Pambana Kudakwashe v Muzira Mathias and Chitungwiza Municipal Council and Blandina Dziva

The 1st and 3rd respondents were married under customary law. The 1st respondent was also married to the applicant as his second customary law wife. The disputed property, Stand No. 15724, Unit "P" Seke, Chitungwiza, was owned by the 2nd respondent (Council) and allocated to the 1st respondent under a certificate of occupation in 1980. In June 1982, the Council and 1st respondent entered into a purchase/sale agreement for the stand to be purchased by instalments. In January 2000, the applicant and 1st respondent entered into a sale agreement whereby the applicant purchased the property for $120,000 and paid the full purchase price. In February 2000, the 3rd respondent obtained an interdict from the Magistrates Court restraining the 1st respondent from selling the property. The applicant initially obtained a default judgment evicting the 1st respondent, but this was set aside in June 2000 and the 3rd respondent was joined as a party. The 3rd respondent had been in continuous occupation of the property since 1980, paying all rates and charges, and was responsible for material improvements to the property.

• Whether the sale agreement between the applicant and 1st respondent was valid and enforceable
• Whether the 1st respondent could sell and cede property without the Council's prior written consent as required by the Council Agreement
• Whether the 1st respondent could transfer title to property that had not yet vested in him
• Whether the applicant was entitled to eviction of the 3rd respondent and cession of title
• What rights the 3rd respondent had as the spouse in occupation of the matrimonial property

1. The agreement of sale, transfer and cession between the applicant and 1st respondent concluded on 7 January 2000 in respect of Stand 15724, Unit "P" Seke, Chitungwiza was set aside. 2. The 1st respondent was interdicted from entering into any agreement for the sale, transfer or cession of any right, title or interest in the property unless the prior written permission and consent of the 2nd and 3rd respondents are first obtained, or an order of a competent court as to distribution of matrimonial property is obtained. 3. The 2nd respondent was interdicted from attending to the transfer or cession of any right, title or interest in the property unless and until either of the specified events occurs. 4. The 1st respondent was ordered to pay the costs of the application and counter-application.

A sale agreement is null and void ab initio and unenforceable where: (1) the seller agrees to cede property without obtaining the required prior written consent of the municipal council as stipulated in the purchase agreement with the council; and (2) the seller undertakes to sell and transfer title to property that has not yet vested in him, making the undertakings incapable of being performed or enforced at the time of conclusion of the agreement. The principles of nemo dat quod non habet (no one can give what he does not have) and nemo plus iuris ad alium transferre potest quam ipse habet (no one can transfer any right greater than he himself possesses) apply to render such agreements void. Transfer or delivery effected by a person who is not the owner or who is not authorized to act for the owner is ineffectual to pass ownership to the transferee.

The court noted that even if the Council might have subsequently approved the proposed cession, this would not assist the applicant because the Council would simply have been acting in compliance with the earlier default order which was subsequently set aside and rendered defunct. Moreover, such approval would have been given well after the sale agreement had already been concluded. The court also observed that the applicant's counsel's submission regarding the Council's waiver of rights by not opposing the application was not properly canvassed in the affidavits and therefore there was no evidence properly before the Court. The court cited the authority of Muganga v Sakupwanya 1996 (1) ZLR 217 (S) regarding a wife's ability to prevent disposal of matrimonial home, distinguishing it on the basis that in this case the sale was not genuine as it was tainted by the inability to lawfully transfer title.

This case is significant in Zimbabwean property and family law as it reinforces the fundamental principle that no one can transfer rights greater than they possess (nemo dat quod non habet). It emphasizes the importance of obtaining municipal consent before attempting to cede or transfer property held under municipal purchase agreements. The case also protects the rights of spouses in customary marriages to matrimonial property, particularly where the spouse has contributed to the property through payment of rates and improvements. It establishes that sale agreements for property that cannot legally be transferred at the time of conclusion are null and void ab initio, even if the purchase price has been paid in full. The judgment balances property rights with family law protections in the context of polygamous customary marriages.