Keniya Masenda v Washington Masawi and Chitungwiza Town Council

In September 2001, the applicant entered into an agreement with the first respondent to purchase his rights, title and interest in House No. 1748 Unit A Seke, Chitungwiza for $320,000. The purchase price was paid to Messrs Sawyer and Mkushi Legal Practitioners and later released to the first respondent on 24 September 2001. The first respondent was allegedly the lawful heir to the house from his late father's estate. The second respondent (Chitungwiza Town Council) refused to effect the cession, stating that the first respondent needed to have the rights passed to him first from his late father's estate before ceding to the applicant, a process that would take at least one year. Towards the end of 2002, certain bills and documents from the second respondent allegedly reflected that the first respondent had become the lawful holder of rights in the house. The applicant attempted to locate the first respondent to effect the cession but was unsuccessful as his whereabouts were unknown. The applicant then applied for a provisional order under section 3 of the Titles Registration and Derelict Lands Act [Chapter 20:20] to compel the cession.

• Whether section 3 of the Titles Registration and Derelict Lands Act [Chapter 20:20] applies to the facts of this case
• Whether the applicant had acquired a 'just and lawful right to ownership' of the immovable property as required by section 3
• Whether the applicant provided sufficient proof that the first respondent had acquired any interest in the house that he could dispose of
• Whether the proper procedure was followed, or whether substituted service of a normal court application would have been more appropriate
• The distinction between sale and cession of rights in respect of lease-to-buy properties owned by local authorities

The provisional order granted on 22 May 2003 was discharged. There was no order as to costs as this was not argued before the court.

Section 3 of the Titles Registration and Derelict Lands Act [Chapter 20:20] only applies where: (1) the applicant has acquired a just and lawful right to ownership of immovable property; and (2) the person in whose name the property is registered is dead, mentally incapacitated, insolvent, or absent from Zimbabwe. A purchaser of rights in a lease-to-buy property cannot be said to have acquired a 'just and lawful right to ownership' where the seller himself had not legitimately acquired such rights through proper inheritance procedures and satisfaction of the local authority's requirements. The section is not applicable where the registered owner is a legal persona such as a local authority that cannot be subject to the criteria of death, mental incapacity, insolvency or absence in the same manner as a natural person. Documentary evidence is required to establish that an heir has acquired rights in property before those rights can be validly ceded to another party.

The court noted with concern that legal practitioners persist in using the word 'sale' to describe what is in reality a cession of rights where houses belong to local authorities under lease-to-buy arrangements, citing with approval the comments of McNally JA in Gomba v Makwarimba 1992 (2) ZLR 26 (S). The court observed that there are many distinctions between sale and cession of rights that should not be ignored. The court also commented that had the applicant obtained proper documentary evidence (a deed of assignment from the Council in favour of the first respondent), the question of the first respondent's interest would have been clearly answered. The judge further observed that the normal and proper procedure when a respondent cannot be located is to seek substituted service under the rules of court after attempts at personal service are unsuccessful. The court indicated that if the issue of the first respondent's rights had been beyond doubt, publication of the court application might have been regarded as proper substituted service and the order might have been confirmed, but that was not the case on the facts presented.

This case is significant in Zimbabwean property law as it clarifies the proper application of section 3 of the Titles Registration and Derelict Lands Act [Chapter 20:20]. It emphasizes that this statutory procedure is only available where the applicant has acquired a 'just and lawful right to ownership' and where the registered owner is dead, mentally incapacitated, insolvent or absent from Zimbabwe. The judgment reinforces the importance of distinguishing between sale and cession of rights in the context of lease-to-buy properties owned by local authorities. It establishes that where a purported seller has not yet acquired legitimate rights from an estate or satisfied the local authority's requirements for transfer, they cannot be said to have a 'just and lawful right to ownership' that can be passed on to a purchaser. The case also provides guidance on proper civil procedure, confirming that where a party cannot be located, the appropriate remedy is substituted service rather than attempting to utilize section 3 of the Act. It underscores the need for proper documentary proof (certificates of heirship, deeds of assignment) when asserting rights derived through inheritance and subsequent cession.