
land. This was followed by the solemn departure of the transferor symbolised by the
throwing away of, for example, a twig (effusticatio). Later transfer was by means of the
handing over of a document containing an account of the surrender by the Transferor
(traditio cartae) which was usually accompanied by the traditional modes of transfer
referred to above.

Subsequently there developed the transfer coram judice loci (i. e. before the Court of the
place where the land is situated.5

In the Netherlands, this was enacted through legislation preceded by some form of
publication e.g. the reading of banns on 3 Sundays in church inviting interested parties to
lodge objections which they may have.
Transfer coram judice loci was made of general application in Holland by the placaat issued by
Charles V on 10 May 1529. The placaat was meant to facilitate the levying of public revenue on
transfer, to remove uncertainty as to boundaries of land transferred, and to prevent the deceiving of
Purchasers by the suppression of information as to burdens imposed on the land.
The Placaat of Phillips II issued in 1560 required the Secretary of each city or district to keep a
register of all transfers of immovable property and creation of limited real rights to land. These
provisions as subsequently amended, basically reflect the law as it was in Holland at the time of
settlement at the Cape in 1652.

1. 1. 3 Historical Developments in South Africa

The history of colonization and expansion northwards determined the underlying principles of the South
African system of registration6.
Initially, Grants were made by the secretary of the political council or a member of his staff, signed
by the Commander (later the governor) and countersigned by the secretary. A seal was affixed to the

4
See Kleyn D.G. & Boraine A. Silberberg & Schoeman’s The law of property 3rd ed (Butterworths) 1993
(In this book referred to as “Silberberg”) at page 88.
5
See Silberberg at page 89.
6
See Nel H. S. Jones Conveyancing in South Africa 4th ed.(Juta & Co, Ltd) 1991 at page 2. This text book
is referred to in this book as “Jones”.
10

Grant and copied in a book kept for that purpose before being handed over to the new owner.

Subsequent transfers were also made by the Transferor or the Mortgagor appearing before the secretary
and two delegates of the political council and signing the Deed in their presence. The Deed would then
be countersigned as in the case of Grants.

The office of the Registrar of Deeds was instituted in 1828 and the Registrar took the position of such
secretaries and commissioners of the Court of justice. The Registrar has been in charge of attesting
Deeds and Bonds ever since. Up to now in South Africa, Deeds of Transfer and Mortgage Bonds are
usually executed in the presence of the Registrar by a Conveyancer authorized by a Power of Attorney
to act on behalf of the owner and attested by the Registrar.

When the first Registrar was appointed, all Deeds and Bonds were drawn by him and his staff.
Subsequently other people (deemed suitable by the governor) were allowed to draw such documents. At
present only Conveyancers practicing within the province within which the Deeds Registry concerned is
situated, may prepare Deeds of Transfer, Mortgage Bonds and certificates of title.

Although the land register was established in 1844, before 1882 no proper Land registers were
maintained. The Grants and Transfer Deeds were numbered in chronological order. There were no
registers reflecting the history of each unit and there was no system of numbering land units to form the
basis of a proper registration system. No proper index of owners was maintained. Farm registers came
into operation in 1882 and Town registers began to be established in 1927.

Various attempts were made in the Cape Town Registry to replace the cumbersome alphabetical farm
registers by a loose-leaf system on a regional basis. Little progress was made until the passing of the
second statute governing land registration procedure, namely the Deeds Registries Act of 1937, which
repealed Act 13 of 1918. The Regulations framed under the 1937 Act provided for land registers of both
rural and urban land and prescribed the form these were to take.

During the Nineteenth century Deeds Offices were opened at Pietermaritzburg, King William’s Town,
Bloemfontein, Pretoria, Kimberley and Vryburg. These six in addition to the Cape Registry and the
Johannesburg Registry constitute the Registries in existence now in South Africa. A Registrar is in
charge of each Registry and the Chief Registrar supervises all the Registries.

The duties of the Registrars as contained in the 1937 Act are basically similar to those contained in our
law. The South African system is now at an advanced stage of computerization unlike ours. A 1978
amendment to section 3 made it possible for the Registrar to keep “whether by means of a computer or
in any other manner or by means of computer and any other manner, such registers containing such
particulars as are necessary for the purpose of…maintaining an efficient system of registration
calculated to afford security of title and ready reference to any registered Deed.”7

1. 1. 4 Historical Developments in Zimbabwe8

7(Section 3 (i)y)
8
Part of the material contained in this part was derived from: Statue Law of Southern Rhodesia, from
Charter to 31st December 1910 edited by Arthur Speight.
11

Pre-colonial Zimbabwe did not have an organized system of land registration as we know it today. The
system of land registration and occupation in Zimbabwe has therefore also been underpinned by the
colonial history9. It is important to understand that the law applicable at the Cape as at the 10th June
1891 was superimposed onto the law of Zimbabwe in the early stages of colonization of this country.
Even our Deeds Registries Act was modelled almost on the South African Deeds Registries Act of 1937.
There was therefore nothing much that had to be done in this country save for enacting the Deeds
Registries Act in 1959, setting up the Deeds Registry at Harare and at Bulawayo and the minor
amendments to the Act over the years. The early white settlers occupied and owned land by means of
Grants as occurred in the South African situation.

After the occupation of the country by the white settlers the land in Southern Rhodesia
became known as Crown land.10

The primary statute on land registration was the Land Survey Regulations of 1895
published in the Survey Regulations (Government Notice, Survey Department No. 1 of
1894) administered by the British South African Company (BSAC) for the British
Colonial territories. The Survey Regulations provided for the laws governing the grants
of un-surveyed land i.e. tenure of un-surveyed land. Through the Declaratory Land
Survey Regulations Act 23/1895 all land belonging to colonial territories was deemed to
be held under grant from the BSAC. In terms of the said regulations all un-surveyed land
was deemed to be held under the terms and conditions contained in the 1895 Regulations
in addition to any special terms or conditions set forth in any additional regulations or
subsequent ones. Section 4 of the 1895 Land Survey Regulations provided that

“title to any unsurveyed land, shall be deemed to be issued upon the


representation of the applicant for such land that such land is in fact available,
and shall not be taken to imply any warranty on the part of the company as to
either the position or extend of the land therein described.”

The BSAC Government Notice Survey Department No. 1 of 1894 schedule A; provided

9
See generally: Walker, R. S. Rhodesia: the Zimbabwe of southern Africa(1975)
Windrich, Elain The Rhodesian problem, Routledge and Kegan Paul, 1975
Davies, Dorothy K Race relations in Rhodesia, Rex Collins 1975
Palmer, Robin H Land and racial domination in Rhodesia, University of
California press, Berkeley 1977
Moyana, Henry The political economy of land in Zimbabwe, Mambo Press, 1984
Tshuma, L A matter of injustice: Law, State and the Agrarian Question in zimbabwe,
Sapes, 1997
C.S. Banana, Turmoil and Tenacity-Zimbabwe 1890-1990 College Press 1989.
10
The case of In re Southern Rhodesia 1919 AC 211 determined that unalienated state land in Southern
Rhodesia belonged to the crown and not the Africans (who lost ownership by their conquest) nor the
BSAC(which had conquered on behalf of the crown).
12

that any person who shall be entitled to receive a grant of land may upon payment of the
stamp on land grant or quit-rent for the year, obtain a provisional title deed. All
applications were lodged to the Administrator who was empowered to either amend or
repeal the provisions of the survey regulations.11
At the time of occupation by the BSAC all the land was not surveyed. The BSAC
conferred upon itself the powers to issue grants and conditions of title.

The Procedure in Land Registration involved the applicant first identifying the land
which he would deem as available. Secondly the applicant would make representation
himself as to the position and extend of the land. Thirdly the applicant would make
payment of stamp duty on the land grant and quit-rent for the year to obtain a provisional
title deed.12
Where the applicant submitted a plan according to the compass survey certified by the
company’s surveyor general (a certified plan) he would be entitled to a deed of grant or a
grant deed. It was also stated that the provisional title deeds were supposed to be
accompanied by:
(1) a diagram representing the land thus roughly marked out
(2) state the extend of the land as shown in the diagram
(3) conditions of title
(4) quit-rent payable upon the said land.

It is also important to note the aspect of beacons which were used in the granting of
provisional title deed. These beacons would help demarcate boundaries and in the event
of dispute the parties were required to identify the beacons applicable or reflected by the
provisional title and identify their neighbours to whom they share the same beacons.
There was also need of publication before the issuing of deed of grant that such land was
about to be surveyed and on the return date notice would be flighted in the Government
Gazette or local newspaper and copies were made to any affected parties who would
either lodge their admissions and denials with regard to the correctness of the beacons.
The prospective owner would pay costs of advertisements to the public revenue and costs
of printing before the issue of title. The following were also supposed to be adhered to:
(a) Notice once a week in the government gazette or local newspaper.
(b) Deliver copies of application for survey of land to the Administrator.

11
N.B There was no express definition of who an Administrator was.
12
N.B Applications were not accompanied by certified plans for an issue of provisional title deeds. Such
title in terms of section 2 of the Schedule to the 1895 Land Survey Regulations provided that the applicant
would “ state the position and extent of land applied for, the conditions of tenure upon which such grant is
made and the annual quit-rent on the extend of the land.
13

(c) Serve notice of intention to survey land to the adjoining owners.13

In terms of the additional regulations promulgated as at the 26th day of April 1894, the
Administrator would be required to do the following for proper registration:

(1) Incorporate baseline formulas


(2) Vertical angles
(3) Mode of survey
(4) Fixing of beacons by stadiometers
(5) Any surveys and subdivisions
(6) Use rectilinear figures with their sides and angles on the general plans.

The first Deeds Registry in this country was established at the then Fort Salisbury as from
the 8th May 1894 in terms of a proclamation, No 2 of 1894. The Deeds Registry at
Bulawayo was established in 1895. The purpose of establishing the Registry was ‘…for
the registration of all transfer deeds, deeds of hypothecation, ante-nuptial contracts and
other instruments which could be registered by the law of the Colony of the Cape of
Good Hope.’14 The proclamation provided as well that there should be assimilation as far
as possible, of the law and practice at the Cape and that this would be applicable. Thus all
statutes, ordinances, regulations and rules which were in force were adopted as of that
date. The Cape Deeds Registry Act of 1891 is the statute which was in force in the
Colony up to 1959. In introducing the second reading of the Deeds Registries Bill in
Parliament the then Minister of Justice and Internal Affairs, Mr. Knight stated that the
existing legislation had become old and inadequate to the extent that the Deeds Registries
were relying on practice and precedent.15 In urging the house to adopt the South African

13
N.B. if there were no residents in the adjoining lands to the identified land there was no need to issue
the notice. Where there were adjoining owners, these were duty bound to lodge admissions or denials on
the accuracy or otherwise of the beacons. Failure to lodge such admissions or denials would lead to them
being liable to payment of costs in the land court. Where there were denials made these would be lodged
with the Administrator and the surveyor would record every detail; topological feature, any beacons in the
vicinity and the dispute would be referred to the surveyor-general. The surveyor-general would determine
which resident magistrate would adjudicate over the matter and they would consider any plans, diagrams,
reports and any other documents or affidavits from witnesses.
The land court was presided over by a resident magistrate and two assessors (two independent land
owners). The judgment of the majority would prevail. There was room for civil appeal. At all times the
Administrator had power to cause survey of land where final title would not have been issued. The
provisions of the land survey regulations of 1895, section 27 thereof provided that “for the purposes of
these regulations the Administrator shall be deemed and taken to be an owner with regard to vacant or
unallocated lands and also with regard to native reserves.”
Schedule A of the 1895 Survey Regulations provided for the standard form on the admission to correctness
of beacons and Schedule B provided for a standard form on the denial of the correctness of beacons.
14
See the introduction of the Second Reading of the Deeds Registries Bill by the then Minister of Justice
and Internal Affairs, Mr. Knight in the Legislative Debates issue of 4th February 1959.
15 Ibid see column 1264.
14

Act the Minister described as natural to so copy considering that the registration system
had been copied from the same source and to have the added advantage of using the text
books and case law of South Africa.
The Deeds Registries Act passed in 1959 with minor amendments is the applicable
statute up to this day in this country.

1. 2 Land Registration System

Originally all land in this country belonged to the state (known as crown land, now state
land). There was no title to that land, and there was no private ownership of land.
Originally title is thus a Grant from the state. The first title to any land is thus known as a
Deed of Grant. The land is known as unalienated state land when there is no Grant.
Section 2 of the Deeds Registries Act defines “unalienated state land” as to mean
‘…State land in respect of which no title Deed, other than a Certificate of state title,
exists.’ Each piece of land registered as a separate entity must be surveyed and reflected
on a separate diagram approved by the Surveyor General. Jones opens up with the
following words:
"An efficient system of registration of title to land is impossible unless each
registered unit of land is surveyed and represented on a diagram or general plan"
He goes further to state that:
"It is apparent that registration of title to land originates in the survey of the unit
of land to be registered".
The preparation of diagrams and plans is governed by the provisions of the Land Survey
Act16 in Zimbabwe and the Land Survey Act 8 of 1997 in South Africa.
The definition of a diagram is similar in the interpretation sections of the two countries
Deeds Registries Acts. In Zimbabwe a diagram is defined as to mean, "a diagram which
has been signed by a person recognised by law as a land surveyor and which has been
approved or certified by the Surveyor General..."17.
A general plan means "a plan which represents the relevant positions and dimensions of
two or more pieces of land and has been signed by a person recognised by law as a Land
Surveyor and which has been approved or certified as a general plan by the Surveyor
General ..."18
Apart from the other duties the Surveyor General supervises cadastral surveys by land
surveyors. Cadastral means for purposes of registration of title.
A duly approved diagram establishes, for purposes of registration of title to the unit of

16
Chapter 20: 12.
17
Section 2
18
Section 2
15

land represented thereon by a geometrical figure:


i) the description of the unit;
ii) the extent (area) of the unit;
iii) the boundaries of the unit;
iv) the description of the beacons marking the unit;
v) the coordinates fixing the position of the beacons; and
vi) the description of the position on or in relation to the unit of any servitude
feature already registered or to be registered which affects such unit.

".... the diagram is the deciding factor for determining the boundaries of any unit, for the
Deed can only "repeat' the description from the diagram..."19
If there are variances between Deed and diagram, the description in the Deed must
prevail.20
A diagram may be dispensed with where the Surveyor –General issues a Dispensation
Certificate in terms of section 49 of the Land Survey Act (Chapter 20:12). The
dispensation certificate will contain a list of subdivisions together with corresponding
details for those subdivisions as would appear on a diagram.
In South Africa the Deeds Registries Act was passed in 1937 and it repealed the first
Union Statute Act 13 of 1918. The Regulations framed thereunder provided for land
registers for both rural and urban land and prescribed the form these were to take.
Title Deed to land must be in duplicate:
i) Client's copy which will be returned by the Registrar of Deeds to the Conveyancer and
this is the copy which the owner will generally keep.
ii) Copy filed with the Deeds Registry in which the land falls.
If it is an original Deed it is a Deed of Grant. If it is for a subsequent transfer it is known
as a Deed of Transfer.
All deductions are submitted by the Registrar to the Surveyor General. In each Deeds Registry there are
land registers (Farm registers, Township Registers etc). Each Deed of Transfer will refer to the diagram
annexed to the Deed of Grant, Certificate of Title etc or to the Deed for which a diagram was dispensed
with. If there is a subdivision(s) a fresh diagram is framed and approved for that subdivision.

The Ministry of Justice Legal and Parliamentary Affairs in conjunction with the Ministry of Finance has
commissioned and institutionalised a steering committee for the computerisation and commercialisation
19
See Jones at page 2.
20
See Wilderness (1921) Ltd vs. Union Government 1927 CPD 455.
16

of the Deeds Office. It is hoped that much will be learnt from the computerisation efforts carried out in
the South African system because of the history and similarities in our systems of Deeds registration.
Suffice to say that it is hoped that with computerisation of information, the land registers will be
withdrawn from use. Computerisation should also replace the system of card indexing of persons as the
information previously supplied by the personal index cards can subsequently be obtained from the
computer.

1 .3 Functioning of the Deeds Office

1 .3 .1 The Act established Deeds Registries at Harare and Bulawayo to serve areas detailed in the
schedule21. Any filing or registration of Deeds or documents relating to a particular property is effected
in the Deeds Registry for the area in which the immovable property is situated. For instance registration
of a Mortgage Bond over property in Gweru, Gwanda, Tsholotsho, Binga, Kwekwe, Lupane or Victoria
Falls, is effected at the Deeds Registry in Bulawayo and registration of a servitude over property in
Chipinge, Kariba, Uzumba–Maramba-Pfungwe, Masvingo, Harare or Guruve is effected at the Deeds
Registry in Harare. Where transactions affecting land in both areas of the schedule are sought to be
registered, the Registrars may by mutual consent effect the registration in a manner found to be
expedient in the circumstances22. Unlike in South Africa, a Conveyancer can appear before the
Registrar at Harare or Bulawayo to execute documents.

Section 2 of the Act contains definitions and interpretations. Section 5 of the Deeds Registries Act lists
the duties of the Registrar and Section 6 deals with the powers of the Registrar. The Registrar can only
do what is authorised by the act23. Section 5 of the Act is very important in that it lists the various acts
which can legally be undertaken by the Registrar. The Registrar is enjoined to inter alia:
a) Take charge of all records in the Registry in which he has been appointed;
b) Examine all Deeds and documents submitted for execution or registration and to reject those that do
not comply with the law;
c) Register Notarial documents i.e. those executed by and before a Notary Public such as Leases, Trusts,
Antenuptial Contracts, Notarial Bonds, etc.;
d) Register Mortgage Bonds, Cessions of Mortgage Bonds and consents relating to Mortgage Bonds24;
e) Register title Deeds to land; etc.

As mentioned earlier the importance of this section can not be overemphasized. Examiners and other
officials of the Deeds Registry as well as Conveyancers need to understand the provisions of section 5 of
the Act as it condenses the wide spectrum of the documentation to be prepared, executed, registered and
kept in the Deeds Registry.

The South African Act provides for the appointment of a Chief Registrar, Registrar of Deeds, Deputy
Registrars of Deeds and Assistant Registrars of Deeds. Our Act obliges the Minister of Justice Legal
and Parliamentary Affairs to appoint a Chief Registrar of Deeds who can supervise and direct the Deeds
Registries in Zimbabwe. The Minister may appoint such Registrars of Deeds and other officers as the
Minister deems necessary for carrying out provisions of the Act. Such other officers have powers to

21
See section 3(1) of the Act.
22
See section 7 of the Act.
23
See section 5 & 6. See also Section 6 (b).
24
See section 6 .4 herein after.
17

perform acts which may lawfully be done by the Registrar as directed by the minister25. Each of these
persons is enjoined to have an understanding of various aspects of the law, but the responsibility to
ensure that transactions are properly executed by the persons entitled to do so is on the Conveyancer.

As the office of the Registrar descends from that of the judge's, the office exercises semi-judicial
discretion. The Registrar is empowered in terms of section 6 of the Act to:
a) require proof of any fact connected to his duties by affidavit or otherwise;
b) rectify errors in Deeds or documents registered or filed in the Registry; and to
c) issue certified copies of Deeds or documents under his control etc.

The Registry keeps public records and as such, members of the public are allowed on
payment of the prescribed fees to inspect and to obtain copies of the registers or records
in the Registry.26

Registered title Deeds or other real rights in land excluding Mortgage Bonds cannot be
cancelled except upon an order of Court27. Where a title Deed is cancelled the prior Deed
is revived to the extent of such cancellation and the Registrar makes the appropriate
endorsements28.

As regards matters already registered, it is not the functions of a Registrar to interpret the legal meaning
of clauses in Deeds and it is outside his province for instance, to require a new Deed to contain a clause
interpreting the effect of conditions in a previous Deed or to refer the parties to Court for that express
purpose only29.

The Registrar is charged with examination of all Deeds and documents submitted to him for execution
or registration (section 5 (1) (b)) and thus he must examine Notarial Deeds. Here he acts under the
presumption that the Notary has done his duty and he has no jurisdiction to demand proof that the
Notary has satisfied himself as to an agent's authority30. It is clear that the Registrar has no power to
question the validity or authority of parties appearing before a Notary31 but if ex facie a Deed is by a
person not competent to contract, a Registrar must refuse registration32.

In the administration and functioning of the Deeds Office the Registrar can by circulars to Conveyancers
and members of his staff give directions on matters of practice which of course should not be in conflict
with the Act, the Regulations or any other law. The important aspect is that a practice of the Deeds

25
See section 4.
26
See section 9 of the Act.
27
In Munemo v Maswera 1987 (1) ZLR (SC) the Court while acknowledging that the word “Court” in
s8(1) of the Deeds Registries Act means the High Court, the vital words in the section are “save as is
otherwise provided for in …any other enactment”. It being otherwise provided for in the Magistrates Court
Act s13(1)(b)(ii) that magistrates have jurisdiction to order the transfer of immovable property worth more
than $2000 (as the limit then was), the magistrates Court were held to have jurisdiction to adjudicate on the
transfer of immovable property, subject only to the value limitation.
28
See section 8 o the Act.
29
See Shandross vs. Registrar of Deeds TPD 407 at 412 and 415, and Schoeman No vs. Registrar of Deeds
1918 TPD at 12.
30
See Transvaal Land Company vs. Registrar of Deeds 1909 TS 759.
31
Ex parte Bullard 1937 TPD 297.
32
Breytenbach vs. Frankel and another 1913 AD 390 and also Jones page 15.
18

Office does not constitute a legal requirement33.

In terms of section 13 of the Act the following documents shall not be attested, executed or registered by
the Registrar unless they are prepared by a Conveyancer:

i) Certificate of title
ii) Deed of Transfer
iii) Mortgage Bond
iv) Cession of Mortgage Bond
v) Consent to Substitution
vi) Agreement to variation of terms of a Mortgage Bond

The Conveyancer is defined as a person registered as such in terms of the Legal Practitioners Act
(Chapter 27:07).
Section 10 explains when registration is considered to have taken place. In terms of
Section 10 (1) registration takes place as soon as the Registrar has affixed his signature to
the document. The proviso to the section is important. It is to the effect that unless the
whole batch is signed, registration will not be taken to have been made. An omission by
the Registrar to affix his/her signature or to make the necessary endorsements or entries
does not invalidate the registration. He or she can subsequently affix the signature or
make the necessary endorsements or entries when the omission is discovered34.
Registration of Transfer is at law taken to be the equivalent of the delivery of movables –
which common law position is incorporated into section 14 of the Act35.

In South Africa Law Societies have Conveyancing Committees which work with local Registries in
ironing out difficulties and formulating procedures. We also have a Conveyancing Committee of the
Law Society of Zimbabwe.

1 .4 The Regulations

Apart from the provisions relating to documents the Deeds Registries Regulations prescribes the forms
for the following:

a) Certificate of State Title;


b) Deed of Transfer;
c) Deed of Partition Transfer;
d) Substituted Title Deeds;
e) Substitution of Debtor, etc.

The Regulations also provide for the procedure of obtaining copies of documents and other ancillary
matters relating to Deeds of Transfer and Mortgage Bonds. The Regulations give the minimum
prescribed form for transfers; there are no prescribed forms for Bonds.

33
Standard Bank van SA Beperk vs. Breitenbach en andere 1977 (1) SA 151 (T).
34
See sections 10(2) and 10(3) of the Act.
35
See Machiva v Commercial Bank of Zimbabwe and anor. [2000] JOL 6471 (ZH).
19

It is important for a Conveyancer or an examiner to understand the Regulations since


documents which are not drawn in accordance with the Regulations and the Act can be
rejected by the Registrar of Deeds. It is necessary therefore that we deal with the
provisions relating to documents.

1 .5 Provisions relating to documents


The Provisions relating to documents are contained in part I of the Regulations. In terms
of the Regulations the top half of the first page must remain blank for purposes of
endorsements36. All blank spaces must be ruled through37. Catchwords must be written at
the bottom of each page38. These are no longer required in South Africa39. Documents
must be typed in English words on strong white paper size A440. In South Africa,
documents must be written, typed or printed on one side of the paper in terms of a Chief
Registrar’s circular41. In terms of our law a margin of 35mm should be kept on the left
hand side on documents printed on one side of the paper. If documents are printed on
both sides of the paper, the margin should be observed on both sides42. It is advisable that
this should apply to supporting documents as well although the Regulations do not
specify this. In terms of the South African Regulations, no signature should encroach on
revenue stamps or onto the binding margin. Documents in foreign language can only be
accepted if there is lodged with the documents a translation duly certified by a person
accepted by the Registrar as being competent to make the translation43.
Any documents relating to a corporate body's constitution must be lodged with the
necessary extract or an extract from the minutes of a meeting of the board of directors of
a company44. The reason is that there should be evidence that there is power or authority
to do what is done. This is particularly so where the entity is disposing of its rights.
The Registrar may accept for record purposes only, the filing of a photographic copy. He
should not however accept for registration a carbon copy of a document45. This then
implies that the client’s copy can be a photocopy. Any alteration or interlineation must be
initialled by the person executing the document and the attesting witnesses46. Documents
must be clear and not folded47. The Registrar may reject any document which is not
legible or because of its folding is not durable.

1 .6 Identification of Persons
The identity of persons in documents to be lodged with deeds registry is governed by the

36
See Regulation 3(2)
37
See Regulation 3(4)
38
See Regulation 3(5)
39
See Jones at page 55.
40
See Regulation 3(1)
41
See Jones at page 54.
42
See Regulation 3(1)(a)
43
See Regulation 5
44
See Regulation 12
45
See Regulation 3(3)
46
See Regulation 4
47
See Regulation 6
20

new section 51 contained in statutory instrument number 5 200548. Prior to this statutory
instrument natural persons could be identified by means of their names and dates of birth.
Now the identity of any person is established by means of his or her identity document,
full name and date of birth. Full names are required and not aliases. Dates of birth are
required except for persons who are acting in a representative capacity. Also prior to the
statutory instrument, corporations, associations and institutions have to be identified by
their names in full as they appear on their Certificates of Incorporation or constitutions.
Now the new statutory instrument requires that:
a) a company or private business be identified by a company number appearing on
its Certificate of Incorporation.
b) a trust be identified by its M.A. number issued by the deeds office.

2 Real and Personal rights49

48 Deeds Registries (Amendment) Regulations, 2005 (No. 9) S.I. 108 of 2005.


49
This topic is not meant to provide a comprehensive coverage of the meaning and distinction of real and
21

When you have full ownership to the land, you have full rights. Lesser rights must be
ceded by the owner by what is known as Notarial Deeds and may in special
circumstances be reserved in the Deed of Transfer. When this is done in Zimbabwe all
these reservations must be created in the Power of Attorney.
Ownership in land can only be conveyed or transferred from one person to another by
Deed of Transfer executed or attested by a Registrar50.
Other real rights in land may be conveyed only by means of a Deed of Cession attested
by a Conveyancer and registered by the Registrar.
In section 2 of the Act, the interpretation section, a real right means a right which
becomes a real right upon registration.
Various jurists have come up with theories in an attempt to distinguish between a real
right and a personal right. Two major theories have emerged over the years, the classical
and the personalist theories.
a) The personalist theory
The personalist theory is so called because it makes the person against whom the right
operates the subject determining the distinction between real and personal rights.
A real right, or a jus in re, is an exclusive interest or benefit enjoyed by a person in a
thing and is usually defined as real when it entitles the holder thereof to vindicate or
enforce it for himself, it being good against the entire world. A real right is considered to
be absolute because it entitles the holder to enforce it against all other persons.51 The
holder has the right to bring an action against any person who seeks to deal with the real
right in any manner which is inconsistent to the exercise of the holder‘s power to control
it.52
There are different kinds of real rights. However in regards to land the sum total of real
rights is absolute ownership entitling the owner to use, possess, alienate or destroy what
he owns. This can be broken down to various constituents like servitudes, long lease etc.
A personal right on the other hand is a right ‘…enforceable only against a particular
person or association of individuals on the basis of a special legal relationship, such as a

personal rights but to give a brief discussion showing how this affects their registrability. For a full
discussion the reader is advised to read textbooks on Property Law such as “Silberberg”.
50
See Mavhundise vs. UDC Ltd & ors. 2001 (2) ZLR 337(H) at page 342F-G. In Chapeyama v Chapeyama
2000 (2) ZLR 103 (S) it was held that “the registration of rights in immovable property in terms of the
Deeds Registries Act is not a mere matter of form…It conveys real rights upon those in whose name the
property is registered …The real right of ownership, or jus in re propria, is ‘the sum total of all the possible
rights in a thing’- Willies’ Principles of S.A. Law 8ed p255”
51
Note that the absoluteness of a real right is in a general sense because it is subject to numerous
limitations such as the rei vindication, the law of nuisance, the operation of the doctrine of estoppel and the
various exceptions to the nemo dat rule.
52
See Smith vs. Farrelly’s Trustee 1904 TS 949 @ 958.
22

contract, the commission of a delict or some other good or sufficient cause.’53 It is


relative as opposed to absolute.54 It entitles a person to claim from another something or
act or refrain from doing an act. It is a right from a person by a person claiming
something or restraining him from doing something.
b) The Classical theory
The Classical theory derives its name from the fact that it is consistent with the Roman
law distinction between a real right and a personal right. It classifies the rights in
accordance with the differing nature of their objects. The object of a real right is a thing
and a real right therefore establishes a direct legal relationship between a person and a
thing. The exercise of this right is said to be with no limit, hence the Dutch expression:
“zonder noodigh opzicht op een ander mensch”55. Personal rights on the other hand are
seen to be concerned with people. While a real right gives rise to power of control over a
thing, a personal right only gives a rise to claims against a particular person who owes an
obligation.56
It is clear from the aforegoing that the distinction between real and personal rights is
elusive. The Courts have attempted to make the distinction by applying a two part
criterion:
a) The intention of the person who creates the real right. The intention must be to
bind not only the present owner but his successors in title.
b) The nature or the condition of the right must be such that its registration results in
a ‘subtraction from the dominium’ or ‘diminution of ownership’.57
Thus only personal rights are transferred at the conclusion of a sale contract of
immovable property and the transfer of real rights takes place upon the registration of the
transfer.58
While the Registrar must register servitudes in immovable property he is restricted from
registering anything in immovable property or any condition which does not restrict the
exercise of any right of ownership. If it is so registered, then it must be deleted.59 This is
the case where there has been an agreement to sell land without the necessary act of
transfer. The Court held in the Machiva60 case that the buyer does not become owner
until transfer has taken place. Until that time, he only has personal rights against the
53
See Silberberg at page 44.
54
Some personal rights can be absolute as was indicated in the case of Jansen vs. Pienaar (1881) 1 SC 276
55
‘…without necessary relation to another man…’
56
The characterization of a real right as concerned with the relationship between a person and a thing and a
personal right as between persons inter se ignores the fact that real rights also involve the relationship
between persons which is a fundamental basis of the law of property and the law in general. Only the fact
of possession can be defined as a direct relationship between a person and a thing but even then, it is
enforceable against third parties.
57
See Ex parte Geldenhuys 1926 OPD 155 where it was held that the personal right in issue was registrable
because it was intimately connected with a registrable right.
58
See Sackstein NO vs. Van der Westhuize en n ander 1996 (2) SA 431 @ 432.
59
See section 77(b) of the Act.
60
Supra see footnote 32.
23

Seller. In double sales the first Purchaser’s rights are greater. However where transfer has
been registered in favour of a second Purchaser, that Purchaser has greater rights. This is
because the first Purchaser only has obtained personal rights and the second Purchaser
has acquired real rights61.
The distinction between a real and personal right can be summarized as follows:
A personal right is enforceable against the owner only while a real right is enforceable
against the owner of the property and against his successors in title. Therefore if the right
is ineffective against successors in title it is a personal right and can not be registered e.g.
an option to purchase land because that option is personal. There are however, certain
personal rights which can on registration become real rights and therefore the definition
of a real right in the Deeds Registries act. If that personal right is capable of becoming a
real right on registration it does so behind the successors in title. It is a type of personal
right which is capable of being made a charge not on the person but on the property. A
personal right is registrable if it is ancillary to registrable real rights62 or it complies with
the iura in personam ad rem acquirendam.63
In deciding which personal right is registrable one must not look so much to the right
itself but to the correlative obligation. If that obligation is a burden upon the land in other
words a subtraction from the ownership then the corresponding right is real and
registrable.
If it is not such an obligation but merely one binding on some person or other, the
corresponding right is a personal right which is unregistrable as a general rule.64 There
are some exceptions because of some immemorial practice and custom which are
registrable. These exceptions do not make them real rights. They remain personal
between the concerned parties. These are the rights of usufruct, habitatio and usus. These
personal rights can be registrable. It should be noted that these rights can not extend
beyond the lifetime of the person in favour of whom they are created. Section 59 of the
Act states the following - "No personal servitude of usufruct, habitatio and usus can be

61
In Guga v Moyo and others S.C. 130/2000 it was stated that the basic rule in double sales where transfer
has not passed to either party is that the first party should succeed. The first in time is the stronger in law.
The second Purchaser is left with a claim for damages against the Seller…but that rule applies only “in the
absence of special circumstances affecting the balance of equities”. This broad principle was acknowledged
to be our law in Barros v Chimphonda 1999 (1) ZLR 58 (S) although that case turned on the fact that the
second Purchaser had knowledge of the first purchase.
62
See Ex parte Geldenhuys (supra).
63
See Registrar of Deeds (Transvaal) vs. Ferreira Deep Ltd. 1930 AD 169. See also the case of Kain vs.
Khan 1986 (4) SA 251 where the right of a lessee to occupy a room in a building was said to be a ius in
personam ad rem acquirendam. It was held that once occupation is given and taken the lesee acquired a real
right of occupation of the premises, a ius in re and the right was registrable in the Deed of Transfer.
64
It should be noted that a right the nature of which is inconsistent with the fundamental character of a real
right as known to the law, cannot be converted into a real right by the mere fact of registration. A personal
right, which is registered by mistake, will therefore retain its personal character. See the case of British
South Africa Company vs. Bulawayo Municipality 1919 AD 84. In Nel vs. Commissioner for inland
Revenue 1960 (1) SA 227, it was held that “in regards to the annuity (the right which the Court regarded as
personal), the right would not be registrable or, if the Registrar of Deeds should register it on the principle
applied in Ex parte Geldenhuys (supra)…registration would not convert it into a right in rem.”
24

extended beyond the life of the person in whom it is registered."65

3 POWERS OF ATTORNEY

65
These rights are also discussed in section 4 .4 hereinafter.
25

3 .1 Introduction
Powers of Attorney are provided for in terms of PART IV of the Regulations and
Sections 27 to 30 of the Act. The Power of Attorney simply entails the power to act on
behalf of someone. In Zimbabwe there is no requirement for a preparation certificate in a
Power of Attorney unlike in South Africa66. A Power of Attorney can either be a special
Power of Attorney or a General Power of Attorney.
A Special Power of Attorney to pass transfer is executed where a person who wishes to
transfer property gives a Conveyancer the power to pass ownership. In transfers where a
Special Power of Attorney is executed it is filed with the Deeds Registry. If acting under
a General Power of Attorney, the original is lodged with a certified copy then the
Registrar returns the copy to the Conveyancer. This is because the General Power of
Attorney is for general powers unlike the special Power of Attorney. The original General
Power of Attorney shows that it has not been revoked.
The Special Power of Attorney will describe the property to be transferred clearly.
If a Special Power of Attorney is incorporated in a Deed each sheet or paper thereof must
be signed and initialled by the person granting the Power of Attorney and the attesting
witnesses.
All alterations and lineations must be initialled by the grantor and attesting witnesses.

