Belina Belinda Ndhlovu v Rachael Malunjwa and Others

Both the applicant and the first respondent claimed title to the property known as subdivision D of Lots 219 and 220 Hillside of Napiers lease under Deed of Transfer number 1656/07 dated 3 November 2017. The applicant claimed to have bought the property from the previous registered owners, the Oosthuizens. The first respondent claimed to have bought the same property from one Nhamodzenyika Mupindu, who allegedly acquired it via section 15 of the Titles Registration Derelict Lands Act. The applicant challenged the existence of Nhamodzenyika Mupindu, claiming this person was fictitious based on investigations at the Registrar General's office. The parties had been in litigation since 2016, with the applicant having filed five other cases to protect her rights. Despite an order setting aside a judgment relied upon for transfer, the respondents proceeded to effect transfer of the property into the second respondent's name. The applicant launched this urgent application to restrain further dealings with the property pending determination of the underlying dispute in case number HC 1261/16.

• Whether the application met the requirements for urgency under the rules of court
• Whether the application complied with Rule 241 of the court rules
• Whether non-compliance with procedural rules should defeat an application where no prejudice is caused
• Whether an interdict should be granted to prevent transfer and interference with the property pending determination of competing claims to title

The court granted the provisional order: (1) An interdict was granted restraining the first, second and third respondents, their agents and proxies from interfering with the applicant's occupation of the property or dealing with it in such a way as to circumvent or defeat the applicant's rights, title and interest in the property commonly known as Number 3 Cathiness Road, Hillside, Bulawayo pending the finalization of proceedings under case number HC 1261/16; (2) The third respondent (Registrar of Deeds) was ordered to note a caveat against the property pending the finalization of proceedings in case number HC 1261/16.

Technical objections to procedural non-compliance should not be permitted, in the absence of prejudice, to interfere with the expeditious decision of cases on the merits. Substance should prevail over form where departure from procedural rules does not cause prejudice, distort the substance of the case, or make it difficult for the court to fairly deal with the dispute between parties. Where a party has actively pursued protection of property rights through multiple court applications and transfers have been effected behind their back in contravention of court orders, urgency is established for purposes of an interdict to preserve the status quo pending final determination of competing claims to title.

The court observed that relying on technical hurdles after obtaining judgments behind the backs of other litigants cannot be accepted as it would uphold an injustice. The court noted that neither party suffers prejudice by having the provisional order granted, and once legitimate claims are proven, the provisional order would be consequently discharged. Moyo J expressed the view that courts should only insist on compliance with rules where departure causes prejudice, distorts the substance of the case, or makes it difficult for the court to fairly deal with the dispute. The court remarked that the interests of justice demand that litigants' interests are protected and that the court gets to the bottom of all claims before it in order to do justice between man and man.

This case illustrates the Zimbabwean courts' approach to balancing procedural compliance with substantive justice in urgent applications. It demonstrates judicial willingness to grant indulgences for procedural irregularities where no prejudice is caused and where technical objections are used to avoid dealing with the merits. The case also shows the court's readiness to protect competing property rights through interim interdicts pending final determination, particularly where one party has allegedly acted clandestinely to secure transfer behind the other's back. The judgment reinforces the principle that courts should prioritize substance over form in appropriate circumstances, consistent with the interests of justice.