Daniel Makuwere v Linda Chipato N.O. and Master of the High Court N.O.

The applicant sought transfer of Stand No. 576 Helensvale Township Harare measuring 4083 M2, registered in the name of the late Christopher Mushonga. The applicant claimed to have purchased the property from the estate through its erstwhile executor, the late Israel Gumunyu. The first respondent was the executrix of the estate, and the second respondent was the Master of the High Court. The sale was mired in controversy. The Master's report revealed that the property was embroiled in an ownership wrangle with Lonro Investments and had been double sold to Mr. and Mrs. Mugari by the late executor Israel Gumunyu. The Master had granted consent to the sale under section 120 of the Administration of Estates Act before the disputes arose.

• Whether the applicant complied with the mandatory requirements of section 79 of the Deeds Registry Act which requires notice to the Registrar of Deeds before making an application involving performance of any act in a deeds registry
• Whether the application procedure was appropriate given the existence of serious irreconcilable factual disputes
• Whether all necessary parties with competing interests in the property were properly cited

The application was dismissed with costs.

Section 79 of the Deeds Registry Act is couched in peremptory terms and requires strict compliance. An applicant must give the Registrar of Deeds reasonable notice before making any application to court involving the performance of any act in a deeds registry. Non-compliance with this mandatory requirement constitutes a serious procedural irregularity that renders the application fatally defective and a nullity at law. Further, where serious irreconcilable factual disputes exist, the application procedure is wholly unsuited for their resolution and will result in dismissal of the application.

The court observed that even if the procedural defect had not been fatal, the substantive merits were problematic. The property was embroiled in serious controversy involving double sales, with competing claims from Lonro Investments and Mr. and Mrs. Mugari. The court noted it was remiss of the applicant to proceed without citing all interested parties, thereby depriving them of the opportunity to defend and protect their rights and interests in the property. The court also remarked that the Master's consent to sale had been granted before the disputes arose and when the property was believed to be an unencumbered estate asset.

This case reinforces the strict procedural requirements under section 79 of the Deeds Registry Act [Chapter 20:05] in Zimbabwean law, establishing that compliance with the notice requirement to the Registrar of Deeds is mandatory and peremptory. It also serves as a reminder that the application procedure is inappropriate where serious factual disputes exist, and that all parties with competing interests must be properly cited to protect their rights. The case highlights the importance of proper administration of deceased estates and the consequences of double sales of estate property.