3 .2 Transfer to a minor
This is covered by Regulation 32 and section 28 of the Act.
In terms of Regulation 32, property transferred or donated to a person who is a minor
must be registered in the name of the minor.
The minor's full names and dates of birth should be provided.
When property is acquired by a minor the Deeds Office is not concerned as to how the
minor acquired the property because the minor is simply receiving the benefit of transfer
and not dealing with the property. The Power of Attorney to accept the donation is
executed by the minor's Guardian.
In the registration of transfer of property there should be a single Power of Attorney to
make transfer. However, in the registration of a donation of property, there should be a
Power of Attorney to accept donation and a Power of Attorney to make the donation.
However when the natural guardian donates, the mere fact that he executes the Power of
Attorney to make donation is sufficient indication that he has accepted donation on behalf
of the child.
Section 28 deals with the position when property has been donated or bequeathed to
children born or to be born to any person or to any marriage. In these instances the

66
See Jones at page 56 and the discussion of a preparation certificate in part 4 .1 hereafter.
26

property must be transferred either to the person in question or in the case of marriage to
the person who would be the natural guardian of those children during their minority and
in both cases the person will hold them in trust for the people born or to be born e.g.
Dorothy Mpofu for the children born or children to be born to the said Dorothy Mpofu.
Jonathan Ndlovu for the children born or children to be born to the marriage of the said
Jonathan Ndlovu and Cecilia Ndlovu.
The person to whom transfer can be made accepts the transfer67. Section 28(3) provides
that where the identity of all the children has been established, the Registrar endorses the
names on the Deeds and the Deeds are then deemed to be in favour of such children as if
the original transfer was made to them by name.

3 .3 Special provisions relating to women


In terms of Section 15 of the Act a married woman has to be assisted by her husband
unless she has the capacity. In terms of Section 15 (2) the written application can be
made by such women who wish to have a change of their marital status. It seems this
section applies only where the parties are married in community of property.

3 .4 Breakdown of a special Power of Attorney


1) The grantor
This is the Transferor or Principal. In a Special Power of Attorney, the grantor's full
names, address and date of birth must be disclosed excepting where the grantor acts in a
representative capacity. No alias is permitted. The description of the grantor must follow
that in his title Deed68. If that in the latter is incorrect it must be amended. If there has
been a change in the marital status of the grantor there may be no need to change the title
because in the Power of Attorney she is described in her new name and in the extending
clause full details of the previous name is given e.g..... then married to......
The points raised by Jones on page 95-96 are pertinent. I summarise them here as
follows;
i) If the status of the grantor changes after the signing of the Power of Attorney,
such power may not be validly acted upon e.g. a minor subsequently attaining
majority status.
ii) Agency is revoked when the Principal dies. Acts done by the agent in bona
fide ignorance of the Principal’s death are binding69.
iii) An executor cannot sign a Power of Attorney before Letters of Administration
are issued to him.
2. The Agent or Appearer
67
See section 28(2) of the Act.
68
Titles as well as nicknames are not permissible. Thus ‘Mrs.’, ‘Hon’, ‘Dr’ or ‘Cde’ should not be used.
69
See Incorporated Law Society, Transvaal vs. Meyer & Another 1981 (3) SA 962 (T)
27

He must be a Conveyancer. The practice is to insert most of the registered Conveyancers


in the firm in the alternative and the appointment is with power of substitution. This
ensures that the Power of Attorney is not redrawn in the absence or incapacitation of a
Conveyancer.
3. The Transferee
This is the person to whom the property is going to be transferred. The description of the
Transferee has to follow the same requirements as those of the grantor as discussed
above, that is, the full names and dates of birth have to be provided. If it is a corporate
body the full names have to be provided as well. A company is described by its full name
as it appears on its certificate of incorporation, a trust as per its Trust Deed and a society
or cooperative by its constitution.
In a partnership, the full names of the partners and their dates of birth must be provided
when transferring property. This is followed by the words:
"...associated together in partnership" or
".... carrying on business in partnership under the name Bloggs and Bloggs"
4 Property and its extent
The property and its extent or area must be described in accordance with the grantor's
title Deed and it has to be an exact description.
The extent must be expressed in words and figures.
5 New conditions
New conditions which are to appear in the title Deed should be set out in the Power of
Attorney.
6 Mode of Disposal
This will indicate that the property has been sold, donated inter vivos, for an exchange of
property etc. It sets out the causa for the transfer.
7 Execution Clause
This shows the date and place where the document was executed by the grantor and
witnessed by 2 persons above the age of 14 years. The agent and Conveyancer cannot act
as a witness. Section 78 of the Act deals with execution of Powers of Attorney both
within and outside the country. (see Chapter 6, section 6 .3 below). The Power of
Attorney must be signed or executed by the grantor. The Special Power of Attorney must
be signed by the owner of the property or his duly authorised representative70.

70
In Mafukidze v Mafukidze HH-193-94 the Court held that a forged Power of Attorney can lead to a
transfer being declared void, the Deed of Transfer in the Purchaser’s favour cancelled and a Bond in favour
of the building society cancelled.
28

4 The Deed of Transfer

4. 1 The Analysis Of A Deed Of Transfer71


Section 13 of the Deeds Registries Act deals with the preparation of Deeds. There is a

71
Such analysis should be done with the additional reference to the Deed of Transfer. In this regard the
reader is advised to go through the analysis with the aid of precedent No. 14 .2.
29

minimum prescribed form in the Regulations72. We will deal below with the standard
clauses which appear in a Deed of Transfer. As indicated earlier on, the Deed of Transfer
conveys the real right of ownership73 where such right has been originally granted.
a) Preparation Certificate
It is important to remember that the top half of the first page is left blank for
endorsements. The preparation certificate appears on the top right of the bottom half74
and contains the words:
Prepared by me
Conveyancer
Usually the Conveyancer signs in the blank space to show that he has prepared the
document.
In South Africa the Deed of Transfer is prepared by, and hence the preparation certificate
is signed by the Conveyancer practising within the province in which the land dealt with
is situated. In Zimbabwe a duly registered Conveyancer can prepare a Deed of Transfer
or Mortgage Bond whether the property concerned is under the area served by the Deeds
Registry at Harare or at Bulawayo.
Our law generally recognises professional liability for negligence in improperly drawn
documents. However it is submitted that our law should expressly by statute impose
liability on the Conveyancer or practitioner who signs the preparation certificate. The
preparer must accept responsibility for the correctness of the facts contained in the
document which is lodged with the Deeds Registry.
b) Heading
This is the title which indicates the nature of the Deed e.g. Deed of Transfer, Deed of
Donation Transfer etc. The proper heading of a document must be given.
c) Preamble
This is the clause which starts as follows "Know all men to whom it may concern....." and
ends with the words ‘…and the said Appearer declared that…’ The preamble makes
reference to the Power of Attorney granting authority to the appearer. The grantor of the
power becomes the Transferor in the Deed. The preamble in the Deed should be similar
to that in the Power of Attorney in terms of description of the Transferor.

72 The form D.R. 2 has now been replaced by a new simplified form by the Minister of Justice,
Legal and Parliamentary Affairs through the Deeds Registries (Amendment) Regulations, 2005
(No. 9). What is contained herein is based on the old form and it should be easy to apply the
principles contained herein. Consultations are underway between the Ministry and Conveyancers
on this statutory instrument as the latter consider the changes flawed. It has therefore been felt by
the author that there is no need at this stage to analyse the deed as amended.
73
See section 14 of the Act.
74
Remember the top half of the first page is left blank for endorsements.
30

d) Recital Clause
It follows immediately after the preamble giving the reason for the transfer. The recital
clause must be concisely drawn without compromising on clarity. Every Deed of
Transfer must contain a causa whatever form the Deed may take.75
This clause is very important because if the validity of the Deed of Transfer is
questioned, any dispute will revolve on the cause of the transfer. If simply ‘A’ sells to ‘B’
the recital would read as follows:
‘…declared that his said Principal had truly and legally sold…’
In South Africa it is acceptable to insert the date of sale in the recital clause. This is
important because the date when the Transferee obtained a right to the property is
ascertainable from the Deed itself. At present in Zimbabwe one can only be able to
determine the date of sale by conducting a Deeds search and perusing the declarations
filed for stamp duty purposes. It is submitted that this should be adopted by our system.
This adoption should not encompass the practice of other South African Deeds Registries
where the date is part of the consideration clause. This is because the date of payment is
not necessarily the date when the right was obtained.
The recital to a Deed of Transfer cannot contain conditions of title76. Transfer should not
be passed as security for a debt or other obligation. This includes cessions of leases or
subleases or any other real right in land77.
e) Vesting Clause
The vesting clause contains the full names and dates of birth of the Transferee. If the
Transferee is deceased the property is transferred to his estate in which case dates of birth
are not necessary. If the Transferee is a company, it is identified by its full name as it
appears in its certificate of incorporation78.
Where property is to be transferred to a living and/or deceased person the transfer is
made in favour of the person or his estate and his heirs, executors, administrators or
assigns. When dealing with companies or associations where there are no heirs etc
transfer is made to the company or association and its successors in title or assigns. The
word order must never be used, as a Deed of Transfer is not a negotiable instrument.
For example a vesting clause could read as follows:
‘…did by these presents cede and transfer in full and free property, to and on behalf of

PETRA MAJOSIE
(born on the 13th of September 1958)

75
See Jones at page 180.
76
See Ex parte Johannesburg City Council & another 1975 (1) SA 816 (W).
77
See section 72 of the Act.
78
It is advisable for a Conveyancer to always ask for a copy of the certificate of incorporation.
31

(hereinafter styled the Transferee) her Heirs, Executors, Administrators, or


Assigns,
The description of the Transferee as being a minor, bachelor, spinster, widow, widower
etc., is in our law considered to be superfluous. The minority status of the parties will
appear ex facie by virtue of the date(s) of birth being inserted after the party’s name.
f) The Property Clause79
This is the clause which gives the full description of the property i.e. where it is situated
and its extent or area e.g.
certain piece of land
situate in the District of Chegutu
called stand number 321 Chegutu Township
measuring 546 square meters
or
certain 500 square meters of land
situate in the District of Harare
called stand 1796 Budiriro Township

Although names of urban areas were changed after the attainment of independence in the
early eighties, such names should not be changed in the draft documents. If the diagram
refers to "Salisbury Township", that is what has to be followed in the new draft Deed and
cannot be changed unless this is done by the Surveyor General. Thus references to
Marandellas, Sinoia, Gwelo, Gatooma, Hartley, etc should be carried over as they appear.
In terms of Regulation 11 the area must be described in figures.
g) Extending Clause
This is one aspect that can give a lot of problems. The extending clause follows
immediately after the property clause. For a better understanding of the extending clause
it is important to explain a few terms:
i) Holding Deed - This is the Deed under which the
registered holder holds the
property presently. It
is the current Deed.

79
Obviously the property clause will be as it appears in the current or Holding Deed. It is actually the
description as it appears on the diagram of the land.
32

ii) Title Deed - This is the document or Deed


whereby title to land is held. The word title Deed
refers to documents such as the Deed of Transfer,
the Deed of Grant, the Certificate of Registered
Title, the Certificate of Consolidated Title etc.
iii) Deed of Grant- As has been mentioned previously the Deed of
Grant is the original title to land where in the state
has granted title to an individual.
iv) Diagram Deed - This is the Deed under which property is or was
held, to which an approved survey diagram is
attached. Thus a Deed of Grant, which is a title
Deed, can be both the Holding Deed as well as the
Diagram Deed. If property is subdivided, a new
Diagram Deed is created and subsequent transfers
will refer to it and not to the old Diagram Deed
which is only referred to when dealing with the
remaining extent.
v) Dead Deed- When a new Deed is registered the previous Deed
not being a Diagram Deed becomes a Dead Deed.
The important aspect to know about extending clauses is that they must refer to Diagram
Deed first then to Holding Deed last. Examples of extending clauses are provided in
section 4 .3 below.
Since 1982 the South African system has moved away from the way we draft extending
clauses. The extending clauses are prescribed in terms of their GN No R359 of 1982. The
material changes were that the new extending clauses refer to the Diagram Deed and the
Holding Deed by numbers only. There is no longer any reference to the dates of title, the
holders of the titles or the intermediate Deeds. This is illustrated by the following
examples:
i) As will appear from the annexed diagram SG No 5678/2003 and held by Deed
of Transfer No T123…/2003
ii) First transferred and still held by Deed of Transfer No T123…/2003 with
general plan No TP6789LD relating thereto
iii) First transferred by Deed of Transfer No T123.../93 with diagram SG No
5678/93 annexed and held by Deed of Transfer No T234…/2003.
h) Conditional clause
This is the clause relating to the conditions under which the property is held. All
conditions in the Holding Deed must be carried forward. In Zimbabwe we have a general
clause which refers to the conditions in the Deeds mentioned or referred to in the
extending clause. In Cape Town the first reference is to a ‘pivot Deed’. The clause which
33

refers to the pivot Deed reads as follows:


‘Subject to the conditions referred to in…’ and then followed by a reference to a Grant,
Deed of Transfer, Certificate of Consolidated Title, etc. Other Registries in South Africa
follow different practices. For example in the Orange Free State, all conditions are
brought forward.
Conditions may be deleted if they have to be so deleted in terms of Section 77 of the Act.
If there are new conditions they must be added. It is advisable to indicate the person by
whom the condition is enforceable.
If some existing conditions lapse they must be deleted.
The conditional clause may have a "not subject clause". Where this exists the reason for
the transfer not being subject to an existing condition must be given. We will again deal
with conditional clauses in greater detail in clause 4 .4 below.
i) Divesting Clause
This is the clause whereby the Appearer divests his Principal of his ownership.
Increasingly now the practice is to omit the divesting clause altogether. This makes sense
as this clause seems to the writer to be superfluous and is not in any event part of the
prescribed form of Deed of Transfer in form number D.R. 2. The divesting clause reads
as follows:
“WHEREFORE the Appearer, in his said capacity, renouncing all the right and
title the said CHAMUNORWA NDLOVU heretofore had to the premises,
acknowledged the said CHAMUNORWA NDLOVU to be entirely dispossessed
of and disentitled to the same; and that by virtue of these presents the said

JAMES NDLOVU

his heirs, executors, administrators or assigns, now and henceforth shall be


entitled thereto conformably to local custom; moreover promising to free and
warrant the property thus transferred and also to clear it from all hypothecations
according to Law; Government, however, reserving its rights.”

The underlined portion is known as “State rights reservation clause” which should be
omitted in transfers to the State.

j) The consideration clause


This states the value or the purchase price of the property. The importance of this clause
is that the transfer duty is paid on the purchase price or the value of the property
whichever is the greater. According to Jones80 there is no need to state that the purchase

80
At page 116.
34

price has been paid or secured and he admits that many Conveyancers include a reference
to this. It is submitted that it should be mandatory that such reference be made. It should
be the duty of the Conveyancer to ensure that satisfactory consideration has been made
before he conveys real rights from one person to another.
If the Registrar of Deeds feels that the purchase price or value inserted is too low, he
sends the details to the government valuers. The lodging cover is returned to the
Conveyancer with an entry on the examination sheet that the transaction has been sent for
valuation. When valuation is complete, the Registrar will ask for additional duty or
accept the documents for registration on the declared value as the case maybe. If it is not
a sale the valuation accepted for stamp duty purposes must be mentioned in the
consideration clause.
In a donation there is no consideration but the value should be inserted for stamp duty
and Capital Gains Tax purposes.
It is common practice to reflect monetary amounts in words and figures.
k) Execution Clause
This is the clause wherein the Act of execution of the Deed by the appearer before the
Registrar is recorded. The Registrar inserts the date of registration of the transfer.
Although it is a requirement that the appearer has to physically appear before the
Registrar to execute the Deed, this is not strictly enforced in Zimbabwe unlike in South
Africa. Here a Conveyancer who has been registered by the High Court as such will
present himself or herself before the Registrar with inter alia his or her registration
certificate. The Conveyancer will be asked to sign a register which contains specimen
signatures for Conveyancers. Thereafter the Conveyancer does not have to physically
appear before the Registrar. He or she will simply execute the document and lodge it with
the Registrar who will check the specimen signatures register to verify the appearer’s
signature. The Registrar will ask the Conveyancer to physically reappear if there is a
change in the signature.

4 .2 Documents and certificates to be lodged with the Deed of Transfer.


These documents and certificates depend on many factors and the nature of the transfer
determines which of these are to be lodged. They are also referred to as supporting
documents. The nature of the land transferred and the parties concerned also have a huge
bearing on the supporting documents to be lodged. A Conveyancer should carefully
examine the title to land or to any right in land to determine which supporting documents
are required. When they are in place, they should be checked for accuracy before lodging.
i) The Power of Attorney to Pass Transfer
The long Special Power of Attorney has been discussed earlier. It is important to add that
the Conveyancer should not act by virtue of a Power of Attorney where the grantor has
become deceased81. Where the Power of Attorney is a short Power of Attorney it is not

81
See the case of Incorporated Law Society Transvaal vs. Meyer & another 1981 (3) SA 962 (T).
35

considered to be a supporting document. It is in this case a part of the draft Deed and is
annexed thereto or follows immediately at the end of the title Deed. If a short Power of
Attorney is used the grantor and the attesting witnesses should initial each page of the
office copy of the draft Deed of Transfer.
ii) The Title Deeds (Holding Deed)
Whenever land is being transferred the Holding Deed must be lodged. If the Holding
Deed is lost an application for a certified copy thereof must be made. If in that Deed the
area of the property is expressed in Cape or English measurements and has not been
converted an application has to be made to the Surveyor General for such conversion. If it
is not a Diagram Deed it should still be send to the Surveyor General who does convert
the area on the Diagram Deed. If the Diagram Deed is not available or lost then an
application is made for a certificate of conversion and that application will be
accompanied by revenue stamps.
iii) Mortgage Bond together with the consent to cancellation.
If there is a Mortgage Bond registered over the property, it should be cancelled first
before the transfer can be registered. Alternatively the Bondholder can consent to the
substitution of the Seller by the new owner as debtor or to the release of the property
concerned from the operation of the Bond (This is of course at the discretion of the
bondholder). There is no need to have a Mortgage Bond cancelled or the property
released before transfer is registered in certain circumstances contained in the proviso to
section 50 of the Act.
These include the following;
a) in execution of the judgment of any Court where the transfer is by the competent
officer of that Court;
b) by a trustee of an insolvent estate;
c) by an assignee of an estate under an assignment where the assignment has been
registered in terms of section 157(2) of the Insolvency Act (Chapter 6:04);
d) by the liquidator of a company which is unable to pay its debts and which is being
wound up by the Court;
e) in other circumstances provided by the Act;
f) in circumstances ordered by the High Court.
Jones at page 129 says there is no need to lodge the Mortgage Bond for disposal in these
circumstances. However section 50(2) of our act specifically states that the Bond must be
produced to enable the Registrar to make endorsements of the circumstances of the
transfer unless the Conveyancer certifies that he has been unable to obtain possession of
the Bond. Where a Mortgage Bond is registered against property, the Registrar makes an
endorsement over the title Deeds of the property. If more than one property held under
more than one title Deed is burdened by a Mortgage Bond the Registrar of Deeds inserts
the letters ‘W.O.P.’ on top of the Mortgage Bond endorsement. These letters stand for the
words ‘with other property’. Each of these properties can be released from the Bond. If
36

the Registrar fails to indicate that property is subject to a Mortgage Bond and allows the
property to be transferred without the Bond being produced he can be held to be liable for
damages82.
iv) Rates Clearance Certificate83
This is a document which certifies that all rates payable to a Municipal or Rural authority
have been paid.
v) Declarations by Seller and Purchaser
This could also be a Declaration by Donor and Declaration by Donee. Such declarations
indicate a statement by the Seller that he has sold property to X on date M on price R in
cash. Statutory instrument 303 of 1999 prescribes various forms of declarations to be
used for various causes of transfers (disposal or acquisition of property).
It is a declaration as opposed to an Affidavit, which is signed in the presence of witnesses
not a Commissioner of Oaths.
The purpose of these declarations is to assess what stamp duty is to be paid. It is possible
to sign the declaration as agent of Seller or Purchaser and no authority under which the
agent signs need be mentioned.84
vi) Capital Gains Tax Clearance Certificate
The Registrar of Deeds will not register a transfer without this certificate being lodged
with the papers85.
Depending on the nature of the contract giving rise to the transfer the following need to
be filed.
vii) Proof of Appointment
When one files a Power of Attorney or any documents in a representative capacity then
his appointment must be proved by either of the following:
a) Letters of administration
b) Company resolution
c) Certified copy of will
d) General Power of Attorney

82
See the case of Muller NO & others vs. Government of the Republic of South Africa 1980 (3) SA 970
(T)
83
See section 9 hereafter.
84
Jones on page 154 states that the ‘…receiver of revenue will not accept a declaration by an agent unless
he is satisfied that it is impossible to obtain one from the Principal.’ This seems to be not part of our
practice with the receiver of revenue being represented by the Chief Registrar of Deeds and the obligation
to verify authority of an agent being the duty of the Conveyancer.
85
This certificate is discussed in more detail in section 9 .4 hereinafter.
37

e) Constitution (e.g. if club)

viii) Various consents in relation to conditions of title


It is very important that the Conveyancer properly checks the conditions of title before
lodging or even preparing documents. Some conditions may mean that the transfer itself
is unregistrable unless certain requirements have been satisfied. e.g. Consent from the
City of Harare that transfer can be registered.86
viii) Court Order
e.g. That property will be transferred to B
ix) Certificate of Designation
Section 8 of Rural Land Act - if transferring land to 2 or more people there should be
minister's consent (Reason is that it may not be economic to transfer to several people.)
- If property is being sold to a Company which is to be formed there should be a
resolution ratifying that sale after incorporation.
x) Cheque for stamp duty87
A payment acceptable by the Registrar of Deeds should accompany the documents on
lodging with the Registry unless the particular transfer is exempt from payment of stamp
duty88. Where there is such exemption an exemption certificate89 becomes one of the
supporting documents.

4 .3 Extending clauses90
1. Where the Holding Deed is a Diagram Deed

(a) As will more fully appear upon reference to Deed of Grant No. 36113/94
dated 14th March 1994, with diagram annexed made in favour of the
Appearer’s Principal.
(b) As will more fully appear upon reference to Deed of Transfer No. 1363/92
with diagram annexed made in favour of the Appearer’s Principal on the
13th March 1994.
(c) As will more fully appear from Certificate of Registered Title No. 6133/91
with diagram annexed thereto made in favour of the Appearer’s Principal
on the 12th March 1991.

86
Other conditions are dealt with in section 5 .4 hereinafter.
87
See Chapter 9 on how stamp duty is calculated.
88
Ibid
89
Ibid
90
38

2. Where the Holding Deed is not the Diagram Deed and there are no
intervening Deeds

As will more fully appear upon reference to Certificate of Consolidated Title


No.3361/90 with diagram annexed made in favour of Wilson Barnaby on the 11th
March 1990 and to the subsequent Deed of Transfer made in favour of the
Appearer’s Principal on the 2nd September 2000, Registered No. 5353/2000.

3. Where there are more than one intervening Deeds of Transfer between the
Diagram Deed and the Holding Deed

As will more fully appear upon reference to Deed of Grant No. 52/61 with
diagram annexed made in favour of Wilson Barnaby on the 14th September 1961
and to the subsequent Deeds of Transfer the last of which was made in favour of
the Appearer’s Principal on the 28th August 2002, Registered No. 3553/2002.

4. Where a new subdivision has been created and a new diagram framed for
such subdivision

As will more fully upon reference to Deed of Transfer No. 5533/79 with diagram
annexed in respect of the whole of Glen View, issued in favour of the Appearer’s
Principal on the 5th June 1979 and to Diagram S. G. 2800/79 hereto annexed.

5. Where a new subdivision has been created but a diagram has been dispensed
with in terms of section 49 of the Land Survey Act Chapter 20:12

As will more fully Appear upon reference to Certificate of Consolidated Title No.
4509/79 with diagram annexed in respect of the whole of Lot 7 of Dowa made in
favour of Jacobus Farming Company (Private) Limited on the 8th February 1979
and to the subsequent Deeds of Transfer the last of which was made in favour of
the Appearer’s Principal on the 4th August 1999 Registered No. 9045/99; and to
General Plan No. DG2145 filed in the office of the Surveyor-General.

6. Where the Diagram Deed is the Holding Deed to which a diagram has been
dispensed with in terms of the Land Survey Act (Chapter 20:12)

As will appear from the Deed of Transfer No. 8734/90 made in favour of the
Appearer’s Principal on the 15th November 1990 to which but for the provisions
of section 49 of the Land Survey Act (Chapter 20:12) a diagram would have been
annexed and from General Plan DG 2781 filed in the office of the Surveyor
General.
39

7. Transfer of a Unit where a Notarial Deed for Sectional Title has been
registered and endorsed against the Holding Deed

As will more fully appear from Deed of Grant with a diagram annexed thereto
made in favour of Arthur Llewellyn on the 31st July 1893, Registered No. 571 and
to the subsequent Deeds of Transfer thereof the last of which was made in favour
of the Appearer’s Principal on the 2nd February 1981 Registered No. 475/81.

8. Subsequent transfer after the 1st Transfer of a Unit in Sectional Title

As will more fully appear on reference to Deed of Transfer thereof with diagram
annexed, passed in favour of RONALD MACLEAN on 12th February 1912
(Registered No. 9687) and to the subsequent Deeds of Transfer thereof, the last of
which in respect of the said undivided 5% share, being share no. 17 was passed in
favour of the Appearer’s Principal on the 15th October 1998 (Registered
No.14008/99).

4 .4 Conditions clause/Imposition of Restraints


Restraints can always be imposed into a Deed of Transfer or may be created by Notarial
Deed. The drafting of new conditions presents difficulties and it is imperative that the
conditions must be so drafted as to show clearly and without any doubt in whose favour
the conditions are created i.e. who may enforce it. It is therefore also important that the
conditions are so drafted as to conform to the law and capable of showing the actual
meaning intended i.e. that the condition is not ambiguous or incapable of interpretation.
These conditions originate contractually between the parties and appear first e.g. in the
Deed of sale or donation. They may also be imposed by statute or by will.
Praedial servitudes always describe the servitude in relation to the land being transferred.
Sections 56, 77 and 79 of the Act relate to conditions. If a condition is a positive
condition, it can not be registered where it imposes a requirement e.g. "the owner
shall...". If it is a negative condition like “...the owner shall not allow...” it is registrable.

Any condition which is discriminatory in terms of race, tribe or colour is invalid in


accordance with the provisions of section 63 of the Act.
As discussed before, personal rights are not registrable as a general rule. Pre-emptive
rights91 are personal rights which are not registrable. A pre-emptive right is the right to
buy before anyone else such as the right of first refusal. The owner is obliged to offer his
property to the pre-emptor first before he can sell to someone else.
Some of the personal rights which are registrable include the following;
a) Personal servitudes of usufruct, habitatio or usus

91
See Ex parte Zunckel 1937 NPD 295. See also Jones at page 155.
40

The property is sold subject to the right. The Conveyancer therefore has a duty to
advise the transferee of the existence of such servitude. The owner of property
subject to such right is the nude or bare dominium holder. No consent of the
usufructuary is required when the nude or bare dominium holder disposes his
rights. The usufruct is cancelled by Notarial Deed which is lodged in duplicate. It
is important to reiterate here that the personal servitudes of usufruct, habitatio or
usus do not extend beyond the lifetime of the holder.92 The rights therefore lapse
on the death of the holder.
b) Reversionary right
This right is not common in Zimbabwe. It is a right whereby ownership reverts to
the previous owner on the happening of a specific event e.g. death of the
transferee. Reversionary rights can also be reserved for local authorities or the
state if for example land sold and transferred to individuals is not developed
within a prescribed period93.
The reversionary right should not be confused with the reversionary property
investment scheme that has been developed particularly in the UK. This is
whereby a Purchaser who purchases an elderly person’s home pays an actuarially
determined percentage of the purchase price and the Seller is allowed to occupy
the property until they vacate voluntarily or by their death.
c) Lease rights
In terms of the huur gaat vuur koop principle a Purchaser of leased property
‘walks into the shoes’ of his predecessor i.e. the original owner. In terms of our
law long leases (i.e. leases for periods exceeding 10 years) may be registered if
they are to bind successors in title.94 Once again the Conveyancer has a duty to
bring to the attention of a Purchaser the existence of a lease burdening the
property to be transferred.
d) Fideicommissa
Fideicommissa are usually created by will. The condition of fideicommissum
creates a fiduciary in whose name property is transferred from the testator’s
estate. A fideicommissary heir’s rights are personal but become real on
registration.95

92
See section 59 of the Deeds Registries Act.
93
A reversionary right cannot be shown in the title Deeds, as it is a personal right not binding against
successors in title. It never the less remains enforceable against the parties; a failure to register the right
would not extinguish it. See the case of City of Harare v Nyakotyo HH-27-95.
94
See the case of Shell Rhodesia (Pvt) Ltd vs Eliasov 1979 RLR 211, 1979 (3) SA 915.
95
See Jones at page 161.
41

4 .5 Deeds to follow sequence of their relative causes


In terms of Section 11 of the Act Deeds must follow the sequence of their relative causes.
Thus if A sells property to B, B donates the property to C and D inherits the property
from C before any transfer has taken place then A has to transfer to B, B to C and C to D.
Section 11 prohibits a transfer direct from A to D. The Court’s discretion to order direct
transfer was dealt with in the case of Ex parte Brucken 1952 (3) SA 227 (W). See also
Smith & Weston 1961 (1) SA 275 (W), and Britz vs. De Wet NO en ‘n ander 1965 (2)
SA 131 (O), and Ex parte Lindemann & others 1963 (3) SA 735 (E). It is clear that the
Courts are of the view that this section is meant to protect the fiscus for the due payment
of stamp duty on all transfers. The section does not alter the common law position which
permitted the sale of a right to claim transfer of land which is a personal right or a jus in
personam.
There are however exceptions to the rule that Deeds must follow the sequence of their
relative causes which are found in section 11(1) (b) of the Act. These are summarised as
follows:-
a) where the person who is supposed to inherit property has died a minor, intestate and
with no executor appointed in his estate, then the property may be transferred to the
minor’s heirs ab intestato.
b) Where the costs of conveying the property is equal to or exceeds the value of the
property which has vested in any heir or legatee and the heir or legatee has sold the
property, then with the written consent of the heir or legatee, the property may be
conveyed directly from the estate of the deceased person to the Purchaser.
c) Where there is a redistribution of assets in a deceased estate which is being
administered and distributed.
d) Where a fiduciary interest ends before the property was conveyed to the fiduciary then
transfer may be made direct to the fidei commissary.
e) Where the right of any person to claim conveyance is placed in the hands of a third
party by the Court then the property may be conveyed directly from the owner to the third
party.
Section 11(2) seems to the writer to be confusing and rather contradictory. It seems to
take away the exemption from the fiscal nature of section 11. The section reads as
follows:
“(2) Prior to the registration of any transfer or cession in terms of paragraph (b) of and
the provisos to subsection (1), there shall be paid the stamp duty, estate duty and any
other such duty which would have been payable had the land been transferred or the real
rights been ceded to each person successively becoming entitled thereto.”
It is submitted that the legislature would not have intended the effect of this section and it
should therefore be revisited. For example, the writer does not believe that the legislature
42

intended an heir to pay duty where the costs of transferring property exceed the value of
the property. The true intention of the legislature in this case would therefore be to
protect and assist the indigent heir by enacting the proviso in paragraph (ii) of section
11(1) (b).

4 .6 Undivided shares and partition transfer


4 .6 .1 Undivided shares in land
When a piece of land is owned by, or is transferred to two or more persons it is said to be
held by those two or more persons in undivided shares. These shares could be equal or
not. There are many properties in this country which are registered jointly in the name of
a husband-wife couple ‘…in equal undivided one-half shares.’ An undivided share in
land does not and may not be held out to represent a defined portion of land even if the
joint owners may have agreed to each occupy defined portions of the land. If one of the
owners builds any structure on the land it will be jointly owned by all the owners in their
respective shares. Actual ownership of a defined portion in the land can be achieved by
the owners agreeing to partition the land according to their respective shares in the land.
Such partitioning of land constitutes a subdivision and is therefore subject to the
provisions of the regional, Town and Country Planning Act ( Chapter 29:12) and the
Land Survey Act (Chapter 20:16)96.
Undivided shares are provided for in terms of section 26 of the Deeds Registries Act
(Chapter 20:05) The equivalent Regulation in the South African law is very detailed as to
the description of the undivided share so as not to leave any doubt as to its size.

4 .6 .2 Partition Transfer97
Partitioning of land is defined by Jones98 as to take place ‘…when the joint owners of a
piece of land, or pieces of land, provided each partitioner holds a share in each of the
pieces, agree to redistribute such land, if necessary by subdividing it, in such a way that
each receives transfer of a defined piece or pieces of land or a share in such place of the
shares originally held in the property partitioned subject to and in terms of the provisions
of (the) Act…’ It follows therefore that the land to be partitioned must be capable of
being subdivided. This means that a permit to subdivide99 has to be obtained before
partitioning.

96
See Chapter 12 hereinafter.
97
See section 29 of the Act.
98
At page 290.
99
See Chapter 12 hereinafter.
43

A partitioner should receive land or a share in land and not cash in lieu of land unless
consideration is being made to equalize the partition.
The Deed of Partition Transfer should follow precedent No. 14 .14. The form of the Deed
of Partition Transfer is provided for in the Regulations.100 If the whole of, or any share in,
the property is mortgaged, the Mortgage Bond should be cancelled first. Alternatively the
property awarded on partition can be substituted for the property or share mortgaged
before the partition, and the Mortgage Bond is not cancelled in this case.
A partition should not vary the conditions of tenure or conditions affecting the land
generally unless this results from the nature of the partition itself or the interested parties
consent thereto.101 New conditions may be included in the new individual Deeds of
Partition Transfer.

4 .7 Transfer By Endorsement
In terms of section 43 of the Act transfer of immovable property or cession of a Mortgage
Bond to a surviving spouse can be made by just endorsing the title Deeds of the property
that the surviving spouse is entitled to deal with such property or Bond. This happens in
situations where the property or Bond was registered in the name of the survivor of two
spouses who were married in community of property or in the name of the joint estate of
such spouses and the surviving spouse has lawfully acquired the share of the spouse in
the property or Bond. The procedure is for the survivor and the executor in the estate of
the deceased spouse to make an application to the Registrar of Deeds accompanied by
supporting documents for the endorsement to be made in terms of the section. The effect
of such endorsement is that the survivor is now entitled to deal with the property or Bond
as if the share of the deceased spouse had been formally transferred or ceded to him.
Where a Mortgage Bond is registered against the immovable property, the endorsement
cannot be made unless:
a) the Bond is cancelled;
b) the estate of the deceased is released from the operation of the Bond; or
c) the said Bond was passed by the survivor only.102

100
See Precedent No. 14 .13 for the Power Of Attorney And Agreement To Partition Land, and Precedent
No. 14 .14 for the Deed Of Partition Transfer.
101
See Jones at page 296.
102
See section 43(2) and read the whole section.
44

5 MORTGAGE BOND OR DEED OF HYPOTHECATION


5 .1 Introduction
The Mortgage Bond or the Deed of Hypothecation is the document which acknowledges
indebtedness or obligations arising from various causes such as a loan. It is a form of
security in favour of a creditor. The essential nature of a Mortgage bond is that it is a
conveyance of a legal or equitable interest in property, with a provision for redemption.
In other words, upon repayment of the loan or the performance of some other obligation
the conveyance shall become void or the interest shall be reconveyed.103
It is registered when dealing with immovable property. Section 2 of the Deeds Registries
Act defines a Mortgage Bond as a Bond attested by the Registrar of Deeds specially
hypothecating immovable property. It was accepted, in the case of The Land &
Agricultural Bank of Southern Rhodesia v Jameson 1970 (1) RLR 146, that a
hypothecation of land creates a real right capable of registration in the Deeds Registry.
Where obligations are secured by movable property, Notarial Bonds are registered104.
Section 2 afore referred to defines a Notarial Bond as a Bond attested to by a Notary
public hypothecating movable property generally or specially. In either case the Bond is
an acknowledgement of debt. One borrows and offers security for instance. No form of
Mortgage Bond is prescribed by the Act and Regulations105. The form is largely
discretional.
The content of the Mortgage Bond is governed by practice and the common law.
The Mortgage Bond has to be executed in the presence of the Registrar. However in
practice it has not been necessary for the appearer to be physically present for the
execution. The initial appearance is enough. This is the same procedure for execution of
the Deed of Transfer106.
The Mortgage Bond will be properly executed where it is signed by the Conveyancer
authorized by such owner and attested to by the Registrar of Deeds.
A Mortgage Bond may be registered to secure an existing debt or a future debt or both.
Bonds intended to secure loans for building purposes shall be deemed to be bonds to
secure existing debts. This is a Bond which usually burdens the land and the house to be
built on it.
It usually contains clauses which protect the Mortgagee in case the Mortgagor does not
build anything at all resulting in loss to the Mortgagee and the land will be valueless.
The Bond will therefore usually provide that the Mortgagee will pay out money in stages.

