Etta Dube v Lot Mpala and Others

The first and second respondents divorced, and a divorce order awarded the second respondent (Zanele Mpala) 42% and the first respondent (Lot Mpala) 58% of the value of an immovable property (Stand No. 4772, Worcester Crescent, Hillcrest, Bulawayo). The property was registered solely in the first respondent's name. The divorce order directed the parties to buy each other out within 18 months from 01 November 2015, failing which the property would be sold. On 30 April 2018, the second respondent signed an agreement of sale with the applicant (Etta Dube) for US$50,000.00, without the first respondent's signature or consent. The purchase price was never paid. The first respondent applied for a caveat on the title deed in HC2490/18, and on 25 February 2019, the court dismissed his application and ordered him to sign transfer papers within 48 hours. This order was not complied with or pursued for over two years. In November 2021, the applicant's lawyers demanded banking details to deposit RTGS$50,000.00 (converted from US$50,000.00 under SI 33/2019) and to effect transfer. The applicant then launched this application for specific performance.

• Whether an agreement of sale signed by a person who is not the registered owner of immovable property, and without the registered owner's consent or authority, is valid and binding on the registered owner
• Whether a divorce order awarding a percentage share in matrimonial property gives the beneficiary the right to sell the property without the registered owner's consent
• Whether the court can compel specific performance of a purported sale agreement where the registered owner did not consent to or sign the agreement
• Whether the counterclaim for rescission of a judgment in another matter can be brought as a counterclaim in an application

1. The application to compel the respondents to supply bank account details for depositing the purchase price and requirements to transfer the house into the applicant's name was dismissed with costs on an attorney-client scale. 2. The first respondent's counterclaim was struck off the roll with no order as to costs.

An agreement of sale of immovable property signed by a person who is not the registered owner and who lacks the authority or consent of the registered owner is null and void ab initio. A divorce order awarding a spouse a percentage share in matrimonial property registered in the other spouse's name creates only a personal right to that percentage of the property's value, not ownership or the authority to sell the property. The registered owner's rights are paramount, and no one can transfer a right greater than they themselves possess. Courts cannot create contracts for parties or compel parties to enter into contracts they never agreed to. The principle of nemo dat quod non habet applies: a seller cannot pass ownership that was not theirs to pass.

The court made strong obiter observations about the conduct of the applicant and her legal representatives. The court noted that legal practitioners have superior knowledge of the law and are under a duty to utilise their skills and expertise on behalf of clients. The failure to conduct due diligence (purchasing from a non-registered owner), the failure to pay the purchase price as stipulated, the three-year delay in taking action, and the attempt to tender RTGS$50,000.00 (vastly depreciated from the original US$50,000.00) demonstrated 'malicious intent,' 'cunning inclination,' 'egregious abuse of process,' and 'a calculated attempt to deceive and manipulate the legal process.' The court expressed concern about the legal practitioner's potential complicity and troubling lack of diligence. The court held that punitive costs were warranted to compensate for wasted court resources, uphold the integrity of the legal process, deter future frivolous claims, and send a strong message that such behaviour will not be tolerated.

This case reinforces fundamental principles of property law in Zimbabwe (and South African law by extension, given similar legal traditions): (1) only the registered owner of immovable property can validly sell it or authorise its sale; (2) a divorce order awarding a spouse a percentage share in matrimonial property creates only a personal right, not real rights or ownership that would enable independent sale of the property; (3) the principle 'nemo dat quod non habet' (no one can give what they do not have) applies strictly to immovable property transactions; and (4) courts will award punitive costs where there is abuse of process, particularly where legal practitioners fail in their duty of diligence. The case serves as a warning about the importance of due diligence in property transactions and the consequences of attempting to enforce agreements signed by persons without authority.