Patience Mhaka v Marinos Christmas Mhaka and Others

The applicant and first respondent were husband and wife married in terms of the Marriages Act. The husband was the registered sole owner of stand number 6448 Mkoba 1 North Township, Gweru, where the couple lived. During the subsistence of the marriage, the husband sold the property to the second respondent (Silence Maturure), who was an innocent third party living and working in the Diaspora. The purchaser's agent, Farai Zimete, conducted due diligence at the Deeds Office which revealed the property was registered solely in the seller's name with no caveats or encumbrances. The agent viewed the property and the purchase price was paid in full. The applicant was not a registered co-owner and claimed she was not aware of the sale and had not consented to it, despite allegedly contributing to the purchase. The applicant sought to have the sale declared null and void. The parties had since divorced.

• Whether a non-owning spouse can set aside a sale of a matrimonial home to an innocent third party purchaser
• What rights a non-owning spouse has against an innocent third party who purchases matrimonial property from the registered owner spouse
• Whether the right of occupation of a non-owning spouse in a matrimonial home avails against an innocent third party purchaser
• Whether costs on an attorney and client scale were warranted

The application was dismissed with costs on an attorney and client scale awarded to the first respondent.

The right of occupation of a non-owning spouse in a matrimonial home is a personal right that avails against the other spouse only and does not bind an innocent third party purchaser. A wife's rights against an innocent purchaser can be no greater than they are against the husband himself. Where the prospective purchaser cannot discover personal rights between spouses through proper due diligence (including checking the Deeds registry), such rights do not affect the innocent purchaser. Rights between spouses based on discretionary remedies under the Matrimonial Causes Act are personal between themselves and do not affect third parties, regardless of whether third parties are aware of any marital dispute. The aggrieved non-owning spouse's remedy is against the selling spouse, not against the innocent third party purchaser.

The court observed that there was no requirement for a principal to personally inspect property when an agent has done so on their behalf, as the agent's actions bind the principal. The court also commented that the applicant's failure to disclose pending proceedings to the divorce court, which resulted in the house being incorrectly awarded to her, was conduct deserving of censure and justified an award of costs on an attorney and client scale.

This case establishes important principles in Zimbabwean matrimonial property law regarding the extent of a non-owning spouse's rights in matrimonial property when sold to innocent third parties. It confirms that personal rights between spouses do not bind innocent third party purchasers who conduct proper due diligence, and reinforces the importance of registration in property transactions. The case also emphasizes the duty of candor owed to the court in matrimonial proceedings.