Arosume Property Development Private Limited v Farai Olivia Mashonganyika and Minister of Local Government and Public Works

### Preamble
1
HH 507-25
Case No HCH 1239/25
---------


AROSUME PROPERTY DEVELOPMENT PRIVATE LIMITED

versus

FARAI OLIVIA MASHONGANYIKA

and

MINISTER OF LOCAL GOVERNMENT AND PUBLIC WORKS

HIGH COURT OF ZIMBABWE

MUSITHU J

HARARE: 16 June 2025 & 5 September 2025

Opposed Application-Joinder

S.M. Bwanya, for the applicant

L. Madhuku, for the 1st respondent

MUSITHU J: This is an application for joinder in terms of which the applicant seeks to be joined as the second respondent to the matter involving the first and second respondents in HCH 884/24. In the event of the application finding favour with the court, the applicant wants the court to direct that it files its opposing papers in HCH 884/24, within five days of the granting of the order.

Background to the application and the applicant’s case

The matter in HCH 884/24 is an application by the first respondent for the review of the second respondent’s decision directing the Registrar of Deeds to cancel the title deed registered in favour of the first respondent under 5690/2011. The title deed relates to a property known as stand 91 Kidron Valley Road, Carrick Creagh Estate, Borrowdale, Harare (the property).

The applicant is a developer of land and is engaged in a Public-Private Partnership (PPP) arrangement with the State through the second respondent. In terms of the arrangement, the applicant claimed that it derived income from persons to whom the Carrick Creagh, Borrowdale land was allocated. These were referred to in the agreement as beneficiaries. The property at the centre of the dispute is covered by the PPP arrangement. The applicant contends that by excluding it in HCH 884/24, the first respondent sought to evade any enquiry into whether she paid or did not pay for the property in full. The first respondent’s application for review did not refer to the tripartite arrangement at all.

The applicant averred that the first respondent acquired the property fraudulently, for the following reasons. The lease agreements that she attached to her application were executed on 24 November 2011. The receipt for payment also attached to the application was date stamped 16 November 2011. The accounts department would not have known that this reflected the full purchase price before the lease was issued. The statement of account attached to the application was dated 17 November 2011. The conveyancers would not have been able to calculate the stamp duty and conveyancing fees in the absence of the agreement forming the underlying causa. The applicant further averred that the fraudulent title deed attached to the application for review showed that it was issued on 29 November 2011, only five days after the lease was issued on 24 November 2011.

The first respondent was also accused of withholding critical information which would have revealed the circumstances under which she acquired the property. It was further alleged that the cancellation of the deed of transfer was partly because the first respondent did not pay her share of development costs. It was also alleged that in her application, the first respondent attached a copy of a receipt issued by the applicant to the former first lady, with whom the applicant discussed the terms of the agreement.

First Respondent’s Case

In her opposing affidavit, the first respondent set out the background to her claim to the property as follows. She purchased the property from the second respondent through an agreement of sale and paid the sum of US$4, 000.00, as the purchase price in 2011. She proceeded to pay the full purchase price which was levied by the second respondent, and the property was transferred into her name under Deed of Transfer 5690/2011.

The first respondent also claimed that sometime in 2009, she made a payment of US$10, 000.00 to the applicant, after the applicant misrepresented to her that it had authority to sell the properties, before she was directed to the second respondent to whom she made further payments. The first respondent averred that in 2022, she received notification through the Government Gazette and the Herald Newspapers which were published on 4, 11 and 18 November 2022, advising her that the second respondent intended to cancel her title deed. She was invited to make representations against the cancellation, which representations she made through her legal practitioners. She received no response from the second respondent on her representations.

The first respondent claimed that she was shocked when she was served with an urgent chamber application for an interdict on 6 February 2024, under case number HCH 700/24. The application sought to interdict her from building on the property on the grounds that her title deed had been cancelled by the second respondent, without any further notice to her or her legal practitioners. The title deed was cancelled on 23 March 2021, and the first respondent claimed that this was done hastily without following due process as required by the Deeds Registry Act [Chapter 20:05].

Having set out the factual background, the first respondent raised the following preliminary points. The first was that the act of cancellation of her deed of transfer was unlawful. A deed of transfer conferred real rights and rights of ownership, which could not be terminated without a court order directing the Registrar of Deeds to cancel it. The applicant could therefore not seek to be joined to proceedings which were challenging the lawfulness of the decision taken by the second respondent as an administrative authority.

