Samantha Nhende v Andrew Zigora and Registrar of Deeds N.O

The appellant and first respondent entered into an unregistered customary union in August 2015 and lived together from October 2015. During the subsistence of their union, they acquired both movable and immovable property, including house number 2 Glynde Avenue, Mabelreign, Harare, which was registered solely in the appellant's name. The first respondent alleged he contributed directly to the acquisition of the property, loan repayment, and made improvements worth USD 16,000. The customary union broke down in February 2021. The first respondent sued for division of property under case HC 5227/21, pleading the existence of a tacit universal partnership. In February 2022, the first respondent became aware that the appellant intended to sell the property and filed an urgent application seeking an interdict and caveat on the property. The High Court granted a final order interdicting the appellant from dealing with the property and directing the Registrar of Deeds to place a caveat on the property pending finalization of the main claim. The appellant appealed against the entire judgment.

• Whether the requirements for an interim interdict were satisfied
• Whether the court a quo erred in refusing to determine the choice of law question between customary law and general law
• Whether the court a quo was correct in granting a final order in an urgent application where only interim relief was sought
• The proper procedure for granting provisional orders in urgent applications under the High Court Rules, 2021

The appeal succeeded in part with each party to bear its own costs. The judgment of the court a quo was set aside and substituted with an order granting the application in terms of the draft provisional order as amended. The interim relief was amended to read: 'Pending the return date of this provisional order, the second respondent is directed to place a caveat on the immovable property known as stand number 2 Glynde Avenue, Mabelreign, Harare held under deed of transfer number 2120/2017 registered in favour of the 1st respondent.'

In urgent applications under Rule 69(9) of the High Court Rules, 2021, where an applicant establishes only a prima facie case, the court's jurisdiction is limited to granting provisional (interim) relief in the form of a provisional order. The court cannot grant final relief at this stage, as final relief can only be granted on the return date after the respondent has had full opportunity to oppose through the complete application procedure. A court granting final relief when only interim relief was sought and without affording the respondent the opportunity to oppose the final terms commits a material misdirection constituting a gross irregularity. The requirements for an interim interdict pendente lite are: (i) a prima facie right; (ii) well-grounded apprehension of irreparable harm; (iii) balance of convenience favouring the grant; and (iv) no other satisfactory remedy. Where interim relief (such as an interdict) is sought as a general law remedy, the court need not determine choice of law issues between customary law and general law at the interim stage, as such remedies are incapable of resolution through customary law.

The court noted that there appears to be a 'signal failure or lack of appreciation at the moment at the High Court' that when approached on an urgent basis (except for spoliatory relief), the court is required to issue interim or provisional relief in the form of a provisional order, not final relief. The court observed that the application of customary law is regulated by section 3(1) of the Customary Law and Local Courts Act [Chapter 7:05], and where customary law is incapable of providing an avenue for the resolution of a dispute, rights or obligations, general law will apply. The court also noted that although costs usually follow the result, there was no basis to mulct the first respondent with costs for the errors of the court a quo where he had not invited such error, and accordingly ordered each party to bear its own costs.

This judgment is significant in Zimbabwean civil procedure as it clarifies and reinforces the proper procedure for urgent applications and provisional orders under the High Court Rules, 2021. It establishes that courts hearing urgent applications are limited to granting provisional (interim) relief where only a prima facie case is established, and cannot grant final relief except in specific circumstances (such as spoliation). The judgment emphasizes that final relief can only be granted on the return date after full opposition procedures have been followed, protecting the respondent's right to be fully heard. It also clarifies that choice of law issues between customary law and general law need not be determined at the interim relief stage when the relief sought (an interdict) is a general law concept. The case serves as an important reminder to courts about procedural regularity and staying within jurisdictional limits in urgent applications.