103
See the case of Swart NO vs Abramowitz 1977 (3) SA 331.
104
See the case of Shaw NO v Burger 1994 (1) SA 529 (C) for discussion on a Notarial Covering Bond.
105
See section 1 .4 hereinbefore.
106
See section 4 .1 above.
45

The Registrar will not attest to a Mortgage Bond which contains a general clause
purporting to bind all movable or immovable property of the debtor or both107.
A Mortgage Bond can only be registered against immovable property. The security on
Mortgage can only be obtained on hypothecating immovable property. Security on
movable property is achieved by the passing of a Notarial Bond.
In terms of section 47(2) of the Act, no Mortgage Bond will be passed by 2 or more
Mortgagors unless it binds the property of each Mortgagor i.e. the Mortgagor should own
the property upon which the Mortgage will be passed.
Section 49 (1) and (2) deal with requirements of Bonds passed in favour of one or more
persons.
1) Any number of persons may pass a Bond provided that each has got immovable
property. Where a Bond is passed by more than one Mortgagor it is not possible for one
Mortgagor to release or to have property removed without the consent of the other.
2) Joint Mortgagees - No Bond may be passed in favour of two or more persons in which
it is stipulated that the share of one holder shall rank prior in order of preference to the
share of another, nor may any transaction be made which gives preference to one share in
a Bond and not to another. They have to rank equally because the remedy is to pass a
prior ranking Bond to the Mortgagee who requires the preference.

5 .2 Special Power of Attorney to pass a Mortgage Bond


A special Power of Attorney is used to grant authority to a Conveyancer to appear before
the Registrar of Deeds to pass a Mortgage Bond. If a General Power of Attorney is used
as a basis of executing the special Power of Attorney, it should give the grantee specific
authority to mortgage immovable property. It should spell out that the grantee has the
authority under the Power of Attorney to mortgage immovable property.
No Bond may be registered in favour of any person as an agent of the Principal. It has to
be passed in favour of the Principal himself.
A special Power of Attorney authorizes the Conveyancer to appear before a Registrar of
Deeds to register the Bond. If the Special Power of Attorney was to set out the terms and
conditions of the Bond it would become superfluous since this will have been stated in
the Mortgage Bond.
Thus one should incorporate the Special Power of Attorney by reference to the Mortgage
Bond which will have the full details.
In that case the Mortgagor and the witnesses must initial the Bond.

107
See section 47 of the Act.
46

5 .3 Analysis of the Mortgage Bond.108


1. Preparation Certificate
This contains the words "...Prepared by me. ... Conveyancer".
2) Heading
Mortgage Bond, Collateral Mortgage Bond or Surety Mortgage Bond, etc.
3) Preamble
This gives the name of the appearer, date and place of execution of Power of Attorney,
names of the Mortgagor and the Mortgagee expressed exactly the same as would be
found in the Deed of Transfer
4) Acknowledgement clause
This is where an acknowledgement that money has been borrowed and money has been
lent is made.
The various clauses which are used are as follows: -
a) To be lawfully indebted to and on behalf of the Mortgagee;
b) To be lawfully indebted to and held and firmly bound to and on behalf of.... (Name of
Mortgagee) ... in the sum of $...
c) To be held and firmly bound to and on behalf of ... (name of Mortgagee) ... in the sum
of $...

a) is used when indebtedness is complete on the passing of the Bond. Money is advanced
on or before registration of the Bond
b) is used when advance is to be made on registration e.g. building bond or future event.
c) is used where Bond applies to future or contingent indebtedness only e.g. an Indemnity
Bond or a Surety Bond. What this actually means is that the Mortgagor is saying that if
something happens causing the Principal debtor to fail to pay, then in that event I will
pay, but if it does not happen I will not be liable e.g. under a Surety Bond where if the
Principal debtor does not pay, then the surety will pay.
The amounts should be stated in both words and figures.
5. Cause of Debt (causa)
It is important that the causa is always drafted correctly and properly. If the causa is
incorrect in fact or in law it will be a defective Bond. A Bond can be attacked and

108
This should be read in conjunction with precedent No. 14 .19.
47

contested in law. The validity of the Bond rests on the validity of the causa in law.
A Mortgage Bond must secure an existing obligation or an obligation that will exist in
future.
The first requirement of a Bond is that there must be a legal or valid debt or an
obligation.
There are different types of causa for Mortgage Bonds. We deal with some of them here.
a) Loan of Money
Where a Bond is passed by a Purchaser of immovable property over property purchased
to secure a loan of money for the part payment thereof, the cause of debt should be
amplified to indicate this e.g. “for the purpose of paying the purchase price or part
payment.
A Kustingbrief is a Mortgage Bond whereby the Seller sells property to the Purchaser
who has no full purchase price or part thereof but the Purchaser is allowed to take transfer
of the property and for security of the purchase price or whole of purchase price he passes
a Mortgage Bond over the property.
b) Money due and owing or to become due and owing out of an obligation agreed on.
c) A contingent indebtedness.
d) A Covering Bond
This is a Bond meant to secure a fluctuating state of indebtedness.
e) Multiple causes of debt.
6) Renunciation of exceptions clauses109.
i) Non Numeratae Pecuniae
This is an exception which may be taken by the debtor that though he signed the
acknowledgement of debt he did not receive the money. The renunciation of this
exception puts the proof on the debtor that he did not receive the money. The exception
shifts the onus. If the exception is not in the Bond, the creditor has to prove that he lent
the money in the manner described. The exception reverses the onus.
ii) Non Causa Debiti
This means that there was no cause of debt or that there is no reason for the obligation.
The renunciation of this exception in a Mortgage Bond shifts the onus on the debtor to
prove that the debt does not exist. This exception is recommended in every Bond which is

109
See Legal Forum (1994) vol. 6 no. 2 at p 15 where there is an article explaining the meaning of benefits
that debtors are sometimes required to renounce in contracts.
48

not a loan of money.


iii) Revision of accounts and errors of calculations (errori calculi) and no value received.
These exceptions are usually taken together where there is an element of bookkeeping or
accounts. Usually this arises where the cause of debt is for goods sold and delivered as
well as building Bonds where the capital is paid in instalments and to Covering Bonds.
iv) De Duobus Vel Pluribus Reis Debendi.
When this benefit is renounced it makes two or more Mortgagors jointly or severally
liable. Any debtor can be sued for any debt. An agent under a General Power of Attorney
giving power to Mortgage can not bind his Principal as surety if not specifically
authorized thereunder, unless the transaction is for the benefit of the Principal. He
therefore cannot bind him jointly and severally or renounce this exception.
v) Beneficium ordinis seu excussionis.
This is an exception open to a surety by which he can compel the creditor to sue the
debtor first and get what he can before proceeding against the surety. The renunciation
has the effect of permitting the creditor to proceed against the surety before excussing the
Principal debtor if he should feel so inclined. This is usually renounced in all Surety
Bonds.
vi) Beneficium divisionis
This exception provides that the liability under a joint suretyship must be apportioned
among the sureties and each cannot be sued for more than his pro rata share. The
renunciation has the effect of allowing the creditor to sue one of the sureties alone
without reference to the others and to claim the whole amount of the debt due from him
subject to the beneficium ordinis seu excussionis exception.
7 Interest or Payment Clause
This provides for how interest is to be paid by which amount and how the capital amount
is paid.
8 Costs Clause
The amount stated in the costs clause is not liable to stamp duty unless it is clear that this
amount is also available to secure future advances to the Mortgagor from the conditions
of the Bond.
9 Ranking Clause
If it is a first Bond it states that it is a first Mortgage Bond. Subsequent borrowings will
be ranked as such. Ranking is important particularly in the event of insolvency where if
the proceeds of the bonded immovable property are not enough to satisfy the first Bond
holder, then the rest will not receive much or anything at all. A Bond may rank pari passu
with a prior Bond. Thus it will not be a second Bond but one which ranks pari passu with
49

the first. The Mortgagee should draw a waiver of preference in the case where the new
Bond is intended to rank pari passu or where there is need that the new Bond become the
first Bond.
10 Property or Security Clause
This follows closely the description in the Deed of Transfer.
Where there are 2 or more pieces of land which are to be in one Bond they must be
described in separate paragraphs provided that the properties are within the same Deeds
Registry area.
11 Conditional Clause
As long as the condition is not illegal it may be inserted in the Bond e.g. there must be
insurance, property cannot be leased etc.
12 Execution Clause
Same as in Deed of Transfer
13 Registration Clause.
This is the part where the Registrar affixes his signature to signify registration of the
bond.

5 .4 Other types of Mortgage Bonds


5 .4 .1 Collateral Mortgage Bond
This is a Bond giving additional security for the debt and obligation for which security
has already been given to the creditor. The Collateral Bond must be passed by the same
debtor as in the Principal Bond to the same creditor for the same debt and obligation or
part thereof secured by that Bond.

5 .4 .2 Surety Bond
In practice there are two types of Surety Mortgage Bonds.
i) A Surety Bond which is passed in respect of a debt secured by a registered Mortgage
Bond.
ii) A Surety Bond passed for a debt which is not secured by registered Bond.
A Surety Bond is a Bond where there is an existing Bond and someone will be saying I
will stand as surety if the debtor does not fulfil their obligations,
or,
under an underwritten Bond where although the debtor owes the creditor money, he has
no property to secure the indebtedness and another party; the surety, provides their
property instead.
50

5 .4 .3 Indemnity Bond
This is a Bond whereby the Mortgagor binds himself to indemnify the Mortgagee should
the latter be called upon to honour an existing separate obligation. For example C can
pass an Indemnity Bond in favour of B an insurer promising to pay B should B be asked
to pay A under an insurance policy in favour of A110.

5 .4 .4 Participation Bond
The general rule is that a Mortgage Bond or Notarial Bond should not be registered in
favour of a person as an agent of a Principal111. The exception to this is where it is
intended to register a Participation Bond. A Participation Mortgage Bond is a Bond made
in favour of a Bond holding company which represents the participants therein112. A
Bond holding company is a company which has applied to the Registrar of Deeds to be
recorded as such in a register kept for such purpose. The register should be open to the
public on payment of a prescribed fee113. The participants are brought together to pool
resources to be advanced to a borrower and the Participation Bond is registered to secure
such indebtedness. In simpler terms, if a lender is not able to provide the full amount
required by a borrower, the lender can invite others to join together with him for the
purposes of raising the amount. Each of the participants has real rights conferred on them
to the extent of his participation whether the Bond was a Participation Bond at the time of
its registration or not. The Bond holding company exercises the rights of the participant
on his behalf114. An example of a participation Mortgage Bond is provided herein as
precedent number 14 .24.

5 .5 Rights of Mortgagees (Section 50-54) and Consents


Part V of the Act and part VI of the Regulations deals with Bonds115.

5 .5 .1 Consent to cancellation of Mortgage Bond116


Section 50(1) of the act states that no transfer of mortgaged land shall be registered until
the Bond has been cancelled. The Bond is cancelled with the consent of the Mortgagee in
writing.
If in a Mortgage Bond, the property or security clause contains 2 or more properties, one
of the properties can be released with the consent of the Mortgagee.

110
See Precedent No. 14 .23
111
See section 48(1) of the Act. See also the cases of Lief NO vs. Dettman 1964 (2) SA 252 and Bayloan
Investments (Pvt) Ltd vs. Bayview 1972 (2) SA 313. In the latter case the Registrar was held to be
precluded from registering a Bond tendered for registration in which the Mortgagee purports to hold the
right under the Bond on behalf of another.
112
See section 48(3).
113
See section 48(2).
114
See section 48(5).
115
This includes both Mortgage and Notarial Bonds.
116
See Precedent No. 14 .26
51

There are certain exceptions where it is not necessary to cancel the Bond for transfer to
take place:-
1) If that transfer is in execution of a judgment of any Court.
2) The transfer is made by a trustee of an insolvent estate.
3) The assignee of an estate under assignment where the Deed of assignment has been
registered under subsection 2 of section 157 of the Insolvency Act (Chapter 6:04).
4) The liquidator of a company which is unable to pay its debts and which is being
wound up by the Court.
5) Any other circumstances provided by the Act or as ordered by the Court.
In the above instances therefore the Bonds are lodged only for endorsements117 and not
cancelled. Although security is removed, the acknowledgement of debt, the Mortgage
Bond etc. is not extinguished. The security has just fallen away. The debt still exists.
The cancellation of the Bond is by way of Consent to Cancellation (Precedent No.14 .22).
Where a Bond was ceded as security, cancellation is effected by both the cessionary and
the cedent signing the consent to cancellation.
In a simple Mortgage Bond cancellation, the lodging cover (properly labelled) should
contain:
-the client’s copy of the Mortgage Bond;
-the Holding Deed burdened by the Mortgage Bond;
-the consent to cancellation in single properly executed by the Mortgagee (NB A
consent to cancellation of a cession is made in duplicate);
-a cheque or revenue stamps for the cancellation fee118.
The Mortgage Bond endorsement on the title Deed is superimposed by another
endorsement indicating that it has been cancelled. The Registrar will also make an
endorsement on the Mortgage Bond that it has been cancelled before returning it to the
person who lodged it. The cancelled office copy is filed away together with the consent to
cancellation.
It is important to reiterate Jones’ assertion (and the cases cited) on page 134 that the
cancellation of the Mortgage Bond simply cancels the hypothecation of the land or other
immovable property Mortgaged thereby. The Mortgage Bond itself remains an
acknowledgment of debt.

5 .5 .2 Consent to release119

117
See Section 53 of the Act.
118
The amount required changes from time to time.
119
See Precedent No. 14 .28.
52

A consent to the release of all the property takes away all security. It then has the effect
of cancelling the whole Bond120. If the property to be released is a new subdivision of the
property mortgaged, such property will not be released unless it is being transferred or a
Certificate of Registered Title is being taken out for it.

5 .5 .3 Part payments and reduction in cover


If the Mortgagor has paid part of the moneys due by him on a fixed debt or obligation
secured under a Mortgage Bond this payment may be endorsed on a Mortgage Bond.
This is done by a consent to the registration of a part payment121, thus reducing the
amount secured by the Bond. The consent is signed by the Mortgagee. It is not necessary
for such consent to be prepared and signed in duplicate. If the Bond is registered as
covering security for future debt then a part payment may not be registered, but the cover
afforded by the Bond may be reduced by the registration of the reduction in cover122
signed by the Mortgagee and in single form.

5 .5 .4 Consent to Substitution of Debtor123


It is possible that A sells property to D which is mortgaged in favour of X, then A can be
substituted as debtor by D. Although this provision exists in the act the building societies
are normally not interested in substitution as they prefer that the existing Bonds are
cancelled and fresh ones are passed by the new owner.
According to Section 57 of the South African Act there are certain circumstances when a
debtor may not be substituted under a Bond. Jones124 summarises these circumstances as
follows:
i) When the Transferor of the land (i.e. the existing debtor) is-
a) a trustee in an insolvent estate;
b) an executor administering an estate under … the
Administration of Estates Act … ;
c) the liquidator of a company which is unable to pay its debts
and which is being wound up by or under the supervision
of the Court; or a liquidator or trustee elected or appointed
under the Agricultural (Finance) Act …
ii) When all the property mortgaged under the Bond has not been transferred
to the proposed new debtor…

120
See section 50(3) of the Act.
121
See Precedent No. 14 .30
122
See Precedent No. 14 .31
123
See section 51 of the Act. See also precedent No 14 .29.
124
See Jones on pages 137 and 138 and note that this is derived from s 57 of the South African Act
53

iii) When the Transferor has reserved a real right to himself, e. g. a usufruct…
iv) When the new owner is a person who would not be in a position to
mortgage the land e. g. a fiduciary…
v) When the Bond to be substituted secures the obligation of a surety…
vi) When 2 or more persons are acquiring property in shares, unless they
renounce the exception ‘de duobus vel pluribus reis debendi’.
If the Bond is a Covering Bond which was passed to cover future debts, then the
immovable property thereby hypothecated will secure any further or future advances
which are made by the Mortgagee in terms of the Bond to the Transferee.
Stamp duty is payable.125 If part of the capital of the Bond has been repaid by the original
Mortgagor, the substitution of debtor cannot take place until such repayment has been
registered by a consent to part-payment.126 If the Bond is a Covering Bond and it is to be
substituted for a lesser amount, then a reduction in cover must be registered.127
When the substitution of debtor is registered, the Registrar of Deeds makes the necessary
endorsement on the Bond.

5 .5 .5 Waiver of preference128
We have discussed the issue of ranking before129. Ranking of Mortgage Bonds is very
important particularly for purposes of determining their preference in the event of
insolvency of the debtor. Normally Bonds are ranked in the order of their registration in
time. However there can be instances where a new lender requires that a Mortgage Bond
to be registered in his name should rank higher or pari passu with the existing Bond or
Bonds for it to be acceptable security to him. In this instance the existing bondholder can
agree to waive the preference that is accorded to him by the higher ranking.

5 .5 .6 Cession of Mortgage Bonds


The registration of a Mortgage Bond creates real rights in favour of the Mortgagee. The
Mortgagee can therefore cede such rights to another. Since the ceded rights are real, a
cession of a Mortgage Bond is registrable and must be registered130. Cessions of
Mortgage Bonds can either be cessions for value or cessions made as security for debt. A
cession made for value is an out-and-out cession where the cessionary becomes the
Mortgagee and the original Mortgagee is known as the cedent. On the other hand a
cession made as security is where the Bond is pledged as security against a debt due by
him.

125
Ibid at page 138.
126
See Precedent No. 14 .30
127
See Precedent No. 14 .31
128
See Precedent No. 14 .24.
129
See Chapter 5 herein.
130
See the case of Lief NO vs. Dettmann 1964 (2) SA 252 (A).
54

Cessions of Bonds have to be prepared by a Conveyancer in terms of section 13 of the


Act. Section 5 (f) of the Act provides for registration of cessions of registered Bonds
including cessions made as security and cancellations of cessions of Bonds made as
security. The cession sets out the cause of the cession and if the balance due under the
Bond is to be ceded, a part payment must be noted first. The amount paid already must be
noted. An out and out cession passes full dominium in the Bond from the holder cedent to
the cessionary. It is important to understand that a Bond can be given as security, for
example as a pledge.
Also note that the consent of the Mortgagor is not necessary for registration of a cession
except when part of a Bond is ceded or the cession has the effect of increasing the
number of holders of a Bond.
Unlike a cession for value, a cession made as security can be cancelled with the consent
of the pledgee. A consent to cancellation of a cession131 is made in duplicate.

5 .5 .7 The variation of terms of a Bond


An agreement for variation of terms of a registered Bond132 may be registered.
Registration fee is payable. The agreement is lodged in duplicate and must be prepared
by a Conveyancer.
Terms that can be varied include the rate of interest, monthly payments etc. The nature of
the Bond i.e. Surety Bond, Indemnity Bond etc cannot be varied. It is also not permissible
to vary the cause of debt. A fresh security cannot be substituted nor can a covering cost
clause be inserted nor can it be deleted.
New conditions may be inserted. A non-prejudice clause may be inserted when a second
Bond is being registered.

131
See Precedent No. 14 .23.
132
See Precedent No. 14 .25.
55

6 Miscellaneous Transactions and Registrations


6 .1 Agreements of Sale
An agreement of sale is a document which is drawn up when a person is selling property
to another person. In this country, a sale of land need not be in writing unlike the position
in South Africa. However it is rare nowadays to find an agreement for the sale of land
which is not reduced to writing133. An instalment sale of land must be reduced to writing
and if not the onus of proof is on the person alleging its existence134. It is important that
the Legal Practitioner who is instructed to draft an agreement of sale should check with
the Deeds Office the correct names of the parties, the endorsements, servitudes,
restrictions, caveats and so on.
The normal agreement of sale where the purchase price is satisfactorily paid or secured
and the transfer can be registered poses very few problems. Problems arise in a ‘sale of
land by instalments’ which by usage is now generally referred to as a Deed of Sale. The
Seller may become insolvent or as has recently been common among the lower income
groups; the Seller may sell the property to another. In all these cases, the Purchaser is not
a secured creditor. The Purchaser only has personal rights against the Seller and may be
in a much more serious position where ownership has been registered in the name of a
second but bona fide Purchaser. To deal with these problems the legislature enacted an
amendment to the Act which is now section 64135.
The basic requirements of Deed of Sale are as follows:
a) It is a sale of immovable property only
b) It must be reduced to writing to be registered
c) Purchase price must be paid in 3 or more instalments.
d) Consent of registered owner and Purchaser is required.
Registration has the effect of endorsing on the Title Deeds of the land concerned that
such land is subject to the contract.
When a Deed of sale has been concluded and it is intended that it be registered against a
title Deed, this is done by using a consent which is drafted by a Conveyancer136.

133
See Christie R. H., Business Law in Zimbabwe 2nd ed. (Juta & Co, Ltd) 1998 at page 51.
134
See Christie at page 171 and the Contractual Penalties Act (Chapter 8: 04)
135
In Chimphonda v Rodriques and Ors 1997 (2) ZLR 63 (H), the Court considered the importance of
section 64 of the Act and noted that the primary object behind the section is to protect the position of the
Purchaser under an instalment sale agreement in the event of the Seller’s insolvency and not to prevent the
property which is the subject matter of the instalment sale agreement from being transferred to a third party
pending the transfer of the property to the Purchaser.
136
See section 64(5) of the Act and precedent No. 14 .32.
56

The rights conferred on the Purchasers are subject to any prior rights on the land.
The endorsements can only be cancelled with the written consent of the registered holder
and the Purchaser. This consent is not essential however for cancellation.

6 .2 Registration of change of name


Section 75 of the Act applies where any person or partnership changes his or its name137.
In the case of a natural person it means the first name, surname or both. It is important to
stress that this section deals with a situation where there is no change in legal persona. If
there is a change of persona there should be transfer of property from the first persona to
the other.
The application must be made by the person or partnership in question and must be
accompanied by;-
a) the Deed or other document
b) the consent of every interested party.
c) If the old name appears in any other Deed or document then this must be lodged.
If the Registrar is satisfied that such change is proper he will endorse the change of the
name on the document and in appropriate registers.
If the Registrar is not so satisfied he shall at the expense of the applicant, publish a notice
of the application once in the gazette and three times in a newspaper of his choice. If
there is an objection he considers the merits thereof.
If there is a change in a company's name section 25 of the companies act138 is referred to.
The Registrar of Deeds is obliged to make in his registers all alterations necessitated by
the change of name and shall endorse the change on the relevant documents upon
application in writing to him accompanied by the new altered certificate of incorporation
and the relevant documents139.

6 .3 Attestation of Powers of Attorney


The attestation of Powers of Attorney is dealt with in terms of section 78 of the Act. The
section provides that Powers of Attorney executed in Zimbabwe must be witnessed by
two competent witnesses. They may also be witnessed by a justice of the peace or a
commissioner of oaths. The signature of each of the witnesses mentioned should be
affixed to the Power of Attorney in the presence of the person executing it140. If executed
outside Zimbabwe, the Power of Attorney must be authenticated by a legal practitioner,
mayor or person holding judicial office for it to be acceptable141. It will also be accepted

137
This should not be confused with Section 6 of the Act which provides for rectification of an error in a
person’s name or its description.
138
Chapter 24:03.
139
See section 25(3) of the Companies Act.
140
See section 78(a)
141
See section 78(b)(i)
57

if authenticated by the head of a Zimbabwean diplomatic mission, the deputy or acting


head of such mission or a counsellor, first, second or third secretary, consul-general,
consul or vice-consul if it is being executed in a country where Zimbabwe has a
diplomatic or consular representative142.
A witness cannot be a person who is appointed as agent therein or who derives a benefit
there from. Jones says a partner of a Conveyancer who has been appointed as agent in the
Power of Attorney is a competent witness because he derives no benefit ex facie the
power itself143. The appointed Conveyancer and the Transferee are obviously
incompetent. The grantor should not sign a Power of Attorney in blank144.
In terms of paragraph (s) of section 5 of the act one of the duties of the Registrar is to
“record Powers of Attorney whereby the agents named therein are authorized to act
generally for the Principals granting such powers, or to carry out a series of acts or
transactions registrable in a Deeds Registry, and file copies of such powers recorded in
the other Deeds Registry which have been certified by the Registrar thereof…” These
General Powers of Attorney are filed and numbered as General Powers of Attorney. The
Registrar endorses a GPA number on the document. Ideally more than one copy should
be lodged so that the Registrar retains one copy and the other can be returned to the
Conveyancer or the person who filed the General Power of Attorney. A Power of
Attorney to be used in dealing with immovable property must expressly give such
authority145.
A General Power of Attorney in the true sense is not specific and in Zimbabwe is
acceptable if it is used to authorise the grantee to grant authority to, or to sign a Power of
Attorney to make transfer, make a donation, accept donation or to mortgage immovable
property. This is because the General Power of Attorney gives too wide powers as to
allow the grantee to do almost anything146.

6. 4 Titles Registration and Derelict lands Act (Chapter 20:20) (formerly Chapter
158)
This piece of legislation provides for instances where the former owner of immovable
property cannot be found to sign the Power of Attorney. He or she may have migrated or
left the jurisdiction after the sale was completed but before transfer was registered. The
remedy in terms of Chapter 20:20 is to make an application showing that the applicant
complied with all his obligations in terms of the agreement of sale and requesting the
Court to order registration of the transfer to the applicant. Apart from attaching an
affidavit or affidavits, the agreement of sale may also be attached to the Court
application. If the Court is satisfied it will grant the order requested.
In terms of section 3 of this Act such an application can be made by any person by virtue
of prescription, contract or any transaction or in any other manner. The application is

142
See section 78 (b)(ii)
143
See page 57.
144
See Barclays National Bank vs. Wollach 1980(1) SA 615 (C) and Sutter vs. Scheepers 1932 AD 165.
145
See Covary vs. Registrar of Deeds 1948 (3) SA 183 (C).
146
See precedent number 14 .34
58

made on the basis that the applicant can not procure the registration of such property in
his name because of the death, mental incapacity, insolvency or absence from Zimbabwe
of the person in whose name such property is registered.
The order granted by the High Court should then be lodged with the Deeds Registry
together with proof of payment of any such taxes and payment of such duty as would
have been declared to be due. In this transfer there is no appearer and the Registrar
prepares and executes the transfer document himself.

6 .5 Caveats, attachments and Sales in execution


Warrants of execution147 are issued out of the Courts authorising the Messenger of Court,
Deputy Sheriff or Sheriff to attach and cause the sale of a judgement debtor’s movable or
immovable property to satisfy the judgement made in favour of a judgment creditor.148
Where the warrant is to be used to attach immovable property, it must be served on the
Registrar of Deeds for the area in which the attached property is situated149. The service
serves to create an interdict against any dealings with the property before such interdict
has been removed.
In Zimbabwe such an interdict is referred to as a caveat and is normally noted by the
Registrar of Deeds against the title Deeds of property when he is served with a warrant of
execution or an order of Court. The caveat is normally uplifted when the judgment debt is
satisfied. It is imperative that the Conveyancer conducts a Deeds search to determine
inter alia whether there are any caveats registered against the title Deeds of the property.
He should ensure that such caveats if they exist, are uplifted before lodging the
documents with the Deeds Office.150 A caveat can be set aside by an order of Court.151
Where immovable property has been sold in terms of the rules in execution of a judgment
of a Court, the messenger or sheriff acts as a statutory agent of the judgement debtor in
signing all the relevant transfer documents and in fact transferring the property to the
Purchaser.152

6 .6 Suggestions on Titles regularisation after the fast track land resettlement


programme
As indicated previously the politics behind the fast track land resettlement is beyond the
scope of this work. Suffice to say that the process has brought about an apparently
irreversible effect on rural land tenure in Zimbabwe. As the dust is settling the

147
See Precedent No. 14 .17 for an example of a warrant of execution.
148
See Order 26 Rule 7 of the Magistrate’s Court Rules and Rules 326 and 347of the High Court Rules
1971 as amended.
149
Ibid.
150
See Chapter 12 hereinafter for the procedure of upliftment of a caveat.
151
See the case of Indurjith & ors vs. Naidoo & anor 1973 (1) SA 104 (D) where the Court set aside an
interdict after the judgment creditor could not be found. The Court authorised the transfer of the property
despite the interdict.
152
See South African Permanent Building Society vs. Levy 1959 (1) SA 228 (T).
59

Government has started reviewing the process.153 One of the salient aspects to be dealt
with is the regularisation of title. This is imperative. The importance of an orderly system
of land registration to the economy can not be overemphasised.
Chapter one stressed that the basis of our land registration system is the survey of the
land itself. Because of the restrictions on farm sizes154 and the two-tier A1 and A2 land
resettlement schemes155, the boundaries of the new farms did not follow the existing
surveyed boundaries. It will be necessary to carry out another fast track survey of all
resettled properties and produce diagrams or general plans, the latter particularly for the
A1 farms.
The existing titles should be transferred to the state as acquisition transfers. Thereafter the
state then grants title to the new occupiers in the form of Deeds of Grant in the usual
manner. It is admitted that the government may be reluctant to give permanency of title in
line with the pressure to ensure productivity on the farms. It is suggested here that the
Deeds of Grant could embody a reversionary right allowing repossession of the property
if a determinable utilisation of the property is not realised for a fixed period of time.
However a problem would arise where the property has become burdened with a
Mortgage Bond or other encumbrance.
It is important to understand that the security afforded by title to land is of immense
significance and importance economically. In particular productivity requires funding
which is dependant on security of tenure.

6 .7 Forced Sales
There are various forms of forced sales and transfers some of which we have already
dealt with. Forced sales and transfers include transfers following land expropriation156,
forced sales under the Agricultural Finance Act157, sales in execution, Insolvency, etc.

6 .8 Certificate of Title in terms of section 26 of the Land Survey Act (Chapter


20:12)158
A Permit authorising the subdivision of any property159 may include conditions requiring

153
see Utete Land Review Committee Report.
154
see the Rural Land (Farm Sizes) Regulations, Statutory Instrument 419 of 1999, as amended by the
Rural Land (Farm Sizes) (Amendment) Regulations, Statutory Instrument 288 of 2000.
155
The A1 farms are smaller in size and were Principally aimed at decongesting the communal lands. The
A2 farms which are larger in size are aimed at commercial farming and the writer feels strongly that it is in
this scheme where titles regularization is required. The properties need to be made proper res in commercio
and to afford security for funding of commercial farming.
156
See the Land Acquisition Act (Chapter 20:10)
157
14 of 99.
158
This part was dealt with with the kind assistance of Mr. Albert Rosettenstein, the senior partner of
Honey & Blanckenberg, Legal Practitioners.
159
Subdivision of land is discussed in Section 12 .2 hereinafter.
60

the owner of the property to set aside a portion of the land for road or public purposes.160
The ownership of the land so set aside immediately vests in the appropriate authority (the
President or the relevant Local Authority161) once the survey records are approved by the
Surveyor General. The appropriate authority acquires the land free of cost.162
Title for such land is issued by the Registrar of Deeds in the form of a Certificate of Title
in terms of section 26 of the Land Survey Act (Chapter 20:12). The following documents
need to be lodged with the Registrar of Deeds:
a) Approved Survey Diagram in duplicate
b) Copy of Town Planning Permit and any amendment thereto.

160
See section 41(1) of the Regional, Town and Country Planning Act Chapter 29:12.
161
Ibid section 41(8)
162
Ibid section 41(2)
61

7 Certificates of Title and Substituted title Sections 34 to 41


7 .1 Introduction
Certificates of title basically entail substituting one Deed for another. This explains why
such a certificate is also referred to as Substituted title. The form of certificates of title is
prescribed for in terms of form DR4 of the Regulations.
The Registrar of Deeds is authorized to issue certificates of title and replace the existing
titles in whole or in part. They can only be issued in circumstances prescribed in the act.
Certificates are executed by the Registrar of Deeds i.e. there is no appearer who executes
before the Registrar but the certificates must nevertheless still be prepared by a
Conveyancer163. The certificates must therefore bear the usual preparation certificate.164
Every certificate of title has its own prescribed form. The lodging cover in each case
usually contains:
a) An application for the required certificate
b) The draft certificate
c) The registration fee
d) Various other documents as may be required in each case such as diagrams and
permits in subdivisions and consolidations.

7 .2 Certificates of registered title of an unregistered undivided share


This is provided for in terms of section 34 which now has subsection (4).
Where a person owns a share in land under one title Deed (joint title) he may take out a
Certificate of Registered Title in respect of his share if he so wishes, but he must obtain
that title if he wishes to:-
i) transfer a fraction of his share; or
ii) mortgage or lease the whole of or a fraction of his share.
NB. He need not take out a Certificate of Registered Title if he wishes to transfer the
whole of his share but must do so if he wishes to mortgage the whole of his share or the
joint owners under the title Deed may together transfer the share held thereunder or a
fraction or may bond the whole or fraction without taking a Certificate of Registered
Title.
e.g. 3 people own a property jointly and in undivided shares. If any one of them wants to
own separately he has to do this by obtaining a Certificate of Registered Title to get his

163
See section 13(1) of the Act.
164
See Precedents Nos.14 .15 and 14 .16 hereinafter.
62

share in terms of section 34 of the Act. It is not necessary that the parties have equal
shares. A may own half share, B a quarter share and C a quarter share. It is not mandatory
to take out a Certificate of Registered Title, but you have to register a Certificate of
Registered Title if you want to transfer a fraction of your share e.g. If C wants to sell half
of his share, he has to take out a Certificate of Registered Title and then transfer from that
Certificate of Registered Title an eighth share. However, if he sells his whole quarter
share, then he does not have to take a Certificate of Registered Title. It is only a transfer
from the Holding Deed. If the intention is to mortgage or lease the share then one has to
obtain a Certificate of Registered Title first.
The application for a Certificate of Registered Title in terms of this section could read as
follows:

APPLICATION
I Samuel Chakanetsa (born on the 16th September 1968),
do hereby apply in terms of section 34 of the Deeds Registries Act (Chapter 20:05), for
the issue to me of a Certificate of Registered Title under the provisions of section 34(1)
of the said Act in respect of:
An undivided one-half (1/2) share in
CERTAIN piece of land situate in the District of Salisbury
BEING Stand 4321 Salisbury Township
MEASURING 2000 square metres
HELD by me under Deed of Transfer 209987/88 dated the 4th April 1988.
Signed at Harare this 31st January 2003.

…………………………………………………

Remember that where the person who executes the application is doing so in a
representative capacity, such capacity should be shown and proved.165

7 .3 Certificates of registered title of an aggregate share


Section 35 provides for a consolidation of undivided shares in one or more than one
piece of land held under more than one title Deed.

165
See what was discussed in connection with the Power of Attorney in chapter 3 hereinbefore.
63

7 .4 Certificates of registered title of 1 or more properties held under Deed.


One may take out a Certificate of Registered Title of one or more of his properties if he
holds two or more properties under one title Deed in terms of section 36.

7 .5 Certificates of registered title taking place of lost or destroyed Deed.


This application is made where both the Registry and the client’s copies have been lost or
destroyed. It should therefore not be confused with application for copies discussed in
Chapter 8 herein. The procedure is for the owner of the land or his authorised
representative to apply to the Registrar for the issue of such certificate in terms of section
38(1).
The application could read as follows:
I Albert Sithole duly authorised by the resolution of the meeting of the board of directors
of Smithson Enterprises (Private) Limited ‘the Company” dated the 29th March 2003,
do hereby apply in terms of section 38 of the Deeds Registries Act (Chapter 20:05), for
the issue to the Company of a Certificate of Registered Title under the provisions of the
said section to replace Deed of Transfer 39467/78 dated the 22nd September 1978, in
respect of:-
CERTAIN piece of land situate in the District of Bulawayo

CALLED STAND 9876 MQABUKO TOWNSHIP

MEASURING One Thousand Two Hundred and Eighty One (1281)


Square Metres

both copies of which have been lost and I attach hereto an affidavit in support thereof.
Signed at Bulawayo this 14th November 2004.
…………………………….

