Anyhome (Private) Limited v Clemence Matsika and Others

The applicant, Anyhome (Private) Limited, sought an interdict to prevent the sale and transfer of immovable property registered in the name of the first respondent, Clemence Matsika, its former employee. The applicant alleged that during his employment, the first respondent caused the loss of merchandise valued at US$41,790.75 between January 2020 and March 2021. The first respondent was convicted under CRB 1611-12/21 and ordered to pay restitution. On 7 June 2021, the applicant filed an application (HC2836/21) to register a caveat over the first respondent's property. In his opposition to that application, the first respondent stated under oath that he had no intention of selling the property where he resided with his family. However, in December 2021, the first respondent sold the property to the third and fourth respondents for US$21,000.00, despite having valued it at US$45,000.00 ten days earlier. On 17 February 2022, the applicant's counsel was informed by the Registrar of Deeds of the impending transfer. The applicant filed this urgent chamber application on 22 February 2022 seeking to prevent the transfer pending determination of the caveat application.

• Whether the application was urgent
• Whether the relief sought had been overtaken by events given that the property had already been sold
• Whether the applicant established a prima facie case for the granting of an interim interdict
• Whether the requirements for an interim interdict were satisfied

The court granted interim relief pending the return date: (1) The first respondent was interdicted from selling, alienating, pledging or disposing of the property in any manner; (2) The Registrar of Deeds was interdicted from causing the transfer of title to any person without a court order; (3) Service was to be effected by the Sheriff or the applicant's legal practitioners.

The binding principles established are: (1) Urgency in applications for interim relief is determined by when the need to act arises, not when the underlying cause of action first accrues. Where a party makes representations under oath that they will not take certain action, the opposing party is entitled to rely on those representations and need not act until circumstances change. (2) The sale of property does not render moot an application to prevent transfer of title, as multiple sales of the same property can occur before title is transferred. (3) For an interim interdict to be granted, the applicant must establish: (a) a prima facie right, even if open to some doubt; (b) well-grounded apprehension of irreparable harm; (c) balance of convenience; and (d) no other satisfactory remedy. (4) Under Rule 60(9) of the High Court Rules 2021, where papers establish a prima facie case, the court must grant provisional relief either as sought or as varied, and may make modifications to remedy errors in the draft order.

The court made several non-binding observations: (1) Urgent applications are those where failure to act would render the position irreversible to the applicant's prejudice, such that the court need not bother to act subsequently. (2) Each case concerning urgency must be considered on its own peculiar circumstances and merits. (3) Multiple sales of the same immovable property are "not uncommon in this jurisdiction." (4) The court expressed the view that under Rule 60(9), a judge may determine an application for provisional order on the papers without even hearing the parties, though in practice hearings typically occur. (5) The court noted that while it was "alive to the legal significance of the without prejudice communication," it could not "turn a blind eye to the existence of the claim" as manifest from the papers generally. (6) The court observed that the sale appeared to be "clearly a sham sale" and "a ruse to defeat the applicant's claim" given the circumstances, including the significant undervalue and timing shortly after sworn denials of intention to sell.

This case is significant in Zimbabwean civil procedure for clarifying the test for urgency in applications for interim interdicts. It establishes that urgency must be assessed based on when the actual need to act arises, not when the underlying dispute first emerges. The judgment reinforces that representations made under oath can be relied upon by the opposing party, and that misleading sworn statements may justify later urgent action. The case also demonstrates the court's willingness to grant interim relief to preserve the status quo pending determination of substantive rights, particularly where there are suspicious circumstances suggesting an attempt to defeat a claim. It illustrates the application of the Airfield Investments test for interim interdicts in the context of property disputes and caveat applications.