Georgina Dadirayi Savanhu v Herbert Sylvester Masiyiwa Ushewokunze & 13 Ors

### Preamble
1
HH 630-25
HC 1190/21
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GEORGINA DADIRAYI SAVANHU

versus

HERBERT SYLVESTER MASIYIWA USHEWOKUNZE

and

ESTATE LATE DUNCAN WILLIAM KONA

and

NOMUSA HAZEL NCUBE (N.O)

and

TARUBEREKERA NETSAI MAKHOSAZANA

and

DHLAMINI TOWNSHIP RESIDENCE ASSOCIATION

and

THE TRUSTEES FOR THE TIME BEING OF THE

RIVERSIDE ESTATES TRUST

and

AMBROME NZEWI

and

NONOTI PROPERTIES (PRIVATE) LIMITED

and

BULAWAYO CITY COUNCIL

and

THE REGISTRAR OF DEEDS (N.O) BULAWAYO

and

THE SURVEYOR-GENERAL (N.O) BULAWAYO

and

THE SHERIFF FOR ZIMBABWE (N.O) BULAWAYO

and

THE MASTER OF THE HIGH COURT (N.O) HARARE

and

THE MASTER OF THE HIGH COURT (N.O) BULAWAYO

HIGH COURT OF ZIMBABWE

CHITAPI J

HARARE, 15 October 2025

Opposed Application

Z T Zvobgo, for the applicant

T Tavengwa, for the 1st respondent

G Nyoni, for the 5th and 6th respondents

CHITAPI J:

INTRODUCTION:

Dr Herbert Sylvester Masiyiwa Ushewokunze is a national hero buried at the National Heroes Acre.  His history is common knowledge.  He died on 10 December 1995.  When a person dies the living in paying condolences invariably say “may the deceased’s soul rest in peace.”  Others will describe the soul as “dear” and the peace as “eternal.”  In the case of Dr Ushewokunze, thirty (30) years post his death his soul is not in rest mode.  This matter deals with the court being asked to determine the validity of the claim of the applicant Grace Dadirayi Savanhu to ownership of three immovable properties situate in Bulawayo paid for by Dr Ushewokunze and registered in the name of the applicant, then a girlfriend to the doctor at the time of properties acquisition.  Dr Ushewokunze’s estate claims that the doctor never intended to give the applicant absolute ownership.  Dr Ushewokunze’s spirit as they say remains alive and in the fight. Various consequence arise upon such determination.   It is hoped that the judgment will be a step at least to ensuring that Dr Ushewokunze’s soul may one day rest in peace in the sense that he will not be topical in this dispute.

THE PARTIES

The parties to this application are as follows:

The applicant is an adult female Zimbabwean citizen currently resident in United Kingdom.

The first respondent is Dr Ushewokunze’s namesake.  However, his names bear the symbol V1 at the end of the end of the name.  He is Herbert Sylvester Masiyiwa Ushewokunze V1.  He comes into the litigation cited nominee officii as the executor of the Estate Late Herbert Sylvester Masiyiwa the late national hero aforesaid who as a matter of fact fathered this executor.  The late Dr Ushewokunze’s estate is registered in the books of the Master at Harare under reference DR 735/96.

The second respondent is Estate Late Duncan William Kona.  The executrix dative of this estate is Nomsa Hazel Ncube.  She is also cited as the third respondent.  The estate of the Duncan William Kona is registered in the books of the Master at Bulawayo under reference DRB 535/20.  The genesis of the dispute herein centre on how the late Duncan William Kona allegedly took ownership or control of the properties in dispute and dealt in them.  The fourth to the eighth respondent come into the picture as interest parties because of alienations of the property (ies) in dispute by the late Duncan William Kona as shall be extrapolated later.

The fourth respondent Taruberekera Netsai Makhosazana is a female adult of Harare.  She withdrew from the application.

The fifth respondent Dhlamini Township Residence Association is an unincorporated body of persons with power to sue and be sued.