Obviously this application should be accompanied by the relevant company resolution.


Note also that section 38 does not refer to an affidavit in which case there apparently is
no need for an affidavit to be attached to the application. It is the author’s view that it is
proper to attach such affidavit or solemn declaration and it may be necessary for the
legislature to amend the Regulations to include this. This submission is made on the basis
that:
a) In terms of Regulation 20(4) it is necessary for a solemn declaration to be lodged
together with the application for a copy of a lost or destroyed client’s copy of the
title Deed. The author is of the view that where both copies of the Deed have been
lost or destroyed there is greater need for such solemn declaration.
64

b) As has been indicated before our Act was copied from the South African Act and
it is by no coincidence that the section relating to the certificate under discussion
is also section 38 in the South African Act. Unlike our Regulations however, the
South African Regulation 68 (1) requires the submission of such affidavit.
After the application is lodged the Registrar publishes a notice in 2 consecutive ordinary
issues of the gazette and in 2 consecutive issues of a newspaper circulating in the district
within which the property is situate166. If there is no objection within six weeks167 from
the date on which the notice is first published in the gazette, the Registrar will issue the
Certificate. The Registrar will also issue the certificate despite the lodgement of an
objection if thirty days from the end of the first six week period of lodging objection
expire without the person who lodged an objection applying to the High Court for an
order barring the Registrar from issuing the certificate168.

7 .6 Certificate of registered title to correct an error in registration.


In terms of section 39 of the Act, if by reason of an error the same land has been
registered in the name of different persons, the Registrar may issue to the person to whom
transfer is given a Certificate of Registered Title of land held by him under the various
title Deeds.

7 .7 Certificates of registered title of portion of piece of land


The certificate provided for in terms of section 41 is probably the most common of the
Certificates of registered title. A portion of land is surveyed and a diagram approved by
the Surveyor General, where the owner wishes to have separate title to that portion for
mortgage, sale etc. The process is subject to Part IV of the Regional and Town and
Country Planning Act (Chapter 29:12). In terms thereof one can not subdivide land unless
a permit is granted nor can one sell a portion unless such a permit has been granted. The
process of subdividing land is dealt with in more detail in Chapter 12 below.

7 .8 Certificates of consolidated title of 2 or more pieces of land.


The Certificate of Consolidated Title issued in terms of section 40 is also very common.
If a consolidation diagram is approved in terms of the land survey act consolidating two
or more pieces of land, the title Deeds for such pieces of land may be superseded by a
Certificate of Consolidated Title provided that the pieces of land are:-.
a) contiguous to each other
b) owned by the same person or by two or more persons in the same undivided shares.
c) situate wholly within one of the areas defined in the Schedule to the Act.
The following documents are lodged where such certificate is required:-

166
See section 38(2).
167
See section 38(3)
168
See section 38(4)
65

-Written application by the owner(s);


-a diagram;
-all title Deeds and Diagram Deeds;
-Bonds thereon or registered Deed of lease or any real right thereon;
-the written consent of holder of lease or other real right.
The Registrar will endorse on the existing title Deeds that they have been superseded by
Certificates of consolidated title and they become Dead Deeds.
The certificate should expressly exclude conditions which fall away.
The taking out of a Certificate of Consolidated Title is also subject to the provisions of
the Regional, Town and Country Planning Act (Chapter 29:12) and is dealt with further
in Chapter 12 below.
66

8 Copies of Documents
8 .1 Application for copies
Part III of the Regulations deals with the application for copies or specimens of
documents. Application can be made for a copy of any document or part thereof filed in
the Deeds Registry169. Application must be made specifying the purpose of request for a
copy of a document. Copies of documents can be applied for, for various purposes. These
include:-
i) Copies for information purposes only
Anyone can apply for such copies and on issuing the Registrar endorses the words
‘Issued for information purposes only” on the copy. These copies cannot be used in-lieu
of the originals.
ii) Copies for judicial purposes
Usually the application is made in writing by a legal practitioner on behalf of a client. In
general, such application must be signed by a judicial officer. The copy will be endorsed
with the words ‘Issued for judicial purposes only’ by the Registrar of Deeds.
iii) Copies in-lieu of the originals
Copies to replace the originals are applied for in terms of Regulations 20 to 26. We
proceed to deal with such copies.
8 .2 Copies to replace originals
8 .2 .1 Copies of damaged or defaced Deeds
Application may be made for replacement of a document which has been damaged,
defaced etc. In that case the document which has been damaged or defaced has to be
lodged with the application170. The Registrar may refuse to accept a Deed which is
lodged without an application for replacement if in his opinion such Deed has become
unserviceable for the intended purpose171.

8 .2 .2 Copies of lost or destroyed Deeds


An application may also be made to replace a lost or destroyed document.
The application must be made by the owner or someone on his behalf such as by a legal
representative who should prove his capacity. Where the registered owner is not available
the Court has the power to direct that a copy of a Deed be issued172.

169
If the Deeds Registry copy of the document is not found, a Certificate of Registered Title can be applied
for in terms of section 38 of the Act. See Chapter 8 hereinbefore.
170
See Regulation 20(3).
171
See Regulation 24.
172
See the case of Ex parte Britz en ‘n ander 1957 (4) SA 37 (T).
67

There must be a declaration173 under oath by the applicant that the Deed has been lost and
that it is in the name of the person he represents; that a diligent search thereof has been
made and that he undertakes that if the Deed is found he will transmit it forthwith to the
Registrar. The Deed must explain the circumstances of how the Deed was lost or
destroyed if possible.
Proof should be lodged that notice of application has been published in the Gazette and in
a copy of the daily newspaper circulating in the area in which the land concerned is
situated174.
In practice, it is common to find the application and the sworn declaration in one
document (application and declaration)175.
If the Registrar is satisfied that no good reason exists for refusal to give the copy, he will
so supply176.177

8 .3 Cancellation of lost or destroyed Mortgage Bonds


Regulation 46 deals with cancellation of lost or destroyed Mortgage Bonds. The applicant
must apply to the Registrar with a solemn declaration178 stating that the Bond was lost or
destroyed; that Mortgage Bond was not ceded or pledged as security; that a diligent
search has been made; that they consent to cancellation of the Bond; that if found the
Bond will be transmitted to the Registrar and stating the circumstances in which the Bond
was lost or destroyed. Also proof of publication of notice of application in the gazette or
a local newspaper should be lodged179. If the Registrar is satisfied he cancels the Bond.
He does not issue a copy of the cancelled Bond, (to save paper) but just cancels that
Bond.

173
See Regulation 20(4)(b)
174
See Regulation 22
175
See Precedent No. 14 .35
176
See Regulation 23
177
If the Diagram Deed is lost or destroyed and it is not the Holding Deed but is required particularly for
subdivision or consolidation (discussed below), the procedure is different. There is no need to advertise. In
practice the Registrar of Deeds will accept an affidavit sworn to by the owner or his legal representative
stating that the Deed has been lost or destroyed. When such affidavit is lodged, the subdivision (Deed of
Transfer or Certificate of Registered Title) or the Consolidation (Certificate of Consolidated Title) will be
registered without lodgment of the Diagram Deed.
178
See Regulation 46(2)(b). See also Precedent No. 14 .36.
179
See Regulation 48. Note that the newspaper should be one that circulates in the area in which the
property mortgaged is situated.
68

STAMP DUTY, RATES AND TAXES


9 .1 Stamp Duty
9 .1 .1 Introduction
In terms of our law stamp duty is payable on the registration of an acquisition of
immoveable property or Mortgage or Notarial Bond. Such stamp duty is calculated in
terms of the schedule to chapter II of the Finance Act (Chapter 23:04) Stamp duty is
defined in terms of section 2 of the Stamp Duties Act (Chapter 23:09). Section 5 thereof,
refers to the schedule aforementioned which lists the duties payable.
It is important to note that the stamp duties payable are subject to change to conform to
such factors as inflation and fiscal control. The figures which we will deal with herein,
have not changed since 1996. This is understandable taking into account the fact that the
values of immoveable properties and the amounts secured by Bonds have risen
exponentially over the past few years!180
Stamp duty is payable before registration of the transfer or Bond.

9 .1 .2 Stamp duty on the registration of transfer of immovable property


Part V the Stamp Duties Act deals with immovable property. Section 19 defines the date
of acquisition as the date on which the transaction was entered into or the date on which
the person who acquired the property became entitled to it. Stamp duty is not chargeable
for a lease of less than 25 years duration181.
Joint owners are liable for payment of duty according to their shares in the property182.

The value on which duty is payable is either the declared value, the consideration payable
or the fair market value as at the date of acquisition of the property183. The consideration
payable excludes any duty, imposts, costs or fees payable in respect of the registration of
the acquisition including costs of surveyors, agents and Conveyancers.184 Declarations
have to be submitted by the parties indicating the value of the property and the
improvements thereon185.The Registrar has wide powers186 to ensure adequate and
appropriate duty is paid and will not make any entry in the Deeds Registry if the amount
tendered is in his opinion less than the duty payable187. If the Registrar of Deeds feels that
the amount quoted is too low, he may determine the fair market value188.In practice; he

180 As values of immovable property have been rising over the years, the stamp duty payable has
also been correspondingly rising, hence it have been felt that there was no need to change the
scales for calculating stamp duty.
181
See section 19 of the Stamp Duties Act.
182
See section 21.
183
See section 23.
184
See section 26.
185
See section 28.
186
See section 29 and the penalties imposed in terms of section 31.
187
See section 30.
188
See section 23(4).
69

directs government valuers to do a valuation of the property and temporarily rejects the
documents pending the valuation. If after valuation the value is determined to be higher,
additional stamp duty has to be paid. The person liable to pay duty is penalized if the
valuation determined value exceeds the consideration payable or the declared value by
not less than one-third thereof; he becomes liable for the valuation costs.
There is a right of appeal against the decision of the Registrar to the Commissioner
General who may then decide the fair value189.

If an acquisition of property is cancelled by a competent Court no duty is payable and if


any duty was paid it should be refunded190.
Liability for stamp duty on registration of transfer arises not on the date of registration of
transfer but on the day of acquisition of the right to acquire ownership. Transfer duty has
therefore been described as a misnomer191. Section 3 of the South African Transfer Duty
Act 40 of 1949 requires that Transfer duty be paid within six months of the acquisition of
the property and failure to pay within the time is penalised.
Stamp duty on the transfer of immovable property is calculated in terms of item 5 of the
schedule to chapter II of the Finance Act (Chapter 23:04) which because of the changing
value of money has had to be amended from time to time. Currently item 5 lays out the
charges as follows:-

a) where the value of the property does not exceed $5000; for every $100 or part thereof--
----------------------------------------------------------------------------------------------------- 70c
b) where the value of the property exceeds $5000 but does not exceed $15000; for every
$100 or part thereof-------------------------------------------------------------------------- $3,00
c) In respect of so much of the property that exceeds $15000 but does not exceed $100
000; for every $100 or part thereof------------------------------------------------------- $5,00
d) In respect of so much of the property that exceeds $100 000; for every $100 or part
thereof-----------------------------------------------------------------------------------------$6,00

Example 1
Calculate the stamp duty payable on an acquisition of property valued at $4000.00.
Duty is = $4000 X $0.70
$100
= 40 X $0.70
189
See section 32.
190
See section 34.
191
See Secretary for Inland Revenue vs. Hartzenberg 1966 (1) SA 405 (A)
70

= $28.00
Example 2
Calculate the stamp duty payable on an acquisition of property valued at $13 465 .00.
Since duty is calculated per $100 or part thereof, it is necessary to consider the $65.00 as
part of a $100.00. Therefore the amount we calculate duty on is the sum of $13 500.
Duty is = Duty on 1st $5000 + Duty on next $8500(i.e. the remainder)
= $5000 X $0.70 + $8500 X $3
$100 $100
= 50 X $0.70 + 85 X $3
= $35 + $255
= $290.00
Example 3
Calculate the stamp duty payable on an acquisition of property valued at $84000.01.
As mentioned in example 2 the one cent constitutes a part of a $100 which means duty is
calculated on the sum of $84 100.00.
The total duty is the sum of the duty for so much of the value up to $5000, plus the duty
on the value between $5000 and $15 000, plus the duty on the remainder.
Duty on the 1st $5000 = $5000 X $0.70
$100
= $35
Duty on the next $10 000 = $10000 X $3
$100
= 100 X $3
= $300.00

Duty on $69 100 (the remainder) = $69100 X $5


$100
= 691 X $5
71

= $3455

Therefore duty on $84 000.01 = $35 + $300 +$3455


= $3790
Example 4
Calculate the stamp duty payable on an acquisition of property valued at $1 579 999.99.
Since the $99,99 is part of a $100, the amount on which we calculate stamp duty is $1
580 000.00
Duty on the 1st $5000 = $5000 X $0.70
$100
= $35.00
Duty on the next $10 000.00 = $10 000 X $3
$100
= $300.00
Duty on the next $85 000.00 = $85000 X $5
$100
= $850 X $5
= $4250.00
Duty on the Remainder = Duty on $1 480 000.00
= $1 480 000 X $6
$100
= $14 800 X $6
= $88 800.00
Therefore duty on $1 579 999.99 = $35 + $300 + $4250 + $88 800
= $93 385.00

9 .1 .3 Exemption from duty on acquisition of property


There are exemptions however from the payment of stamp duty. These exemptions are
also part of item 5 to the Schedule. They are summarised below:-
72

1) Where there is an acquisition of property whereby no change in beneficial interest in


the property is effected.
2) Where an ecclesiastical, charitable or educational body acquires property provided that
the state recognizes that ecclesiastical, charitable or educational body as being of a public
character as approved by the Minister.
3) Any heir legatee/tutor/Curator/trustee acquiring the property in the name of the heir or
legatee in respect of property acquired by intestate or testate succession or as a result of
the redistribution of the assets of a deceased estate in the process of liquidation.
4) A surviving spouse in respect of property acquired in any manner with respect to the
deceased estate's distribution.
e) A joint owner of property in respect of the acquisition of a defined portion of property
allotted to him upon partition of the property but not in respect of any consideration paid
to him to equalize the partition.
6) A joint owner of property who acquires the sole ownership in the whole or a portion of
the property in respect of so much of the value of the property in which sole ownership is
acquired as represents his share of the joint ownership of the property.
7) A registration to correct an error in the registration of the acquisition of any property if
the duty payable in respect of that acquisition has been paid.
8) A divorced spouse property in respect of property awarded to such spouse by divorce
order.
9) A transfer of property in a deceased estate to an administrator where such property has
by will or by an order of Court been placed under the administration of such
administrator.
10) A registration of property acquired as a result of the termination of appointment of an
administrator of a trust under a will or under a written instrument or of a trustee of an
insolvent estate.
11) A vesting of property in an insolvent estate or a restoration of such property when it
goes back again.
12) A vesting of property in the liquidation of a company or restoration when it goes back
again.

13) An acquisition of property in which duty is payable under the Mines and Minerals
Act (Chapter 21:05).
14) An acquisition of property
i) by a company from the wholly owned subsidiary of the company or
73

ii) by the wholly owned subsidiary of a company from the company or


iii) by the wholly owned subsidiary of a company from another wholly owned subsidiary
of the company (provided that the Registrar is satisfied that they are wholly owned
subsidiary companies)
15) An acquisition of property by a local authority from the state by way of transaction
not involving purchase and sale.

9 .1 .4 Stamp duty on the registration of Bonds


The stamp duty payable on the registration of Mortgage Bonds or Notarial Bonds or
Cessions or Substitutions of debtor there of, is calculated in terms of item 1 of the
schedule to chapter II of the Finance Act (Chapter 23: 04) which states the following:-
For any $100 or part thereof of the debt secured or to be secured -----------------------40c
Example 1
Calculate the stamp duty payable on a Mortgage Bond registration where the total
amount secured is $1 699 900.09.
The nine cents is part of a $100. Therefore duty is calculated on the sum of $1 700
000.00.
Duty is = $1 700 000 X $0, 40
$100
= 1 700 000 X $0, 40
= $680 000.00
Example 2
Calculate the stamp duty payable on a Notarial Bond registration where the total amount
secured is $50 000 000.00.
Duty is = $50 000 000 X $0.40
$100
= 500 000 X $0.40
= $200 000.00

9 .1 .5 Exemption to duty on registration of Bonds


Item 1 also contains exemptions to the payment of duty on registration of a Mortgage
Bond or Notarial Bond or any Cession or Substitution of Debtor in respect thereof. These
are summarised here as follows:-
74

a) Any sum separately secured by Bond to cover any costs incurred in connection with
the debt
b) Any Bond which is auxiliary or collateral to or substituted for a previously made and
duly stamped Bond executed by the same person for the same debt
c) Any Bond executed by suretyship only where there exists a duly stamped Bond for the
same debt or Bond executed by the Principal debtor
d) Any Substitution of Debtor in respect of a Bond mentioned in exemption (b) not being
Substitution Bond.
e) Any Substitution of Debtor in respect of a Bond mentioned in exemption (c)

9 .2 Registration fees
This registration fee is payable where registration is required of documents which are
required in terms of the Act to be attested or prepared by a Conveyancer such as Deeds of
Transfer, Mortgage Bonds etc. Other documents which do not need to be prepared by a
Conveyancer such as Consents to cancellation, Waivers of preference, etc which under SI
161 2002192 did not require the registration fee but stamps of the value of $200, 00 now
require payment of $5000.00 in terms of SI 71 2004193.
The important aspect to remember is that when you lodge documents for registration of a
Mortgage Bond or a transfer, your lodging cover should contain a cheque for the
registration fee and/or stamp duty. Where there is an exemption to payment of the
registration fee and/or stamp duty, an exemption certificate should accompany the
documents. For Deceased Estates, the practice is to insert the small certificate below the
Power of Attorney. Normally the certificate would read as follows:-
'Exemption claimed in terms of paragraph (c) of subsection 2 of item 5 of the schedule to
chapter II of the Finance Act (Chapter 23: 04).'

9 .3 Rates
It is necessary to lodge a rates clearance certificate when transferring immovable property
on which rates are levied. The rates clearance certificate is obtained from the local
authority194. The practice varies from local authority to local authority. Generally the
Conveyancer who has been instructed to attend to a transfer writes to the relevant local
authority requesting the rates clearance certificate. The local authority will calculate all
rates in arrears and add this to rates to be levied for some time in the future. (Some

192
Deeds Registries (Amendment) Regulations.
193
Deeds Registries (Amendment) Regulations. It is important to note that the amount will change from
time to time in line with factors such as inflation.
194
Section 109 of the Rural District Councils Act (Chapter 29:13) and section 282 of the Urban Councils
Act (Chapter 29:15) prohibits the registration of transfer or of a consolidated or registered title before a
rates or charges clearance certificate is issued.
75

district offices in Harare ask for payment of rates for 3 months in advance. The Rowan
Martin office, which caters for most of the Harare low density suburbs, asks for payment
of rates up to the next June or December.) The Conveyancer will forward the payment of
the required rates before the local authority issues the rates clearance certificate. The
Registrar of Deeds will reject the documents lodged if no certificate is lodged or the
certificate lodged has expired.195

9 .4 Taxes
With effect from August 1981 tax is chargeable on the capital gain made on the disposal
of immovable property or marketable security196. We are not concerned here with
marketable securities and present here a very simplified discussion of Capital Gains Tax.
Basically Capital Gains Tax is a percentage of the residual value after making deductions
from the gross selling price of certain allowances and inflationary adjustments197.
It is necessary to understand the roll over provisions of the Capital Gains Tax Act. For
example, when an individual sells what is described as the Principal Private Residence to
buy another, tax is deferred - there is no capital gain. Less or no tax is payable in these
circumstances depending on the difference between the sale price or value of the sold
property and the purchase price or value of the purchased property.
Where property is being transferred between spouses tax can be deferred. Donation
Transfers however attract Capital Gains Tax.
Capital Gains Withholding Tax198 was introduced with a view to ensure that Capital
Gains Tax is paid and paid early in all instances where it is due199. The Act required that
with effect from the 1st January 1999, where the purchase price or any part of it passed
through the hands of a depositary, such depositary was required to deduct 10% thereof
and forward the same to the tax department.
The Capital Gains Withholding Tax provisions describe a depositary who should deduct
the 10%. This could be the Conveyancer or the Estate Agent or the Purchaser. The
depositary may apply to the tax authorities for a clearance certificate by paying the actual
assessed Capital Gains Tax.
At the moment, the Registrar of Deeds can only register a transfer of immovable property
on production to him of a Capital Gains Tax Clearance certificate. The lodging cover
must therefore contain the relevant certificate except if this is for one of the few cases
such as deceased estate transfers for which blanket authority has been given.

195
There will obviously be no need for such rates clearance certificate where the local authority is
transferring immovable property.
196
See the Capital Gains Tax Act (Chapter 23:01). See also the case of Law Society of Zimbabwe and
Pamela Margaret Mollatt vs. Minister of Finance (The Attorney General intervening) S.C. 92-99 (“the
Mollatt case”) on page 6.
197
See the simplified calculation of CGT in Precedent No. 31
198
Introduced by sections 35 and 36 of Part IV of the Finance Act, No. 29 of 1998.
199
See the Mollatt case on page 6.
76

Note that in suspensive sales or sale of property in instalments the capital gain is
calculated and payable on monthly payments. Sales by a land developer attract income
tax not Capital Gains Tax. A tax clearance certificate is however required in that case.
There are other instances where property is transferred but not pursuant to a sale where
there is an actual payment of money from the Purchaser to the Seller. Such transactions
are referred to as deemed sales and include donations, expropriations, sales in execution
of a Court order etc200. Capital Gains Tax is payable. It is also payable where property is
destroyed as this is deemed sale201.
An example of how Capital Gains Tax is calculated is provided in precedent 31
hereinafter. Note that because the financial year was changed from April -March to
January –December in 1997, the period from 1 April 1997 to 31 December 1997 is
counted as an additional year. Because this is just an example to illustrate how Capital
Gains Tax is computed, and because tax calculations and law is beyond the scope of this
work, the writer has not taken the precaution of verifying the accurateness or correctness
of the calculations. Conveyancers do not calculate Capital Gains Tax but should have an
idea how it is calculated for purposes of advice generally. A prudent Conveyancer would
advise his clients to approach accountants’ firms who are professionally better equipped
to handle such computations, unless of course his is are able to do so. This should not
take away the fact that the tax department actually does the calculation for the tax payer
and prepares a notice of assessment for Capital Gains Tax before the tax is paid.

200
See section 8(2) of The Capital Gains Withholding Tax Act.
201
See section 13 of The Capital Gains Withholding Tax Act.
77

10 Estate Transfers
10 .1 General
Section 23 of the Act deals with the joining of the surviving spouse where there is a joint
estate. The surviving spouse must be joined in his or her personal capacity with the
executor. The Transferor is described in the same manner in both the Power of Attorney
and the Deed of Transfer. i.e.
John Bloggs in his capacity as executor
testamentary appointed by letters of adm-
-inistration issued by the Master of the Hi-
-gh Court at Harare on the 1st day of April
1992
and the said JOHN BLOGGS
The dates of birth need not be disclosed as it makes no difference in whose name the
property is registered or whether it is the wife or the husband who is deceased.
If the survivor dies before transfer then the executor of his or her estate is joined with the
executor of the estate of the spouse who died first. There are certain exceptions to this:
i) Where the executor is dealing with the share of the deceased spouse's property i.e.
where the deceased leaves her share to someone else e.g. her child.
ii) Where land has been sold to pay debts of the estate.
iii) Where there has been a massing of the joint estate and the surviving spouse has
adiated. Massing must be proved by copy of will and adiation by document of adiation
filed with the Master of the High Court.
Section 43 of the Act deals with transfer or cession by endorsement of immovable
property or a Bond registered in the name of the survivor of two spouses who were
married in community of property or in the name of the joint estate of such spouses and
such survivor has lawfully acquired the share of the deceased spouse in the property or
Bond. On application by the surviving spouse and the executor of the deceased estate, the
Registrar is empowered by section 43(1) to endorse on the title Deeds of such property or
the Bond that the survivor is entitled to deal with such property or Bond. The effect of
such endorsement is to allow the survivor to deal with the property or Bond as if he had
taken formal transfer or cession into his own name of the share of the deceased spouse
therein.
78

Where property was disposed of by the deceased during his life time the causa must
clearly reflect this.
In donations there must be proof that the donee accepted donation during the donor’s
lifetime otherwise the donation lapses with the donor’s death. This would be the position
unless the donor confirmed the donation in his will202.

10 .2 Additional supporting documents in Estate transfers


Where the transfer is a result of inheritance, letters of administration are required.
Where there is a will (testate succession) a certified copy of the will must be lodged
together with the transfer documents.
Proof of death must be in the form of a death certificate.
In a customary law inheritance, a Certificate of heir should be lodged.
It is important that a Liquidation and distribution account be lodged. It shows that the
transfer is being registered in accordance with the plan approved by the Master.
If an heir repudiates an inheritance there should be a signed repudiation by the legatee.
An executor who wishes to transfer land pursuant to a sale by the executor must lodge an
affidavit in terms of section 73(a) stating that there is no objection to the transfer203.
Unless authorised by the will, the executor, spouse or parent can not buy the property of
the estate204.

202
See Jones at page 270.
203
See Precedent No. 14 .38
204
See Jones at page 270.
79

11 Financial arrangements in Conveyancing

11 .1 Introduction
The Conveyancer has to ensure that the necessary financial arrangements are properly
attended to both before and after the registration of transfer. The nature of Conveyancing
transactions requires efficiency and expediency on the part of the Conveyancer. The
Conveyancer has a duty to act timeously in the interests of the parties. There are
circumstances where agreements of sale have been cancelled owing to a Conveyancer’s
tardiness. It would be highly unacceptable for the client to suffer financial loss because
the Conveyancer forgot to pay money to a particular person when he was required to do
so, or failed to invest the client’s funds as instructed when it was envisaged that such
moneys would be retained in trust for a long time. Conveyancing work requires care and
accuracy.205

11 .2 Financial Arrangements
For clarity we will discuss financial arrangements and Conveyancing procedures by way
of illustration. Each case will depend on its own circumstances. We deal herein with a
simple and more common example.
A wants to sell property and he instructs an estate agency to find a buyer for his
property.206 The estate agency advertises the property or has buyers already. It introduces
a buyer (B) to A who is willing to purchase the property at a price of $100 000 000. The
Estate Agent draws the agreement of sale which states that the Purchaser will pay a
deposit of 50% of the purchase price on signing. The agreement of sale has a suspensive
condition to the effect that the agreement of sale is subject to the Purchaser applying for
and being granted a loan for the balance under security of a Mortgage Bond over the
property207. When the agreement of sale is signed by the parties, the Estate Agent receipts
and deposits the initial payment of $50 000 000 into his trust account. To comply with
the suspensive condition for a Mortgage Bond the buyer approaches XYZ Building
Society and makes an application for mortgage finance and offers as security the property
he is purchasing. The building society will need to be satisfied with a number of issues
such as the ability of the applicant to repay the loan, additional security in the form of for
example a life insurance policy, ability to raise part of the purchase price from his own
resources208. When B has applied for the loan and it has been granted, he will have

205
See Incorporated Law Society, Tvl vs. Meyer and Another 1981 (3) SA 962 (T).
206
In some cases the Seller may have identified a Purchaser on his own. The parties may reduce their
agreement to writing on their own or they instruct the Conveyancer or a legal practitioner to draft an
agreement on their behalf.
207
See Potgieter vs Van Zyl 1983 (3) SA 451 for explanation of what a similar Bond means.
208
The building societies have traditionally asked the applicant to raise 25% of the purchase price. At the
moment, because of the inflationary environment the building societies are asking applicants to raise at
80

complied with the suspensive condition.


The Estate Agent then writes a letter of instruction to the legal practitioner or
Conveyancer (Messrs N & P) chosen by the Seller to do the Conveyancing.209 The Estate
Agent forwards the $50 000 000 which is then deposited into the legal practitioner or
Conveyancer's trust account210. It is the Conveyancer’s duty to examine the agreement of
sale prepared by the Estate Agent ‘…to ensure that on the face of it all requirements of
the law have been met’.211 The Conveyancer has an obligation and responsibility to act
diligently212. It is important at this stage for the legal practitioner or Conveyancer to
physically go to the Deeds Office and carry out a search on the property.
In our example, the search confirms that:-
-the Seller is the registered owner of the property;
-the Holding Deed is endorsed with a Mortgage Bond in favour of JKL Building
Society213;
-there is a caveat placed on the Deeds by Messrs C & D Legal Practitioners following a
judgement they obtained in the High Court on behalf of M against A for payment of the
sum of $10 000 000. Messrs C & D have confirmed to our Conveyancer that they require
payment of $10 000 000 to enable them to uplift their caveat.
The Conveyancer should at this stage apply for a rates clearance certificate from the local
authority as waiting until all documentation is in place would delay the whole process.
The legal practitioner or Conveyancer then writes to JKL Building Society requesting the
society’s requirements for cancelling its Bond. A request is also made for the relevant
title Deeds of the property.
JKL Building Society in response indicate that they require payment of $4 550 001,58
together with interest thereon at the rate of 42% per annum from the 31st January 200- to
date of payment in full both dates inclusive before they can sign a consent to cancel the
Bond. They also indicate that they have instructed their Conveyancers, Messrs G & H, to
attend to the cancellation of their Mortgage Bond. Now it is not possible to pay JKL

least 50% of the purchase price.


209
The Seller appoints his agent to carry out the Conveyancing work in the absence of any express
provision to the contrary. This is despite the fact that the Purchaser or Purchasers have agreed to pay the
costs of transfer. See James vs. Liquidators of the Amsterdam Township Company 1903 TS 653. The fact
that a specific Conveyancer has been appointed expressly in the agreement of sale does not confer on such
Conveyancer the benefit of such appointment. By being appointed, the Conveyancer does not become a
party to the contract. See Joel Melamed and Hurwitz vs. Cleveland Estates (Pty) Ltd, Joel Melamed and
Hurwitz vs. Vorner Investments (Pty) Ltd 1984 (3) SA 155 (A).
210
It is advisable that the payment should have been made directly to the Conveyancer because the Estate
Agent as a depositary would be required to deduct the 10% Capital Gains Withholding Tax.
211
See Jones at page 175.
212
See Jones at page 176 where it was stated that the Conveyancer must ‘…obtain the necessary
documentation from the parties to the transaction.’
213
The mere fact that there are Mortgage Bonds over a property is not an obstacle to the passing of transfer
as was stated in the case of Breytenbach vs van Wijk 1923 SA 541 at page 550.
81

Building Society because Purchaser's money can not be used for cancellation of the
Seller's Bond.
The legal practitioner or Conveyancer then writes to XYZ Building Society's Legal
Practitioners asking for the following guarantees or letters of undertaking214 from XYZ
Building Society:-
a) in favour of JKL Building Society for the sum of $4 550 001,58 together with interest
thereon at the rate of 42% per annum from the 31st January 200- to date of payment in
full both dates inclusive;
b) in favour of Messrs C & D Legal Practitioners for the sum of $10 000 000;
c) in favour of the legal practitioner or Conveyancer for the sum of $35 449 998.42 less
interest on the sum of $4 550 001,58 at the rate of 42% per annum from the 31st January
200- to date of payment in full both dates inclusive
XYZ Building Society will guarantee to pay the amounts on written advice from their
Conveyancers Messrs E & F that the following transactions have been registered in the
Deeds Office:-
a) Transfer; A to B
b) Mortgage Bond; B in favour of XYZ Building Society
c) Cancellation of Bond; A in favour of JKL Building Society.
There is now $50 000 000 in the legal practitioner or Conveyancer's trust account and a
total amount of $50 000 000 in guarantees to make up a total of $100 000 000
The guarantee of $4 550 001,58 together with interest thereon at the rate of 42% per
annum from the 31st January 200- to date of payment in full both dates inclusive is sent
to JKL Building Society's Conveyancers who will then obtain a signed consent to
cancellation by their client (JKL Building Society). The Conveyancer can pay their costs
of cancelling the Bond (which are minimal), but it is preferable that they undertake to pay
them on registration of the transactions.
The guarantee of $10 000 000 is sent to Messrs C & D Legal Practitioners who will write
to the sheriff with instructions to uplift the caveat.
The guarantee for $35 449 998.42 less interest on the sum of $4 550 001,58 at the rate
of 42% per annum from the 31st January 200- to date of payment in full, both dates

214
It should be understood that where the agreement states that the purchase price is to be paid before
transfer then the payment has to be paid and not guaranteed as was clearly shown in the case of AA Farm
Sales (Pty) Ltd (t/a AA Farms) vs Kirkaldy 1980 (1) SA 13 (A). See also the case of Maserowitz vs Little
1911 TPD 1061. Payment is guaranteed only if the agreement of sale envisages that payment of the
purchase price or part thereof will be made pari passu with the transfer. See the case of Breytenbach vs.
Van Wijk 1923 AD 541 which established payment by a Purchaser in the form of a suitable guarantee. See
also the case of Friday Changani vs. John Mapiravana Takaidza & The Registrar of Deeds HC-H 21/2002.
82

inclusive, is kept in the file of the legal practitioner or Conveyancer.

11 .3 Lodging
The Conveyancer will have in the mean time prepared a lodging cover wherein he files
all the relevant documents required for registration of the transfer. Messrs E & F will also
have prepared their lodging cover containing documents for the registration of the
Mortgage Bond and, Messrs G & H will have prepared their lodging cover containing
documents for the cancellation of the Mortgage Bond made in their favour.
When the three law firms are ready to lodge their respective documents they phone each
other to arrange for co-lodging. The three lodging covers have to be lodged on the same
day before 12:00 noon. If one or two of the covers is not lodged, those lodged will be
rejected by the Registrar marked "NC" for "not connected".
The front of the lodging covers will appear like this215:-

215
The labeling of the lodging cover varies from law firm to law firm. The important aspect is that the
lodging cover must be properly and clearly labeled especially where there are simultaneous lodgings. See
Regulation 13.
83

a) By the legal practitioner or Conveyancer(N & P)

Lodged by
N&P

1) Transfer from A to B
Documents lodged
a) ..........................
b) ..........................
c) ..........................
d) ..........................

Simultaneous with
2 M/Bond: B i.f.o. XYZ Building Society (By Messrs E & F).
3 Canc/Bond: A i.f.o. JKL Building Society (By Messrs G & H)
84

-----------------------------------------------------------------------------------

---------------------------------------------------------------------------------
b) By Messrs E & F

Lodged by
E&F

1) Mortgage Bond in favour of XYZ Building Society


Documents lodged
a) Mortgage Bond
b) ………………
c) ……………...

Simultaneously with
2) Canc/Bond: A i.f.o. JKL Building Society (By Messrs G & H)
85

3) Transfer: A to B (By Messrs N & P)


-------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
c) By Messrs G & H

Lodged by
G&H

1) Cancellation Mortgage Bond A info JKL Building Society


Documents lodged
a) Consent to cancellation of Mortgage Bond
b) Mortgage Bond

Simultaneously with
2) Transfer: A to B (By Messrs N & P)
86

3) M/Bond: B i.f.o. XYZ Building Society (By Messrs E & F).


-------------------------------------------------------------------------------------------------
When the transactions are registered the Registrar puts each cover in the respective
Conveyancers' pigeon holes at the Deeds Office for collection. XYZ Building Society
will then forward the cheques in honour of their guarantees. The legal practitioner or
Conveyancer (N & P) then prepares a statement indicating the payments made and
enclosing a cheque for the balance in favour of the Seller216.
If the agreement of sale is cancelled before transfer is registered, the Conveyancer is
entitled to charge a portion of the Conveyancing fees in terms of the Conveyancing tariff
from either party depending on the wording of the agreement217.

