Cyril Chikadaya v Zakeyo Chikadaya and City Council of Harare

Cyril Chikadaya (the plaintiff/applicant) claimed that he purchased rights in Stand 6059 Glen View Township from Kufa Oswin Danda in 1980 for $800. At the time, Cyril already owned another property within the City Council of Harare's area. Due to the Council's policy prohibiting one person from owning two properties, Cyril agreed with his younger brother Zakeyo (the first defendant) that the stand would be registered in Zakeyo's name, with the understanding it would later be transferred to Cyril's children. The Council approved the cession from Danda to Zakeyo on 26 January 1982. Cyril built a house on the stand (eventually a 5-bedroom house with kitchen, sitting room and verandah) using his own funds obtained from lodgers, his wife's maize sales, and an employer loan. When Cyril requested in May 1998 that Zakeyo cede the rights to his son Lydman, Zakeyo refused, claiming he had purchased the stand himself from one "Banda Kanaka" for $500, using money from his police salary and funds left with his sister Angeline. Zakeyo claimed he paid building costs through withdrawal slips left with family members while he was stationed outside Harare.

• Whether Cyril or Zakeyo was the true purchaser of the stand from Danda
• Whether the registration of the stand in Zakeyo's name to circumvent Council policy constituted fraud rendering the parties in pari delicto
• Whether the pari delicto rule should be relaxed to allow enforcement of the underlying agreement between the brothers
• Whether Cyril could compel Zakeyo to cede the property rights despite the fraudulent scheme to evade municipal policy

The court ordered that: (1) The first defendant (Zakeyo) within 10 days sign all papers necessary to cede his rights, title and interest in Stand 6058 Glen View Township, Harare, to the applicant (Cyril); (2) If the first defendant fails to comply, the Deputy Sheriff, Harare, is authorized to sign such papers on his behalf; (3) The first defendant pay the costs.

Where two parties have engaged in a fraudulent scheme to circumvent municipal property ownership restrictions by registering property in one party's name when the other is the true beneficial owner, the court may relax the pari delicto rule to do justice between the parties and prevent unjust enrichment. The fact that the parties are equally culpable in defrauding the municipality does not automatically bar the true owner from obtaining an order compelling the registered owner to cede the property rights in accordance with their underlying agreement.

The court made a factual observation that Cyril appeared to be a good witness who gave evidence well and was not shaken under extensive cross-examination, while Zakeyo appeared somewhat evasive. The court also noted that Danda, being an independent third party who was not a friend of Cyril and had moved away after the 1982 transaction, had no apparent reason to lie in Cyril's favor. The court distinguished Latimer Manley & Associates (Pvt) Ltd v Laverne Investments (Pvt) Ltd 1990 (1) ZLR 204 (HC) without elaborating on the basis for the distinction.

This case is significant in Zimbabwean property law as it demonstrates the courts' willingness to relax the strict pari delicto rule (which normally bars parties equally at fault in an illegal transaction from obtaining relief) where necessary to achieve justice between the parties. It follows and applies the principle established in Dube v Khumalo that even where parties have defrauded a municipality by circumventing property ownership restrictions, the court may still enforce the underlying beneficial ownership arrangement to prevent unjust enrichment. The case illustrates the tension between strict adherence to the illegality doctrine and equitable principles preventing one party from benefiting from a joint fraudulent scheme at the expense of the true owner.