The sixth respondent are the trustees of a trust called, The Riverside Estates Trust, so registered and has power to sue or be sued through its trustees.

the seventh respondent Ambrose Nzewi is an adult male whose further particulars are not given save for his address of service which is care of his legal practitioners.

The eighth respondent Nonoti Properties Private Limited is a company registered in terms of the laws of Zimbabwe and carries or carried on business in Bulawayo at the material time.

The ninth respondent is Bulawayo City Council.  The tenth respondent is the Registrar of Deeds Bulawayo. The eleventh respondent, is the surveyor General Bulawayo. The twelfth respondent is the Sheriff for Zimbabwe Bulawayo. The thirteenth respondent is the Master of High Court, Harare. The fourteenth respondent is the Master of High Court, Bulawayo.  The Bulawayo, City Council is the local authority under whose jurisdiction, the properties in dispute are located. The rest of the respondents are cited nominee officii as reliefs sought herein impact on the exercise of their statutory duties.  None of them filed any opposing papers.  They will abide by the decision of the court as they customarily do.  Sometimes they do otherwise and file reports to assist the court to determine the matter.

ESSENCE OF THE APPLICATION

The applicant lays claim to three properties namely:

The Remainder of Lot 7 Riverside Estates Agricultural Lots of subdivision “A” of Willsgrove situate in the district of Bulawayo measuring 3,6832 hectares

The Remainder of Lot 8 Riverside Estates Agricultural Lots of Willsgrove situate in the district of Bulawayo measuring 30,0628 hectares.

Subdivision A of Lot 9A Riverside Estate Agricultural Lots of subdivision A of Willsgrove situate in the district of Bulawayo measuring 5,2603 hectares.

It is common cause that the three properties were registered in the name of the applicant under deed of transfer No 417/83 dated 16 February 1983.  The properties were transferred into the name of the late Duncan William Kona (Kona) by deed of transfer No 1431/2003 dated 9 July 2003.  Deed of transfer No 1431/2003 was however, cancelled and deed of Transfer 417/83 revived by order of this court granted in case HC No 2551/2019 dated 21 November 2019.  The three properties are thus currently registered and held under deed of transfer No 417/83 in the name of the applicant.

The transfer of the properties to the late Duncan William Kona was followed by the making of subdivisions on the property(ies) Duncan William Kona sold portions of the properties to various purchasers who included the third to the eighth respondents.  Kona could not pass transfer upon the sales.  He was sued by purchasers in various cases.  The revival of deed of transfer No 417/83 in the applicant’s name has caused further complications in view of the challenge by the applicant to the alienation of the properties aforesaid by Kona.

The applicant claims that the properties were fraudulently alienated from her by Kona because she did not sell any of the properties to anyone, Kona included.  The applicant essentially prays to the court to declare her ownership of the properties as absolute.  She then wants the court to rescind several judgments of the High Court in which applicants therein sought to assert their rights consequent upon alleged purchases of portions of the properties.

The applicant thus prays that the court shall make or issue the following declarations:

(a)(i) That the title deed in respect of the immovable properties known as:

i. certain piece of land in extent 3,6832 Hectares being the Remainder of Lot   7 Riverside Estates Agricultural Lots, of Subdivision “A” of Willsgrove situate in the district of Bulawayo;

ii. certain piece of land in extent 30,0628 Hectares being the Remainder of Lot 8 Riverside Estates Agricultural Lots, of Subdivision “A” of Willsgrove situate in the district of Bulawayo; and,

iii. certain piece of land in extent 5,2603 Hectares being Subdivision “A” of Lot 9A Riverside Estates Agricultural Lots, of Subdivision “A” of Willsgrove situate in the district of Bulawayo;

which title deed is registered in the name of the Applicant under Title Deed No 417/83, dated 16th February 1983, is valid and extant.

(ii) The Applicant did not enter into any valid agreement with the late Dr Herbert Sylvester Masiyiwa Ushewokunze, who died on 10th December 1995, regarding the surrender, alienation or any other transfer of ownership of the aforementioned three immovable properties from the Applicant to the said deceased or his estates.