216
It is necessary to point out here that where the purchase price is paid to or deposited with the
Conveyancer before the date of transfer it is advisable to invest it to best advantage. Some time ago the
Law Society of Zimbabwe set guidelines on investment of such deposits. The guidelines required the Legal
Practitioner or Conveyancer to invest moneys held in trust if the amount exceeded $100 000,00 , the money
was not likely to be paid out of the trust account within one month or the client specifically requested that it
be invested. These guidelines obviously now need to be updated. The view of the author is that a prudent
Conveyancer should while exercising caution invest the money on behalf of the client even if there is no
express instruction from the client or even in cases where the money will not be required within a shorter
period of time.
217
Read the case of Van Vliet vs. Adler, Kessly and Salomon 1979 (3) SA 1156 (W
87

12 Subdivisions and Consolidations

12 .1 Introduction

One of the aims of the Regional Town and Country Planning Act (Chapter 29:12) is to
regulate the subdivision and consolidation of pieces of land. It also provides for the
authorization of the making of regional, master and local plans which are defined and
explained in the Act (See section 2 and the sections referred therein). The act specifically
provides for the control over development, including use of land and buildings.

The issue of Planning is a wider area which is dealt with in other disciplines. It is not the
intention of this Chapter to provide a comprehensive study of Planning which is the
preserve of qualified planners and other professions. The scope of this work limits the
study of planning in so far as it affects the work of the Conveyancer to understand
generally the wider provisions of the law relating to planning for the purpose of advice
generally.

Section 39 of the Act prohibits sub-division or consolidation without a permit218.


Agreements of sale or change of ownership of portions of land before such permit is
granted are prohibited and therefore illegal in terms of section 39219.

It is clear that this section has been violated on numerous occasions in the recent past.
This may be limited to the enthusiasm to provide housing to a large number of people or
the mushrooming of unscrupulous organizations and individuals who seek to make quick
profits by subdividing land and selling it before obtaining a permit.

Some title Deeds may also contain restrictions on subdivisions imposed servitudinally.
The holder of such right will therefore have to consent before any subdivision may occur
irrespective of whatever statutory consent may be necessary.

12 .2 Permit to subdivide or consolidate land

A permit is applied for in terms of section 40 of the Act. The application is made to the
local planning authority ‘in such manner and shall contain such information as may be
prescribed…’220 The application is accompanied by the consent in writing of the owner

218
Section 39(1) reads as follows: “…no person shall…subdivide any property; or… enter into any
agreement…for the change of ownership of any portion of a property; or…consolidate two or more
properties into one property; except in accordance with a permit granted in terms of section forty…”
219
See also the case of X-Trend-A-Home (Pvt) Ltd vs. Hoselaw Investments (Pvt) Ltd 2000 (2) ZLR 348
and the case of Mikesome Investments (Pvt) Ltd t/a Sommerfield Real Estate v Silcocks Investments (Pvt.)
Ltd.HH-107-2003.
220
See section 40(1).
88

of the property and of every holder of a Mortgage Bond registered over the property. The
local planning authority (which is defined in section 10 of the Act) may require the
consent in writing of the holder of any other real right.

The permit may in terms of the section 41 include conditions requiring the owner
- to set aside land for road purposes
- to set aside land for public purposes
- to pay to the appropriate authority a percentage of the value of each
subdivision, excluding improvements, at the time of its disposal. (This is
normally referred to as endowment). (It is important to note that the
endowment paid is calculated on the value of the vacant land as at the time
of the disposal of the subdivision. With inflation, some appropriate
authorities have sought to fix endowment on current values per square
metre which in the author’s opinion would conflict with Section 41).

The Land set aside immediately vests in the appropriate authority upon approval of
survey records in terms of the Land Survey Act (Chapter 20:12) and is acquired free of
cost221. The local planning authority may or may not grant a permit. Where the local
authority grants the permit, it forwards the copy of the permit to the Surveyor-General
and the Registrar of Deeds.

12 .3 Land Survey

The Land Survey Act (Chapter 20:12) provides the law relating to the survey of land.
This statute is important because it applies “…to any survey used for the purpose of
effecting the registration of any land in the Deeds Registry…”222 and it is binding on the
state in relation to unalienated state land223.

It is the duty of the Surveyor General appointed in terms of this Act to among other
things:-

(a) supervise and control the survey and charting of land for purposes of
registration in the Deeds Registry
(b) examine all general plans and survey diagrams of land before registration of
such land is effected by the Deeds Registry and to approve such plans and
diagrams
(c) deduct the numerical extent of portions of land transferred in the Deeds
Registry or for which a Certificate of Township Title or a Certificate of
Registered Title has been issued
(d) cancel or amend survey diagrams or General Plans
(e) issue copies of survey diagrams or General Plans if so requested and on
payment of the prescribed fees224.

221
See section 41(2).
222
See section 3 of the Act.
223
See section 4.
224
See Section 7 of the Act.
89

The act also recognizes Land Surveyors who have to be registered as such in terms of the
Land Surveyors Act (Chapter 27:06).225 The Land surveyor surveys the land and
prepares diagrams for approval by the Surveyor General.

The owner instructs the Land Surveyor to undertake the survey after obtaining a permit to
subdivide land as discussed above. The land Surveyor lodges the survey records, diagram
or general plans relating to the subdivision of land to the Surveyor General for approval.

In terms of Section 40 the registration of land without an approved diagram or general


plan is prohibited. The section states that ‘no general plan or diagram of any piece of land
shall be accepted in the Deeds Registry in connection with any registration therein of
such land, unless such general plan or diagram has been approved by the Surveyor-
General.’

For a diagram or general plan to be approved by the Surveyor General it has to be


prepared by a Land Surveyor and signed by him.

The Surveyor General does not approve consolidation diagrams which do not comply
with the consolidation permit. The consolidation diagram is compiled by a Land
Surveyor from two or more diagrams representing 2 or more pieces of land (Section 43).

Upon approval of either a subdivisional diagram or the general plan or consolidation


diagram, the Surveyor General should notify the Registrar of Deeds and the local
planning authority of his approval.

An important section is section 49 which was introduced as an amendment by the


legislature as section 47A. It allows the Surveyor-General to dispense with diagrams of
some or all of the pieces of land represented on a General Plan which he has approved.
Where he has so dispensed with diagrams, the Surveyor General issues a certificate to the
Registrar of Deeds setting out in relation to the land concerned the following:-

a) its area; and


b) its description; and
c) details of servitudes represented on the General Plan; and
d) details of land set aside for roads or public purposes; and
e) refers to the general plan

Such certificate is referred to as a dispensation certificate.

The amendment was necessitated by rising urban population which required multiple
subdivisions of land especially in high-density suburbs. The pieces of land in such areas
are:-
a) smaller in extent (going down to about 200 square metres)
b) numerous in number (e.g. dispensation certificates covering Fountainbleau

225
See Section 2 and Section 11.
90

Township or Kuwadzana, Ruwa or Dispute Estate, Budiriro and Crowbrough


Townships)
c) particularly found in high density suburbs.

12 .4 Procedure to obtain title to a subdivision

An owner of property may subdivide property with the intention of selling the resultant
subdivision(s) or acquiring separate title thereto (by Certificate of Registered Title).

12 .4 .1 Subdivisional Transfer

Where an owner of immovable property seeks to transfer title to a subdivision to another


person, an application for a permit has to be made first226. Such a permit has to be applied
for in the manner prescribed to the local planning authority. In Harare this is the
Department of Works housed at Cleveland House. In areas such as rural areas, there are
provincial planning officers of the department of physical planning which grants such
permits.

It is advisable to instruct professional planners or surveyors to apply for the permit. This
is both efficient and expedient.

The permit grants the authority to subdivide the property as proposed by the applicant or
with amendments to the proposals.

It is necessary to point out that the application for a permit may be refused. One common
reason for refusal to grant a permit in rural areas is that the resultant subdivision(s) would
not be agriculturally viable. There are procedures for appeal to the administrative Court
against refusal to grant a permit.

Usually a permit is granted for a certain period and it should be reviewed on expiry
thereof. It contains conditions upon which it is granted. The common conditions are that
the application has to pay endowment to the local planning authority or set aside some
land in lieu thereof. The permit also normally puts the responsibility to develop roads and
piped culverts each stand on the applicant. Some permits can require the applicant to
finance the installation of a water connection to the subdivision(s). The nature of the
roads to be developed is described and this depends on the location. In Urban areas the
local planning authority may require that the roads be covered by bituminous tar and in
rural district areas by gravel.

All works on the property are to be carried out according to the specification of the local
planning authority. The permit will therefore make it a condition that the Registrar of
Deeds will not register the transfer of a subdivision unless certain conditions have been

226
See Sommerfield Real Estate v Silcocks Investments (Pvt.) Ltd.HH-107-2003.
91

met. This is where the interest of the Conveyancer comes in. When the local planning
authority is satisfied that the works on the property have been carried out to its
specifications, it will issue what is referred to as a compliance certificate. The
Conveyancer is therefore interested in obtaining this compliance certificate so that it can
be part of the supporting documents for the transfer of the subdivision.

The Conveyancer will also require the approved survey diagrams or the dispensation
certificate and the General Plan for the subdivisions. His lodging cover usually contains
the following:-

a) Diagram Deeds for the whole stand


b) Current Deed (if this is not the Diagram Deed)
c) Draft Deed in duplicate
d) Seller’s Declaration
e) Purchaser’s Declaration
f) Rates Clearance Certificate
g) Approved Survey Diagram in duplicate
h) Permit
i) Endowment Certificate
j) Compliance Certificate
k) Capital Gains Tax Clearance Certificate
l) Cheque for stamp duty in favour of the Chief Registrar
m) Cheque for deduction fees in favour of the Surveyor General.

Other documents may be required depending on the nature of the transfer or the location
of the land.

When all documentation is in place, the Conveyancer lodges the documents with the
Deeds Registrar for examination and registration. If the Registrar is satisfied therewith,
he will register the transfer, return the registration slip and forward the documents to the
Surveyor General for deduction. The Surveyor General will subsequently return the
documents to the Registrar of Deeds who places the cover in the Conveyancer’s pigeon
hole.

12 .4 .2 Certificate of Registered Title

Where an owner wishes to deal in any way with a portion only of his land (i.e. lease for a
period exceeding 10 years, mortgage or sometimes even to sell) he may take out a
Certificate of Registered Title in terms of Section 41 of the Deeds Registries Act
(Chapter 20:05).

The certificate is prescribed in terms of the Regulations and has in terms of section 13 to
be prepared by a Conveyancer. It is however executed by the Registrar only. It has to be
92

accompanied by an application for such certificate to be signed by the owner or an


authorized representative.

The lodging cover also contains:-

a) the Diagram Deed of the whole property


b) the current Deed
c) an approved survey diagram or dispensation certificate
d) any document embodying an encumbrance over the property like a Mortgage
Bond
e) consent in writing of any such holder of rights mentioned in (d) above.

A Mortgage Bond holder may either consent to:-


i) cancellation of the Bond
ii) release the subdivision from the operation of the Bond
iii) the Bond being endorsed on the certificate

Once all documents are in place, the lodging cover is lodged with the Deeds Registry for
examination and registration. Like with sub-divisional transfer, the documents also go to
the Surveyor General for deduction before being deposited in the Conveyancer’s lodging
box by the Registrar of Deeds.

12 .5 Certificate of Consolidated Title

Where an owner wishes to have title to pieces of land owned by him, he may take out a
Certificate of Consolidated Title in terms of section 40 of the Act. The owner has to also
apply for a permit for consolidation and have a diagram framed and approved in terms of
the Land Survey Act.

The diagram should represent two or more pieces of land which are:-
a) contiguous (side by side) to each other
b) owned by the same person or by two or more persons in the same undivided
shares in each such piece of land; and
c) situate wholly within one of the areas defined in the schedule.

Once a Certificate of Consolidated Title is registered it supersedes the title Deed or Deeds
of the pieces of land which will have been consolidated.

The lodging cover will contain:-

a) the Diagram Deeds of the pieces of land


93

b) the current Holdings Deeds


c) approved survey diagrams in duplicate or a dispensation certificate
d) any document embodying a real right over the pieces of land e.g. Mortgage
Bond
e) consent in writing of the owner of such right
f) application for Certificate of Consolidated title
g) draft Certificate of Consolidated Title in duplicate.

When the certificate is registered, the Registrar endorses on the title Deed or Deeds that
they have been superceded by the Certificate. The documents are submitted to the
Surveyor General and returned subsequently to the Conveyancer’s lodging box.

12 .6 Renumbering of properties
Section 76 of the Deeds Registries Act deals with the renumbering of properties. If the
numbering or descriptions of registered properties has become complicated, the
Surveyor-General and the Registrar may forward a report to that effect to the Minister
who may authorise the renumbering of the properties in the district. The Minister should
be satisfied that it is in the public interest to renumber the properties after which he
authorizes the amendment of the relevant general plans and diagrams by the Surveyor-
General. The Registrar is obliged to note the new numbers on the affected title Deeds free
of charge. It is therefore important for the owners to submit their title Deeds to the
Registrar within three months of the notice provided for in terms of section 76(2) of the
Act. In terms of the subsection, the Surveyor-General amends the diagrams of the
properties and such an amendment should not have the effect of amending any rights of
ownership.
94

13 Undivided shares coupled with exclusive right of occupation

13 .1 Introduction

The registration of title ownership of a single unit in land or a building (such as a block of
flats) does not (unlike title to land) have a long history. This presumably arises from the
fact that occupation was originally in whole dwellings and not separate occupation of
units within one dwelling. With the advent of blocks of flats for residential purposes and
factory units for industrial purposes it became necessary to create a form of separate
ownership and occupation of units on land or within a building. Initially this was through
the block share system and subsequently by enactment of section 27 of the Deeds
Registration Act through the creation of shares coupled with an exclusive right of
occupation.

In Victoria Falls (PVT) LTD v Federated Properties (PVT) LTD 1998 (2) ZLR 136 the
contents of section 27 of the Act was held to “equate in other countries to sectional
titles”. Thus the term sectional title is appropriately used in South Africa for a scheme
which creates such shares and where this is governed by the Sectional Titles Act 95 of
1986. Some academics have argued that our system should not be referred to as
Sectional title. The author however believes that our system should be referred to as
Sectional title within our context even though the system is in simplified form and not as
highly legislated for as in South Africa or Botswana. The system we have is for creation
of title for a section of land or a building on land.

13 .2 The block-share system.

This was a system of ownership of a single unit in a building or block of flats which was
in existence before the enactment of section 27 of the Act. Although the system is still in
existence it is now rarely used with preference being given to undivided shares coupled
with an exclusive right of occupation.

In terms of the block share system an owner of land on which is to be developed a block
of flats or where there is a block of flats for multiple transfer would transfer the property
to a company. The shares in the company would be divided into classes, each class
representing a particular flat or unit for example.

Class A shares - Flat/Unit No 1


Class B shares - Flat/Unit No 2 etc

The Purchaser who would intend to buy the flat or unit No 2 would then buy the Class B
shares in the company. There would then be a share transfer and a share certificate is
held by the Purchaser as proof of ownership.

The advantages of this system were that it was simple to put in place and less expensive.
95

The latter could explain why some blocks of flats in the major cities are still occupied and
owned under this form of ownership.

There are however numerous disadvantages of this form of ownership. The share
certificate is not proof of ownership of immovable property but just a proof of ownership
of shares in a property holding company. Proof of ownership of immovable property is
through registration of title in the Deeds Registry. An owner of such shares is not able to
mortgage such shares as a Mortgage Bond can be registered over immovable property.
Loan finance would have to be secured over the title Deeds of the whole property, which
is in the name of the company. It is inconceivable that the other owners of shares would
agree to let the whole property to be mortgaged and face the risk of foreclosure in the
event of the default of the actual borrower.

Likewise the insolvency of the company would affect innocent holders of the blocks of
shares.

13 .3 Sectional Title.

It was because of the inadequacies of the block share system that the amendment to the
Act was enacted in the form of a new section 25A (now section 27). This section
revolutionised the ownership of a unit in land or in building. It created the regime for
creation of undivided shares coupled with an exclusive right of occupation of a unit. It is
clear that section 27 applies to land in an urban area and there is thus no sectional title to
land in rural areas. The section allows an owner of land to register a Notarial Deed
against the title Deed to the land where he wishes to transfer to one or more persons an
undivided share in the land coupled with an exclusive right of occupation. It also allows
owners who own undivided shares in land in separate title Deeds to have an assignment
to each of them; an exclusive right of occupation in conjunction were their undivided
share.

The Notarial Deed:

a) Specifies the number of shares which are coupled with the exclusive right of
occupation.
b) Indicates clearly the buildings or portions of any building which are to be subject
to such exclusive right of occupation.

c) Clearly indicates by distinctive numbers which shares are coupled with which
buildings or portions of a building.
d) Defines the reciprocal rights and obligations of the owners of the undivided
shares.
e) Provide for the administration and maintenance of the building and the land
concerned and uses

f) Provides for the manner in which the Notarial Deed will be amended. In terms of
96

section 3 the Deed may be amended by registered Notarial Deed from time to
time provided this does not alter the number of undivided shares in the land
concerned which are coupled with an exclusive right of occupation. Such
alteration is permissible where the owner of the share consents to the alteration or
where the Director of Physical Planning has approved the alteration in the number
of shares227.

The exclusive right of occupation is a real right in the land and is inseparable from the
undivided share. Section 27(4) provides that the exclusive right to occupation that is
coupled to an undivided share in land shall constitute a real right in land. This was
confirmed in the case of Sibanda & Anor v Pentaville Investments (Pvt.) Ltd. & Ors HH-
14-03. The two should not be registered separately hence the use of the word "coupled".

In a transfer of ordinary undivided shares in the land which is jointly owned, co-owners
have to jointly sign the Power of Attorney to make transfer. Where an undivided share
coupled with an exclusive right of occupation in terms of section 27 is jointly owned, it is
not necessary for co-owners to join in the passing of ownership of a share of a co-owner
and the transfer is registered in the name of the new co-owner and the remaining co-
owners228.

Undivided shares coupled with an exclusive right of occupation are not regarded as
subdivisions of the land concerned in terms of the Regional, Town and Country Planning
Act or any other enactment.

It is also necessary as with transfers of land that the consent of Mortgage Bond holder is
lodged with the Notarial Deed, or the amendment Notarial Deed.

Exclusive right of occupation is defined as the right of the owner of an undivided share in
a piece of land in an urban area to the exclusion of every other owner of an undivided
share in the land concerned either with or without any area of ground.

An urban area is a township or any area which the Minister may designate as urban for
the purposes of Section 27 of the Act.

13 .4 Registration Process of Sectional Title Notarial Deed

An owner of land on which is erected or to be erected a building or buildings229 who

227
See section 27 (3) as amended by Section 2 of the Deeds Registries Amendment Act No 5 of 1998.
228
See section 27 (5).
229
In Sibanda & Anor v Pentaville Investments (Pvt.) Ltd. & Ors HH-14-03 MAKARAU J held that the
law governing sectional title (transfer of undivided shares of land coupled with an exclusive right of
occupation) is contained in section 25-27 of the Deeds Registries Act. The erection of buildings on the land
concerned was held in casu not to be a prerequisite for the registration of a Notarial Deed against the title to
the land creating the undivided shares of land, coupled with a right of exclusive occupation. According to
section 27, the creation of the shares by registered Notarial Deed is the only prerequisite to the transfer of
such shares in terms of the law. Thus undivided shares on which no building has yet been erected can be
transferred provided the shares have been created by the registration of a Notarial Deed in terms of section
97

wishes to create undivided shares in the land coupled with an exclusive right of
occupation will usually instruct a Notary Public to register a Notarial Deed against the
title Deed of such land...The Notary Public should ask for the title Deed and conducts a
search at the relevant Deeds Registry to satisfy himself of the ownership of such land and
any encumbrances that may burden the property. If a Mortgage Bond exists the consent
of the Mortgage Bond holder is required before such Notarial Deed can be registered by
the Registrar. Likewise all caveats must be uplifted. The conditions of title must also be
checked to determine whether there is no bar to the registration of such Notarial Deed.
There should be compliance with Town Planning Conditions.

The Notary Public will also require an approved survey diagram of the land showing the
boundaries of the land and the positions of buildings which are to be coupled with the
shares. The diagrams will mark the buildings by distinctive letters such as Building A,
Building B etc. The owner should therefore instruct a land surveyor to frame a diagram
of the land and submit it to the Surveyor General for approval.

The owner also has to instruct an architect to prepare architectural plans showing the
positions of each unit in orthographic projections i.e. the side, end and roof elevations.
The architect also produces a list of the units showing each unit's area and the percentage
of each unit's area to the whole area of floor space. The percentage of all units should be
equal to hundred for example;

Unit/Flat No Area Percentage

1 30 sqm 10%
2 15 sqm 5%
3 45 sqm 15%
4 30 sqm 10%
5 45 sqm 15%
6 30 sqm 10%
7 15 sqm 5%
8 30 sqm 10%
9 30 sqm 10%
10 30 sqm 10%
______ _____
Total Floor space 300 sqm
Total Percentage 100%

The percentage of Flat No 1 is calculated as follows:-

Area of flat x 100%


total floor space

27 of the Act.
98

= 30 x 100%
300

= 10%

Percentage Flat No 2 =
15 x 100%
300

= 5%

Percentage Flat No 3 =
45 x 100%
300

= 15%

and so on

The Notary Public will also prepare a constitution to be used by the owners, which
govern issues such as:
- The reciprocal rights and obligations of the owners
- The administration of and maintenance of the land concerned and buildings
thereon.
- A creation of an owners association for those purposes and the functioning of
such association.

The Notary Public will then draft a Notarial Deed creating the undivided shares coupled
with an exclusive right of occupation. The lodging cover to be lodged with the Deeds
Registry will contain the following documents:

a) The Notarial Deed in duplicate (note that unlike other Notarial documents which
have to be lodged in triplicate, this Notarial Deed is lodged in duplicate because it
concerns land registered in one Deeds Registry.)
b) Approved survey diagrams in duplicate.
c) Architectural plans
d) the owners association constitution.
e) a cheque for the registration fee.

It is prudent to let the Surveyor General to review the plans and diagrams before the
Notarial Deed is lodged with the Deed Registry.

When lodged the Registrar examines the Notarial Deed and endorses on the title Deed of
99

the land that it is subject to the Notarial Deed. The office copy of the Notarial Deed is
filed separately as a miscellaneous agreement and marked with an M.A. Number. After
the Deed is released by the Registrar, the Notary Public files it in his protocol as well as
registers it in his protocol register.

At this stage the owner can now transfer an individual undivided share coupled with an
exclusive right of occupation to a Purchaser.

13 .5 Transfer of Units

The units are transferred by means of a Deed of Transfer. The process is similar to the
transfer of any other piece of land but the following points will be different and are dealt
here in more details.

a) - the property description clause.


- this will be reflected that it is an undivided share being a specific
percentage share in the land. In the transfer of unit number 4 in the
example given above, the property clause could read as follows:

".... an undivided 10% share being share Number 4 in


CERTAIN piece of land
SITUATE in the district of SALISBURY
BEING STAND 1000 Salisbury Township MEASURING 4000 square meters..."

b) the extending clause


- the extending clause will still refer to the Diagram Deed of the land
concerned first and to the Holding Deed last. However, unlike in subdivisional transfers,
extending clauses in subsequent transfer will still refer to the Diagram Deed of the land
concerned first and to the Deed on which the Notarial Deed was endorsed i.e. the last
Deed by which the whole land was held.

For example if D having bought flat no 4 from the original owner of the land sells the flat
to J the extending clause could read as follows:

"...as will more fully appear upon reference to Deed of Grant number 15/52 with diagram
annexed made in favour of Abraham Winterbotham and Sons (Private) Limited on the
15th September 1952, and to subsequent Deeds of Transfer the last of which in relation to
the said undivided 10% share, Deed of Transfer Number 1356/01 was made in favour of
the appearer's Principal on the 7th April 2001.”

If J subsequently sold the property Flat No 4 to K, the extending clause would still read

"...as will more fully appear upon reference to Deed of Grant number 15/52 with diagram
annexed made in favour of Abraham Winterbotham and Sons (Private) Limited on the
15th September 1952, and to subsequent Deeds of Transfer the last of which in relation to
the said undivided 10% share, Deed of Transfer Number 49876/03 was made in favour of
100

the appearer's Principal on the 2nd September 2003"230

c) the conditions clause


The conditions clause will show that the property is subject to the provisions of
the Notarial Deed registered against the title Deed. For example, a typical
conditions clause for a unit would read as follows:

"... and further subject to the conditions mentioned or referred in the said Deeds

And further subject to the provisions of a Notarial Deed number MA 68/2003 creating the
said undivided share coupled with an exclusive right of occupation"

d) Levy Certificate
Unlike transfer of a piece of land, no rates certificate is required to be lodged with the
documents for transfer of a unit. Initially, there was not even concern for issues of rates,
levies or other charges when such a transfer was lodged. Because an owner could sell
their unit without being up to date with their levies and therefore burdening the remaining
co-owners the legislator in 1998 came up with an amendment to the Act which made it
mandatory for a certificate akin to a rates clearance certificate to be produced before the
Registrar could register a transfer of a unit. The certificate is signed by the person
responsible for the administration of the land concerned and any buildings thereon. It
certifies that all levies payable in respect of such share are up to date or that arrangements
for payment thereof have been made.

The Conveyancer can, instead of lodging such certificate depose to an affidavit stating
that he has had no response after 30 days of writing to the person responsible for the
administration and maintenance of land and buildings thereon. When such an affidavit is
lodged the Registrar may pass transfer without the production of the affidavit. The
affidavit is deposed to whether the levies are paid or not and whether arrangements for
their payment are made or not.

230
Note that if the form introduced by S.I. 108 of 2005 is used, only the particulars of the diagram
deed and the holding deed need to be inserted.
101

14 LIST OF PRECEDENTS

14 .1 Power Of Attorney to Make Transfer (Simple transfer)


14 .2 Deed Of Transfer (Simple Transfer)
14 .3 Estate Transfer (Customary Law)
14 .4 Donation Transfer
14 .5 Power Of Attorney to make a Donation Transfer
14 .6 Company resolution to make a Donation Transfer
14 .7 Resolution to accept Donation Transfer
14 .8 Power of Attorney to accept Donation
14 .9 Sheriff's Transfer
14 .10 Short Power of Attorney (Sheriff’s Transfer)
14 .11 Sheriff’s Transfer (following foreclosure proceedings)
14 .12 Power of Attorney (Sheriff’s Transfer)
14 .13 Power Of Attorney And Agreement To Partition Land
14 .14 Deed Of Partition Transfer
14 .15 Certificate of Registered Title
14 .16 Certificate of Consolidated Title
14 .17 Warrant/Writ of Execution
14 .18 Power of Attorney to pass Mortgage Bond
14 .19 Mortgage Bond
14 .20 Surety Mortgage Bond
14 .21 Surety Mortgage Bond
14 .22 Collateral Mortgage Bond
14 .23 Indemnity Mortgage Bond
14 .24 Participation Mortgage Bond
14 .25 Waiver of Preference
14 .26 Variation of Terms of Bond
14 .27 Consent to Cancellation of Mortgage Bond
14 .28 Consent to cancellation of a cession of a Mortgage Bond made as
security
14 .29 Consent to release
14 .30 Consent to Substitution of Debtor
14 .31 Consent to registration of Part Payment
14 .32 Consent to registration of a reduction in cover
14 .33 Consent In Terms Of Section 64 of the Act
14 .34 An Example of a Capital Gains Tax Calculation
14 .35 General Power of Attorney
14 .36 Application for a copy of lost Deed
14 .37 Application for cancellation of a lost Mortgage Bond
102

14 .38 Declaration in terms of Section 6(b) of the Act

14 .39 Affidavit in terms of Section 73 of the Act

14 .1 Power Of Attorney To Make Transfer (Simple Transfer)

POWER OF ATTORNEY TO MAKE TRANSFER

I, the undersigned,

GEORGE MARTIN
(born on the 4th of June 1962)

do hereby nominate, constitute and appoint PETER MOYO or JOEL BLACK with
power of substitution, to be my lawful Attorney and Agent in my name, place and stead,
to appear before the Registrar of Deeds at HARARE and there and then, as my act and
Deed, to make transfer to:

PETRA MAJOSIE
(born on the 13th of September 1958)

CERTAIN piece of land situate in the District of Salisbury;

BEING STAND 1583 SALISBURY TOWNSHIP;

MEASURING Four Thousand Two Hundred and Eighty Seven (4287) square
meters;

HELD under Deed of Transfer Registered No. 3792/95 dated the 7th of
June 1995;

SUBJECT to the conditions mentioned or referred to in the said Deed

sold by me to her for the sum of ONE MILLION ONE HUNDRED THOUSAND
DOLLARS ($1 100 000.00) and generally, for effecting the purpose aforesaid, to do so
or cause to be done, whatsoever shall be requisite as fully and effectually, to all intents
and purposes as I might or could do if personally present and acting hereby ratifying,
allowing and confirming, and promising and agreeing to ratify, allow and confirm, all and
whatsoever our said Attorney and Agent shall lawfully do, or cause to be done, by virtue
of these presents.

GIVEN under my HAND at HARARE on this the ……..day of …………….2000, in the


presence of the undersigned witnesses.

AS WITNESSES
103

1.…………………………. …………………………….
GEORGE MARTIN

2. …………………………
14 .2 Deed Of Transfer (Simple Transfer)

Prepared by me

………………..
Conveyancer

KNOW ALL MEN WHOM IT MAY CONCERN

THAT PETER MOYO appeared before me, Registrar of Deeds, he


being duly authorized thereto by a Power of Attorney executed
at HARARE on the 13th day of July 2000, and granted to him by

GEORGE MARTIN
(born on the 4th of June 1962)

and the said Appearer declared that his Principal had truly and legally sold,
and that he in his capacity as Attorney aforesaid, did by these presents
transfer in full and free property, to and on behalf of

PETRA MAJOSIE
(born on the 13th of September 1958)

(hereinafter styled the Transferee) her Heirs, Executors, Administrators, or


Assigns,

CERTAIN piece of land situate in the District of Salisbury;

BEING STAND 1583 SALISBURY TOWNSHIP;

MEASURING Four Thousand Two Hundred and Eighty Seven


(4287) Square Metres;
104

AS WILL MOREFULLY APPEAR from the Deed of Grant with diagram


annexed thereto made in favour of FRANCES MARIE SUTCLIFFE on
the 25th day of February 1955 (Registered No. 14597) and to the
subsequent Deeds of Transfer thereof the last of which was made in favour
of the Appearer’s Principal on the 17th of June 1995, Registered No.
3792/95.

SUBJECT to all such terms and conditions as are in the said Deeds
mentioned or referred to, INCLUDING the following conditions: -

1. No buildings other than a house designed for use as a dwelling-


house for a single family together with such outbuildings as are
ordinarily used therewith shall be erected on the premises, and such
dwelling-house and outbuildings shall be used only for private
residential and domestic purposes.

2. a. No dwelling-house or outbuildings shall be erected within


22,86 metres of the boundary A.F. on the Diagram S. G. No.
3762/52 annexed to the Deed of Grant No. 14597 or within
15,24 metres of the boundaries B.C. C.D. on the said
diagram except with the written permission of the Town
Planning or Responsible Authority.

b. No employee quarters shall be erected within 1,52 metres


of the boundaries A.B., D.E., and E.F. on the said Diagram
except with the written permission of the Town Planning or
Responsible Authority.

3. No wood and iron, pise de terre, unburnt brick or pole and dagga
buildings, or buildings having thatched walls or buildings partially
built in any manner aforesaid and no galvanized iron or corrugated
fences shall be erected on the said stand.

AND finally acknowledging his Principal to have been satisfactorily paid the whole of
the purchase price in the sum of ONE MILLION ONE HUNDRED THOUSAND
DOLLARS ($ 1 100 000.00).

IN WITNESS WHEREOF I, the Registrar, together with the Appearer,


q.q. have subscribed to these presents and have caused the Seal of Office
to be affixed hereto

THUS DONE AND EXECUTED at the Office of the Registrar of Deeds


105

in HARARE, ZIMBABWE, on this……. day of……..


in the year of our Lord Two Thousand (2000).

q.q. His Principal


In my presence,

REGISTRAR
14 .3 Estate Transfer (Customary Law)

Prepared by me

…………………
CONVEYANCER

DEED OF TRANSFER

KNOW ALL MEN TO WHOM IT MAY CONCERN

THAT PETER MOYO appeared before me, Registrar of Deeds, he being duly
authorized thereto by Power of Attorney, granted to him by

TAKUNDA JOSEPH NDLOVU in his capacity as Executor Dative in the Estate


of the Late CHAMUNORWA NDLOVU duly authorized thereto by virtue of the Letters
of Administration DRH 2453/92 Issued at Harare by the Additional Assistant
Master of the High Court on 23rd July 1992;

And the said Appearer declared that the under mentioned property has
been awarded to the Transferee in terms of African Customary Law

AND that he, in his capacity of Attorney aforesaid does hereby


transfer to

JAMES NDLOVU
(born 6 November 1978)

CERTAIN piece of land situate in the District of Salisbury

CALLED STAND 1234567 SALISBURY TOWNSHIP


106

MEASURING 2 741 square metres

AS WILL MOREFULLY APPEAR upon reference to Deed of Grant


Registered No. 1234 with diagram annexed passed in favour of THE
CITY OF HARARE (therein known as MUNICIPALITY OF
SALISBURY) on the 9th of September 1937 and to the subsequent
Deeds of Transfer the last of which Registered No 11111111/98 was passed in
favour of ESTATE LATE CHAMUNORWA NDLOVU on the 31st of December 1998.

SUBJECT to all such terms and conditions as are in the said Deeds mentioned
or referred to.

BUT NOT SUBJECT to the special condition contained in the Deed


of Transfer No. 11111111/98 by reason of a consent from the City of Harare
dated 26th of January 1999.

The value of the property for Estate Duty purposes is $ 19 200.00 (Nineteen thousand
two hundred dollars).

SIGNED AND SEALED


At Harare, Zimbabwe, on the 19th
day of the month of February
in the year of our Lord One Thousand Nine Hundred and
Ninety Nine (1999)

……………………….
q.q. his Principal
in my presence

………………………
REGISTRAR OF DEEDS
107

14 .4 Donation Transfer

Legal Practitioners Prepared by me

………………….
CONVEYANCER

DEED OF TRANSFER
In favour of

. TIKRIT (PRIVATE) LIMITED

KNOW ALL MEN WHOM IT MAY CONCERN:

THAT PETER MOYO appeared before me, Registrar of Deeds, he being duly
authorized thereto by a Power of Attorney granted to him by TAKUNDA JOSEPH
NDLOVU acting under and by virtue of a Resolution of the Board of Directors of
KABUL PROPERTIES (Private) Limited at a meeting held at Harare on the 26th of
September 1998.

And the Appearer declared that

KABUL PROPERTIES (PRIVATE) LIMITED

had truly and legally donated inter vivos the following property and that he in his
capacity as Attorney aforesaid, does hereby transfer to

TIKRIT (PRIVATE) LIMITED


108

CERTAIN piece of land situate in the District of Salisbury

CALLED STAND 1234567 CHADCOMBE TOWNSHIP OF STAND 456


CHADCOMBE TOWNSHIP

MEASURING 1 242 Square metres

AS WILL MOREFULLY APPEAR upon reference to Deed of Transfer No. 1234/91


made in favour of the Appearer’s Principal on the 18th of December 1991 to which but
for the provisions of Section 49 of the Land Survey Act (Chapter 20:12) a diagram would
have been annexed, and from the General Plan D G 2017 filed in the office of the
Surveyor General.

SUBJECT to all such terms and conditions as are mentioned or referred to in the said
Deeds including the following:

a. subject to the provisions of a Town Planning Scheme

b. subject to the following special conditions:-

that a 9.14 metre building line shall be imposed on the road frontage of the
said piece of land.

AND THE APPEARER, the said PETER MOYO being also duly authorized thereto by
a Power of Attorney granted to him by TIKRIT (PRIVATE) LIMITED, the above
mentioned Transferee, further declared on behalf of the aforesaid Transferee, gratefully
to accept transfer of the above mentioned piece of land.

acknowledging that the Stamp Duty on the sum of $ 210 423.00 (Two Hundred and Ten
Thousand Four Hundred and Twenty Three Dollars) for which the said property has
been valued, has been paid to the Registrar of Deeds, Harare.

