Andrew Zigora v Samantha Nhende and Registrar of Deeds

The applicant (Andrew Zigora) and first respondent (Samantha Nhende) were previously married under an unregistered customary union. After dissolution of the union in October 2020, the applicant issued summons under HC 5227/21 on 21 October 2021 claiming apportionment of assets acquired during the marriage. Among the assets was immovable property at 2 Glynde Avenue, Mabelreign, Harare, registered in the first respondent's name under Deed of Transfer 2120/2017. The applicant claimed he contributed to acquiring the property and made improvements to it during the marriage, though it was registered in the first respondent's name for convenience as she obtained the mortgage loan. The applicant became concerned that the first respondent was marketing the property for sale through agents during the weekend preceding the application. On 23 February 2022, the applicant's legal practitioners wrote to the first respondent's legal practitioners seeking assurance the property would not be sold, but received an evasive response on 24 February 2022. The applicant then filed this urgent application seeking an interdict preventing disposal of the property and a caveat pending finalization of the main claim.

• Whether the application met the test for urgency
• Whether the relief sought was competent (interim relief and final order being allegedly identical)
• Whether the application disclosed a cause of action, particularly regarding the applicant's attempt to apply general law concepts of tacit universal partnership to an unregistered customary union
• Whether the choice of law provisions in section 3 of the Customary Law and Local Courts Act [Chapter 7:05] had been properly pleaded
• Whether the applicant established a prima facie case for the relief sought
• Whether the requirements for an interim interdict were satisfied
• Whether the balance of convenience favoured granting the application

The court granted the following relief: (a) The first respondent is interdicted from dealing with the property at 2 Glynde Avenue, Mabelreign, Harare in any manner that may cause encumbrances or dispose of it by sale pending finalization of HC 5227/21; (b) The first respondent is ordered not to alienate or remove any improvements made on the property until HC 5227/21 is finalized; (c) The Registrar of Deeds (second respondent) is ordered to place a caveat on the property pending finalization of HC 5227/21; (d) No order as to costs (each party to bear their own costs).

The binding legal principles established are: (1) An applicant seeking interim protection of property rights pending a matrimonial property dispute establishes urgency when they have reasonable apprehension of disposal based on objective circumstances, and the other party fails to provide satisfactory assurance the property will not be disposed of; (2) For urgent interdicts protecting property pending matrimonial claims, a prima facie case (though open to doubt) is sufficient and is established where the respondent admits material facts such as improvements made to property; (3) The requirements for interim interdict are: establishment of prima facie case, reasonable apprehension of injury, no other available remedy, and balance of convenience favouring the applicant; (4) Threatening a party with costs for exercising their right to oppose an application violates the constitutional right to a fair hearing under section 69 of the Constitution; (5) Questions regarding choice of law between customary law and general law in matrimonial property disputes should be determined in the main proceedings, not in urgent interim applications for protection of property.

The court made several non-binding observations: (1) The court noted that it has discretion to vary the wording of orders sought by parties; (2) The court observed that the dispute regarding whether general law concepts can be applied to unregistered customary unions, and the application of section 3 of the Customary Law and Local Courts Act regarding choice of law, should be debated at the appropriate time when the substantive matter (HC 5227/21) is heard, as dealing with it prematurely would pre-empt that dispute; (3) The court noted that once the dispute for division of property in the main matter is finalized, the caveat will no longer be necessary, providing a natural sunset clause for the interim relief; (4) The court commented that determining choice of law issues in the urgent application would be inappropriate as it would involve determining substantive issues meant for the main hearing.

This case is significant in Zimbabwean jurisprudence for several reasons: (1) It clarifies the interaction between general law principles (such as tacit universal partnership) and customary law in the context of unregistered customary marriages and property division; (2) It demonstrates judicial protection of property rights pending determination of matrimonial property disputes following dissolution of customary unions; (3) It reinforces the test for urgency in applications, particularly in matrimonial property contexts where one party fears dissipation of assets; (4) It emphasizes that threatening costs against a party for exercising their right to oppose an application violates constitutional rights to a fair hearing under section 69 of the Constitution, even where such rights are non-derogable under section 86(3); (5) It provides guidance on when courts will exercise discretion to protect personal rights in property through interdicts and caveats pending determination of the substantive dispute.