(iii) Neither the 1st Respondent, his successors in title nor anyone else howsoever appointed to administer the affairs of estates of the late Dr Herbert Sylvester Masiyiwa Ushewokunze, who died on 10th December 1995, shall have any right of claim against the Applicant, or at all, in respect of any of the aforementioned Immovable properties.

(b)(i) The late Duncan William Kona, who died on 4th September 2019, did not validly purchase any of the said three immovable properties described in paragraph 1(a)(i) above from the Applicant, or at all, and therefore did not acquire any rights in the said immovable properties, whether real or personal.

(ii) The registration of transfer of the aforementioned three immovable properties from the name of the Applicant into of the late Duncan William Kona, which took place on 9th July 2003 under deed of transfer number 1431/2023, was a nullity and therefore invalid.

(iii) All sale agreements entered into by and between the late Duncan William Kona, who died on 4th September 2019, and members of the 5th and 6th Respondents, as well as the 7th Respondent, and any other third parties, for the sale of unregistered subdivisions arising from the said three immovable properties described in paragraph 1(a)(i) above are a nullity and therefore invalid.

Consequently, it be and is hereby ordered that:

The name of the late Duncan William Kona, who died on 4th September 2019, be and is hereby deleted and expunged from the subdivision permit issued by the 9th Respondent under Permit No. SDC13/2003 in accordance with Plan No. SDC 13/2003, and in its place is substituted the name of the Applicant, such that the said subdivision permit shall be deemed to have been issued to and in the name of the Applicant.

All official documents issued by the 9th, 10th and 11th Respondents pertaining to the consolidation and subdivision of the aforementioned three immovable properties described in paragraph 1(a)(i) above and which were issued in the name of the late Duncan William Kona, who died on 4th September 2019, shall forth, be deemed to have been issued to and in the name of the Applicant.

The Applicant shall point a developer of her choice to complete all necessary works in order to enable the 9th Respondent to issue a certificate of compliance in respect of the consolidation and subdivision of the three immovable properties described in paragraph 1(a)(i) above.

The members of the 5th and 6th Respondents as well as the 7th Respondent shall, within a period of sixty days from the date of judgment, engage the Applicant through her legal practitioners, namely Messrs Zvobgo Attorney of No. 7 Allan Avenue, Belgravia, Harare, for purposes of entering into sale agreements with the Applicant in respect of their unregistered subdivisions and facilitating transfer of the same into the names of the individual purchasers.

The 12th Respondent be and is hereby authorised, directed and ordered to evict and such members of the 5th and 6th Respondents, as well as the 7th Respondent, as would have failed to comply with the provisions of subparagraph (d) above, from Dhlamini Township, Bulawayo.

In respect of the sic (6) court cases for which rescission and setting aside of judgment in terms of r 449(i)(a) (now r 29(i)(a) ) is sought the applicant prays for relief in terms of para 3 of her draft order as follows:-

“An order for rescission of judgment in terms of rule 449(1)(a) be and is hereby granted in respect of the following court orders, all of which are hereby rescinded and set aside:

Harare High Court order under HC6048/00 which was granted on 29th August 2000 per Chatikobo J.

Bulawayo High Court order under HC1716/02 which was granted on 7th November 2002 per Cheda J.

Bulawayo High Court order under HC432/04 which was granted on 4th March 2008 per Kamocha J.

Bulawayo High Court order under HC4209/12 which was granted on 24th January 2013 per Cheda J.

Bulawayo High Court order under HC512/19 which was granted on 30th May 2019 per Takuva J.

Bulawayo High Court order under HC1281/20 which was granted on 30th September 2020 per Makonese J.”

In short, the applicant seeks effective control of the properties and to then deal with persons who are in occupation of the properties if judgments which militate against her effective control are rescinded.  The issues which arise are not that simple but may be simplified by reference to the paper trail involving the devolution of the properties.

The paper trail in this dispute starts with the disputed purchase of the three properties and their registration under deed of transfer No 417/83 in the applicants’ name.  The applicant in the founding affidavit has placed a lot of reliance on the inviolability of deeds of transfer.  She stated as follows in para(s) 27 and 28 of the founding affidavit.

