Future Chirango and Petronella Muvirimi v Leathout Investments (Private) Limited and Zimbabwe Revenue Authority and The Registrar of Deeds N.O

The applicants (defendants in the main action HC 2741/14) sought to join the Zimbabwe Revenue Authority (second respondent) and the Registrar of Deeds (third respondent) as co-defendants in an eviction suit brought by Leathout Investments. The dispute centered on property at 69 Glenara Avenue, Highlands, Harare (also known as Lot 1 of stand 21A, Oval Park Township). Two title deeds had been issued over the same property: deed of transfer 06177/2007 (to the applicants) and deed 6021/2010 (to the first respondent). The applicants had acquired the property and obtained title under the 2007 deed and were in occupation. The first respondent brought an eviction action claiming ownership through the 2010 deed. The applicants raised a defense of fraud, alleging the second deed was fraudulently obtained. After a pretrial conference following a Supreme Court order, the issue for determination in the main action was whether the first respondent's title was obtained through fraud. The applicants contended that both ZIMRA and the Registrar of Deeds were key players in issuing capital gains certificates and title deeds, and that ZIMRA had admitted in a letter dated 26 October 2017 to irregular procedures in its office.

• Whether defendants in a main action can join co-defendants under Rule 32(12)(b) of the High Court Rules 2021
• Whether Rule 32(12)(b) or Rule 35 of the High Court Rules 2021 is the applicable provision for joinder of co-defendants where no claim is being made against them
• Whether the presence of the second and third respondents is necessary to ensure all matters in dispute can be effectively and completely determined and adjudicated upon
• Whether joinder can be granted where the proposed co-defendants are sought for evidentiary purposes rather than as parties against whom relief is claimed

1. The application was granted. 2. The second and third respondents were joined to action HC 2741/14 as second and third respondents respectively. 3. The parties were ordered to comply with Rules 32(15), (16) and (17) of the 2021 High Court Rules. 4. Each party to bear its own costs.

A defendant in civil proceedings has the right to seek joinder of co-defendants under Rule 32(12)(b) of the High Court Rules 2021 at any stage before conclusion of the case, where the presence of such parties is necessary to ensure all matters in dispute can be effectively and completely determined and adjudicated upon, even where no claim or relief is sought against such co-defendants. Rule 32(12)(b) is of general application to joinder, while Rule 35 applies specifically where a defendant seeks to claim relief from co-defendants who would share liability. Where fraud is alleged in relation to the issuance of title deeds and administrative organs have admitted irregular procedures, their joinder as co-defendants is appropriate to enable proper interrogation of the circumstances giving rise to the dispute.

The court observed that safeguard mechanisms exist in ZIMRA's office pertaining to issuance of capital gains tax certificates in transit to the Deeds Registry, and that the Registrar of Deeds acts on information from ZIMRA. The court noted that the issuance of two title deeds over the same property (in 2007 and 2010) was an error of such magnitude that it required explanation, potentially involving fraud. The court also noted that the application was not an attempt to challenge decisions already made by ZHOU J which were on appeal, as that decision was based on prescription while the main action was based on the common law remedy of rei vindicatio. The court commented that the first respondent's points in limine were not motivated by counsel and had been vacated.

This case clarifies the proper application of Rule 32(12)(b) versus Rule 35 of the High Court Rules 2021 in the context of joinder of co-defendants. It establishes that defendants can join co-defendants under Rule 32(12)(b) even where no relief is claimed against them, provided their presence is necessary for effective and complete determination of the dispute. The case confirms that Rule 35 applies only in the narrower circumstance where a defendant seeks to claim relief from co-defendants who would share liability. The judgment reinforces the principle that joinder is a discretionary remedy that should be exercised to ensure complete adjudication of disputes, particularly where issues of fraud are raised and where state organs (like ZIMRA and the Registrar of Deeds) have played roles in creating the disputed situation. The case is significant in property disputes where administrative irregularities may have occurred in the registration process.