Nashe Family Trust v Charles Chiwara & 7 Ors

### Preamble
1
HH 596 - 25
HC 11736/17
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NASHE FAMILY TRUST

versus

CHARLES CHIWARA

and

THE REGISTRAR OF DEEDS N.O

and

THE SHERIFF FOR ZIMBABWE N.O

and

BARBARA CHIVANDIRE

and

THE TRUSTEES OF THE CHIWARA FAMILY TRUST

and

YOLANDA RUVARASHE ROPAFADZO CHIWARA

and

TANYARADZWA KUDAKWASHE CLELSEA CHIWARA

and

PARTRIC MAVHURA

HIGH COURT OF ZIMBABWE

CHITAPI J

HARARE, 30 September 2025

Opposed Court Application

S Musapatika, for the applicant

E Mubayiwa for the first respondent

G Chitsaka, for the fourth respondent

CHITAPI J:  The parties in this application are cited in the heading above. The applicant is Nashe Family Trust, so cited. I say so cited because the issue of whether the applicant has legal status to sue or be sued was raised as point of law at the hearing of the application. The answer thereto will determine whether or not the dispute to which this matter relates should be dealt with court on the papers as they stand.

The applicant described itself in paragraph (2) of the founding affidavit as follows:

“ 2. The applicant is Nashe Family Trust , a duly registered Family Trustin accordance with the laws of Zimbabwe whose address for service for purposes of this action is care of its under mentioned legal practitioners.”

The deponent to the founding affidavit stated of himself and his status to depose to the founding as:

“I am the applicant’s Trustee in this matter who was involved in the signing of the agreement of the sale in question and it is in that capacity that I am well acquainted with the facts of this matter. The facts that I depose to are within my personal knowledge, unless otherwise stated, and are true and correct to the best of my knowledge and belief.”

This application was filed on 19 December 2017. Only three respondents were cited being Charles as first respondent, The Registrar of Deeds N.O as second respondent and Sheriff for Zimbabwe N.O as third respondent. The draft order to the application sought the following relief:

IT IS ORDERED THAT

“1. The first respondent be and is hereby compelled to effect transfer of their (sic) rights, interest and title in the Stand Number 98 Philadelphia township of lot 7A Philadephia measuring 7 343 square meters held under Deed of Transfer No 4266/99 into the applicant’s name within five (5) working days from the date of service of this order on him failure of which the third respondent shall be authorized to sign all necessary papers for purposes of effecting transfer of the aforesaid property with applicant’s name.

2. first respondent and all those claiming right of occupation through him including but not limited to first respondents relative, tenants and friends be and are hereby evicted from stand number 98 Philadelphia measuring 7 343 square meters held under Deed of Transfer Number 4266/99, forthwith.

3. The second and third respondents shall perform all that is required of them administratively to effect transfer and register rights, title and interest in the immovable property into applicants’ name

4. Respondents be and are hereby ordered to pay costs of suit on a legal practitioners and client scale (only if they oppose the application)

The application now comprises of eight respondents following joinders of interested parties. The fourth respondent Barbra Chiwandire is the erstwhile wife of the first respondent. The property concerned in the application was part of the divorce settlement when the parties divorced under case number HC 4271/07 by order of this court dated 21 June 2012. A consent paper which forms part of the divorce order incorporated the property which was deserted in paragraph 1.1 of the consent paper as:

“The Plaintiff and the Defendant are joint beneficial owners in equal shares in the immovable property known as stand number 98 Philadelphia Township of lot 7A held unde4r Title Deed Number 4266/99.”

The fourth respondent was granted the unlimited right to occupy the property together with the children, then minors, Yolanda Ruvarashe Chiwara and Tanyaradzwa Kudakwashe Chelsea Nicole Chiwara. The fourth respondent would only lose the occupational right upon her remarrying or cohabiting with another party. The said children are now the sixth and seventh respondents. The fifth respondents, Trusties of Chiwara Family Trust claimed that the property was donated to the Trust by the first and fourth respondents pursuant to the divorce order in case number HC 4271/07. The sixth and seventh respondent are Trustees and beneficiaries of the fifth respondent. The eight respondent Patrick Mavhusa claims to have purchased the same property from the fifth respondent. There is also case no HC 6958/18 in which the fifth respondent claims transfer of the property from the first and fourth respondent. There evidently have been various sales of the property. The validity of the sales are contested. The determination of this application will inform how the various claims may be proceeded with and holistically determined.

