Ernest Tsarukanayi Mauwa v Cardimiel Mhike and Others

The applicant claimed to have purchased Stand No. 17789 Tynwald Township of Lot 12 Tynwald from the second and third respondents pursuant to an agreement of sale dated 14 June 2019. The sellers (fourth and fifth respondents) claimed to hold rights and interests in the stand pursuant to an earlier agreement in which the Sheriff of the High Court purportedly sold the property to them under an order in case HC 5182/15. The first respondent occupied the property and erected structures, claiming to have bought it from another source. The third respondent also claimed ownership of the same property. Litigation was pending between the applicant and third respondent under case HC 1521/21. The dispute arose from a broader problem at Lot 12 Tynwald North, owned by Mr and Mrs Sibindi, who subdivided their property and sold stands multiple times to various persons. The Sibindis engaged multiple service providers to service the land, offering land as payment, but frequently cancelled agreements and 're-sold' the same stands to new service providers, creating overlapping claims and conflicting court orders.

• Whether the matter qualified as urgent and suitable for determination by urgent chamber application
• Whether the court should grant an order in terms of a settlement agreement reached by parties after the court had removed the matter from the roll
• Whether a settlement agreement between parties constitutes a new application
• The appropriateness of interim relief in circumstances involving multiple competing claims to the same property

The court declined to issue the order sought in the parties' letter. The matter had previously been removed from the roll for urgent chamber applications on 14 October 2021, and the court refused to make an order in terms of the settlement agreement presented by the parties.

The binding legal principles established are: (1) A settlement agreement between parties is a contract at law, and the court should not be made a party to such a contract after the court has pronounced itself and become functus officio; (2) A letter requesting the court to endorse a settlement agreement does not constitute a new application; (3) Where parties have undertaken to keep peace and preserve the subject matter of their dispute, there is no cause of action for court intervention; (4) Matters involving complex competing claims to property with multiple interested parties are not suitable for determination by urgent chamber application where such applications do not tackle the underlying problem and interim orders could be used to assert superior rights against other parties.

The court made extensive observations about the systemic problems at Lot 12 Tynwald North, describing how Mr and Mrs Sibindi subdivided their property and sold the same stands multiple times, creating numerous competing claims. The court noted that the Sibindis engaged service providers to service the land at their own cost, offering land as payment, but frequently cancelled agreements and 'repossessed' stands which were then offered to new service providers. The court observed that this situation could be avoided if there was a law prohibiting the sale of unserviced subdivisions of land before the issuance of a certificate confirming full compliance with subdivision permit conditions. The court noted that the standard subdivision permit prohibits registration of transfer of title only but does not prohibit sale. The court commented that the High Court had been 'inundated by a glut of disputes' arising from various complex competing claims to stands at Lot 12 Tynwald North, made worse by conflicting court orders 'dubiously sought by claimants who very often do not disclose other interested parties and suppress material facts.' The court stated that Mr Sibindi 'watches gleefully' as claimants are at each other's throats.

This case highlights systemic problems in Zimbabwean property law relating to the sale of unserviced subdivided land and the proliferation of conflicting claims and court orders arising from such sales. The judgment exposes the shortcomings of section 39 of the Regional, Town and Country Planning Act [Chapter 29:12], which does not prohibit the sale of unserviced land not ready for transfer, only prohibiting registration of transfer. The court's decision to refer all pending matters from Lot 12 Tynwald North to the Senior Judge for transparent case management represents an administrative response to prevent abuse of court processes. The case also establishes important principles regarding the court's role in settlement agreements and the limitations on seeking court orders after parties have reached private settlements.