Bramwell Mhende & Anor v Cookham Inn (Pvt) Ltd & Anor

The plaintiffs, Bramwell and Josephine Mhende (husband and wife), sued to evict the second defendant, Chido Tapera Mapungwana, from a house in Southerton, Harare (Stand 8540). The property was originally registered in Mapungwana's name. The first defendant, Cookham Inn (Private) Limited (owned by Frank Buyanga), allegedly purchased the property from Mapungwana in November 2009 for $5,000 and then sold it to the Mhendes in March 2010 for $12,000. The Mhendes obtained title and sought eviction and holding over damages. Mapungwana counter-claimed, alleging he never sold his house but merely borrowed $5,000 from Buyanga, securing the loan with signed transfer documents including an agreement of sale and special power of attorney. He claimed the actual transfer documents were forged and that he was a victim of Buyanga's fraudulent lending scheme that targeted multiple property owners. Evidence showed the capital gains tax clearance certificates were counterfeit, no stamp duty or capital gains tax was paid, and forensic analysis confirmed the transfer documents bore forged signatures.

• Whether the transfer of property from Mapungwana to Cookham Inn was valid
• Whether the subsequent transfer from Cookham Inn to the Mhendes was valid
• Whether the transfer documents were fraudulent and/or forged
• Whether the plaintiffs acquired valid title to the property
• Whether the Mhendes were bona fide purchasers
• Whether the transactions complied with statutory requirements regarding stamp duty and capital gains tax

i) The plaintiffs' claims dismissed in their entirety and judgment entered for the second defendant; ii) Deed of Transfer No 4602/2009 dated 2 November 2008 in favour of Cookham Inn (Private) Limited set aside; iii) Deed of Transfer No 966/2010 dated 25 January 2010 in favour of Bramwell Mhende and Josephine Mhende set aside; iv) No order as to costs.

A deed of transfer obtained through forgery and fraud is a nullity and must be set aside. Where transfer documents are forged and the original owner did not genuinely intend to sell the property, the transfer is invalid regardless of the subsequent purchaser's position. A subsequent transfer based on an invalid prior transfer is itself invalid, as the intermediate transferee had no valid title to pass. Non-compliance with statutory requirements regarding payment of stamp duty and capital gains tax, combined with the use of counterfeit clearance certificates, renders a property transfer illegal. The principle nemo dat quod non habet applies - one cannot give what one does not have.

The court observed that Buyanga's loan dealings were illegal as he was not a registered money lender. The court remarked that Mapungwana was "foolish" in his dealings and acted with "foolish wisdom" by ignoring obvious warning signs, though this did not defeat his claim. The court noted this was "a case that a court of law cannot relate to" given the unusual circumstances. The court indicated it did not need to concern itself with the bona fides of the Mhendes given the finding that the first transfer was a nullity. The court's denial of costs to the successful defendant Mapungwana, noting he was "largely responsible for the charade," suggests contributory negligence or fault may limit costs awards even for successful parties.

This case is significant in Zimbabwean property law as it demonstrates that courts will set aside fraudulent property transfers even where subsequent purchasers may have relied on apparently valid deeds of transfer. It establishes that a deed of transfer obtained through forgery and fraud is a nullity, and any subsequent transfers based on that nullity are also invalid. The case highlights the importance of compliance with statutory requirements (payment of stamp duty and capital gains tax) and the consequences of fraudulent lending schemes that use property as security. It also illustrates the principle that a purchaser cannot acquire better title than the seller possessed (nemo dat quod non habet). The case serves as a warning about predatory lending practices and the vulnerability of the deeds registration system to fraud.