The second respondent (Tecla Mvembe) owned property known as Newark of Hilton of Subdivision A of Waterfalls measuring 25.0532 hectares. On 6 November 2000, she entered into an agreement of sale with Max Management (Pvt) Ltd for ZW$6.5 million, whereby Max would acquire 76 stands after subdivision. The City of Harare granted subdivision permission on 27 October 2000. Max took occupation and began developing and selling stands to individuals, but faced numerous problems including failure to timeously pass transfer, purported cancellations without cause, and double sales. Individual stand purchasers created the applicant association to manage their interests and pursue legal remedies. Max never paid the full purchase price to the second respondent, and the property was never transferred to Max or to individual purchasers. On 1 May 2007, the second respondent gave Max notice of breach for non-payment of ZW$3,420,000,000,000 and threatened cancellation. On 11 March 2008, a consent order was granted between the applicant, Max, and others (but placing no obligations on the second respondent). On 15 April 2010, Max purported to assign its rights to the applicant. On 19 September 2007, the second respondent sold the property to the first respondent (Champion Constructors) for ZW$350,000,000. On 14 September 2011, the court granted an order in HC 7398/11 compelling the second respondent to transfer the property to the first respondent and directing cancellation of the subdivision plan. The applicant then sought to interdict the transfer and confirm a provisional order against it.
The court discharged the provisional order of 18 November 2011 and ordered the applicant to pay costs of suit.
A party cannot assign or cede rights in immovable property that it does not possess. The principle nemo dat quod non habet (nobody can give what he does not have) applies: where a developer (Max Management) never acquired title to property from the registered owner (the second respondent) due to non-payment and subsequent cancellation of the agreement of sale, it had no rights to assign to third parties (the applicant's members). Consequently, purported assignments and consent orders involving such rights are ineffective and unenforceable against the title holder. The registered owner of property who has validly cancelled an agreement of sale due to breach is entitled to sell that property to another purchaser. Parties claiming an interest in property have no enforceable rights against the registered owner where there is no direct legal relationship between them.
The court observed that the consent order of 11 March 2008 was defective because it failed to place any obligations on the second respondent (the title holder) and failed to recognize that Max had no rights to assign. The court noted that without the participation of the second respondent, the consent order could not be implemented. The court also commented that the applicant should have followed the proper court rules governing rescission of default judgments rather than seeking to set aside the order of 14 September 2011 through an interdict application. The court expressed gratitude for the detailed submissions made by counsel. Mtshiya J noted that the applicant's members were at liberty to claim their moneys from Max Management, indicating an alternative remedy in contract rather than property law.
This case reinforces fundamental principles of South African (and Zimbabwean) property law, particularly the nemo dat rule that one cannot transfer rights one does not possess. It emphasizes that property rights flow from legal title, not from agreements with parties who themselves lack title. The case illustrates the importance of involving all necessary parties (particularly title holders) in consent orders and assignments affecting immovable property. It also demonstrates that civil procedure rules regarding rescission of judgments must be followed, and that parties cannot circumvent those rules through alternative applications. The judgment serves as a warning about the risks of purchasing property or accepting assignments from developers who have not themselves acquired title from the registered owner.