Signed and sealed at Harare on this 20th day of November 1998

…………………
q.q
in my presence

………………….
Registrar of Deeds
109

14 .5 Power Of Attorney to make a Donation Transfer

POWER OF ATTORNEY

WHEREAS (1) KABUL PROPERTIES (PRIVATE) LIMITED


is the registered owner of the under mentioned property

(2) It has agreed to donate the undermentioned property inter


vivos to TIKRIT (PRIVATE) LIMITED

(3) TIKRIT (PRIVATE) LIMITED has signified its wiliness


to accept the aforesaid donation;

(4) It is considered that a fair value of the undermentioned


property is $210 423.00 (Two Hundred and Ten
Thousand Four Hundred and Twenty Three Dollars)

Now therefore in pursuance of the above recited facts, and in order to give effect to the
aforesaid donation I, TAKUNDA JOSEPH NDLOVU acting under and by virtue of a
Resolution passed at Harare on the 16th day of September 1998 at a meeting of the board
of Directors of KABUL PROPERTIES (PRIVATE) LIMITED do hereby nominate,
constitute and appoint PETER MOYO OR JAMES NDLOVU with Power of
Substitution to be my true and lawful Attorney in my name, place and stead, to appear
before the Registrar of Deeds in HARARE and then and there as my act and Deed to
make transfer to

TIKRIT (PRIVATE) LIMITED

of

CERTAIN piece of land situate in the district of Salisbury

CALLED STAND 1234567 CHADCOMBE TOWNSHIP OF STAND 456


CHADCOMBE TOWNSHIP
110

MEASURING 1 242 Square Metres

HELD under Deed of Transfer No. 1234/91 dated 18th December 1991

and generally for effecting the purpose aforesaid to do, or cause to be done, whatsoever
shall be requisite, as fully and effectually to all intents and purposes as I might or could
do if personally present and acting therein; hereby ratifying, allowing and confirming and
promising and agreeing to ratify, allow, and confirm, all and whatsoever my said
Attorney shall lawfully do or cause to be done by virtue of the presents.

GIVEN under my hand at HARARE this 27th day of October 1998 in the presence of the
undersigned witnesses.

AS WITNESSES
1. …………………….
…………………..
2. ……………………. TAKUNDA JOSEPH NDLOVU

14 .6 Company resolution to make a Donation Transfer

KABUL PROPERTIES (PRIVATE) LIMITED


___________________________________

EXTRACT FROM THE MINUTES OF A MEETING OF THE BOARD OF


DIRECTORS HELD AT HARARE on the 16th day of September 1998

___________________________________

IT WAS RESOLVED:
THAT the Company donate inter vivos the undermentioned properties
to TIKRIT PRIVATE) LIMITED

namely,
1) CERTAIN piece of land situate in the district of Salisbury

CALLED STAND 1234567 CHADCOMBE TOWNSHIP OF


STAND 456 CHADCOMBE TOWNSHIP

MEASURING 1 242 Square Metres

2) CERTAIN piece of land situate in the District of Salisbury


111

CALLED STAND 1234 CHADCOMBE TOWNSHIP OF STAND


456 CHADCOMBE TOWNSHIP

MEASURING 400 Square Metres

3) CERTAIN piece of land situate in the District of Salisbury

CALLED STAND……TOWNSHIP OF STAND…..TOWNSHIP

MEASURING 480 Square Metres

4) CERTAIN piece of land situate in the District of Salisbury

CALLED STAND….TOWNSHIP OF STAND….TOWNSHIP

MESAURING 400 Square Metres

and THAT TAKUNDA JOSEPH NDLOVU

be and is hereby authorized and empowered to sign and execute on behalf of the
Company all such Powers of Attorney and other documents as may be necessary for the
passing of the above mentioned transfers.

Certified that the foregoing is a true and correct extract from the Minutes aforesaid.

………………………….

……………………….
SECRETARY/DIRECTOR

NOTE: The person certifying this extract


must not be the person authorized
under the Resolution to sign this document

14 .7 Resolution to accept Donation Transfer

TIKRIT (PRIVATE) LIMITED


___________________________________________

EXTRACT FROM THE MINUTES OF A MEETING OF THE BOARD OF


DIRECTORS HELD AT HARARE on the 16th day of September 1998.
112

______________________________________________

IT WAS RESOLVED:
THAT the Company accept the donation inter vivos of the undermentioned
properties from KABUL PROPERTIES (PRIVATE) LIMITED

namely,
1) CERTAIN piece of land situate in the district of Salisbury

CALLED STAND 1234567 CHADCOMBE TOWNSHIP OF


STAND 456 CHADCOMBE TOWNSHIP

MEASURING 1 242 Square Metres

2) CERTAIN piece of land situate in the District of Salisbury

CALLED STAND 1234 CHADCOMBE TOWNSHIP OF STAND


456 CHADCOMBE TOWNSHIP

MEASURING 400 Square Metres

3) CERTAIN piece of land situate in the District of Salisbury


CALLED STAND……TOWNSHIP OF STAND…..TOWNSHIP

MEASURING 480 Square Metres

4) CERTAIN piece of land situate in the District of Salisbury

CALLED STAND….TOWNSHIP OF STAND….TOWNSHIP

MESAURING 400 Square Metres

5) CERTAIN piece of land situate in the District of Salisbury

CALLED STAND …..OF GREENDALE

MEASURING 4 088 Square Metres

and THAT JAMES NDLOVU

be and is hereby authorized and empowered to sign and execute on behalf of the
Company all such Powers of Attorney and other documents as may be necessary for the
passing of the above mentioned transfer.

Certified that the foregoing is a true and correct extract from the Minutes aforesaid.
113

………………………….

……………………….
SECRETARY/DIRECTOR

NOTE: The person certifying this extract


must not be the person authorized
under the Resolution to sign this document

14 .8 Power of Attorney to accept Donation

SPECIAL POWER OF ATTORNEY

I, JAMES NDLOVU, the undersigned, acting under and by virtue of a Resolution of the
Board of Directors of TIKRIT (PRIVATE) LIMITED passed at a meeting held at
Harare on the 16th day of September 1998.

Do hereby nominate, constitute and appoint PETER MOYO OR CHAMUNORWA


NDLOVU with Power of Substitution, to be my lawful Attorney and Agent, in my name,
place and stead to appear before the Registrar of Deeds at HARARE and then and there
on my behalf to accept the gift and donation inter vivos by KABUL PROPERTIES
(PRIVATE) LIMITED of the following property, namely:

CERTAIN piece of land situate in the district of Salisbury

CALLED STAND 1234567 CHADCOMBE TOWNSHIP OF STAND 456


CHADCOMBE TOWNSHIP

MEASURING 1 242 Square Metres

HELD under Deed of Transfer No. 1234/91 dated 18th December 1991

SUBJECT to all such terms and conditions as are in the existing title Deeds
mentioned or referred to

and generally for effecting the purpose aforesaid to do, or cause to be done, whatsoever
shall be requisite, as fully and effectually to all intents and purposes as I might or could
do if personally present and acting therein; hereby ratifying, allowing and confirming and
promising and agreeing to ratify, allow, and confirm, all and whatsoever my said
Attorney shall lawfully do or cause to be done by virtue of these presents.
114

GIVEN under my hand at HARARE this 16th day of September 1998 in the presence of
the undersigned.

AS WITNESSES

1. …………………………..

………………………..
2............................................ JAMES NDLOVU

14 .9 Sheriff's Transfer

Prepared by me

………………..
Conveyancer

DEED OF TRANSFER

By Virtue of a Power of Attorney

KNOW ALL MEN WHOM IT MAY CONCERN:-

THAT PETER MOYO appeared before me, Registrar of Deeds, Harare, he being duly
authorised thereto by a Power of Attorney drawn up at HARARE on the 23rd day of July
1999, granted to him by TAKUNDA JOSEPH NDLOVU in his capacity as the
Additional Sheriff for Zimbabwe, which Power of Attorney has this day been exhibited to
me.

And the said Appearer declared, that whereas:-

By virtue of a Writ, directed to the Sheriff for Zimbabwe, or his lawful Deputy, issued
out of the Office of the Registrar of the High Court of Zimbabwe, on the 8th day of
September 1997, Case No. H.C. 6537/97 for the execution of a judgment of the said
Court in a suit wherein CHAMUNORWA NDLOVU was the Plaintiff and PHILLIP
MOORE was the Defendant, the Sheriff for Zimbabwe, caused to be attached and in due
course to be sold on the 1st day of December 1998, certain landed property, hereinafter
described, of which property, JAMES NDLOVU (Born 14th august 1945) was the
Purchaser and which sale was confirmed by the Additional Sheriff of Zimbabwe on the
1st day of December 1998, in terms of Rule 360, Order 40, of the Rules of Court.
And whereas it is now desired that transfer of the hereinafter mentioned property be
115

effected in the name of


JAMES NDLOVU
(born on the 14th of August 1945)

Now therefore in pursuance of the above recited facts, he the said Appearer, in his
capacity as Attorney aforesaid, did by these presents cede and transfer in full and free
property to and on behalf of

JAMES NDLOVU
(born on the 14th of August 1945)

CERTAIN piece of land situate in the District of Victoria;

BEING STAND 1234567 RUJEKO TOWNSHIP OF FORT


VICTORIA TOWNSHIP LANDS;

MEASURING Three Hundred and Thirteen (313) Square Metres;

AS WILL MOREFULLY APPEAR from the Deed of Transfer thereof made in favour
of PHILLIP MOORE on the 12th day of March 1996, (Registered No 1234/96), to which
but for the provisions of Section 49 of the Land Survey Act, Chapter 20:12 a Diagram
would have been annexed and from the General Plan D.G No 2024 dated the 1st day of
February 1988, which is filed in the Office of the Surveyor General.

SUBJECT to all such terms and conditions as are in the said Deed mentioned or referred
to,

AND FURTHER SUBJECT to the following Servitudes imposed by the Municipality


of Masvingo and enforceable by it:-

The Municipality of Masvingo, its Successors or Assigns, shall be entitled to


servitudes over the said Stand for water supplies, electricity supplies, and no
compensation in respect of such servitudes shall be due or payable by the
Municipality of Masvingo, its Successors or Assigns, to the owner of the said
Stand in respect thereof.

Acknowledging that the whole of the purchase money, amounting to a sum of Sixty
Thousand Dollars ($60 000.00) has been satisfactorily paid or secured.

SIGNED AND SEALED


At Harare, Zimbabwe, on the 15th
Day of the Month of October
In the Year of Our Lord One
Thousand Nine Hundred and
Ninety Nine (1999)
116

……………………
q.q. His Principal

In my presence,

……………………………
REGISTRAR OF DEEDS

14 .10 Short Power of Attorney (Sheriff’s Transfer)

POWER OF ATTORNEY TO MAKE TRANSFER

I, the undersigned,

TAKUNDA JOSEPH NDLOVU

In my capacity as Additional Sheriff of Zimbabwe do hereby constitute, nominate and


appoint PETER MOYO or CHAMUNORWA NDLOVU or THOMAS GOLDBRIDGE
with power of substitution, to be my true and lawful Attorney in my name, place and
stead, to appear before the Registrar of Deeds in Harare and then and there as my act and
Deed to sign and execute the annexed Deed of Transfer which I have initialed for
purposes of identification.

Given under my hand at HARARE on this …… day of……..1999, in the presence of the
undersigned witnesses.

AS WITNESSES:-

1. ………………………………

………………………..

2. ………………………………..
117

14 .11 Sheriff’s Transfer (following foreclosure proceedings)

DEED OF TRANSFER

Prepared by me

………………..
Conveyancer

KNOW ALL MEN WHOM IT MAY CONCERN:-

THAT PETER MOYO appeared before me, Registrar of Deeds, Harare, he being duly
authorised thereto by a Power of Attorney executed at HARARE on the 4th of September
1998 and granted to him by TAKUNDA JOSEPH NDLOVU in his capacity as the
Acting Sheriff for Zimbabwe, which Power of Attorney has this day been exhibited to
me.

And the said Appearer declared, THAT:-

WHEREAS XYZ BUILDING SOCIETY obtained a judgment in the High Court of


Zimbabwe against CHAMUNORWA NDLOVU (born on the 4th of May 1955) the
registered owner of the undermentioned property; Case No. H.C. 26453/97;

AND WHEREAS pursuant to a Warrant of Execution directed to the Sheriff for


Zimbabwe the said property was duly attached and thereafter sold at a public auction in
execution of the said judgment, to JAMES NDLOVU for the sum of Four hundred and
Sixty Five Thousand Dollars ($465 000.00);

AND WHEREAS the said sale in execution was duly confirmed by the Sheriff for
Zimbabwe on 6th July 1998.
118

NOW THEREFORE, the Appearer, in his capacity as Attorney aforesaid, did by


these presents:

a) declare the aforegoing;


b) cede and transfer in full and free property to and on behalf of

JAMES NDLOVU
(born on the 24th of June 1967)

certain 986 square metres of land called Stand 1234567 Lupton Township situate in
the District of Salisbury, as will appear from Deed of Grant No 1234 with diagram
annexed issued in favour of PHILLIP MOORE on 9th June 1959 and from the subsequent
Deed of Transfer No 6789/87 made in favour of the said CHAMUNORWA NDLOVU
on 31st December 1987; subject to the conditions mentioned or referred to in the said
Deeds including the following special conditions:-

1. The said stand shall be used for residential purposes only and the only
buildings which may be erected thereon shall be a house designed for use as a
dwelling house for a single family together with such outbuildings as are
ordinarily used therewith.

2. The President of Zimbabwe or the City of Harare shall have the right at all
reasonable times to enter upon the said land with its servants and any of the
rights which may be exercised by the Government or the City of Harare in
terms of this Clause, shall be done without any compensation, save
compensation for loss or damage caused by the negligence of the
Government, the City of Harare or their servants or agents.

WHEREFORE the Appearer, in his said capacity, renouncing all the right and title
the said CHAMUNORWA NDLOVU heretofore had to the premises, acknowledged
the said CHAMUNORWA NDLOVU to be entirely dispossessed of and disentitled
to the same; and that by virtue of these presents the said

JAMES NDLOVU

his heirs, executors, administrators or assigns, now and henceforth shall be entitled
thereto conformably to local custom; moreover promising to free and warrant the
property thus transferred and also to clear it from all hypothecations according to
Law; Government, however, reserving its rights.

IN WITNESS WHEREOF, I, the said Registrar, together with the Appearer, q.q, have
subscribed to these presents and have caused the Seal of Office to be affixed hereto.
119

THUS DONE AND EXECUTED at the Office of the Registrar of Deeds in Harare in
Zimbabwe on the 25th day of the month of September in the year of Our Lord One
Thousand Nine Hundred and Ninety Eight (1998).

q.q.

In my presence,

…………………..
REGISTRAR
14 .12 Power of Attorney (Sheriff’s Transfer)

POWER OF ATTORNEY TO PASS TRANSFER

WHEREAS XYZ BUILDING SOCIETY obtained a judgment in the High Court of


Zimbabwe against CHAMUNORWA NDLOVU (born on the 4th of May 1955) the
registered owner of the under mentioned property; Case No. H.C. 26453/97;

AND WHEREAS pursuant to a Warrant of Execution directed to the Sheriff for


Zimbabwe the said property was duly attached and thereafter sold at a public auction in
execution of the said Judgment, to TIKRIT (Private) Limited for the sum of ONE
HUNDRED AND FIFTY THOUSAND DOLLARS ($ 150 000.00);

AND WHEREAS the said sale in execution was duly confirmed by the Sheriff for
Zimbabwe on 6th July 1998.

NOW THEREFORE I, TAKUNDA JOSEPH NDLOVU, in my capacity as the Sheriff


for Zimbabwe, do hereby nominate, constitute and appoint PETER MOYO to be my
true and lawful attorney and agent in my name place and stead to appear before the
Registrar of Deeds in Harare, then and there as my act and Deed:
a) to declare the aforegoing;
b) to cede and transfer in full and free property to

TIKRIT (PRIVATE) LIMITED

certain 282 square metres of land called Stand 1234567 Lupton Township situate in the
District of Salisbury; held under Deed of Transfer No 6789/87dated the 31st December
1987;subject to the conditions mentioned or referred to the said Deed.

AND GENERALLY for effecting the purposes aforesaid, to do or cause to be done


whatever shall be requisite, as fully and effectually, to all intents and purposes, as I might
or could do if personally present and acting herein, hereby ratifying, allowing and
confirming and agreeing to ratify, allow and confirm all whatsoever my said Attorney
and agent shall lawfully do or cause to be done by virtue of these presents.
120

EXECUTED at Harare on …..1998, in the presence of the undersigned witnesses.

AS WITNESSES:

1. …………………………………

…………………………….
SHERIFF FOR ZIMBABWE

2. …………………………………..

14 .13 Power of Attorney And Agreement To Partition Land

POWER OF ATTORNEY AND AGREEMENT TO PARTITION LAND

We the undersigned,

MOSES TSHUMA
(born on the 28th March 1940)

and

ISIAH TSHUMA
(born on the 5th June 1943)

and

JOHN TSHUMA
(born on the 3rd March 1946)

and

PAUL TSHUMA
(born on the 3rd March 1946)

being the joint owners of

CERTAIN piece of land situate in the District of Gatooma;

BEING Lot 2 of Lot 1 of farm Mumvuri;

MEASURING Three Hundred and Thirteen comma Six Five (313, 65) Hectares;
121

Held by us in shares as follows:

MOSES TSHUMA one-third (1/3) undivided share

ISIAH TSHUMA one-quarter (1/4) undivided share

JOHN TSHUMA five-twenty fourths (5/24) undivided share

PAUL TSHUMA five-twenty fourths (5/24) undivided share

Under Deed of Transfer No. 43/47 dated the 2nd September 1947;

Declare that we have agreed to partition the aforementioned land and we hereby award to
each owner the land as described below, subject or entitled, as the case may be, to the
new conditions described below, and we do hereby appoint TAYANA LLOYD, TRISH
GAVA or NATASHA MOYO with power of substitution on our behalf in accordance
with law to convey ownership of the land so awarded to each of us.

Awarded to
MOSES TSHUMA
(born on the 28th March 1940)

CERTAIN piece of land situate in the District of Gatooma;

BEING Lot 1 of Lot 2 of Lot 1 of farm Mumvuri;

MEASURING One Hundred and Four comma Five Five (104,55) Hectares;

Awarded to

ISIAH TSHUMA
(born on the 5th June 1943)

CERTAIN piece of land situate in the District of Gatooma;

BEING Lot 2 of Lot 2 of Lot 1 of farm Mumvuri;

MEASURING Seventy Eight comma Four One Two Five (78,412 5) Hectares;

Awarded to
122

JOHN TSHUMA
(born on the 3rd March 1946)

CERTAIN piece of land situate in the District of Gatooma;

BEING Lot 3 of Lot 2 of Lot 1 of farm Mumvuri;

MEASURING Sixty Five comma Three Four Three Eight (65,343 8) Hectares;

Awarded to

PAUL TSHUMA
(born on the 3rd March 1946)

CERTAIN piece of land situate in the District of Gatooma;

BEING the remainder of Lot 2 of Lot 1 of farm Mumvuri;

MEASURING Sixty five comma Three Four Three Seven (65,343 7) Hectares;

And we declare that we have not nor has any person to our knowledge on our account
given or received nor is there by us or on our behalf to be given or received by the one to
or from any of the others of us any money or other valuable consideration for or in
respect of the partition and mutual transfer of the aforesaid property, except that the sum
of Fifteen Thousand Dollars ($15 000) has been duly paid by the said ISIAH
TSHUMA to the said PAUL TSHUMA to equalize the partition.

Given under our hand at HARARE on this …… day of……..2004, in the presence of the
undersigned witnesses.

AS WITNESSES:- ……………………….

1. ………………………………

………………………..

2. ………………………………..

………………………..
123

………………………..

14 .14 Deed Of Partition Transfer

Prepared by me

………………..
Conveyancer

KNOW ALL MEN WHOM IT MAY CONCERN

THAT TAYANA LLOYD appeared before me, Registrar of Deeds, she


being duly authorized thereto by a Power of Attorney executed
at HARARE on the 5th day of January 2004, and granted to her by

MOSES TSHUMA
(born on the 28th March 1940)

and

ISIAH TSHUMA
(born on the 5th June 1943)

and

JOHN TSHUMA
(born on the 3rd March 1946)
124

and

PAUL TSHUMA
(born on the 3rd March 1946)

And the appearer declared that

WHEREAS her said Principals heretofore held and possessed in joint ownership-

CERTAIN piece of land situate in the District of Gatooma;

BEING Lot 2 of Lot 1 of farm Mumvuri;

MEASURING Three Hundred and Thirteen comma Six Five (313,65) Hectares

HELD by the said ISIAH TSHUMA as to a one-quarter share under Deed


of transfer No. 43/47 dated the 2nd September 1947.

AND WHEREAS the said joint owners did on the 5th January 2004 agree to partition the
said land by subdividing the same according to the respective interests therein and to
receive transfer in severalty of such subdivided portions;

NOW THEREFORE, the said appearer, in her capacity aforesaid and in pursuance of the
above in part recited agreement, declared that she did by these presents, cede and transfer
in full and free property unto and on behalf of the said

ISIAH TSHUMA
(born on the 5th June 1943)
his heirs, executors, administrators or assigns

CERTAIN piece of land situate in the District of Gatooma;

BEING Lot 2 of Lot 2 of Lot 1 of farm Mumvuri;

MEASURING Seventy Eight comma Four One Two Five (78,412 5) Hectares;

AS WILL MORE FULLY APPEAR FROM Deed of Transfer No. 162/24 with
diagram annexed made in favour of JOSEPH TSHUMA on the 14th October 1924 and to
the subsequent Deed of Transfer No.43/47 made in favour of the appearer’s Principals on
the 2nd September 1947 and to diagram SG 222 annexed hereto.

SUBJECT to all such conditions as are mentioned or referred to in the said Deeds;
125

Wherefore the appearer, renouncing all the rights and title his Principals heretofore
jointly had to the property, on behalf as aforesaid, did, in consequence, also acknowledge
his said Principals with the exception of the above Transferee to be entirely dispossessed
of and disentitled to the land hereby transferred; and that, by virtue of these presents, the
said ISIAH TSHUMA (born on the 5th June 1943), his heirs, executors, administrators or
assigns, now is and henceforth shall be entitled thereto conformably to local custom, the
State, however, reserving its rights;

And finally, acknowledging her remaining Principals to have received as a consideration,


transfer on this day of their respective portions as aforementioned.

In witness whereof I, the said Registrar, together with the appearer, have subscribed to
these presents, and have caused the seal of office to be affixed thereto.

Signed and sealed at Harare on this day of 2004

…………………
q.q
in my presence

………………….
Registrar of Deeds

14 .15 Certificate of Registered Title

…………………. Prepared by me
Legal Practitioners
HARARE …………………
Conveyancer

CERTIFICATE OF REGISTERED TITLE


(Issued under the provisions of Section 41
of the Deeds Registries Act, Chapter 20:05)

KNOW ALL MEN WHOM IT MAY CONCERN:


126

THAT TIKRIT PRIVATE) LIMITED which the registered owner is of:

CERTAIN piece of land situate in the District of MARONDERA

MEASURING 95.002 hectares (ninety five comma nought nought two hectares)

CALLED STAND 1234567 NYAMENI TOWNSHIP

HELD under Certificate of Consolidated Title No. 1234/95 dated 14th


October 1995.

Has applied for the issue of a Certificate of Registered Title in terms of Section 41 of the
Deeds Registries Act (Chapter: 20 05) in respect of the undermentioned land being
portion of land registered in its name:

NOW THEREFORE, I, the Registrar of Deeds do hereby certify that the said

TIKRIT PRIVATE) LIMITED

Is the registered owner of:

CERTAIN piece of land situate in the District of MARONDERA

MEASURING 1887 (One Thousand Eight Hundred and Eighty Seven) Square
Metres

CALLED STAND 1234567 NYAMENI TOWNSHIP

EXTENDING as the Certificate of Consolidated Title No. 1234/95 with diagram


annexed of the whole of the said stand made in favour of the
Applicant on 14th October 1995 and as the General Plan No. DG
1234 filed in the office of the Surveyor General will more fully
point out.

SUBJECT to all such terms and conditions as are in the said Certificate
mentioned or referred to.

SIGNED AND SEALED at HARARE on the ………day of………1995

……………………………..
REGISTRAR OF DEEDS
127

14 .16 Certificate of Consolidated Title

CERTIFICATE OF CONSOLIDATED TITLE

Issued under the provisions of Section 40 of the Deeds Registries Act (Chapter 20:05)

Prepared by me

………………..
Legal Practitioner

KNOW ALL MEN WHOM IT MAY CONCERN

THAT WHEREAS TAKUNDA JOSEPH NDLOVU who is the registered owner of


certain two pieces of land situate in the District of Salisbury called: -

1. Subdivision A of Stand 1234567 Salisbury Township measuring 668 square


metres;

AS WILL MOREFULLY APPEAR on reference to the Deed of Transfer No


6473/94 with diagram annexed passed in favour of RONALD WILKINSON
on the 11th of September 1994 and to the subsequent Deeds of Transfer
thereof, the last whereof being made in favour of the Appearer’s Principal on
the 24th of November 1999 (Deed of Transfer No 6547/99).

2. The Remainder of Stand 1 Salisbury Township measuring 613 square metres

AS WILL MOREFULLY APPEAR on reference to Deed of Grant No 1234


with diagram annexed, of the whole of Stand 1 Salisbury Township passed in
favour of CHAMUNORWA NDLOVU on the 21st June 1893 and to the
128

subsequent Deeds of Transfer thereof, the last whereof being made in favour
of the Appearer’s Principal on 24th November 1989 (Deed of Transfer No
1234/89).

which are to be consolidated into the land hereinafter described, has applied for the issue
of a Certificate of Consolidated Title in terms of section 40 of the Deeds Registries Act
(Chapter 20;05).

NOW THEREFORE I, the Registrar of Deeds, do hereby certify that the said
TAKUNDA JOSEPH NDLOVU is the registered owner of

CERTAIN piece of land situate in the District of Salisbury

CALLED STAND 9876 HARARE TOWNSHIP

MEASURING One Thousand Two Hundred and Eighty One (1281) Square
Metres

AS WILL MOREFULLY APPEAR on reference to the diagram thereof framed by


the land surveyor, S. Reeler in December 1999 (S.G. No 1234) hereto annexed.

Comprising: _
1. The figure EBCDJHGFE in extent 668 square metres being Subdivision A of
Stand 1234567 Salisbury Township.
2. The figure AEFGHJA in extent 613 square metres being The Remainder of
stand 1 Salisbury Township;

SUBJECT to all such terms and conditions as are in the said respective Deeds mentioned
or referred to.

SIGNED AND SEALED at HARARE this


10th day of June 1991

…………………………………
REGISTRAR OF DEEDS
129

14 .17 Warrant/Writ of Execution

IN THE HIGH COURT OF ZIMBABWE Case No HC 132/03


HELD AT HARARE

In the matter between :

JOHN TAURAI RONALDSON Plaintiff

and

CHAMUNORWA NDLOVU Defendant


________________________________________________________________________

WRIT OF EXECUTION
________________________________________________________________________

To : The Sheriff for Zimbabwe or his Lawful Deputy:

You are required and directed to attach and take into execution the movable goods of
CHAMUNORWA NDLOVU of 29 Albury Street, Harare, the above mentioned
Defendant and of the same, cause to the realised the sum of $12 345 245,00 together with
interest at the rate of 30% from the 9th March 2004 to date of payment in full, and the
sum of $890 450,00 for further costs and charges of JOHN TAURAI RONALDSON, the
above mentioned Plaintiff, which it recovered by Judgment of this Court dated the 9th
March 2004 in the above mentioned suit, and also all other costs and charges of the
Plaintiff in the said suit to be hereafter duly taxed according to law, besides all your costs
thereby incurred.

Further pay to the said Plaintiff or its legal practitioners the sum or sums due to it with
costs above mentioned, and for your so doing, this shall be your warrant.
130

You are further required and directed that if after due inquiry and diligent search you
are unable to find any movable goods belonging to the said Defendant or insufficient to
satisfy the amount due under the Writ, that you attach and take possession of certain
piece of land situate in the District of Salisbury, being Stand 4476 Salisbury
Township hectares, held under Deed of Transfer No. 222222/00 dated the 15th
September 2000 which property is also known as 29 Albury Street, Harare.

And return you this Writ with what you have done thereupon.

Witness: The Honourable Mr Justice Chidyausiku, Chief Justice of the High Court of
Zimbabwe, at Harare, this day of 2004.

_______________________
Registrar
High Court of Zimbabwe
___________________________
LLOYD & JOHNS
Plaintiff’s Legal Practitioners
6th Floor Gold Bridge South Wing
Eastgate Complex
Sam Nujoma Street
HARARE (Miss T Lloyd/em)

14 .18 Power of Attorney to pass Mortgage Bond

POWER OF ATTORNEY

I, the undersigned,

WILSON MUDZINGE
(born 15th August 1978)

do hereby appoint TONDERAI NYAMA with power of substitution, to be my true and


lawful Attorney in my name, place and stead, to appear before the Registrar of Deeds and
to pass a Mortgage Bond in favour of

COPPER DOLLAR (PRIVATE) LIMITED

for the sum of $10 000 000,00 in terms of the draft Bond hereunto annexed which I have
131

initialed for the purpose of identification and with the contents of which I hereby
acknowledge myself to be fully acquainted and generally for effecting the purposes
aforesaid, to do or cause to be done whatsoever shall be requisite, as fully and effectually,
to all intents and purposes as I might or could do if personally present and acting herein,
hereby ratifying, allowing and confirming and promising and agreeing to ratify, allow
and confirm whatsoever my said Attorney shall lawfully do or cause to be done by virtue
of these presents.

Given under my hand at HARARE on this …… day of……..2001, in the presence of


the undersigned witnesses.

AS WITNESSES:-

3. ………………………………

………………………..

4. ………………………………..

14 .19 Mortgage Bond

MORTGAGE BOND
(CONTINUING COVERING SECURITY)

Prepared by me

………………..
Conveyancer

KNOW ALL MEN WHOM IT MAY CONCERN:-

THAT TONDERAI NYAMA

appeared before me, Registrar of Deeds, he being duly authorised thereto by


a Power of Attorney granted to him by

WILSON MUDZINGE
(born 15th August 1978)
(hereinafter called “the Mortgagor”),
132

which Power of Attorney was this day exhibited to me;

AND THE APPEARER acknowledged the Mortgagor to be truly and lawfully


indebted and held and firmly bound to and on behalf of

COPPER DOLLAR (PRIVATE) LIMITED


(hereinafter called “the Mortgagee”),

in the sum of $10 000 000,00 (TEN MILLION DOLLARS) (hereinafter called the
“Capital Sum")

arising from and being monies lent and to be lent and advanced or to be lent and
advanced or re-advanced:

AND THE APPEARER q.q. under renunciation of the benefits arising from the legal
exceptions non numeratae pecuniae ,non causa debiti, errore calculi, revision of
accounts, no value received and the benefits of excussion and division and all other legal
exceptions which might or could be taken to the payment of the Capital Sum or any part
thereof, with the full force and effect of which renunciation the Appearer q.q. declared
the Mortgagor to be fully acquainted, hereby agree to bind the Principal, the Mortgagor,
to pay or cause to be paid to the Mortgagee the Capital Sum, together with interest at the
Bank’s rates current from time to time on the Capital Sum or the reducing balance thereof
calculated from the date or dates for the granting of the said facilities agreed with the
Mortgagee or, failing such agreement, upon demand:

AND as security for the payment of the Capital Sum, interest thereon and the costs,
expenses and disbursements and all other amounts and interest which may be due under
this Bond in terms of the Schedule annexed hereto the Appearer q.q. hereby declared to
bind specially as a SECOND MORTGAGE:-

CERTAIN piece of land situate in the District of MARONDERA;

BEING STAND 1234567 NYAMENI TOWNSHIP

MEASURING Three Hundred and Thirteen (313) Square Metres;

AS WILL MOREFULLY APPEAR upon reference to the Deed of Transfer No


1234/95 dated 14th October 1995 made in favour of the Mortgagor;

AND THE APPEARER q.q. further declared to bind the Mortgagor to the terms and
conditions contained in the Schedule annexed hereto which shall be deemed to be
incorporated and form part of this Bond.
133

SCHEDULE

CONDITIONS OF MORTGAGE BOND

Definitions and Captions

1.1 In this Bond, Bond Mortgagor and Mortgagee shall include the Heirs,
Executors, Administrators, Order, Successors, Assigns of the original Mortgagor
and Mortgagee; the singular shall include the plural; and the words “he”, “him”,
and “his”, shall where the party is a company be deemed to be a reference to that
Company, where the party is a female be deemed to be a reference to her and
where there are two or more parties be deemed to be a reference to both or all of
them jointly and severally where the context requires;

1.2 The captions appearing at the heads of the Conditions of this Bond shall not be
taken into account in interpreting any of the Special Conditions.

Continuing Cover

2. This Bond shall be a continuing covering security for the Capital Sum and for
each and every sum in which the Mortgagor may now be or hereafter become
indebted to the Mortgagee from whatever cause arising, whether such
indebtedness be a direct or indirect liability, whether such indebtedness incurred
by the Mortgagor individually or jointly with others or by any firm in which the
Mortgagor has or holds or may have held or may hereafter have or hold any
interest and whether such indebtedness arises from money lent or advance,
overdrawn accounts, promissory notes, bills of exchange or other instruments,
whether negotiable or not, made and signed, accepted or endorsed by the
Mortgagor, or others with whom the Mortgagor is interested or concerned or any
renewal thereof, or through any acts of suretyship or guarantee or other
undertaking signed or executed by the Mortgagor solely or jointly with others or
otherwise or given by Mortgagee on his behalf, and including all disbursements
made by the Mortgagee on the Mortgagor’s behalf in respect of premiums of
insurance, licences, rates, and taxes, the costs of maintaining the mortgaged
property, commission charges or otherwise howsoever together with interest
thereon as mentioned herein before; and notwithstanding ant fluctuation in the
amount or temporary extinction of such indebtedness the Mortgagee shall be
entitled to advance further sums up to the amount of Capital Sum under security
hereof, which advances shall be secured hereunder as if the same formed potion
of the original advance and shall be in every respect be subject to all the terms and
conditions hereof, and all advances, debts, disbursements or demands made or
accruing to the Mortgagee after the date of this Bond shall be deemed to be
covered or secured thereby to the extent of the Capital Sum together with interest
at the Mortgagee’s rate current from time to time and the sums referred to in
Clause 2 hereof: and further if the Mortgagor fully and faithfully carries out all
and every condition and obligation entered into by the Mortgagor with the
134

Mortgagee and discharges all the Mortgagor’s indebtedness to the Mortgagee then
and in such case, but not otherwise the Mortgagor may claim that this Bond shall
be cancelled.

Cover for Costs

3. Any costs, expenses, disbursements or charges and any claims against the
Mortgagor in respect of the following items or for the following purposes shall be
paid by the Mortgagor on demand or on the date to the person entitled to such
payments, and if not so paid the Mortgagee shall have the right to make such
payments to third parties at the Mortgagor’s expenses and in all cases recover
from the Mortgagor the amount so paid or due, namely:-

(i) All legal expenses, stamps, costs and charges connected with the
preparation and registration of this Bond together with the costs of
collateral security or other Principal security and such other contracts
and acts as may have been stipulated fro the Mortgagee, as also in due
course the costs of cancellation of the Bond and any other interim
costs relating to the security given by the Mortgagor;

(ii) The costs, as between Attorney and client, of recovering the Capital
Sum, interest thereon or any part thereof and all other amounts due in
terms of this Bond or any of them, whether incurred in any action at
law in calling up this Bond or otherwise howsoever, including
collection charges and commission and also such aforesaid costs,
charges and commission as may be incurred in proving the
Mortgagee’s claim against the deceased, assigned or insolvent Estate
of the Mortgagor or, in the case of a Company, against the Company
in liquidation or under judicial management or in any compromise,
statutory or otherwise;

(iii) Generally such costs or expenses as may be payable by the Mortgagor


in terms of this Bond or which may be necessary to secure the rights
granted herein or perform the acts hereby authorized.