At the hearing of the application, points in limine were raised by counsel for the first respondent.  The points in limine must be understood in the context of the facts relating to the current application HCH 11736/17.  It is important to streamline the facts because of various other claims which relate to claims for rights and title to that property.  The facts are as follows in summary:

The applicant and the first respondent purported to enter into a sale agreement for the property.  The seller was the first respondent.  The purchaser was “Nashe Family Trust” represented by Leonard Madzire and Tambudzai Madzivire.  The date of the sale was 28 August 2017 as evidenced by the sale agreement bearing that date.  The property was not transferred to the purchaser, hence this application

The first point in limine which I consider as dispositive of the matter is the contention that no cause of action arises from the applicant’s claim because the agreement of sale which is sued upon is a nullity.  The agreement is said to be a nullity because of the non legal existence of the applicant as a juristic entity.  It was submitted that a Trust in Law is only an arrangement and not a legal persona.  In consequence, the Trust cannot litigate, contract or acquire rights or sue or be sued.

The applicants counsel opposed the raising of the points in limine over the bar.  Counsel argued that the first respondent ought to have sought leave to raise the points in limine.  Counsel conceded however, that prior to the hearing, the first respondents counsel had advised him that he would raise points in limine but that those points would be the ones arising in the filed papers and not outside of them.  The first respondent counsel submitted that the issue of the legal status of the applicant as a Trust was raised in the opposing affidavit.  It was not in my view so specifically raised.  However, the first respondent challenged the validity of the sale and averred that he had no lawful right to sell the property because in doing so, he breached the court for divorce which ordered him to donate the property to his children who are sixth and seventh respondents.

It is trite that a point of law may be raised at any stage of any court proceeding before judgment.  It can also be raised on appeal subject of course to the rules and practice of the appeal court in that respect.  In the case of ZIMASCO (Pvt) Ltd v Marikano SC 6/14 Garwe JA (as the he was stated).  See as follows at p 10 of the cyclostyled judgment:

“It is settled law that a point of law can be raised at any time even on appeal as long as the point is covered in the pleadings and its consideration involves no unfairness to the party against whom it is directed.  See Ahmid v Manufacturing Industries (Pvt) Ltd SC 254/96 at p 17 of the cyclostyled judgment and Muchakata v Netherburn Mine 1996(1) ZLR 153(S); 157A.”

At p 11. The learned judge continued as follows:

“The rationale for allowing issues of law to be raised at any time is to enable a court to have all the information even at a very late stage, so that it is enabled to make a proper decision.  The issue was a serious one.  If a court has no jurisdiction that would be the end of the matter and any determination made thereafter would be null and void.”

This dicta in my view applies with equal force to situation where the locus standi and /or capacity of a party to sue of de sued at play.

It is also correct as contended by the applicants counsel that the party wishing to raise the point of law must give notice of intention to raise the point of law.  The prior notice is intended to alert the other party to the point so that the party may properly prepare to deal with the point.  The other party may seek a postponement to properly reflect on the new point and properly address it.  I should record that counsel for the applicant despite objecting to the raising of the points was not constrained to deal with the points and addressed them without seeking an indulgence to prepare argument on them.  Counsel was impliedly therefore, equipped to deal with the points in limine.  He responded to the points in substance.  No prejudice to the applicant was raised by the applicants counsel.  Counsel for the rest of the parties also followed suit and addressed the court in substance.

A perusal of the first respondent ‘s heads of argument to para 1(a) contains the following submission:

“(a) There can also be no doubt that the agreement is invalid for lack of capacity.  The agreement was entered into by applicant and first respondent.  Applicant is a trust.  It does not exist at law and for that reason it cannot contract as it purportedly did.  The purported agreement is void and unenforceable.  See Crundal Bros v Lazarus 1990(2) ZLR 290 (S) at 298B; Gold Mining and Minerals Development Trust v Zimbabwe Miners Federation HH 24/06: Estate Kemp and Ors v McDonald’s Trustee 1915 AD 491 ant 449, 508; McCullogh v Fernwood Estate 1920 AD 204 at 209.”

