Posiwe Dube v Selina Thebe and Others

The applicant, Posiwe Dube, sought to be joined as the third respondent in a rescission of judgment application (HC 1951/14). The second respondent, Leonard Mabaleka, had obtained a court order (HC 2627/13) authorizing the sale of stand number 61218 Pelandaba, Bulawayo by private treaty. The applicant purchased the property relying on this court order and paid the full purchase price, after which the property was purportedly transferred into her name. The first respondent, Selina Thebe, had obtained a provisional order on 1 September 2014 (HC 2011/14) prohibiting the Municipality of Bulawayo from proceeding with the agreement of cession/sale to Posiwe Dube. Despite this prohibition order, which was properly served on both Posiwe Dube and the Municipality on 4 September 2014, the Municipality purported to cede the property to Posiwe Dube on 7 October 2014. The applicant claimed she had a vested interest in the rescission proceedings and should be joined, alleging the first respondent deliberately excluded her from the rescission application.

• Whether the applicant had a direct legal interest sufficient to warrant joinder in the rescission proceedings
• Whether a financial interest alone is sufficient to establish standing for joinder
• Whether the purported cession of property made in defiance of a court order creates a valid legal right
• Whether a party can be joined in proceedings to rely on the cause of action of another party

The application for joinder was dismissed with costs.

For joinder to be granted, an applicant must have a direct legal interest in the proceedings, not merely a financial interest. A direct legal interest requires a right which is a legal obligation that can be held and enforced against all parties in the litigation in which joinder is sought. A purported cession of property made in defiance of a court order prohibiting such cession is illegal and a nullity. A party who was not party to the original proceedings cannot be joined merely to rely on the cause of action of another party. Where property has not been transferred in terms of section 14 of the Deeds Registration Act, no real right in the property exists.

The court observed that it was difficult to accept and must be rejected that the applicant did not know the whereabouts of her niece who allegedly received service of the court papers, particularly when the applicant was unable to file an affidavit from the niece to support her denial of service. The court noted that the first respondent had cited the applicant as third respondent in the earlier urgent chamber application (HC 2011/14), which suggested awareness of her potential interest, making it somewhat curious that she was not cited in the rescission application.

This case establishes important principles in Zimbabwean civil procedure regarding the requirements for joinder applications. It clarifies that merely having a financial interest in the outcome of proceedings is insufficient to warrant joinder - a direct legal interest is required. The case also reinforces the principle that transactions conducted in defiance of court orders are nullities and cannot create valid legal rights. It demonstrates the court's willingness to protect the integrity of court processes and prevent parties from circumventing court orders. The judgment also confirms that parties cannot use joinder applications as a mechanism to advance causes of action belonging to others.