“27. The point for which I refer to the long history of the change of ownership in the immovable properties is to demonstrate to this Honourable Court the sanctity of the registration of transfer in the office of the Registrar of Deeds.  Registration of transfer of an immovable property in the Deeds of Registry signifies the totality and indisputability of one’s ownership of the immovable property in question.  It is because of this that we are able today to state as a matter of fact that in the year 1905, Albert Edward Yeatman took ownership of Lot 7 and only relinquished such ownership when he caused transfer of the same together with Lot 8 of Lot 9A in the name of Muziwani (Private) Limited on 11 February 1960.

28. I am emphasizing to the Honourable Court the importance of the registration of transfer of an immovable property and the value of holding a title deed of transfer because it is entirely upon that very concept that my whole case rests.  This case is an opportunity for this Honourable Court to firmly remind the general public that registration of transfer in the deeds registry is not a mere formality that can easily be trifled with, but rather, is a dependable record of the existence of one’s real rights which the courts will not allow to be unlawfully interfered with.  It must be reiterated that land which is registered in the deeds registry under ones name remains their property until such time as they may choose to alienate it.”

I cannot help but comment that what the applicant states is argumentative.  It would do well as a lecture on the property law pertaining to registration of deeds and ramifications thereof counsel when settling a party’s affidavit in application should always remember as indeed r 58(4)(a) confirms so, that any affidavit filed with a written application must allege facts and not the law arising from or applicable to those facts or cause of action or defence as the case may be.  Despite this criticism the applicant’s understanding of the concept of registration of the properties in her name is generally correct.  However, such registration gives the transferee or holder of the title deed a prima facie right to ownership.  To state that registration “signifies the totality and indisputability of ones ownership of the immovable property in question” is not the correct position of the property regime in this jurisdiction.  In the case of Jamrey Mabika v Margaret Danga N.O (In her capacity as the executor dative of the estate of the late Ragison Mabika DR 445/22) and 3 Ors.  HH 819/22 bachi mzakwazi J stated at p 9 of the cyclostyled as follows:

“Surely, every legal mind knows that though a title deed is prima facie proof of ownership, that right is not absolute.  It is open to challenge.  This has been expressed in numerous cases, Fryes (Pty) Ltd v Ries 1957(3) SA 575, Ishemunyoro (nee Mandidewa) v Ishemunyoro & Ors SC 14/19.  In any event, it is a rebuttable presumption.  The onus to rebut that presumption lies with the person contesting title in the immovable property on a balance of probabilities see.  Cunning v Cunning 1984(4) SA 585 CBZ Limited v Moyo and the Deputy Sheriff Harare SC 17/18, Sibinda v Sibindi & Anor HH 327/20 and The Sheriff of Zimbabwe v Humbe HH 378/20.”

What is indisputable about registration of transfer of a property in the Deeds Registry and issuing of an instrument of ownership is that the registration creates real rights in the property meaning that such rights can be enforced against the whole world.  This does not however, mean that the real rights so created are not open to contestation.  The situation created by registration is that the registered person is prima facie the owner of the property.  He or she is presumed to remain so unless the ownership is challenged and the challenge succeeds.  The advantage which the title deed holder enjoys is that he/she does not bear the onus to prove that she/he is the owner.  The title deed holder only needs to produce his/her title deed and establish that it is validly issued and registered in the Deeds Registry.  The onus then shifts to the person who impugns or challenges the title to prove otherwise.  Indeed, if the mere registration of title is held to indisputable or absolute, there would be chaos in the property law regime because fraudulent and other dishonest transactions would not be corrected once a registration is procured.