It is clear therefore, at least from the heads of argument that the issue of the applicants’ legal status and capacity to institute this application was not raised for the first time at the hearing but in the first respondents heads of arguments.

It is my view that the court must first determine the issue of the capacity of the applicant to sue in this application.  The simple question that arises is whether or not a Trust has legal capacity to sue or be sued.  The answer to this question will determine whether the matter must proceed to the issues.  This court dealt with a similar situation per Takuva J in the case Mafirambudzi Family Trust v Liberty Madzingira and 3 Ors HH 338/14.  In that case the deponent to the founding affidavit stated:

“1. I am a trustee of the applicant ana am duly authorized to depose to this affidavit on applicant’s behalf in that capacity.

2. The applicant is Mafirambudzi Family Trust, a trust duly registered MA 718/2010 whose address for service is care of its legal practitioners of record.

3. I represented the applicant in an agreement of sale entered into between the applicant and first and second respondents on the 30th of December 2012.”

The learned judge noted that the respondents were happy to enter into a sale agreement with the Trust represented by the deponent.  The issue was not raised in the pleadings but as in casu, at the hearing as a point of law.  The learned judge also referred to the issue of whether the deponent needed the authority of the Trust to sue.  I do not deal with that as it was not an argument made before me.  The learned judge continued to state in para 6 of the cyclostyled judgment.

“In casu, I do not think it is proper for the first and second respondent to enter into an agreement of sale with a trustee in this capacity as such receive and spend US$ 95 000.00 belonging to the trust and when asked to pass transfer.  Turn around and challenge the trustees locus standi to institute proceedings.

Also, in terms of order ZA r 8 of the High Court Rules 1971, a trustee is entitled to issue out process in the name of the Trust.  The rule state:

“In this order –

Associate in relation to –

a trust means a trustee

an association other than a trust, means a member of the association

Association includes-

a trust; and

a partnership syndicate; a club or other association of persons which is not a body corporate

8. Proceedings by or against

Subject to thus order associates may sue and be sued in the names of their association”

There is no provision that a trustee must be authorized by a Board Resolution before he so acts. Indeed, the other trustees may join in if they are in existence and willing to do so but misspender or non-joinder of such trustees does not defeat the cause of action or willing.  See rules 87 and 91 of this court’s rules.”

In his submissions, Mr Mubayiwa stated that the issue was not whether or not a Trust can sue or be sued.  The issue was whether or not the Trust could contract or acquire rights. It seems to be that the circumstances of each case must be considered and whether from these circumstances the parties were aware of the parties identities and who in fact was the party contracting in the agreement.  Mr Mubayiwa referred me to a plethora of authorities to advance the point that a Trust is an arrangement where a person holds property or assets for the benefit of others.  Reference was made inter alia to Veritas v ZEC SC 103/20.  Trustees of Apostolic Faith Mission of Africa v Zivhu + Ors HH138/17; Trustees of Makoni Family Trust + Or v KArpeg Invetsments (Pvt) Ltd + Ors HH 30/18.

Counsel argued that because a trust is a legal arrangement has no justice existence and cannot execute an agreement.  The purported agreement was therefore a nullity, this the application did not disclose a cause of action.

The legal position that a Trust is an arrangement is trite. Trustees enter into transactions in their nomine officii capacities and not in their private capacities.  In para 1 of the founding affidavit the deponent identified himself as a trustee who in that capacity was involved in the requiring or execution of the agreement of sale whose validity the first respondent non seeks to attacks on the basis that a trust cannot enter into contracts.  It did not at least according to the deposition of Learnard Madziwire.  He stated that he entered into that agreement in the capacity of trustee which is the same capacity in which he acts in the current applicant.

Pointedly the first respondent did not take issue with the applicant’s deposition and the trustee capacity in which the deponent said he entered into the agreement as well as the capacity in which the deponent petitioned this court in this application. To be precise, in the opposing affidavit, the first responding responded in relation to the dispositions relating to  the agreement and the locus standi or capacity in which the deponent cited by stating.