All amounts in respect of the aforesaid shall be immediately due and payable
to the Mortgagee on demand, together with interest thereon at the Mortgagee’s
135

rate current from time to time calculated from the date incurred or expended
to the date of repayment, insofar as they are not preferent all such amounts
shall be secured hereunder as preferent to the extent of twenty five per centum
(25%) of the Capital Sum, just as if the total of all such amounts was portion
of the Capital Sum.

Insurance
4. The Mortgagor shall forthwith insure and keep insured all buildings and
improvements erected on the mortgaged property in accordance with the terms
and conditions of the Loan Agreement. Any monies received under such
insurances shall in the sole discretion of the Mortgagee be wholly or partially
employed either in the partial or full repayment of the indebtedness of the
Mortgagor hereunder ir in the partial or full restoration, under such conditions as
the Mortgagee may determine, of that which has been damaged or destroyed.

Maintenance of Buildings

5. The Mortgagor shall, as long as any amount secured by this Bond remains unpaid,
keep and maintain all buildings and improvements erected or which may hereafter
be erected on the mortgaged property in good and habitable order and repair to the
satisfaction of the Mortgagee, and should the Mortgagor fail to do so the
Mortgagee shall be entitled to carry out such repairs and maintenance as it deems
necessary in its sole discretion and forthwith to recover the costs thereof or any
monies so disbursed together with interest from the Mortgagor. The Mortgagee or
its duly appointed Agent shall be entitled at all reasonable times to enter upon and
inspect the mortgaged property for the purposes of ascertaining whether the
buildings and improvements on the mortgaged property are being maintained n
good and proper repair.

Rates and Charges

6. The Mortgagor shall on or before due date pay rates and taxes and any other
imposts or charges levied upon or due in respect of the mortgaged property and
shall on demand produce the receipts therefore to the Mortgagee: should the
Mortgagor fail to comply with his obligations in terms of this Clause the
Mortgagee shall be entitled to effect payment and forthwith recover the money so
disbursed together with interest from the Mortgagor.

Cession of Rentals

7. The Mortgagor hereby cedes, assigns and transfers to the Mortgagee all the
Mortgagor’s right, title and interest in and to the rents or other revenue which are
now or may hereafter accrue in respect of the mortgaged property and hereby
authorizes the Mortgagee irrevocably and in rem suam to collect or institute legal
proceedings for the recovery of such rents or other revenues and for ejectment of
tenants in default. The Mortgagor hereby authorizes the Mortgagee to enter into,
136

cancel or renew leases as the Mortgagee may deem fit and the Mortgagee shall be
entitled to charge the Mortgagor a commission of ten per centum (10%) on the
gross amount of all rents or revenues collected and to deduct such commission
therefrom.

Further Encumbrances
8. The Mortgagor shall not so long as he is indebted to the Mortgagee sign, pledge
or mortgage or in any way further encumber, burden or lease the mortgaged
property or any part thereof without the written consent of the Mortgagee.

Deposit of Documents
9. The Mortgagor shall deposit with the Mortgagee the Title Deeds, diagrams,
leases, policies of insurance and any other documents relating to the property, all
of which shall remain with the Mortgagee until this Bond is cancelled.

Default and Breaches


10. Should the Mortgagor at any time:-

(i) fail to effect when due any payments of capital and interest in terms of
this Bond; or
(ii) fail to fulfill or commit or permit any other breach of the terms and
conditions of this Bond and to remedy the breach or default to the
satisfaction of the Mortgagee within the time called upon by the
Mortgagee in writing to do so; or

(iii) cease to carry on business or dispose of a major part of his business or


assets without the written approval of the Mortgagee; or
(iv) have any judgment or arbitration award given against him; or
(v) be cited as respondent in any application for an interdict relating to or
for the attachment of any the mortgaged property; or
(vi) compound with his creditors; or
(vii) be a party, active or passive, to any step fro voluntary or compulsory
winding up, liquidation or judicial management or a scheme of
arrangement to be sanctioned by the Hugh Court of Zimbabwe; or
(viii) do or allow anything to be done or omitted in relation to any part of his
business or any premises occupied by him which is contrary to law or
might, in the opinion of the Mortgagee, endanger the continuation or
renewal of any license, town planning or other consent, lease or other
right relating thereto;
then and in nay of those events the full amount of the Capital Sum and
interest them outstanding under those Bond shall be and become immediately
due and payable and legally claimable without the necessity of any prior
demand or notice to the Mortgagee shall have the right forthwith to proceed
for the recovery thereof.
137

Certificate of Indebtedness
11. A certificate signed by the Manager or Accountant of the Mortgagee stating the
amount due and payable at any time hereunder shall be conclusive evidence of the
facts stated therein fro the purposes of obtaining provisional sentence in any
competent Court of Law.

Non Prejudice Clause


12. Notwithstanding any express or implied provisions of this Bond to the contrary,
any latitude or extension of time which may be allowed by the Mortgagee in
respect of payments due under this Bond or any leniency or relaxation by the
Mortgagee in regard to any of the obligations of the Mortgagee under this Bond or
any payments on account, re-advances, companies, extensions of time fro
payments or other arrangements of whatsoever nature which may be entered into
between the Mortgagee and the Mortgagor shall not under any circumstances be
deemed to be a waiver of the Mortgagee’s rights under this Bond.

Variation
13. Any variation in the terms and conditions of this Bond as may be agreed upon
between the Mortgagee and the Mortgagor shall be in writing and shall be signed
by and on behalf of the Mortgagee and the Mortgagor, otherwise the same shall
be of no force or effect.

Domicillium and Notices


14.1 The Mortgagor chooses domicillium citandi et executandi at the mortgaged
property or such other address or addresses as the Mortgagor may from time to
time notify the Mortgagee in writing;

14.2 All notices required to be given hereunder to the Mortgagor and all process shall
be sufficiently given or served or if addressed to the Mortgagee and delivered
or served or posted by pre-paid registered post to such address.

Payments and Appropriations

15. All payments due in terms of this Bond shall be made to the Mortgagee in
Zimbabwe currency free of exchange or other charges to such place or places as
the Mortgagee may from time to time direct in writing and the Mortgagee shall
have the sole and unfettered right to appropriate all monies received from or paid
fro and on behalf of the Mortgagor to any indebtedness of the Mortgagor in terms
of this Bond, notwithstanding any appropriation made by the mortgagor.
138

Legal Expenses and Costs

16. The Mortgagor shall pay all costs, including costs as between Attorney and
Client, incurred in investigating, negotiating and securing agreement for the terms
of repayment of the Capital Sum and interest and advances on account thereof
from time to time and in negotiating, drawing, completing and registration this
Bond or any other security required thereof and for any alterations or additions
thereto; in giving notice hereunder; in taking steps towards recovering any
amounts; in enforcing any right or exercising any power secured or granted
hereby or in cancellation of this Bond. All legal work in connection therewith
shall be done by the Legal Practitioners nominated by the Mortgagee.

SIGNED and SEALED at HARARE on this the ………day of 2001.

…………………………………
q.q. His Principal

In my presence,

……………………………
Registrar of Deeds

14 .20 Surety Mortgage Bond (debt or obligation secured by a registered Bond)

Prepared by me

………………..
Conveyancer

SURETY MORTGAGE BOND

KNOW ALL MEN WHOM IT MAY CONCERN:

That TONDERAI NYAMA appeared before me, before me, Registrar of Deeds, Harare,
he being duly authorised thereto by a Power of Attorney executed at HARARE on the 4th
of September 1998 and granted to him by

TAKUNDA JOSEPH NDLOVU


(born on the 16th September 1968)

which power of attorney has this day been exhibited to me.


139

AND THE APPEARER DECLARED THAT,

Whereas

GEORGE KERRY
(born on the 2nd September 1970)
(hereinafter called the Principal debtor)

is truly and lawfully indebted in the sum of $100 000 000.00 (ONE HUNDRED
MILLION DOLLARS) together with the sum of $10 000 000.00 (TEN MILLION
DOLLARS) as preferent charge for costs and other matters to and on behalf of

COPPER DOLLAR (PRIVATE) LIMITED


(hereinafter called the Mortgagee)

arising from and being monies lent and to be lent and advanced or to be lent and
advanced or re-advanced, as security for which indebtedness the said Principal debtor has
registered Mortgage Bond No 1154/04 dated the 6th March 2004 in the Deeds Registry at
Harare over the property thereby especially hypothecated (hereinafter called the Principal
Bond).

And whereas the said TAKUNDA JOSEPH NDLOVU agreed to bind himself as surety
and co-Principal debtor for the due payment of the aforesaid sum and interest thereon and
for the compliance with all terms and conditions of the aforesaid Principal Bond,
mortgaging as security for the fulfillment of the obligations the hereinafter-mentioned
property.

NOW THEREFORE, the appearer declared his Principal, the said TAKUNDA
JOSEPH NDLOVU to be truly and lawfully indebted and held firmly bound to and on
behalf of COPPER DOLLAR (PRIVATE) LIMITED in the sum of $100 000 000.00
(ONE HUNDRED MILLION DOLLARS) arising from the considerations
aforementioned under renunciation of the legal exceptions non numeratae pecuniae ,non
causa debiti, errore calculi, revision of accounts, no value received and the benefits of
excussion and division and all other legal exceptions which might or could be taken to
the payment of the Capital Sum or any part thereof, with the force and effect whereof he
declared his Principal to be fully acquainted together with the sum of $10 000 000.00
(TEN MILLION DOLLARS) as a preferent charge for costs and other matters as more
fully set out in the said Principal Bond.

And the appearer hereby bound his Principal to pay or cause to be paid to the Mortgagee
or other holder of this Bond, his heirs, executors, administrators or assigns, the said
Principal sum of $100 000 000.00 (ONE HUNDRED MILLION DOLLARS) with
such interest as may from time to time become due and payable thereon in terms of the
Principal Bond, and for the proper performance of the terms thereof the appearer qq
declared to bind specially as a FIRST MORTGAGE:
140

CERTAIN piece of land situate in the District of MARONDERA;

BEING STAND 1234567 NYAMENI TOWNSHIP

MEASURING Three Hundred and Thirteen (313) Square Metres;

AS WILL MOREFULLY APPEAR upon reference to the Deed of Transfer No


1234/95 dated 14th October 1995 made in favour of the his said
Principal;

And the appearer q.q declared it to be a special condition of this Bond that should the
Principal debtor fulfill all his obligations under the said Principal Bond by payment of all
sums due thereon by way of capital and interest and comply further with all the terms and
conditions of the aforesaid Bond, this Bond shall become null and void.

In witness, whereof I, the said Registrar, together with the appearer, have subscribed to
these presents, and have caused the seal of office to be affixed thereto.

SIGNED and SEALED at HARARE on this the ………day of 2004.

…………………………………
q.q. His Principal

In my presence,

……………………………
Registrar of Deeds

14 .21 Surety Mortgage Bond (debt or obligation not secured by a registered Bond)

SURETY MORTGAGE BOND

LLOYD & JOHNS Prepared by me

Conveyancer
KNOW ALL MEN WHOM IT MAY CONCERN:-
141

THAT TAYANA LLOYD

appeared before me, Registrar of Deeds, she being duly authorised thereto by virtue of a
Power of Attorney granted to her by

COPPER DOLLAR FARMING COMPANY (PRIVATE) LIMITED


(hereinafter called “the Mortgagor”),

AND THE APPEARER q.q. DECLARED THAT

a) Whereas the Mortgagor is Co-Principal Debtor in respect of certain loan, credit


and/or other facilities granted to

COSMOPOLITAN INVESTMENTS (PRIVATE) LIMITED


by
TRIENSIN FINANCIAL SERVICES LIMITED
(hereinafter called “the Mortgagee”),

for monies lent and advanced or to be lent and advanced under certain credit
facilities granted by the Mortgagee to the Principal Debtor (hereinafter called “the
facilities.)

b) The Mortgagee requires the Mortgagor to bind itself as Surety and Co-Principal
Debtor in the sum of $36 000 000,00 (THIRTY SIX MILLION DOLLARS)
(hereinafter called the “Capital Sum”) for the due payment of the said
indebtedness of the Principal Debtor under the facilities and as security therefore
to hypothecate the immovable property of the Mortgagor hereinafter described;

c) The Mortgagor has agreed to comply with the aforesaid requirements of the
Mortgagee;

AND THE APPEARER q.q. under renunciation of the benefits arising from the legal
exceptions non numeratae pecuniae, non causa debiti, errore calculi, revision of
accounts, no value received and the benefits of excussion and division and all other legal
exceptions which might or could be taken to the payment of the Principal Debt to the
Mortgagee or any part thereof, with the full meaning, force and effect whereof the
Appearer declared the Mortgagor to be fully acquainted, did by these presents declare and
acknowledge his Principal, the Mortgagor, to be held and firmly Bond as Surety and Co-
Principal Debtor to the Principal Debtor in the Capital sum for the due and proper
fulfilment by the Principal Debtor of all its obligations and payment of its indebtedness
under the facilities;

AND THE APPEARER q.q FURTHER DECLARED and acknowledged her


Principal, the Mortgagor, to be held and firmly bound to and on behalf of the Mortgagee
to secure the payment of all costs, charges and expenses incurred or paid by the
142

Mortgagee on behalf of the Mortgagor after the date of registration of this Bond in terms
of conditions 4, 5 and 6 hereof, together with interest thereon at the rate agreed for the
facilities from time to time, and all costs and charges which may be incurred in calling up
this Bond or suing for the Capital Sum or any party thereof PROVIDED THAT the
extent to which the said costs, charges, expenses and interest shall be secured as preferent
shall not exceed the maximum sum of $3 600 000,00 (THREE MILLION SIX
HUNDRED THOUSAND DOLLARS) hereinafter called “the Contingent Capital
Sum”);

AND as security for the payment of the Capital Sum, interest at the prescribed rate for the
facilities, the due and proper fulfillment of the terms and conditions of this Bond as well
as the Mortgagor’s obligations thereunder the Appearer q.q hereby declared to bind
specially as a FIRST MORTGAGE:-

1. CERTAIN Piece of land situate in the district of Salisbury

CALLED VEREENIGING ESTATE

MEASURING 75, 0033 Hectares

AS WILL MORE FULLY APPEAR upon reference to the Deed of Transfer (Registered
No.1444/79) passed in favour of the Mortgagor on the 19th day of March 1979;

2. CERTAIN Piece of land situate in the District of Salisbury

CALLED The remainder of Mwalimu of Newcastle

MEASURING 177, 6709 hectares

AS WILL MORE FULLY APPEAR upon reference to the Deed of Transfer (Registered
No.2175/75) passed in favour of the Mortgagor on the 7th day of April 1975;

AND THE APPEARER q.q. further declared to bind the Mortgagor to the terms and
conditions contained in the Schedule annexed hereto which shall be deemed to be
incorporated herein and form part of this Bond.

SCHEDULE

CONDITIONS OF SURETY MORTGAGE BOND

1. Definitions and Captions

1.1 In this Bond, Mortgagor and Mortgagee shall include the Heirs, Executors,
Administrators, Order, Successors or Assigns of the original Mortgagor and
Mortgagee; the singular shall include the plural; and the words “he”, “him” and
143

“his” shall, where the party is a company be deemed to be a reference to that


Company, where the party is a female be deemed to be a reference to her and
where there are two or more parties be deemed to be a reference to both or all of
them jointly and severally where the context requires;

1.2 The captions appearing at the heads of the Conditions of this Bond shall not be
taken into account in interpreting any of the Special Conditions.

2. Liability of Mortgagor

The Mortgagor binds itself as Surety and Co-Principal Debtor to the Principal
Debtor to and on behalf of the Mortgagee and in the even of the Principal Debtor
failing to fulfil any of his obligations and to pay any amounts due to the
Mortgagee in terms of the facilities then the Mortgagor shall be liable.

3. Continuing Cover

This Bond and every other Bond, guarantee, pledge or other security given to the
Mortgagee as Collateral or other security for or in substitution for this Bond shall
be a continuing covering security for the capital sum, the Contingent Capital Sum,
interest and all other amounts hereby secured and also for all or any sum or sums
of money which may now or in the future be owing to or claimable by the
Mortgagee from the Principal Debtor from whatsoever cause arising, all of which
amounts shall be secured hereunder as if they formed part of the original Capital
Sum or Contingent Capital Sum and shall in every respect be subject to all the
terms and conditions hereof PROVIDED ONLY however, that the maximum
amount that this Bond shall secure at any one time shall be the Capital Sum and
the Contingent Capital sum.

4. Insurance

The Mortgagor shall forthwith insure and keep insured all buildings and
improvements erected on the mortgaged property in accordance with the terms
and conditions of the Loan Agreement. Any monies received under such
insurances shall in the sole discretion of the Mortgagee be wholly or partially
employed either in the partial or full repayment of the indebtedness of the
Mortgagor hereunder or in the partial or full restoration, under such conditions as
the Mortgagee may determine, of that which has been damaged or destroyed.

5. Maintenance of Buildings

The Mortgagor shall, as long as any amount secured by this Bond remains unpaid,
keep and maintain all buildings and improvements erected or which may hereafter
be erected on the mortgaged property in good and habitable order and repair to the
satisfaction of the Mortgagee, and should the Mortgagor fail to do so the
Mortgagee shall be entitled to carry out such repairs and maintenance as it deems
144

necessary in its sole discretion and forthwith to recover the costs thereof or any
monies so disbursed together with interest from the Mortgagor. The Mortgagee
or its duly appointed Agent shall be entitled at all reasonable times to enter upon
and inspect the mortgaged property for the purpose of ascertaining whether the
buildings and improvements on the mortgaged property are being maintained in
good and proper repair.

6. Rates and Charges

The Mortgagor shall on or before due date pay all rates and taxes and any other
imposts or charges levied upon or due in respect of the mortgaged property and
shall on demand produce the receipts therefor to the Mortgagee: should the
Mortgagor fail to comply with his obligations in terms of this Clause the
Mortgagee shall be entitled to effect payment and forthwith recover the money so
disbursed together with interest from the Mortgagor.

7. Cession of Rental

The Mortgagor hereby cedes, assigns and transfers to the Mortgagee all the
Mortgagor’ right, title and interest in and to the rents or other revenue which are
now or may hereafter accrue in respect of the mortgaged property and hereby
authorises the Mortgagee irrevocably and in rem suam to collect or institute legal
proceedings for the recovery of such rents or other revenues and for the ejectment
of tenants in default.

The Mortgagor hereby authorises the Mortgagee to enter into, cancel or renew
leases as the Mortgagee may deem fit and the Mortgagee shall be entitled to
charge the Mortgagor a commission of ten per centum (10%) on the gross amount
of all rents or revenues collected and to deduct such commission therefrom.

8. Further Encumbrances

The Mortgagor shall not so long as they are indebted to the Mortgagee sign, pledge or
mortgage or in any way further encumber, burden or lease the mortgaged property or
any part thereof without the written consent of the Mortgagee.

9. Deposit of Documents

The Mortgagor shall deposit with the Mortgagee the Title Deeds, diagrams,
leases, policies of insurance and any other documents relating to the property, all
of which shall remain with the Mortgagee until this Bond is cancelled.

10. Default and Breaches

Should the Mortgagor at any time:-


145

(i) fail to effect when due any payments of capital and interest in terms of this
Bond; or

(ii) fail to fulfil or commit or permit any other breach of the terms and conditions
of this Bond and to remedy the breach or default to the satisfaction of the
Mortgagee within the time called upon by the Mortgagee in writing to do so;
or

(iii) cease to carry on business or dispose of a major part of their business or assets
without the written approval of the Mortgagee; or

(iv) have any judgement or arbitration award given against them; or

(v) be cited as respondent in any application for an interdict relating to or for the
attachment of any of the mortgaged property; or

(vi) compound with their creditors; or

(vii) be a party, active or passive, to any step for voluntary or compulsory winding
up, liquidation or judicial management or a scheme of arrangement to be
sanctioned by the High Court of Zimbabwe; or

(viii) do or allow anything to be done or omitted in relation to any part of their


business or any premises occupied by them which is contrary to law or might,
in the opinion of the Mortgagee, endanger the continuation or renewal of any
licence, town planning or other consent, lease or other right relating thereto;
then and in any of those events the full amount of the Capital sum and interest
then outstanding under this Bond shall be and become immediately due and
payable and legally claimable without the necessity of any prior demand or
notice and the Mortgagee shall have the right forthwith to proceed for the
recovery thereof.

11. Certificate of Indebtedness

A certificate signed by the Manager or Accountant of Mortgagee stating the


amount due and payable at any time hereunder shall be conclusive evidence of the
facts stated therein for the purpose of obtaining provisional sentence in any
competent Court of Law.

11. Non Prejudice Clause

Notwithstanding any express or implied provisions of this Bond to the contrary,


any latitude or extension of time which may be allowed by the Mortgagee in
respect of payments due under this Bond or any leniency or relaxation by the
Mortgagee in regard to any of the obligations of the Mortgagee under this Bond or
146

any payments on account, re-advances, companies, extensions of time for


payment or other arrangements of whatsoever nature which may be entered into
between the Mortgagee and the Mortgagor shall not under any circumstances be
deemed to be a waiver of the Mortgagee’s rights under this Bond.

13. Variation

Any variation in the terms and conditions of this Bond as may be agreed upon
between the Mortgagee and the Mortgagor shall be in writing and shall be signed
by or on behalf of the Mortgagee and the Mortgagor, otherwise the same shall be
of no force or effect.

14. Domicilium and Notices

14.1 The Mortgagor chooses domicilium citandi et executandi at the mortgaged property
or such other address or addresses as the Mortgagor may from time to time notify
the Mortgagee in writing;

14.2 All notices required to be given hereunder to the Mortgagor and all process
shall be sufficiently given or served or if addressed to the Mortgagee and
delivered or served or posted by pre-paid registered post to such address.

15. Payments and Appropriations

All payments due in terms of this Bond shall be made to the Mortgagee in
Zimbabwe currency free of exchange or other charges to such place or places as
the Mortgagee may from time to time direct in writing and the Mortgagee shall
have the sole and unfettered right to appropriate all monies received from or paid
for and on behalf of the Mortgagor to any indebtedness of the Mortgagor in terms
of this Bond, notwithstanding any appropriation made by the Mortgagor.

16. Legal Expenses and Costs

The Mortgagor shall pay all costs, including costs as between Attorney and
Client, incurred in investigating, negotiating and securing agreement for the terms
of repayment of the Capital Sum and interest and advances on account thereof
from time to time and in negotiating, drawing, completing and registering this
Bond or any other security required therefor and for any alterations or additions
thereto; in giving notice hereunder; in taking steps towards recovering any
amounts; in enforcing any right or exercising any power secured or granted
hereby or in the cancellation of this Bond. All legal work in connection therewith
shall be done by the Legal Practitioners nominated by the Mortgagee.

17 Preference and Ranking


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This Bond shall in no way be considered as affecting the preference or the terms
and conditions of any existing Bond passed in favour of the Mortgagee by the
Mortgagor and the total amount of the Mortgagor’s indebtedness to the
Mortgagee at any time shall be allocated to all such Bonds in the order of their
ranking, irrespective as to when or how facilities were granted by the Mortgagee
to the Mortgagor.

18. Termination

Upon payment by the Principal Debtor of all amounts now due and to become due
to the Mortgagee under the facilities this shall be null and void but otherwise shall
be of full force and effect.

SIGNED and SEALED at HARARE on this the day of

.…..……………..
q.q. her Principal

In my presence,

……………………
Registrar of Deeds

14 .22 Collateral Mortgage Bond

Prepared by me

………………..
Conveyancer

COLLATERAL MORTGAGE BOND

KNOW ALL MEN WHOM IT MAY CONCERN:

That TONDERAI NYAMA appeared before me, before me, Registrar of Deeds, Harare,
he being duly authorised thereto by a Power of Attorney executed at HARARE on the 4th
of September 2003 and granted to him by

TAKUNDA JOSEPH NDLOVU


(born on the 16th September 1968)
148

which power of attorney has this day been exhibited to me.

AND THE APPEARER DECLARED THAT,

Whereas his Principal the said TAKUNDA JOSEPH NDLOVU is truly and lawfully
indebted to

COPPER DOLLAR (PRIVATE) LIMITED


(hereinafter styled the Mortgagee)

in the sum of $100 000 000.00 (ONE HUNDRED MILLION DOLLARS) arising from
and being monies lent and to be lent and advanced or to be lent and advanced or re-
advanced as security for which indebtedness Mortgage Bond No 1154/04 (hereinafter
called the Principal Bond) was registered in the Deeds Registry at HARARE on the 6th
March 2004 over the property thereby specially hypothecated;

And whereas the said Mortgagee requires the indebtedness of the appearer’s Principal
under the Principal Bond to be further secured by the hypothecation of the
undermentioned property as collateral security therefor;

Now, therefore, the appearer, renouncing all benefits arising from the legal exceptions
non numeratae pecuniae ,non causa debiti, errore calculi, revision of accounts, no value
received and the benefits of excussion and division and all other legal exceptions which
might or could be taken to the payment of the Capital Sum or any part thereof,with the
full force and effect of which he declared his said Principal to be fully acquainted, did by
these presents declare and acknowledge his said Principal to be held and firmly bound
unto and on behalf of the said COPPER DOLLAR (PRIVATE) LIMITED, its order or
assigns in the aforesaid sum of $100 000 000.00 (ONE HUNDRED MILLION
DOLLARS) together with the sum of 10 000 000.00 (TEN MILLION) as a preference
charge for costs and other matters as more fully set out in the Principal Bond, and as
collateral security for the due and proper fulfillment of all the terms and conditions
mentioned or referred to in the Principal Bond as well as all his said Principal’s
obligations thereunder the appearer on behalf of his said Principal hereby declared to
bind specially as a FIRST MORTGAGE:

CERTAIN piece of land situate in the District of MARONDERA;

BEING STAND 1234567 NYAMENI TOWNSHIP

MEASURING Three Hundred and Thirteen (313) Square Metres;

AS WILL MOREFULLY APPEAR upon reference to the Deed of Transfer No


1234/95 dated 14th October 1995 made in favour of his said
Principal;
149

And the appearer further declared that this Collateral Bond shall be subject to all the
terms and conditions set out in the Principal Bond as full and effectually as if the same
had been inserted herein and to the special condition that upon payment and discharge of
all obligations under the Principal Bond this Bond shall be null and void but shall
otherwise be and remain in full force, virtue and effect.

In witness whereof I, the said Registrar, together with the appearer, have subscribed to
theses presents, and have caused the seal of office to be affixed thereto.

SIGNED and SEALED at HARARE on this the ………day of 2001.

…………………………………
q.q. His Principal

In my presence,

……………………………
Registrar of Deeds

14 .23 Indemnity Mortgage Bond

Prepared by me

………………..
Conveyancer

INDEMNITY MORTGAGE BOND

KNOW ALL MEN WHOM IT MAY CONCERN:

That TONDERAI NYAMA appeared before me, before me, Registrar of Deeds, Harare,
he being duly authorised thereto by a Power of Attorney executed at HARARE on the 4th
of September 2003 and granted to him by

EDZAI NDLOVU
(born on the 16th September 1968)
(hereinafter referred to as the Mortgagor)

which power of attorney has this day been exhibited to me.


150

AND THE APPEARER DECLARED THAT, the Mortgagor has been granted certain
credit facilities as hereinafter set out by COPPER DOLLAR BANK (PRIVATE)
LIMITED,

AND THAT

GEORGINA KERRY
(born on the 2nd September 1970),
(hereinafter referred to as the Mortgagee)

has bound herself as surety and co-Principal debtor to the said Bank for the repayment of
the said facilities up to an amount of $10 000 000.00 (TEN MILLION DOLLARS) and
that the Mortgagor has agreed to indemnify and hold harmless the said Mortgagee against
any claims which may be made against her by the said Bank by virtue of the Mortgagee’s
suretyship aforesaid;

AND WHEREAS it has been agreed that the Mortgagor shall pass this Bond in favour
of the Mortgagee as security for the repayment by the Mortgagor of all the sums of
money which the Mortgagee may be required to pay to the said Bank by virtue of the
suretyship aforesaid;

NOW THEREFORE the Appearer acknowledge the said Mortgagor to be truly and
lawfully held and firmly bound to the said

GEORGINA KERRY

her heirs, executors, administrators or assigns, in an amount not exceeding $10 000
000.00 (TEN MILLION DOLLARS), plus interest arising from and being for the
considerations aforementioned, the Appearer q.q renouncing the benefit of the exceptions
non numeratae pecuniae, non causa debiti, errore calculi, revision of accounts, no value
received, with the force and meaning whereof the Appearer declared his Principal to be
fully acquainted.

AND the Appearer further acknowledged that all future debts or demands which may
lawfully be secured and recovered under this Bond in respect of and including any costs,
charges and disbursements in having this Bond prepared and registered, in having this
Bond cancelled eventually (all of which services the Mortgagor hereby agrees shall be
rendered by a Conveyancer nominated by the Mortgagee or other legal holder of this
Bond), in issuing notices and demands and in suing and taking further legal proceedings
for the recovery of any sum of money due under this Bond; all moneys disbursed by the
Mortgagee or other legal holder of this Bond; in respect of stand licenses, government
and municipal rates and taxes and other charges levied in respect of the property hereby
mortgaged, premiums of insurance and costs of repairs and maintenance, with interest
thereon as hereinafter stated, bank exchange on cheques and generally all costs of
preserving and realizing the security held under this Bond, which the Mortgagee or other
151

legal holder of this Bond may have incurred, advanced or expended, shall be limited to a
sum not exceeding and in so far as they are not preferent, shall be hereby secured as
preferent to the sum of $1 000 000.00 (ONE MILLION DOLLARS) over and above the
capital.

AND for the security of the above obligations the Appearer qq hereby declares to bind as
a SECOND MORTGAGE:

CERTAIN piece of land situate in the District of MARONDERA;

BEING STAND 1234567 NYAMENI TOWNSHIP

MEASURING Three Hundred and Thirteen (313) Square Metres;

AS WILL MOREFULLY APPEAR upon reference to the Deed of Transfer No


1234/95 dated 14th October 1995 made in favour of the Mortgagor;

AND the Appearer qq declared to bind the Mortgagor to the following conditions:

a) That the said credit facilities shall include any sum or sums of money which
the said Mortgagor may now or in the future owe to the Bank whether such
debt shall have been contracted by her in her own name or in the name of any
firm under which she may carry on business and whether such indebtedness
shall arise or have arisen out of money already lent and advanced or which
may hereafter be lent or advanced or out of promissory notes or bills already
made or to be made, accepted and endorsed, or out of guarantees given or
hereafter to be given by the said Mortgagor to the Bank on behalf of the
Mortgagor, or out of debts and obligations of other persons in respect of
which the Mortgagor has bound or hereafter may bind herself as surety or
otherwise in any manner whatsoever, including interest, discount,
commission, ledger fees, costs of legal proceedings, stamps and all other
necessary or customary fees and charges.

b) The security conferred by this Bond shall be in respect of continuing covering


security up to the amount of $10 000 000.00 and the sum of $1 000 000.00
hereinbefore referred to and notwithstanding any total discharges of the
indebtedness of the Mortgagor to the Bank, the Bank is entitled to grant
further facilities to the said Mortgagor up to the said amount of $10 000
000.00.

c) It is a condition of this Bond that if the Mortgagor truly and faithfully fulfills
all her obligations to the Bank aforesaid, this Bond shall be null and void, but
otherwise shall be of full force and effect.
152

d) That the Mortgagor shall be allowed and also obliged to repay the said sum of
$10 000 000.00 (TEN MILLION DOLLARS) immediately upon the
Mortgagee paying any amount lawfully demanded from her in terms of her
suretyship as aforesaid, together with interest at 42% per annum from the date
on which the Mortgagee makes such payment until the date of actual
repayment of the Mortgagor. Nothing contained herein shall be construed as
an obligation on the Mortgagee to allow any latitude or extensions of time
within which such repayment is to be made.

e) That all payments of capital, interest and other moneys due hereunder shall be
made in good, current and lawfully money at 29 Albury Avenue, Harare, or at
such other place or places in Zimbabwe as the Mortgagor or her agent may
from time to time direct.

f) That the Mortgagor shall be bound and obliged regularly and promptly to pay
all stand licenses, government and municipal rates, taxes and other charges
levied or to be levied in respect of the property hereby mortgaged, and to
produce the receipts for the same to the Mortgagee or her agent whenever
same may be demanded.

g) That the Mortgagor shall keep and maintain the buildings and erections on the
property mortgaged in good and habitable order, and insure the same, and
keep the same insured in a fire insurance office approved by the Mortgagee,
for a sum adequate to cover the value thereof against risks of loss from fire,
and shall cede the policy or policies of such insurance to the said Mortgagee
or other legal holder of this Bond, as collateral security for this Bond and all
obligations hereunder, and shall renew the policy or policies of such insurance
(as well as any other policy or policies or insurance, as well as any other
policy or policies of insurance as, with the consent of the legal holder of this
Bond for the time being, may hereafter be effected upon the premises in
addition to, or in lieu of, the aforesaid policy or policies) according to the
conditions of such policy or policies, as long as the Mortgagor’s obligations
under this Bond shall remain unfulfilled, and shall produce proof of having
done so to the Mortgagee or other legal holder thereof.

h) That any moneys received under such insurance shall, at the choice of the
Mortgagee or other legal holder of this Bond, be wholly or partially employed
either in partial or full payment of interest, capital and charges which may
then be due, or for the restoration, under such conditions as the Bondholder or
her agent may lay down, of that which has been damaged or destroyed by fire.

i) That should the Mortgagor fail or neglect to pay the licenses, rates, taxes, or
other charges and premiums, or any of them, promptly on the due dates
thereof, or to keep and maintain the said buildings and erections in good order
as aforesaid, the Mortgagee or other legal holder of this Bond may pay such
moneys and do or cause the repairs to be done at the expense of the Mortgagor
153

and to recover immediately from her any moneys so advanced or expended


together with interest thereon, at the same rate as is chargeable on the capital
of this Bond, as from the date on which such moneys were paid or expended
by the Mortgagee or other legal holder or expended being secured by and
deemed to be sums due and payable under this Bond.

j) That any notices, which shall or may be required to be given under this Bond
by the Mortgagee or other legal holder hereof, shall be addressed to the
Mortgagor at the property hereby mortgaged, which place she selects as her
domicilium citandi et executandi for all processes to be served under this
Bond.

k) In the event of the Mortgagor failing or neglecting to pay any sums due and
payable under this Bond promptly on the respective due dates, or to carry out
any of the conditions and stipulations of this Bond, the capital with interest
and all other sums due hereunder shall immediately become due and
recoverable without any notice (any conditions to the contrary herein
contained notwithstanding).

l) That the said property shall not be further burdened in any way without the
consent in writing of the said Mortgagee or other legal holder of this Bond.

m) That all rents which may from time to time be due from the present or any
future tenant or tenants of the property hereby mortgaged or any portion
thereof, are hereby ceded and assigned as collateral security to and in favor of
the said Mortgagee or other legal holder hereof, and the said Mortgagee or
other legal holder hereof is empowered, with power of substitution, to collect,
sue for and recover the said rents and to grant valid receipts for the same, but
no use shall be made of the said cession of rentals unless the Mortgagor shall
fail to pay the capital or interest upon the due date or dates thereof.

n) It is a special condition of this Bond that the same shall in no way interfere
with, prejudice or affect the rights and preferences of the XYZ BUILDING
SOCIETY, the legal holder of the First Mortgage Bond over the herein-
mentioned property, which rights and preferences shall remain in all respects
as if this Bond had not been passed and that the said property may not be
declared executable or sold in execution at the instance of the legal holder of
this Bond unless the consent in writing of the legal holder of the said First
Mortgage Bond has been had and obtained.

SIGNED and SEALED at HARARE on this the ………day of 2001.

