Theresa Ndambakuwa v Rangarirai Mutapuri (In his capacity as the curator ad litem of Ezekiel Mutapuri)

On 28 May 2014, Ezekiel Mutapuri sold the Remainder of Zuvaranyika Lot 3, Waterfalls, Harare (8.5 hectares) to the applicant. The applicant subdivided the property and sold stands to nine occupants. Ezekiel had been declared a prodigal person under case HC 7911/04, with the respondent appointed as his curator ad litem. On 14 August 2014, the respondent applied to cancel the sale agreement. On 9 June 2016, default judgment was entered canceling the agreement. The respondent then wrote letters dated 7 July 2016 to the occupants demanding they vacate within 5 days and demolish their structures, threatening eviction. The applicant alleged she was unaware of Ezekiel's prodigal status and that the respondent had actually assisted with and encouraged the sale by removing a caveat from the title deed to facilitate the transaction, only to reinstate it after payment. The applicant claimed the default judgment resulted from her legal practitioners' errors (filing opposition late, renouncing agency without notice, giving wrong address) and filed for rescission under HC 6803/16. She brought this urgent application to interdict the respondent from evicting the occupants pending the rescission application.

• Whether the applicant had locus standi to bring the application on behalf of the stand purchasers
• Whether the agreement of sale was valid despite Ezekiel being a prodigal person
• Whether the applicant was entitled to an interdict pending the rescission application
• Whether the default judgment was entered as a result of willful default
• Whether the respondent's conduct in removing and reinstating the caveat affected the validity of the transaction

The court granted the interdict. Interim relief: The respondent was interdicted from interfering with beneficiaries of stands in the property held under Title Deed Number 11505/00 measuring 8.5 hectares. Final order: Execution of the respondent's letters dated 7 July 2016 to stand beneficiaries was stayed pending hearing and finalization of the rescission application under case number HC 6803/16. The respondent was ordered to pay costs of the application.

A curator ad litem who actively assists and encourages a prodigal person to conclude a sale agreement for the curator's own benefit, including by removing encumbrances from title to facilitate the transaction and induce payment, cannot subsequently rely on the prodigal's legal incapacity to void that agreement. The agreement becomes valid and enforceable despite the lack of formal curator consent where the curator's conduct demonstrates actual participation in and encouragement of the transaction. A party who has sold subdivided stands to purchasers has locus standi to seek an interdict protecting those purchasers from eviction, as they have a contractual duty to ensure purchasers are not interfered with in their occupation of the purchased property.

The court observed that the respondent's conduct bordered on criminal fraud, noting that a police docket had been completed charging the respondent with fraud. The court commented that the respondent gave the distinct impression of being a "very resourceful person" who "duped the applicant" through a scheme of removing and reinstating the caveat. The court also noted that the respondent had demanded alternative payment of $150 monthly installments from stand holders who wished to retain their stands, further evidencing improper conduct. The court observed that while the application was headed as seeking to stay execution of a default judgment, this was misplaced since a declaratur cannot be enforced - what was actually sought and granted was an interdict against interference with the stand holders.

This case is significant in Zimbabwean property and contract law for establishing important principles regarding the conduct of curators ad litem and the validity of transactions involving prodigals. It demonstrates that where a curator actively participates in facilitating a transaction for personal benefit (by removing encumbrances to induce payment then reinstating them to prevent transfer), they cannot later rely on the prodigal's incapacity to void the transaction. The case also illustrates the court's willingness to look beyond technical formalities to prevent fraud and protect innocent third parties who relied on representations made through the curator's conduct. It reinforces principles of locus standi where contractual obligations exist to protect purchasers, and demonstrates judicial scrutiny of default judgments obtained through procedural irregularities rather than willful default.