Elizabeth Kashiri and Maria Rosa Matsvaire v The Registrar of Deeds N.O and Brenda Carol Leeper

The applicants claimed to have purchased immovable property (Stand 346 Good Hope, Township of Subdivision B of Good Hope, measuring 4000 square meters) from Douglas Dodzo in 2002. Dodzo had himself purchased the property from the estate of the late Johanna Francisca Logan in 2000, but title never passed to him. The applicants alleged that Dodzo disappeared without a trace before successive transfer of title could occur. They brought a chamber application seeking transfer of title in terms of section 3 of the Registration of Title and Derelict Lands Act [Chapter 20:20], claiming the matter was uncontentious. However, the court discovered that the applicants had concealed the existence of a third party, Chengetai Mary Gaza, who had purchased the property from a different seller in 2003 and had been in occupation since then. The applicants had never taken occupation of the property despite claiming to have purchased it 20 years earlier, and could only produce tattered fragments of their alleged agreement of sale.

• Whether the application complied with rules governing chamber applications under Rule 60 of the 2021 High Court Rules
• Whether the applicants satisfied the requirements for transfer of title under section 3 of the Registration of Title and Derelict Lands Act [Chapter 20:20]
• Whether the applicants' material non-disclosure and misrepresentation disqualified them from relief
• The proper application of substituted service by publication

The application was dismissed with costs.

A chamber application brought under Rule 60 of the High Court Rules must comply with Rule 60(3)(a), which requires that the matter be uncontentious and that no person other than the applicant can reasonably be expected to be affected by the order sought. Where applicants conceal the existence of interested parties with competing rights, the application is fundamentally defective and must be dismissed. Litigants owe a duty of utmost good faith and candour to the court, particularly in ex parte and chamber applications. Material non-disclosure and deliberate misrepresentation of facts disqualifies a litigant from the court's protection and assistance. Section 3 of the Registration of Title and Derelict Lands Act [Chapter 20:20] applies only to persons with genuine transactions who are impeded from acquiring title due to death, mental incapacity, insolvency or absence from Zimbabwe of the registered owner, and cannot be used to resolve competing claims to property or to circumvent proper legal processes where there are contentious issues.

The court made extensive observations on the doctrine of substituted service, noting that it is an important legal tool for serving documents where personal service cannot be effected. The court discussed modern trends in substituted service, including service through social media platforms as adopted in Australian cases (MKM Capital Pty Ltd v Corbo and Poyser) and South African cases (CMC Woodworking Machinery (Pty) Ltd v Pieter Odendaal Kitchens). The court emphasized that the primary object of substituted service is to bring proceedings to the knowledge of the person sought to be served so they can protect their interests. The judge remarked on the deplorable nature of the applicants' conduct, describing it as "an illustration of the height of deceit and dishonesty by both the applicants and their counsel" and characterizing their attempt as trying to "outmuscle the persons with competing rights in the property...through the unorthodox use of an inapplicable law." The court noted that litigation is not a game of wits but a serious and scientific process to resolve disputes, where the search for truth is paramount.

This case reinforces the fundamental principle of candour and honesty required of litigants in South African and Zimbabwean jurisprudence, particularly in ex parte and chamber applications. It provides important guidance on the proper application of Rule 60 of the High Court Rules governing chamber applications, emphasizing that such applications are only appropriate for truly uncontentious matters. The judgment clarifies the scope and requirements of section 3 of the Registration of Title and Derelict Lands Act, demonstrating that it is intended for genuine transactions impeded by death, mental incapacity, insolvency or absence of title holders, not for resolving competing claims or circumventing proper legal process. The case also addresses the importance of substituted service by publication as a tool to locate missing parties and illustrates the court's inherent power to protect itself from abuse of process by dismissing matters tainted by material non-disclosure and misrepresentation.