…………………………………
q.q. His Principal
154

In my presence,

……………………………
Registrar of Deeds

14 .24 Participation Mortgage Bond

PARTICIPATION MORTGAGE BOND

KNOW ALL MEN WHOM IT MAY CONCERN;-

THAT MATIVENGA LLOYD MHISHI


appeared before me, the Registrar of Deeds, he being duly authorised thereto by a Power
of Attorney granted by BLAIR MUSEKA in his capacity as
authorised as such by a Resolution of the Board
of Directors dated

of BERFYLE FARMING COMPANY (PRIVATE) LIMITED


(hereinafter called “the Mortgagor”
155

AND THE APPEARER DECLARED THAT

WHEREAS;-

A. The Mortgagor is truly and lawfully indebted to

COPPER DOLLAR BANK (PRIVATE) LIMITED,


(hereinafter called the Mortgagee”)

and in various proportions, to various other Lenders represented by the Mortgagee in


the sum of SEVEN BILLION DOLLARS ($7 000 000 000,00) being in respect of
monies lent and advanced to the Mortgagor by the Mortgagee and various other
Lenders represented by the Mortgagee.

B. The Mortgagee has been registered as a Bond holding company in terms of


Section 48 of the Deeds Registries Act (Chapter 20:05)

c. The Mortgagor, the Mortgagee and the various other Lenders represented by the
Mortgagee have concluded a Participation Agreement which they have called a
Security Sharing Agreement (“the Participation Agreement”) in terms of which
the Mortgagor has agreed to pass this Bond in favour of the Mortgagee as security
for payment of the sum of SEVEN BILLION DOLLARS ($7 000 000 000,00)
(“the capital) for the causes set out above. A copy of the Participation Agreement
is attached hereto.

NOW THEREFORE as security for the due payment of the capital, interest thereon on
terms and at rates hereinafter set out and for all other sums as may be due in terms hereof,
the Appearer did hereby specially bind as a First Mortgage

CERTAIN piece of land situate in the district of Umtali

CALLED Mumvuri Estate

MEASURING 783,9265 Hectares

Held Under Certificate of Consolidated Title No.


made in favour of the Mortgagor on this day.

On the following terms and conditions:-

1. The Mortgagor hereby renounces all benefit from the legal exceptions non
numeratae pecuniae, non causa debiti, errore calculi, revision of accounts and no
value received with the meaning and effect of which the Appearer declared the
Mortgagor to be fully acquainted.
156

2. The capital shall be repaid by the Mortgagor to the Mortgagee on

3. Interest on the various loans which comprise the capital shall accrue from time to
time at the rates and on the terms stipulated in the loan notes evidencing such
loans, specimen of the various categories of which loan notes are attached as
annexures to the Participation Agreement.

4. In the event that the property hereby hypothecated shall be subject of any
attachment under process of Court, leading to sale in execution thereof, or if the
Mortgagor shall be the subject of any application filed in a Court of competent
jurisdiction for an order, whether provisional or final, for its winding up, the
amount of the capital, costs and interest thereon in terms of paragraph 3 above
shall become immediately due and payable to the Mortgagee, and the participants
in this Bond shall have claims in respect of the redemption of their participations,
ranking pari passu in accordance with their various participations.

5 Definitions and Captions


5.1 In this Bond Mortgagor and Mortgagee shall include the Heirs, Executors,
Administrators, Order, Successors or Assigns of the original Mortgagor
and Mortgagee; the singular shall include the plural; and the words “he”,
“him” and “his” shall, where the party is a company be deemed to be a
reference to that Company, where the party is a female be deemed to be a
reference to her and where there are two or more parties be deemed to be a
reference to both or all of them jointly and severally where the context
requires;

5.2 The captions appearing at the heads of the Conditions of this Bond shall
not be taken into account in interpreting any of the Special Conditions.

6. Continuing Cover
This Bond and every other Bond, guarantee, pledge or other security given to the
Mortgagee as collateral or other security for or in substitution for this Bond shall
be a continuing covering security for the capital sum, interest and all other
amounts hereby secured and also for all or any sum or sums of money which may
now or in the future be owing to or claimable by the Mortgagee from the
Mortgagor from whatsoever cause of action arising, all of which amounts shall be
secured hereunder as if they formed part of the original Capital sum and shall in
every respect be subject to all the terms and conditions hereof PROVIDED
ONLY, however that the maximum amount that this Bond shall secure at any one
time shall be the Capital sum herein before referred to.

7. Insurance
The Mortgagor shall forthwith insure and keep insured all buildings and
improvements erected on the mortgaged property in accordance with the terms
and conditions of the Loan Agreement. Any monies received under such
insurances shall in the sole discretion of the Mortgagee be wholly or partially
157

employed either in the partial or full repayment of the indebtedness of the


Mortgagor hereunder or in the partial or full restoration, under such conditions as
the Mortgagee may determine, of that which has been damaged or destroyed.

8 Maintenance of Buildings
The Mortgagor shall, as long as any amount secured by this Bond remains unpaid,
keep and maintain all buildings and improvements erected or which may hereafter
be erected on the mortgaged property in good and habitable order and repair to the
satisfaction of the Mortgagee, and should the Mortgagor fail to do so the
Mortgagee shall be entitled to carry out such repairs and maintenance as it deems
necessary in its sole discretion and forthwith to recover the costs thereof or any
monies so disbursed together with interest from the Mortgagor. The Mortgagee
or its duly appointed Agent shall be entitled at all reasonable times to enter upon
and inspect the mortgaged property for the purpose of ascertaining whether the
buildings and improvements on the mortgaged property are being maintained in
good and proper repair.

9. Rates and Charges


The Mortgagor hereby warrants that the mortgaged property is his sole and
unencumbered property and is not and will not be subject to any Bond, pledge,
lien or
other right of retention or any hire purchase or lease hire agreement: the
Mortgagor further undertakes that he shall not while any amounts secured by this
Bond remain unpaid and without prior written consent of the Mortgagee, cause or
allow any of the mortgaged property to be sold, ceded or assigned, pledged,
mortgaged or subjected to any Landlord’s hypothec or other lien or right of
retention or dealt with in any other manner whatsoever which might prejudice the
rights of the Mortgagee or cause a preference in favour of any other person.

10 Mortgagor’s Undertakings
The Mortgagor hereby undertakes ;-

10.1 To keep books of accounts and records open to inspection by the


Mortgagee at all reasonable times and to provide the Mortgagee with such
other reports and information regarding the assets and business of the
Mortgagor and in particular, the mortgaged property as the Mortgagee
may from time to time reasonably require;

10.2 To permit the Mortgagee and/or his authorized representatives at any


reasonable time on request to enter upon any business premises occupied
by the Mortgagor and inspect the same and all books of account and other
documents relating to the mortgaged property for the purpose of ensuring
that all the Mortgagor’s obligations hereunder are being carried out or of
enforcing any of the Mortgagee’s rights hereunder.
158

10.3 To furnish the Mortgagee with final accounts and the balance sheets and
trading and profit and loss accounts relating to the business and affairs of
the Mortgagor for each of the Mortgagor’s financial

11. Cession of Debts

In any case where the Mortgagor has ceded his debts to the Mortgagee the
following provisions shall apply;-

11.1 The Mortgagor undertakes that he shall deliver to the Mortgagee lists containing
such particulars regarding his ceded debts and in such form as and when the
Mortgagee may require the same from time to time and he further undertakes to
deliver to the Mortgagee any relevant documents in respect of any ceded debt
(duly endorsed in blank or in favour of the Mortgagee where requisite), together
with such documents and/or particulars or whatever nature that the Mortgagee
may require to substantiate the existence, nature and amounts of such ceded debts.

11.2 Unless otherwise, the Mortgagee shall be entitled to institute proceedings for the
recovery of any amount due under a debt ceded or to be ceded in terms hereof and
the Mortgagor agrees and undertakes to furnish to the Mortgagee all such
information and evidence as may be necessary to bring such proceedings to a
successful conclusion and all such further information as the Mortgagee may
require in connection with such action. The Mortgagor hereby indemnifies the
Mortgagee against any such expenditure shall be paid to the Mortgagee the
Mortgagor upon demand. The Mortgagee shall be entitled to conduct any such
proceedings as he in his sole discretion may think fit and shall be entitled to
compromise any claim. Whether proceedings have been instituted or not, without
reference to the Mortgagor, and any such compromise shall be binding on the
Mortgagor as to the liability of the debtor and the amount of such debt.

11.3 It is understood and agreed that any lists, schedules or other documentation
whatsoever delivered by the Mortgagor to the Mortgagee from time to time will
be for the Mortgagee’s information so that he may have full and up-to-date
particulars of the debts ceded and pledged to him, but such delivery shall not
constitute notation, having regard to the fact that this Bond will cover all debts
owing to the Mortgagor, including both present and future debts.

11.4 It is agreed and understood that when and from time to time and to extent thereof
that the Mortgagor is permitted by the Mortgagee to receive and collect any
monies payable in respect of any of the debts and documents ceded and/or to be
ceded to the Mortgagee in terms hereof, he shall act therein solely as the
Mortgagee’s agent and not for his own account and in doing so he hereby
undertakes at all times duly to carry out any instructions received by him from the
Mortgagee in that connection and forthwith to pay other to the Mortgagee and all
159

monies so received or collected by him as agent for the Mortgagee. Any records,
documents, cash, bills of exchange, promisory notes, cheques or other negotiable
instruments and any other assets whatsoever held by the Mortgagor from time to
time in respect of any debt ceded hereunder shall as long as this Bond is in force
be held by him as agent on behalf of the Mortgagee.

12. Domicilium and Notices


12.1.1 The Mortgagor chooses domicilium citandi et executandi at the mortgaged
property or such other address or addresses as the Mortgagor may from time to
time notify the Mortgagee in writing;

12.2. All notices required to be given hereunder to the Mortgagor and all process shall
be sufficiently given or served or if addressed to the Mortgagee and delivered or
served or posted by pre-paid registered post to such address.

13. Cancellation
The Mortgagor may claim that this Bond and any further security given therefore
shall be cancelled only if and when the Mortgagor shall have fully complied with
all his obligations hereunder.

14. Breach of Terms and Condition


Should the Mortgagor fail to effect when due any payments in terms of this Bond
or fail to fulfil or permit any other breach of the terms and conditions of this Bond
then and in such event all amounts secured hereunder of whatsoever nature,
whether or not then due, shall ipso facto be and become immediately due and
payable and legally claimable, without further notice.

15. Deemed Breaches


Should the Mortgagor at any time;-
15.1 have any judgement or arbitration award given against him; or

15.2 be cited as responded in any application for an interdict relating to or for the
attachment of any of the mortgaged property; or

15.3 compound with his creditor; or

15.4 be a party, active or passive, to any step for voluntary or compulsory winding up,
liquidation of judicial management or a scheme or arrangement to be sanctioned
by the High Court of Zimbabwe; or
160

15.5 be convicted of any criminal offence (whether in Zimbabwe or elsewhere) of theft


fraud, forgery or uttering a forged document or perjury and be sentenced therefore
to serve a term of imprisonment without the option of a fine or to a fine exceeding
$1 000,00 (ONE THOUSAND DOLLARS);

15.6 do or allow anything to be done or omitted in relation to any part of his business
or any premises occupied by him which is contrary to law or might, in the opinion
of the Company endanger the continuation or renewal or any licence, town
planning or their consent, lease or other right relating thereto;

then and in any of those events the Mortgagor shall be deemed to have committed
a breach of this Bond and the full amount of the Capital Sum and interest then
outstanding shall be and become immediately due and payable and legally
claimable without the necessity of any prior demand.

16. Jurisdiction
Any action arising out of this Bond which the Mortgagee institutes may at his
option be instituted in the Magistrate’s Court for the Province of Mashonaland
held at Harare which Court shall have jurisdiction in any such action.

17. Payment and Appropriations


All payments due in terms of this Bond shall be made to the Mortgagee in
Zimbabwean currency free of exchange or other charges to such place or places as
the Mortgagee may from time to time direct in writing and the Mortgagee shall
have the sold and unfettered right to appropriate all monies received from or paid
for and on behalf of the Mortgagor and any indebtedness of the Mortgagor in
terms of this Bond, notwithstanding any appropriation made by the Mortgagor.

18. Certification by the Mortgagee


A certificate purporting to be signed by or on behalf of the Mortgagee stating
amounts due and payable and unpaid by the Mortgagor hereunder, the nature
thereof and why the same are due and payable shall be admissible in evidence in
any proceedings against the Mortgagor and prima facie proof of the facts therein
stated.

19. Cession of Mortgagee’s Rights


The Mortgagee may, without reference to the Mortgagor, at any time and from
time to time cede, assign or make over to any person or persons, either jointly or
161

severally, the whole or any part of his rights under this Bond.

20. Co-Mortgagors
If at any time there is more than one legal holder of the rights under this Bond any
right hereunder shall be exercisable by any of them.

21. Non Waiver of Rights


Notwithstanding any express or implied provisions of this Bond to the contrary,
any latitude or extension of time which may be allowed by the Mortgagee in
respect of payments due hereunder or any leniency or relaxation by the Mortgagee
in regard to any of the obligation of the Mortgagor under this Bond shall not
under any circumstances be deemed to be a waiver of the Mortgagee’s rights
under this Bond.

22. Costs
The Mortgagor shall pay all costs, including costs as between Legal Practitioner
and client, incurred in investigating, negotiating and securing agreement for the
terms of repayment of the Capital sum and interest and advances on account
thereto from time to time and in negotiating, drawing, completing and registering
this Bond or any other security required therefore and for any alterations or
additions thereto; in giving any notice hereunder; in enforcing any right or
exercising any power secured or granted hereby or in the cancelling of this Bond.
All legal work in connection therewith shall be done by the Legal Practitioner
nominated by the Mortgagee.

23. Variation
Any variation in the terms and conditions of this Bond as may be agreed upon
between the Mortgagee and the Mortgagor shall be in writing and shall be signed
by or on behalf of the Mortgagor and the Mortgagee, otherwise the same shall be
of no force or effect.

SIGNED and SEALED at HARARE on this the day of


2004.

………..…………………..
q.q. his Principal
In my presence,
………………………………
Registrar of Deeds
162

14 .25 Waiver of Preference

WAIVER OF PREFERENCE

We, the undersigned, TONDERAI NYAMA

AND

WILSON MUDZINGE

the duly authorised Representatives of

COPPER DOLLAR BANK OF ZIMBABWE LIMITED

Acting under and by virtue of a Resolution passed at a meeting held at Harare on the 8th
May 1997, the said COPPER DOLLAR BANK OF ZIMBABWE LIMITED being the
legal holder of the undermentioned Mortgage Bond.

Mortgage Bond No. Dated for the sum of


th
8273/91 19 December 1991 $ 100 000.00

Passed by CHAMUNORWA NDLOVU


(born on 6th of June 1952)

in favour of COPPER DOLLAR BANK OF ZIMBABWE LIMITED

DO HEREBY CONSENT to waive preference in respect of the above Mortgage Bond in


favour of a Mortgage Bond about to be passed by

CHAMUNORWA NDLOVU
(born on 6th June 1952)
163

in favour of COSMOPOLITAN BUILDING SOCIETY

For the sum of $ 136 286.00 (ONE HUNDRED AND THIRTY SIX THOUSAND TWO
HUNDRED AND EIGHTY SIX DOLLARS) plus an additional amount of $ 20 500.00
(TWENTY THOUSAND FIVE HUNDRED DOLLARS) so that such Bond shall rank
prior to the aforementioned Mortgage Bond No 8273/91 and we waive our preference
accordingly.

Dated at Harare this 23rd day of April 1998.

AS WITNESSES:

1. ..........................................
....................................

....................................
2. .........................................

14 .26 Variation of Terms of Bond

Prepared by me

.........................
Conveyancer

VARIATION OF TERMS OF BOND

I, the undersigned
TONDERAI NYAMA

duly authorised by virtue of a Resolution passed at Harare on the 5th day of August 1999
by the Directors of
COPPER DOLLAR (PRIVATE) LIMITED

the Mortgagor and we, the undersigned

CHAMUNORWA NDLOVU

and
164

JOHN TAURAI RONALDSON

duly authorised by virtue of a Resolution passed at Harare on the 4th day of July 1991 by
the directors of
COSMOPOLITAN BUILDING SOCIETY

the Mortgagee and the legal holder of Mortgage Bond Number 9837/99 dated the 29th
September 1999

DO HEREBY consent to the variation of the terms of the said Bond by the deletion of
Clause C from the said Bond and substituting the following Clause:

“CLAUSE C”

C. The Mortgagor, the Mortgagee and various lenders represented by the Mortgagee
have concluded a Participation Agreement (“the Participation Agreement’) in
terms of which the Mortgagor has agreed to pass this Bond in favour of the
Mortgagee as security for payment of the sum of $ 70 000 000.00 (SEVENTY
MILLION DOLLARS) (“the capital”) for the causes set out above. A copy of the
Participation Agreement is attached hereto.

In all other respects the conditions of the Bond shall remain the same.

THUS DONE AND SIGNED by the Mortgagor at Harare this 26th day of October 1999
in the presence of the undersigned witnesses.

AS WITNESSES:

1...........................................

....................................
pp .MORTGAGOR
2.........................................

THUS DONE AND SIGNED by the Mortgagee at Harare this 20th day of October 1999
in the presence of the undersigned witnesses

AS WITNESSES:

1..........................................

....................................
pp. MORTGAGEE
165

2...........................................

14 .27 Consent to Cancellation of Mortgage Bond

CONSENT

COSMOPOLITAN BUILDING SOCIETY


the holder of the undermentioned Bond

NUMBER AMOUNT DATE


9847/96 $ 88 000.00 9TH JULY 1996

PASSED BY: CHAMUNORWA NDLOVU (born 5th July 1963)

does hereby consent to the cancellation of the said Bond.

Executed at Harare on .................1998


In the presence of the undersigned witnesses

AS WITNESSES
166

1. for: COSMOPOLITAN BUILDING


SOCIETY

.....................................
2. DIRECTOR

.....................................

under Resolution dated 19th


August 1992
14 .28 Consent to cancellation of a cession of a Mortgage Bond made as security

CONSENT

XYZ BUILDING SOCIETY


(hereinafter referred to as ‘the Society’)
the pledgee of the undermentioned Bond

NUMBER AMOUNT DATE


2763/99 $ 8 000 000.00 9TH MAY 1996

PASSED BY: MARORO NDHLOVU (born 5th July 1963) in favour of ABC
BUILDING SOCIETY and ceded to the Society as collateral security by cession
registered on 2nd September 2003

does hereby consent to the cancellation of the abovementioned cession as security.

Executed at Harare on ....................................................2003.

In the presence of the undersigned witnesses

AS WITNESSES
167

1…………………………. for: COSMOPOLITAN BUILDING SOCIETY

.....................................
2………………………… DIRECTOR

.....................................

under Resolution dated 19th


August 1992
14 .29 Consent to release

COSMOPOLITAN BUILDING SOCIETY


(formerly Merchants Building Society)

The Legal holder of the under-mentioned Mortgage Bonds, namely;-

NUMBER AMOUNT DATE

50648/97 $20 570 000,00 22nd May 1997


91187/98 $ 7 997 383,00 5th February 1999
________________________________________________________________________

PASSED BY: NUWORK ENTERPRISES (PRIVATE) LIMITED

IN FAVOUR OF COSMOPOLITAN BUILDING SOCIETY


DO HEREBY CONSENT to the RELEASE of :-

CERTAIN piece of land situate in the District of Salisbury

CALLED STAND 132 DERBSON TOWNSHIP OF


HOTSHIRE

MEASURING 2086 Square metres

from the operation of the above-mentioned Bonds.

DATED AT HARARE this day of 2003


In the presence of the undersigned witnesses
168

WITNESSES: AUTHORISED SIGNATORIES

1. …………………………….. …………………………………

2. ……………………………… ………………………………….
FOR COSMOPOLITAN BUILDING
SOCIETY under Resolution dated

14 .30 Consent to Substitution of Debtor

CONSENT TO SUBSTITUTION OF DEBTOR


(Issued under the provisions of section 51 of the Deeds Registries Act (Chapter 20: 05)

Whereas I, Simon Takura (born on the 15th September 1955), am the legal holder of
Mortgage Bond No 5674/98, passed by Timothy Ncube (born on the 7th April 1960) for
the sum of $1 580 000,00 plus $158 000,00 costs whereby was hypothecated as a first
mortgage

CERTAIN piece of land situate in the District of Salisbury

CALLED STAND 132 DERBSON TOWNSHIP OF


HOTSHIRE

MEASURING 2086 Square metres

And whereas there still remains due and owing the full amount.

And whereas the said Timothy Ncube has transferred the aforesaid land to Tendai
Gwatidzo (born on the 12th June 1972) who is ready to take over the liability of the said
Timothy Ncube under the said Bond and to be substituted for the said Transferor as the
debtor under the Bond.

Now therefore, I agree under the provisions of the said Act, that the Transferee aforesaid
shall be substituted as debtor under the Bond and that from the date of the execution of
the transfer the Transferor shall be released from any obligation under the said Bond.

DATED AT HARARE this day of 2003


In the presence of the undersigned witnesses

WITNESSES:
169

1. …………………………….. …………………………………

2. ………………………………

And I, Tendai Gwatidzo (born on the 12th June 1972), having read the above consent of
the legal holder of the Bond do hereby consent to accept transfer of the land subject to
such Bond and to be substituted for the Transferor as debtor thereunder and hereby
assume full liability for the indebtedness under the said Bond in terms of the provisions
of the Act.

DATED AT HARARE this day of 2003


In the presence of the undersigned witnesses

WITNESSES:

1. …………………………….. …………………………………

2. ………………………………

14 .31 Consent to registration of Part Payment

CONSENT TO REGISTRATION OF PART-PAYMENT

I the undersigned, Chipo Mnkandla, duly authorized thereto by a resolution of the


directors of MHONDORO MECHANISED SYSTEMS (PRIVATE) LIMITED the legal
holder of the undermentioned Mortgage Bond, namely:

NUMBER AMOUNT DATE

91187/98 $ 7 997 383, 00 5th February 1999


________________________________________________________________________

PASSED BY: NUWORK ENTERPRISES (PRIVATE) LIMITED

IN FAVOUR OF MHONDORO MECHANISED SYSTEMS (PRIVATE)


LIMITED
170

DO HEREBY CONSENT to the registration of a part-payment of $3 980 085,00 in


respect of the aforementioned Bond.

DATED AT HARARE this day of 2003


In the presence of the undersigned witnesses

WITNESSES: AUTHORISED SIGNATORY

1. ……………………………..

2. ……………………………… ………………………………….
MHONDORO MECHANISED SYSTEMS
(PRIVATE) LIMITED under Resolution
dated

14 .32 Consent to registration of a reduction in cover

CONSENT TO REGISTRATION OF A REDUCTION IN COVER

I the undersigned, Chipo Mnkandla, duly authorized thereto by a resolution of the


directors of MHONDORO MECHANISED SYSTEMS (PRIVATE) LIMITED the legal
holder of the undermentioned Mortgage Bond, namely:

NUMBER AMOUNT DATE

9118/98 $ 8 000 000,00 5th February 1998


________________________________________________________________________

PASSED BY: NUWORK ENTERPRISES (PRIVATE) LIMITED

IN FAVOUR OF MHONDORO MECHANISED SYSTEMS (PRIVATE)


LIMITED

DO HEREBY CONSENT to the registration of a reduction in cover of $3 000 000,00


171

being registered against the aforementioned Bond.

DATED AT HARARE this day of 2003


In the presence of the undersigned witnesses

WITNESSES: AUTHORISED SIGNATORY

1. ……………………………..

2. ……………………………… ………………………………….
MHONDORO MECHANISED SYSTEMS
(PRIVATE) LIMITED under Resolution
dated

14 .33 Consent In Terms Of Section 64 of the Act

CONSENT
In terms of Section 64 of the Deeds Registries
Act (Chapter 20: 05)

Prepared by me,

………………..
Conveyancer

WHEREAS an agreement of Sale copy of which is annexed hereto, has been entered into
between: -

GULANDE HOLDINGS LIMITED


(Hereinafter called “the Registered Owner”) and

WILSON MUDZINGE
(born 15th August 1978)

(hereinafter called “the Purchaser”)

in respect of certain 2 916 square metres of land called Stand 768 Ruwa Township of
Stand 1009 Ruwa Township situate in the District of Goromonzi, held under Certificate
of Registered Title No. 76584/92 with diagram annexed dated 17th September 1992.
172

NOW THEREFORE THESE PRESENTS WITNESS:

1. The purchase price is the sum of TWO HUNDRED AND SEVENTY


THOUSAND AND TWENTY DOLLARS ($ 277 020.00) of which a deposit
of ONE HUNDRED AND TEN THOUSAND EIGHT HUNDRED AND
EIGHT DOLLARS ($ 110 808.00) was paid against signature of the said
agreement.

2. The balance of ONE HUNDRED AND SIXTY SIX THOUSAND TWO


HUNDRED AND TWELVE DOLLARS ($166 212.00) is payable by the
Purchasers to the Seller in equal monthly installments of FIFTEEN
THOUSAND TWO HUNDRED AND THIRTY DOLLARS ($ 15 230.00) the
interest on the capital balance outstanding from time to time is to be
calculated at the rate of eighteen per centum (18%) per annum, calculated
from the 1st of November 1997 and the first installment was to have been paid
on the 1st November 1997.

3. No part of the aforegoing deposit or of the said installment shall, in the event
of the sale of the land pursuant to the insolvency, assignment or liquidation of
the registered owner’s estate or in the event of the sale in execution of the
property, be deemed to be rent in respect of the occupation of the property by
the Purchaser.

4. The Registered Owner and the Purchaser hereby consent to the title Deed of
the said land being endorsed and that the said land is subject to the said
Agreement of Sale.

THUS DONE AND SIGNED at Harare on ………….1998, in the presence of the


undersigned witnesses.

AS WITNESSES:
1. ………………………………

……………………….
REGISTERED OWNER

2. ………………………………

THUS DONE AND SIGNED at Harare on ……….1998, in the presents of the


undersigned witnesses.
173

AS WITNESSES:
1. ………………………………..

…………………………….
PURCHASER

2. …………………………………

14 .34 An Example of a Capital Gains Tax Calculation (See Section 10 .4


hereinbefore)

CAPITAL GAINS TAX: CHAMUNORWA MALCOLM ID NO. 63-833364 Q 24

Selling Price (2003) 200 000 000.00

Less
Cost (1991) 120 000.00
Stamp duty 5 785.00
Inflationary Allowance:
50% X 125 785 X 13yrs 817 602.50
Commission 10 000 000.00

Improvements
Durawall (1994) 60 000.00
Gate (1996) 15 000.00
Driveway (1997) 35 000.00
Electric Razor Wire (2002) 560 000.00

Inflationary Allowance
50% X 60 000 X 10yrs 300 000.00
50% X 15 000 X 8yrs 60 000.00
50% X 35 000 X 7yrs 122 500.00
50% X 122 500 X 1yr 280 000.00
174

Total cost of improvement


and inflationary allowance 12 375 887.50
Potential Capital Gain 187 624 112.50

CGT @ 20% = $37 524 822.50

14 .35 General Power of Attorney

GENERAL POWER OF ATTORNEY

Know all Men whom it may concern:

That I, TOGAREPI NYAHWAYI (born on the 24th December 1952)

Do hereby nominate and appoint KURAI MASOCHA (born on the 22nd September
1979) to be my General Attorney and Agent for managing and transacting all my affairs,
in Zimbabwe.

with power to ask, demand, sue for, recover and receive all debts or sums of money,
goods, effects and things whatsoever, which are now, or may hereafter become, due or
belonging to me: AND settle and adjust accounts as he shall think fit and proper, and if
necessary to compound for the same and accept a part for the whole: AND to settle and
adjust any demand, and to pay any sum that may be due by me: AND to submit any
matters in dispute to arbitration, and for that purpose to sign and execute the necessary
acts and instruments in that behalf: AND to let and hire out houses, and grant leases for
the term agreed upon, and to collect and receive the rents: AND to make, draw, accept, or
endorse promissory notes or Bills of Exchange in satisfaction or on account of any debt
due to or by me, and to operate on my banking account whether the same is in credit or
otherwise: AND to buy and sell immovable or mining property, and for that purpose to
make the necessary declaration as to the truth of the amount of purchase money, and to
receive, or to make and give, as the case may be, the necessary acts and Deeds or
Transfer of such landed or mining property in due and customary form according to the
local laws and usages, to locate, peg, register or abandon mining claims or locations,
either in my name, or in the name of any person whose rights I shall have acquired: AND
to invest any moneys in his hands on mortgage of immovable or of mining property, and
from time to time to alter or vary such investments should it be deemed necessary or
expedient to do so: AND to take up money under security of my property, whether
movable, immovable or mining, and to appear before any Registrar of Deeds, Notary
Public or other competent authority, and to make and execute all such Mortgage Bonds,
or other securities as may be requisite and necessary in that behalf under obligation of my
person and property of every description: AND to transfer and accept transfer of shares,
stock, or debentures in any syndicate, public company or corporation: AND if necessary,
for me and on my behalf to commence, prosecute, or to defend, any action, suit or other
proceedings in or before any Court, or other body or person, and to suffer judgement or
decree to be given against me in any such proceedings by default as to the said Attorney
175

shall seem meet: AND further to give and grant receipts, releases, or other effectual
discharges for any sum of money or things recovered or received on my behalf: AND to
proof my claim in any insolvent estates or companies in liquidation: AND to sign and
execute any Deed or instrument in writing as effectually as I might or could do if
personally present: And to choose domicillium citandi et executandi: AND
GENERALLY, to do, execute, and suffer every such other act, Deed, matter or thing
whatsoever, as the said Attorney may deem necessary or expedient in or about my
concerns: AND I hereby substitute my said Attorney to act on my behalf under all
Powers of Attorney which have hitherto or may hereafter be granted to me containing
power of substitution, and to exercise all the powers thereby conferred upon me: hereby
giving and granting to the said Attorney power to appoint a substitute or substitutes, and
all such substitutes at pleasure to displace or remove, and appoint another or others,
hereby ratifying, and agreeing to ratify, whatsoever shall be lawfully done or suffered by
these presents.

In Witness whereof I have hereunto set my hand at HARARE this 1st day of
September in the year of our Lord Three Thousand and Three (2003).

As Witnesses:

1. ……………………….
……………………………..
TOGAREPI NYAHWAYI

2. ………………………..

14 .36 Application for a copy of lost Deed

AFFIDAVIT

(IN TERMS OF SECTION 20 OF THE DEEDS REGISTRIES REGULATIONS RGN


NO. 249/1977)

I, the undersigned, RACHEL PETERS (born on 20th November 1965) on my behalf


and on behalf of LUCIA NAOMI PETERS (born 29th July 1991) as her sole legal
guardian, do hereby make oath and say that:-
176

1 We are the registered owners of the following immovable property:-


Certain piece of land situate in the District of Salisbury Called Stand 111833
Bluff Hill Township 63 of Lot 8C Bluff Hill; Measuring 2029 square metres.
Held under Deed of Transfer No. 469958/97, dated the 13th December 1997;

2 the said Deed of Transfer No.469958/97 has been lost or destroyed;

3 at the time of loss or destruction of the said Deed, the land was registered in our
names;

4 a diligent search has been made for the said Deed of Transfer which Deed was
lost or destroyed in the circumstances unknown to us;

5 at the time of loss or destruction of the said Deed, it was not pledged or ceded as
security for a debt;

6 We undertake that if the said Deed is found and comes into our possession it will
be transmitted forthwith to the Registrar of Deeds, Harare; and

7 We hereby make application for a certified copy issued in lieu of the original of
the said Deed of Transfer No. 469958/97.

THUS SWORN TO at HARARE on this day of 2003

----------------------------------------
RACHEL PETERS on my behalf and on
behalf of the minor child
LUCIA NAOMI PETERS
as her legal guardian

BEFORE ME:-
177

---------------------------------------
COMMISSIONER OF OATHS

14 .37 Application for cancellation of a lost Mortgage Bond

APPLICATION AND AFFIDAVIT IN TERMS OF SECTION 46 OF THE DEEDS


REGISTRIES REGULATIONS, RGN 249/77

I , the undersigned LAZARUS MAHOBHO


in my capacity as Head of Credit Department
and authorised Officer respectively of COSMOPOLITAN BANK ZIMBABWE
LIMITED (formerly known as RHODESIA BANKING CORPORATION
LIMITED) (hereinafter referred to as “the Bank”) duly authorised thereto by virtue
of a Resolution of the Board of Directors of the Bank held at Harare on the 22nd day of
November 2001 do hereby make oath and say;-

1. THAT Mortgage Bond Number 16639/90 dated 18th June 1990 passed by
MHONDORO MECHANISED SYSTEMS (PRIVATE) LIMITED in favour
of the Bank has been lost or destroyed;

2. THAT at the time of the loss, The Bank was the legal holder of the Bond;

3. THAT to the best of our knowledge at the time of the loss or destruction the Bond
was not pledged or ceded to any person or otherwise detained as security for a
debt or otherwise;

4. THAT a diligent search for the Bond has been made but the same could not be
found;

5. THAT the Bank consents to the cancellation of the Bond;


178

6. THAT we undertake that if the Bond is found, we will transmit it forthwith to the
Registrar of Deeds, Harare; and

7. THAT we are unable to state exactly in what circumstances the said Bond was
lost.

SWORN TO AT HARARE ON THIS DAY OF 2002.

………………………………………
LAZARUS MAHOBHO

BEFORE ME,
………………………………………
COMMISSIONER OF OATHS

14 .38 Declaration in terms of Section 6(b) of the Act

SOLEMN DECLARATION

I, the undersigned WILLIAM HENCHARD (born 9th October 1976) do hereby


solemnly and declare that;

1. I am the registered owner of a


Certain piece of land situate in the district of Salisbury,
Called Stand 73 Takura Township,
Measuring 2419 square metres,
Held under Deed of Transfer No. 7921/2003 dated 7th October 2003.
179

2. In Deed of Transfer No. 7921/2003 dated 7th October 2003 my date of birth was
incorrectly reflected as 20th MARCH 1973. I attach hereto a copy of my birth
certificate for ease of reference.

3. I hereby apply for rectification of the said Deed in terms of Section 6(b) of the
Deeds Registries Act (Chapter 20:05) so that my date of birth is correctly
reflected as 9TH OCTOBER 1976.

I make this solemn declaration conscientiously believing the same to be true.

DECLARED AT HARARE ON THIS ………. DAY OF

………………………………………………
WILLIAM HENCHARD

BEFORE ME:
……………………………………….
COMMISSIONER OF OATHS

14 .39 Affidavit in terms of Section 73 of the Act

AFFIDAVIT
(in terms of Section 73 of the Deeds Registries Act Chapter 20:05)

I, the undersigned, JOSEPH JOHN duly authorised by a General Power


of Attorney dated 17th July 2003 granted by HELEN MABURUTSE in
her capacity as the EXECUTRIX DATIVE in the Estate of the LATE
DAVID MUCHARUNGA GAVA MABURUTSE, duly authorised as
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such by Letters of Administration No D.R. 999999/01 issued by the


Master of the High Court at Harare on the 12th day of March 2002;

Do hereby make oath and say that


1. There is no objection to the transfer of
CERTAIN piece of land situate in the District of Salisbury;
CALLED STAND 69 ARDFERNE TOWNSHIP 15
OF STAND 8526 ARDFERNE TOWNSHIP
MEASURING 2514 square metres
from the Estate of the LATE DAVID MUCHARUNGA GAVA
MABURUTSE to EDWARD MABASA (born on the 26th
February 1970)

2. That the Estate of the LATE DAVID MUCHARUNGA GAVA


MABURUTSE aforesaid is not a joint Estate

DATED AT HARARE ON THIS 7TH DAY OF OCTOBER


2003

………………………...
EXECUTOR

BEFORE ME
…………………………………..
COMMISSIONER OF OATHS
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BIBLIOGRAPHY
Christie R. H., Business Law in Zimbabwe 2nd ed. (Juta & Co, Ltd) 1998
Curzon L. B., Land law, (Macdonald & Evans Ltd) 1968
Fourie D.R., Conveyancing Practice Guide (Butterworths) 1992
Kleyn D.G. & Boraine A., Silberberg & Schoeman’s The law of property 3rd ed
(Butterworths) 1993
Nel H. S., Jones Conveyancing in South Africa 4th ed. (Juta & Co, Ltd) 1991
Storey I. R., Conveyancing 2nd ed. (Butterworths) 1987