Richard Wilson and Getrude Wilson v Winfred Manemo and Three Others

The first and second applicants (the Wilsons) owned property at 80 Cecil Avenue, Hillside, Bulawayo. In early 2011, the third respondent approached the first and second respondents (the Manemos) and advised them that the applicants were selling their house. The third respondent, who had previously acted as the applicants' representative in prior transactions, had possession of the original title deed. A verbal agreement of sale was concluded in March 2011, the full purchase price was paid through the third respondent, and the respondents received the title deed. The respondents obtained legal title through Deed of Transfer No. 1347/11 on 16 September 2011. When the respondents demanded that the applicants vacate the property, the applicants refused, claiming the third respondent had no authority to sell their house, although they admitted handing him the title deeds allegedly to raise a loan. The respondents instituted eviction proceedings under case No. 1889/11, and a writ of eviction was issued on 26 August 2011. Seven months later, on 20 April 2012, the applicants filed an urgent chamber application seeking a stay of execution pending an application for rescission of the default judgment. A provisional order was granted on 24 April 2012, which the respondents now sought to have discharged.

• Whether the matter was urgent or whether urgency was self-created
• Whether the applicants established a prima facie right to the property
• Whether the applicants had a well-grounded apprehension of irreparable harm
• Whether the applicants had an alternative satisfactory remedy
• Whether the requirements for a temporary interdict pendente lite were satisfied
• Whether the balance of convenience favoured the granting of the interdict

1. The provisional order granted on 20 April 2012 under case No. 1245/12 is hereby discharged and set aside. 2. The caveat registered by the 4th Respondent over the immovable property described as Lot 4 of Hillside of Napiers Lease situate in the District of Bulawayo be and is hereby uplifted. 3. The applicants are ordered to pay the costs of suit.

For a temporary interdict to be granted, an applicant must establish: (a) a prima facie right; (b) that the right has been infringed by the respondent; (c) irreparable harm or a reasonable apprehension of such harm; (d) the absence of a satisfactory alternative remedy; and (e) that the balance of convenience favours the granting of the interdict. Self-created urgency will not suffice to justify urgent relief. Where a party has entrusted an agent with title deeds and that agent conducts an unauthorized sale, the party's remedy lies against the agent rather than against innocent third-party purchasers who have obtained proper legal title through registered transfer. Delay in seeking relief, particularly where a party waits seven months after being evicted before filing an urgent application, demonstrates that the urgency is self-created and undermines the claim for interdict relief.

Makonese J observed that it had become customary for some legal practitioners to seek and obtain provisional orders under certificates of urgency providing for a stay of proceedings pending certain other applications being made, but then fail to follow up by preparing and filing the purported applications. The judge stated that such practices are deplorable and that courts frown upon such conduct. The court also commented that the explanation proffered by the applicants (that they gave the title deeds to the third respondent merely to raise a loan) was difficult to believe considering they were literate persons, and that on the balance of probabilities they likely did ask the third respondent to sell the property but he may have cheated them by not handing over the purchase price.

This case is significant in Zimbabwean property and procedural law as it demonstrates the courts' approach to self-created urgency and the abuse of urgent applications. It reaffirms the established principles for granting interdicts pendente lite and emphasizes that all requirements must be met. The judgment highlights the protection afforded to innocent purchasers who obtain legal title through proper registration, and underscores that parties who entrust agents with title deeds must bear the consequences of their choices and seek remedies against those agents rather than third-party purchasers. The case also criticizes the practice of obtaining provisional orders with conditions for pending applications that are never actually filed or pursued, describing such conduct as deplorable.