The fifth respondent (Shingirai Fabion Nhowe) was the registered owner of stand 13687 Salisbury Township held under Deed of Transfer 6830/88. On 9 June 2017, he was issued a permit to subdivide the main property to create Stand 40715 Harare Township. On 30 October 2017, he entered into an agreement of sale of the subdivision with the appellant (Monica Gondo). The subdivision was transferred to the appellant on 28 November 2018. The first respondent (Ntombizodwa Nhowe) is married to the fifth respondent and had instituted divorce proceedings under HC 9350/12. On 7 May 2019, the first respondent approached the High Court seeking to set aside the agreement of sale, the compliance certificate issued by Harare Municipality, and the transfer of the subdivision to the appellant, arguing she had an interest in the property by virtue of her marriage and the pending divorce proceedings. The High Court granted the relief sought, finding that the first respondent had a direct and substantial interest in the subdivision and that the certificate of compliance was obtained fraudulently.
1. The appeal was allowed with costs. 2. The order of the court a quo was set aside and substituted with an order dismissing the application for a declaratory order filed under Case No. HC 3715/19 with costs.
A spouse whose partner is the registered owner of property does not have a direct and substantial interest in that property sufficient to vindicate it or impeach a sale thereof, even where divorce proceedings are pending. Such a spouse has only an indirect interest in the form of a personal right against the registered owner spouse. A personal right does not entitle the holder to vindicate property or set aside transactions relating to property registered in the name of another. A person who is not privy to a contract cannot sue on that contract.
The Court noted that it was not necessary to inquire into the validity of the certificate of compliance given the finding on locus standi. The Court applied the general principle that costs follow the cause without elaboration or exception in this case.
This case establishes important principles regarding the distinction between direct and indirect interests in property within the context of matrimonial disputes in Zimbabwe. It clarifies that a spouse does not have a direct and substantial interest in property registered solely in the name of the other spouse, even where divorce proceedings are pending. The spouse's interest is characterized as a personal right against the other spouse rather than a real right in the property itself. This prevents a spouse from vindicating property or impeaching sales of property registered in the other spouse's name. The case reinforces the principle of privity of contract and the requirement of locus standi in property disputes. It also demonstrates the limits of matrimonial rights vis-à-vis third-party purchasers where property is registered in one spouse's name.