The applicant and respondent were in a romantic relationship which produced two children (aged 20 and 15 years). The applicant claimed that during their relationship, they acquired a flat together at Number 10 Hillside Garden Flats, Ferrera Avenue, Harare. The respondent later moved out and began cohabiting with another woman. The applicant alleged that the respondent planned to leave the country and advertised the flat for sale in the Herald newspaper on 22 February 2002 for $6 million. The respondent also began removing movable property from the flat. The applicant, who continued to reside in the flat with the children, brought an urgent chamber application seeking an interdict to prevent the respondent from selling or encumbering the property or evicting her, claiming she had made substantial contributions to its purchase and that they were in a tacit universal partnership. The respondent opposed the application, denying urgency, disputing ownership (claiming he was merely leasing with an option to purchase), and denying any partnership or joint ownership.
The court granted the provisional order as sought in the amended draft, interdicting the respondent from selling, encumbering, or evicting the applicant from the flat and from removing movable property, and directing restoration of any property already removed, pending the outcome of proceedings the applicant intended to institute claiming a half share in the property.
The binding legal principles established are: (1) An interdict pendente lite serves to preserve or restore the status quo pending final determination of parties' rights, without affecting the final determination of such rights; (2) To obtain a provisional order with interim relief, an applicant must establish a prima facie case on a balance of probabilities; (3) Once a prima facie case is established, the court has no discretion but must grant the provisional order sought - the use of 'shall' in Order 32 R 246(2) is mandatory; (4) A prima facie case for protection can be established based on claims of contributions to property acquisition during a tacit universal partnership arising from a domestic relationship; (5) The balance of convenience test requires consideration of whether the applicant stands to suffer greater harm if the order is refused than the respondent would suffer if it is granted.
The court observed that the respondent's behavior of removing movable property and advertising the flat for sale was consistent with someone leaving the country. The court also noted that the respondent had not been sufficiently candid in failing to disclose the identity of the alleged owner from whom he claimed to be leasing the property or to provide evidence of the lease agreement. The court remarked that the respondent would not be prejudiced by granting the order, especially regarding the flat which he claimed did not belong to him. The court also noted that the applicant had been residing in the flat and using the property for a number of years while the respondent had moved out and established a home elsewhere.
This case is significant in Zimbabwean jurisprudence for its application of the principles governing interdicts pendente lite and the granting of provisional orders. It demonstrates the court's approach to establishing a prima facie case for interim relief in the context of tacit universal partnerships arising from domestic relationships. The case illustrates that where a prima facie case is established, the court has no discretion but must grant the provisional order. It also shows judicial recognition of property rights claims arising from contributions made during unmarried cohabitation relationships, particularly where children are involved and homelessness would result from refusal of interim relief. The case emphasizes the preservation of the status quo pending final determination of rights.