The second preliminary point was that any interest that the applicant had in the property had prescribed. Nothing would therefore be achieved through the joinder sought by the applicant.

As regards the merits of the application, the first respondent averred that the reason why the applicant was so sure that the second respondent would not oppose the application for joinder was because the second respondent had cancelled the title deed at the instance of the applicant. The applicant was aware that it did not have a cause of action to institute proceedings for such cancellation. The first respondent also denied that the applicant had any substantial interest in the property. The alleged tripartite agreement from which the applicant claimed to derive rights as a developer had since been terminated by the disposal of the stands.

The Submissions

The first respondent’s preliminary points were abandoned by Mr Madhuku at the commencement of oral submissions. Mr Bwanya submitted that the applicant wished to prove that it had an interest in the property. He pointed to the Partnership Agreement for the Development of Residential Stands of varying sizes at Carrick Creagh Farm, Borrowdale, as constituting the foundation of the applicant’s interest in the property. That agreement was signed between the Ministry of Local Government, Public Works and Urban Development, Sally Mugabe Housing Co-operative Society and the applicant herein. Counsel further submitted that the applicant’s rights to administer stands in Carrick Creagh was endorsed by the court in Havire v Arosume Property Development (Private) Limited SC 90/22.

It was also submitted that the applicant’s rights were not just confined to collection of development fees. The first respondent’s acquisition of rights in the property ought to have been done in terms of the aforementioned tripartite agreement. The property in dispute was also subject to the tripartite agreement. The applicant’s counsel also referred to para 33 of the first respondent’s opposing affidavit in which she alleged that there was connivance between the applicant and the second respondent to deprive her of the property. Reference was also made to the letter from the first respondent’s legal practitioners to the second respondent dated 23 November 2022, in which they asserted that the first respondent did not owe the second respondent or the applicant any amount in respect of the property.

In response, Mr Madhuku submitted that the proposed joinder was being opposed on the basis of principle. The first respondent’s application for review was straightforward. It sought to assert the first respondent’s rights on the second respondent’s decision in terms of the Administrative Justice Act [Chapter 10:28]. Once the decision of the second respondent was set aside, the Registrar of Deeds would be ordered to rescind his decision to cancel the first respondent’s title deed. The applicant simply wanted to be joined to the proceedings in order to defend the second respondent’s decision.

Mr Madhuku referred to the case of Nyamweda v Georgias SC 200/88, in which the requirements for joinder were held to be that: a party must have a direct and substantial interest in the issues raised in the proceedings involving matters in dispute and that the party’s rights may be affected by the judgment of the court.

Analysis

Rule 32(12) of the High Court rules, 2021 (the rules) provides for the joinder of parties, and it reads as follows:

“(12) At any stage of the proceedings in any cause or matter the court may on such terms as it thinks just and either on its own initiative or on application—

(a) order any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party;

(b) order any person who ought to have been joined as a party or whose presence before the court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, to be added as a party:

……………………………”

Commenting on a similarly worded provision in the form of o13 r 87(2) of the old High Court 1971, chigumba J made the following apposite remarks in the case of Shumbairerwa v Chiraramiro & 3 Others:

“The purpose of r 87(2)(b) is to prevent unnecessary multiplicity of litigation and to facilitate the speedy and wholesale resolution of disputes by ensuring that everyone whose legal interests are likely to be affected by the outcome of the proceedings is joined as a party to the proceedings. This ensures that all interested parties are aware of the proceedings, and advised of the outcome, which gives them an opportunity to protect their interests and fight for their rights if they so wish, rather than to wait until judgment is handed down and execution is imminent, to ‘discover’ that an interested party was not even aware of the proceedings. See also Macey’s Supermarket & Bottle Store (Greencroft) Ltd v Edwards, Marais & Another v Pangola Sugar Milling Co. & Ors , where it was stated that in order to qualify to be joined as a party to any proceedings;

A party must have a direct and substantial interest in the issues raised in the proceedings

before the court; and that;

His rights may be affected by the judgment of the court.

The concept of a ‘direct and substantial interest’ in the issues raised was explored in the case of Henri Viljoen (Pty) Ltd v Waterbuck Brothers . It was concluded that a direct and substantial interest is an “interest in the right which is the subject matter of the litigation and not merely a financial interest which is only an indirect interest in such litigation. See also United Watch Diamond Co & Ors v Disa Hotels & Anor, and Samuel Mugano v Fintrack & Ors, Nyamweda v Georgias, Zimbabwe Teacher’s Association & Ors v Minister of Education & Culture .”

