Georgina Dadirayi Savanhu v Herbert Sylvester Masiyiwa Ushewokunze and Others

The applicant claimed ownership of three immovable properties in Bulawayo registered in her name under deed of transfer No 417/83 dated 16 February 1983. The properties were allegedly paid for by the late Dr Herbert Sylvester Masiyiwa Ushewokunze, a national hero who died on 10 December 1995. The applicant was Dr Ushewokunze's girlfriend at the time of acquisition. The properties were subsequently transferred to the late Duncan William Kona under deed of transfer No 1431/2003 dated 9 July 2003. Kona then subdivided and sold portions to various purchasers, including the 5th and 6th respondents. However, deed of transfer No 1431/2003 was cancelled and deed No 417/83 was revived by court order in HC 2551/2019 dated 21 November 2019. The applicant claimed the properties were fraudulently alienated by Kona and sought declarations of absolute ownership and rescission of six High Court judgments relating to the properties. The 1st respondent, the executor of Dr Ushewokunze's estate (DR 735/96), and other respondents disputed the applicant's ownership, claiming Dr Ushewokunze never intended to give her absolute ownership. Material disputes of fact arose regarding the purchase, registration, and subsequent alienations.

• Whether registration of property in the Deeds Registry confers absolute and indisputable ownership or merely prima facie ownership rights
• Whether the applicant had absolute ownership of the three properties or held them subject to claims by Dr Ushewokunze's estate
• Whether the transfer of the properties to the late Duncan William Kona was valid
• Whether the sales of subdivisions by Kona to various purchasers were valid
• Whether application procedure was appropriate given material disputes of fact or whether the matter should be referred to trial
• Whether default judgments obtained in relation to the properties should be rescinded

1. The matter is referred to trial on issues arising in the founding affidavit and relief sought other than rescission of judgments. 2. The applicant's founding affidavit shall stand as the summons. 3. The respondents' opposing affidavits shall stand as appearance to defend. 4. The applicant shall file and serve her declaration within ten days of uploading the order. 5. Ensuing pleadings shall be filed in terms of the rules. 6. Wasted costs of the application remain costs in the cause.

Registration of transfer of immovable property in the Deeds Registry and issuance of a title deed creates real rights enforceable against the world, but confers only prima facie proof of ownership, not absolute and indisputable ownership. Such registration creates a rebuttable presumption that the registered person is the owner. The registered owner does not bear the onus to prove ownership, but merely needs to produce a validly issued and registered title deed. The onus then shifts to the person challenging the title to prove otherwise on a balance of probabilities. Where material disputes of fact exist in motion proceedings that cannot be resolved on the papers and require viva voce evidence, particularly in complex property disputes involving multiple competing interests, the court may exercise its discretion to refer the matter to trial rather than dismiss the application, especially where effectual resolution of multiple interconnected claims requires oral evidence and cross-examination.

The court made critical observations about the drafting of affidavits in motion proceedings, noting that the applicant's founding affidavit was improperly argumentative rather than alleging facts. Chitapi J reminded practitioners that Rule 58(4)(a) requires affidavits to allege facts and not the law arising from those facts. The court also commented that if registration of title were held to be indisputable or absolute, there would be 'chaos in the property law regime because fraudulent and other dishonest transactions would not be corrected once a registration is procured.' The court expressed the hope that the judgment would be 'a step at least to ensuring that Dr Ushewokunze's soul may one day rest in peace' given that 30 years after his death his estate remained in litigation. The court noted the matter 'should have been instituted by action so that all the facts are ventilated and an informed decision which may end this saga is made.'

This case clarifies an important principle in Zimbabwean property law regarding the nature of rights conferred by registration in the Deeds Registry. It confirms that registration does not confer absolute and indisputable ownership, but rather creates a rebuttable presumption of ownership with the onus on challengers to prove otherwise. The judgment demonstrates the court's approach to complex property disputes involving multiple competing interests, estate claims, and allegations of fraud, emphasizing the importance of proper procedure and viva voce evidence where material disputes of fact exist. It also illustrates judicial management of interconnected property claims and the court's discretion to refer matters to trial rather than dismiss them when effectual resolution requires oral evidence, despite the applicant's choice of application procedure.