“1. Ad para 1-5

No issues”

To then take a contradictory position as now sought to be done, that is to impugn the validity of the agreement on the basis of the incompetency of a trust to enter into agreements amounts to approbating and reprobating at the same time.  In the case of the Trustees for the Time Being of Cornerstone Trust & 2 Ors v NMB Bank Limited SC 97/21, the applicants who had utilized a loan granted by the respondent bank sought to raise the defence of invalidity of the agreement.  Hlathwayo JA (as the he was) stated at p 7 of the cyclostyled Judgement as follows:

“I am of the view that the finding of the court a quo is supported by the fact that the second appellant utilized the accessed loan facility funds (through the medium of the first appellant) to attend to his personal expenses.  In light of the foregoing considerations it does not appear to me that the second appellant can seek to avoid liability on the premise that the loan facility was not validly entered into.  To do so would essentially constitutes an exercise in which the second appellant seeks to approbate and reprobate.  In other words, the second appellant cannot seek to dispute the validity of the loan agreement from which he consistently sought and derived benefits.  The position was well articulated in the case of S v Marutsi 1990 (2) ZLR 370 at p 374 B where it was stated that:

“it is trite that a litigant cannot be allowed to a probate and reprobate a step taken in the proceedings.  He can only do one or the other and not both.”

In casu, the first respondent in this deposition admitted the issue of the capacity in which the deponent to the founding affidavit acted which was that of Trustee to benefit the Trust or arrangement.  The full purchase price was paid to the first respondent’s legal practitioners and received.  The fourth respondent is said to have utilized some of the money for the benefit of the children who I assume were the sixth and seventh responded.  It is also that annexure C to the founding affidavit is an e-mail dated 3 October 2017 by the conv........ Musimbe and Partners confirming as follows:

“We advise that the full purchase price has now reflected in our Trust Account.”

The subject with was captured as TSANSFER CHIWARA C TO MADZIVIRE NASHE FAMILT TRUST.”

In the letter of the alleged but disputed cancelation of the sale agreement dated 31 October 2017 which was co-signed by both the first and fourth respondents they wrote as follows:

“Having agonized over this and tried by all means to move things forward, we have reached the very hard and uncomfortable decision that it is best we approach you and appeal for the cancellation and unwinding of this transaction in a bid to find point of surviving the maze we find ourselves in. We are aware that there is a signed agreement in place which is binding in spite of all the events around it.  At this point we are really praying for your help so that we do not end up in a situation where we are completely out of roof over our heads.  Its just very unfortunate about the timing of all events that have led us here which were unforeseen.  We are and will forever be grateful for the deposit you paid which helped our girls get to school and undertake to make good on it in a way that preserves your value including the repairs to the roof you made........”

In the circumstances of this matter the capacity of the purchasers in entering into the agreement as Trustee was not dispute when he stated so.  Whilst it is true that the sale agreement itself does not expressly state that the representative acted as Trustee, it is however clear that he did not act in a personal capacity.  The agreement cannot be taken as a stand alone instrument and dissected on its face.  What the parties who executed it say about it matters. The issue that a trust cannot contract as a correct legal principle is applied to the facts of each case and the court determines on the facts and uncontroverted evidence of the parties as to who the parties really are and their capacities where a dispute arises.  The challenge to the sale agreement on the basis raised by the first respondent is a red herring meant to mislead or distract the issues of substance involved in the matter.  The point in limine  lacks merit in the circumstances of this case.

The other supposed points in limine that the agreement was terminated and the termination was not challenge is not a dilatory point.  It is a point of substance.  The same applies in relation to the point that the agreement was entered into in contempt of court.  That is a point of substance.  The matter must proceed to full hearing on merits.

Accordingly, I make the following order

IT IS ORDERED THAT

The point in limine regarding the alleged invalidity fo the sale agreement between the applicant and the first respondent is dismissed

The points in limine that the agreement was cancelled and can no longer be sued upon is a matter of substance to be determined with the rest of the merits of the application

The point in limine that the agreement of sale was entered into in contempt of court is a matter of substance to be determined with the rest of the merits of the application.

The point in limine that the eighth respondent has no cause of action since he purchased the property from a non-owner is a point of subsistence to be determined with the rest of the merits of the application.

The costs of the hearing of 3 August 2022 at which the points in limine were argued are reserved for determination in the final judgment.

Chitapi j:.....................................................

Danziger and Partners, Applicant’s legal practitioners

Macharaga Law Chambers, 1st Respondent’s legal practitioners

Bherebhende Law Chamber, 4th – 7th Respondent’s legal practitioners

Mufadza and Associates, 8th Respondent’s legal practitioners