Usebia Muzondo v Assetfin (Pvt) Limited and Others

The applicant instituted an action (HC 9354/18) seeking an order compelling the first respondent to transfer immovable property (Stand 1135 Bannockburn Township, Mt Pleasant Heights, Harare) to her based on an agreement of cession of rights from the sixth and seventh respondents in 2001. The applicant took occupation of the property. The first respondent in its plea objected to non-joinder of the sixth and seventh respondents and contended that the agreement with them was cancelled for non-payment and that it could not transact in 2009 as it had been specified under applicable law. In 2018, the first respondent sold the property to the second, third and fourth respondents. Despite being cautioned by the applicant's legal practitioners in April 2018 and despite the pending litigation having reached the pre-trial conference stage, the first respondent passed transfer to the second, third and fourth respondents in 2019. The fifth respondent acted as conveyancer in this transfer and was also the legal practitioner for the first respondent in the main matter. The applicant then sought to join the second to eighth respondents to the main action.

• Whether the main matter had been deemed abandoned and dismissed for failure to set down within prescribed time
• Whether the second, third, fourth, sixth, seventh and eighth respondents have a direct and substantial legal interest in the subject matter justifying their joinder
• Whether the fifth respondent (conveyancer) should be joined despite acting merely as an agent
• What constitutes a direct and substantial interest in the subject matter for purposes of joinder

1. The second, third, fourth, sixth, seventh and eighth respondents are joined as second, third, fourth, fifth, sixth and seventh defendants respectively in HC 9354/18. 2. The application for joinder of the fifth respondent as defendant is dismissed with each party bearing its own costs. 3. The applicant is granted leave to file amended summons and declaration within 7 days to incorporate the joined defendants. 4. Filing of remaining pleadings shall be in terms of rules of court. 5. Costs shall be in the cause in HC 9354/18.

For purposes of joinder of parties in civil litigation, a party must demonstrate a direct and substantial legal interest in the subject matter of the litigation and the outcome, not merely a financial or indirect interest. The interest must be in the right which is the subject matter of the litigation, meaning a legal interest that could be prejudicially affected by the judgment. A conveyancer who acts merely as an agent in transferring property does not have such direct and substantial legal interest in the property itself, despite involvement in the transaction, and therefore should not be joined as a party to litigation concerning that property.

The court made strong obiter observations regarding the fifth respondent's ethical conduct, noting that his facilitation of the property transfer while knowing of pending litigation that had reached pre-trial conference stage, and while his firm represented the defendant in that litigation, raised serious ethical questions. The court observed that such conduct was reprehensible and that the fifth respondent should consider himself fortunate that costs were not sought against him, as the court would have readily granted such a request. This commentary serves as a warning to legal practitioners about their ethical obligations when dealing with property subject to litigation, particularly where conflicts of interest may arise from dual roles as legal practitioner and conveyancer.

This case is significant in Zimbabwean civil procedure for clarifying the test for joinder of parties, particularly distinguishing between parties with direct and substantial legal interests versus those acting merely as agents. It also establishes important principles regarding the ethical obligations of legal practitioners and conveyancers when dealing with property subject to pending litigation, particularly where the practitioner represents a party to the litigation. The judgment reinforces that conveyancers, despite their role in property transfers, do not automatically have a direct and substantial interest justifying joinder merely by virtue of acting as agent. The case also demonstrates judicial willingness to address ethical misconduct by legal practitioners even where costs are not specifically sought against them.