The plaintiff purchased property (stand number 1458 Midlands Township 2, Waterfalls, Harare) from Kingdom Bank Africa Ltd (KBAL), which had acquired it through a judicial sale in execution. The property was originally registered in the Kunyetu Lambert Family Trust and was declared especially executable following a consent judgment in HC 3630/11. The Sheriff sold the property by public auction on 14 December 2014, and the sale was confirmed on 22 January 2015 with the bank as the highest bidder. The bank subsequently went into liquidation and sold the property to the plaintiff on 18 August 2017, with transfer being effected. Before this sale, on 17 April 2017, the second respondent (Margaret Lambert) had filed an application (HC 3748/17) seeking to set aside the sale in execution, claiming she held a life usufruct over the property and that the Sheriff had not complied with rule 348A. The plaintiff then sued the respondents for eviction, rental arrears, holding over damages, interest, and costs. The respondents raised a special plea that the property was res litigiosa at the time of sale to the plaintiff, making his title defective.
The special plea was dismissed with costs awarded to the plaintiff.
Where property that is res litigiosa has been alienated, the court hearing a special plea based on res litigiosa may examine the merits of the pending litigation to determine whether it is bona fide and reasonably meritorious. The sale of res litigiosa will not be considered a nullity if the pending litigation is frivolous and lacks merit. Rule 348A of the High Court Rules does not apply to foreclosure proceedings where the property was surrendered as security for the debt. A life usufruct that is not registered in terms of the Deeds Registries Act creates only personal rights between the parties and does not bind subsequent purchasers of the property. When the title holder of property is divested of ownership through a judicial sale, unregistered personal rights dependent on that ownership fall away and cannot be enforced against subsequent title holders. An innocent purchaser who holds registered title is entitled to vindicate his property rights.
The court observed that the principle of locus standi relates to one's capacity to bring legal proceedings and is distinct from the capacity to raise pleas in defense. The court noted that even if the conclusion regarding res litigiosa was misdirected, the second respondent would not be without recourse, as a successful judgment in the pending matter would be binding on the plaintiff and could potentially be recovered through execution. The court emphasized that allowing judgment debtors to rely on rule 348A after surrendering property as security would "make a mockery of justice" when they were aware at the time of creating the security that the property was a dwelling. The judgment states that achieving justice between parties requires considering whether pending litigation has merit rather than automatically applying the res litigiosa principle in all circumstances.
This case is significant in Zimbabwean property law for clarifying the application of the res litigiosa principle in the context of judicial sales and subsequent transfers. It establishes that courts may and should examine the merits of pending litigation when determining whether a sale should be considered void on grounds of res litigiosa, rather than automatically nullifying the sale. The judgment also reinforces important principles regarding: (1) the limited application of rule 348A to foreclosure proceedings where property was surrendered as security; (2) the distinction between registered and unregistered personal servitudes (usufructs) and their enforceability against third parties; (3) the protection afforded to innocent purchasers who acquire title through legitimate judicial sales; and (4) the fact that unregistered personal rights do not bind subsequent title holders. The case balances the protection of legitimate claims against frivolous litigation that would undermine the security of title and the finality of judicial sales.