It is in the light of the above expose that the court in looking at the paper trial takes note that the applicant’s real rights are under serious challenge especially from the first, second, third, fifth and sixth respondents.  I have considered the disputed facts surrounding the devolution of ownership of the property in issue and competing claims made by the.  I am in agreement that disputes of facts arise in the application which cannot be resolved on the papers.  In considering so, I am aware that the court should generally take a robust approach and try and resolve the dispute on availed facts where this is possible.  In this connection, the courts have followed what is colloquially referred to as the Plascon Evans principle which developed in the case Plascon Evans Paints Ltd v Van Riebeeck Paints (Pty) 1984(3) SA 623(A).  The principle is applicable to motion proceedings in which the applicant seeks a final order.  The principle in general is that the court may grant a final order in motion proceedings where the facts alleged by the applicant in the founding affidavit considered together with the facts admitted by the respondent justify the granting of such an order.

In other words and on approach, the court establishes the common cause facts between the applicant and the respondent.  The next step is to consider the disputed facts and to assess whether the denied facts are bona fide and genuine disputes of fact.  The court is entitled to reject the respondents version if the facts alleged are inherently improbable, or are in the nature of bald denials which are uncredit worthy or made up or are so far fetched and implausible to the point that no reasonable court could possibly find them worthy of belief.

In this application, the issue of the correct ownership of the properties is one which I consider to be central to the dispute.  In other words, the declaration sought which effectively is to order that the applicants title deed is proof of absolute as opposed to prima facie ownership is the starting point.  Thereafter the issue of the disputed sales of the property must follow.  The claimed purchases of the properties by the late William Duncan Kona must next be determined.  The rights of persons like the first, second, third, fifth and sixth respondents who impugn the applicants ownership of the property or claim to have purchased subdivisions of the properties from the late Kona will largely be impacted upon by the ownership determination.

The respondents have all alleged that there are material disputes of fact surrounding the purchase and registration of the properties in the name of the applicant.  They attacked the alleged inaction by the applicant when she knew of the violation to her property rights and the sales of the properties to the late Kona.  Her explanation is hotly disputed.  Documents abound filed by the applicant on one hand and the respondents on the hand to advance their cases.  It is not possible for the court to reconcile them without viva voce evidence.  The role played by legal practitioners Takawira and Kapurura are of importance as the applicant has distanced herself from their conduct.  This complex matter should have been instituted by action so that all the facts are ventilated and an informed decision which may end this saga is made.

The option open to the court is to either dismiss the application on the basis that the material disputes of fact were foreseen when the applicant decided on application procedure or to refer the matter to trial.  I am inclined to adopt the latter option.  There are many interests involved in the matter whose rights fall to be determined for better or worse by an effectual resolution of the matter.  Parties must be allowed to present oral evidence and support their acclaimed documents of claim.  A clear picture will be revealed and a clear decision made.  The direction which the executors will take and what the estate inventories will contain will equally be ventilated.  The concerns of the first, second and third respondents will thus be answered.

There is however, the issue of the second part of the application which seek the rescissions of the default judgments.  I propose that the court’s decision thereon is stayed until the disputed ownership wrangles are resolved.  The determination of those cases especially whether the parties may not agree on way forward will be informed by the declarations of ownership and validity of the agreements which the fifth and sixth respondents entered into with the first respondent.  If for example the alleged sales of the properties to Kona are declared null and void, it is a legal issue whether subsequent sales can stand.  Thus, even if rescission is not dealt with by consent and the court has to determine the applications, the courts decision will influenced by the outcome of the declaratory relief sought herein.

In the premises, the following order is merited in my view.

IT IS ORDERED THAT

The matter is referred to trial on issues arising in the founding affidavit and the relief sought in the draft order other than the relief of rescission of judgments.

The applicants’ founding affidavit shall stand as the summons.

The respondents opposing affidavits shall stand as the appearance to defend.

The applicant shall file and serve her declaration within ten (days) of the date of uploading this order.

The ensuing pleadings thereafter shall be filed in terms of the rules.

The wasted costs of this application remain costs in the cause.

Chitapi J:…………………………………………

Zvobgo Attorneys, applicants legal practitioners

Mutuso Taruuya, first respondent’s legal practitioners

Joel Pincus Konson Wolhuter, second and third respondent’s legal practitioners

Moyo and Nyoni, fifth and sixth respondent’s legal practitioners