Martin Nyahasha v K. Mutyambizi and Saltana Enterprises (Pvt) Ltd and City of Harare

In 2002, Viola C Chikurangeyi purchased stand number 7935 Belvedere West, Harare from the second respondent (Saltana Enterprises). She sold the stand to the applicant and his wife on 29 October 2003. In 2006, a judicial manager took over the affairs of the second respondent. In 2007, the judicial manager sold the same stand to a third party, who subsequently sold it through a chain of transactions to the first respondent in 2014. The first respondent, unaware of the applicant's prior purchase, effected improvements on the property including a cottage, fence, and began constructing a main house. In November 2016, the applicant discovered the first respondent was undertaking construction on the stand. The applicant had never sold his rights to anyone and the stand had not yet been registered in his name.

• Whether the applicant retained rights to the stand despite the subsequent sale by the judicial manager
• Whether the judicial manager had authority to sell a stand that had already been sold by the second respondent
• Whether the court could grant a declaratory order in respect of personal rights (as opposed to registered real rights) in immovable property
• Whether the first respondent's improvements to the property affected the applicant's rights without a counterclaim

1. The applicant has rights in stand 7935 Belvedere West, Harare. 2. The second respondent shall pay the costs of this application.

Where a stand has been sold by a property developer, that stand is no longer available to a subsequently appointed judicial manager to sell. A judicial manager only acquires authority over property that remains available to the company at the time of appointment. A sale by a judicial manager of property already sold constitutes a mistake and does not defeat the rights of the first purchaser. The High Court has power under section 14 of the High Court Act to declare existing, future or contingent rights in property, including personal rights in immovable property that have not yet been registered. An opposition to a claim, without a counterclaim, does not entitle a respondent to relief and the court is only required to determine the rights of the applicant.

The court observed that although the applicant has not registered the stand in his name and therefore has not acquired real rights over the property, he has recognizable personal rights to the stand and has existing and future rights in the stand. The court noted that there is nothing to stop the court from granting an order that reflects the legal position as reflected by the facts, even though the applicant is not yet an owner in the strict sense of having registered title.

This case is significant for establishing that: (1) a judicial manager's authority to sell property is limited to property actually available to the company in liquidation, and does not extend to property already sold prior to the appointment; (2) the High Court has jurisdiction under section 14 of the High Court Act to declare personal rights in immovable property even where those rights have not been registered and converted to real rights; (3) a respondent's opposition to a claim, without filing a counterclaim, does not entitle the respondent to relief or require the court to consider awarding the property to the respondent; and (4) improvements made to property by a subsequent bona fide purchaser do not automatically override the rights of a prior legitimate purchaser.