Dorcas Mutaputa v Oliver Chitamba and Others

The applicant purchased stand no. 2321 Marlborough Township from the second and third respondents (joint sellers) on 6 January 2018 for US$80,000.00. Transfer was registered in the applicant's name on 20 April 2018 under deed of transfer no. 2258/2018. The property had previously been mortgaged to NSSA by the second respondent, who failed to service the mortgage and gave up the property to NSSA as mortgagee. NSSA granted a loan to the applicant to purchase the property and registered a mortgage bond no. 1086/2018 for $87,216.68 over the property. The applicant, employed by NSSA, services the mortgage through monthly salary deductions. Despite being the registered title holder, the applicant could not obtain vacant possession because the first respondent (the second respondent's estranged husband) refused to vacate, claiming the property was matrimonial property sold without his consent. The first respondent received notice to vacate by 9 August 2018 but refused to leave and did not pay rent. The second and third respondents did not oppose the application.

• Whether the plea of lis pendens raised by the first respondent should be upheld
• Whether the first respondent had any legal entitlement to remain in occupation of the property despite the applicant being the registered title holder
• Whether the applicant's real rights as registered owner entitled her to evict the first respondent
• Whether costs should be awarded on a legal practitioner-client scale

The application was granted. The first respondent and any person claiming occupation through him were ordered to vacate stand 2321 Marlborough Township within 7 days of service of the order. Failing compliance, the Sheriff was authorized to eject the first respondent and any other persons remaining on the property and give vacant possession to the applicant. The first respondent was ordered to pay costs of the application on the ordinary scale.

A registered deed of transfer in terms of section 8 of the Deeds Registries Act holds good against the whole world unless cancelled by order of court. Real rights in property conferred by registration must be jealously protected and given effect by the courts as required by the Constitution. A person in occupation of property who has no registered title or other legal entitlement (such as a lease or court order preventing eviction) cannot resist eviction by the registered owner. Claims that property is matrimonial property or was sold without consent do not constitute a defense to eviction where title is validly registered in another person's name; such claims must be pursued through proceedings to cancel the registered title.

The court provided extensive non-binding observations on the plea of lis pendens: (1) It is not an absolute bar but involves judicial discretion; (2) The rationale is to prevent multiplicity of suits and promote orderly case management; (3) Courts should be more inclined to stay second matters and direct parties to prosecute first matters unless irreparable prejudice results; (4) The requirements are the same as res judicata (same parties, cause of action, and subject matter); (5) The effect of successful lis pendens is a stay, not dismissal, of the second suit. The court also commented critically on forum shopping between different High Court stations, noting that while there are no divisional delimitations of High Court jurisdiction, unscrupulous litigants and legal practitioners should not exploit decentralization for selfish reasons. The court stated there should be exceptional or compelling reasons before exercising discretion to hear a second matter filed at a different station. The court also noted that counter-claim and third-party procedures exist to allow all disputes between parties to be dealt with at one time.

This case reinforces fundamental principles of property law in Zimbabwe, particularly the protection of real rights conferred by registered title. It affirms that registered ownership under the Deeds Registries Act creates enforceable rights against all persons until cancelled by court order. The judgment emphasizes the constitutional protection of property rights under sections 71(2) and 44 of the Constitution and the court's duty to jealously protect ownership rights. The case also provides important guidance on the plea of lis pendens, clarifying that it is discretionary, that courts should be inclined to uphold it for orderly case management, and addressing forum shopping between different High Court stations. It demonstrates that claims of matrimonial property rights or other equitable interests do not defeat registered title and must be pursued through separate proceedings to cancel the registered title.