The court embraces the views of the learned judge espoused in the above authority. Rule 32 (12) bestows upon the court the discretion to order any person whose presence before the court is necessary to ensure that all issues in dispute in the main matter may be effectually and completely determined. A reading of the papers before the court reveals an intricate tripartite arrangement between the applicant, the second respondent and Sally Mugabe Housing Co-operative Society. The proceedings in HCH 884/24, in which the applicant seeks joinder involve the same property in respect of which the applicant claims some rights by operation of the tripartite agreement.

The argument by the first respondent’s counsel that the first respondent’s claim in HCH 884/24, is more about asserting rights in the property against the second respondent as an administrative authority is rather superficial. The dispute is much broader than the mere administrative process that the first respondent claims she wants regularised through the overturning of the decision to divest her of rights in the property. In his notice of intention to cancel the Deed of Transfer number 5690/2011, registered in the first respondent’s name, which notice was communicated through a letter dated 5 April 2022, the second respondent made following averments in paras 6 and 7 of the letter:

“……………………….

6. Our enquiry with Developer, AROSUME PROPERTY DEVELOPMENT PRIVATE LIMITED, our tripartite partner, reveal that you have neglected/refused to pay your pro-rated share of the cost of development being US$520,195.00, thereby prejudicing the Developer and other paying beneficiaries.

7.	Further enquiries with SALLY MUGABE HOUSING COOPERATIVE, reveal that you are neither their member nor one of their recommended nominees to benefit from the Carrick Creagh project.”

The letter went on to invite the first respondent to make representations within fourteen days of service of the letter, failing which the second respondent would proceed to cause the notice of cancellation to be published. The contents of the letter demonstrate that the first respondent was aware of the applicant’s interest by virtue of it being the developer in terms of the tripartite agreement. In para 33 of her opposing affidavit to the present application, the first respondent also suggested that the applicant could be acting in connivance with the second respondent in order to wrestle the property away from her.

In its founding affidavit, the applicant claimed that it filed an urgent chamber application for an interdict against the first respondent in connection with the same property, under HCH 700/24. The first respondent opposed the application, and in so doing acknowledging the existence of a dispute between her and the applicant concerning the property. In para 5 of her affidavit in HCH 884/24, the first respondent claimed that after she was invited to make representations by the second respondent concerning the intended cancellation of her title deed, she responded by making the said representations through her legal practitioners. She further claimed that:

“I heard nothing from the Respondent until on the 6th of February 2024 when I was served with an urgent application seeking to interdict me from building on the said property on the grounds that my title was cancelled by the Respondent with no further notice to me or my legal practitioners under case number HC 700/24.”

Curiously, the first respondent did not mention the party that filed that urgent chamber application against her. What would be clear though from a reading of the papers is that the application in HCH 884/24, was filed with the clear knowledge of the urgent chamber application for an interdict that had been filed earlier by the applicant in HCH 700/24.

The circumstances of this case clearly fit within the dictum in the Shumbairerwa v Chiraramiro & 3 Others judgment above. The applicant instituted its own proceedings against the first respondent, driven by its desire to protect its rights in the property. That right arises by dint of its being a one of the signatories to the tripartite arrangement which was acknowledged by the second respondent. It is therefore clear to me that any judgment that has the effect of pronouncing on the rights of the parties in the property, will also affect the parties governed by the tripartite arrangement referred to earlier.

For the foregoing reasons, the court determines that the applicant not only has a substantial interest in the issues raised in in HCH 884/24 concerning the property, but the applicant’s rights in the said property will be affected by any judgment that may be rendered without its involvement in the litigation.

Costs

This application is an offshoot of the proceedings that are pending in HCH 884/24. Once the applicant is joined to those proceedings, the court will be able to comprehensively and holistically pronounce on the competing rights of all interested parties in the property all in one go. It is therefore appropriate that the question of costs be deferred to the main matter in HCH 884/24.

Resultantly, it is ordered that:

1. 	The application be and is hereby granted.

2.	The applicant be and is hereby joined as the second respondent to the matter in HCH	884/24

3.	The applicant shall file its opposing papers, if any, in HCH 884/24 within five days of the granting of this order.

4. 	Costs shall be in the cause in the main matter in HCH 884/24.

Musithu J:…………………………………………………………………………

Jiti Law Chambers, legal practitioners for the applicant

Chimwamurombe Legal Practice, legal practitioners for the 1st respondent