Yoliswa Irene Nhamo (nee Mandela) v Mandla Moyo and Sanele Moyo and Andrew Nhamo and Registrar of Deeds

### Preamble
1
HH 562 - 25
HCHF 1641/24
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YOLISWA IRENE NHAMO (nee Mandela)

versus

MANDLA MOYO

and

SANELE MOYO

and

ANDREW NHAMO

and

REGISTRAR OF DEEDS

HIGH COURT OF ZIMBABWE

MAXWELL J

HARARE; 11 June 2025 & 24 September 2025

Opposed Matter – Cancellation of Deed

P. Chimombe, for the applicant

W. Chagwiza, for the first and second respondent

No appearance for 3rd and 4th respondents

MAXWELL J:

The applicant approached the court seeking the cancellation of Deed of Transfer No. 2184/23 and the revival of Deed of Transfer No. 7231/91. The application is made in terms of s 8 of the Deeds Registries Act [Chapter 20:05].

Applicant stated in the founding affidavit the following facts. She is married to the third respondent in terms of the Marriages Act [Chapter 5:17]. Their marriage was solemnized on 19/4/1996 in Chipinge. The marriage was blessed with two children, of which one passed away and the other is now a major. During the subsistence of the marriage, the parties acquired an immovable property which was registered under Deed of Transfer No. 7231/97. The property was registered in third respondent’s sole name as the parties agreed to have him secure a mortgage. Applicant proceeded to relocate to the United Kingdom where she was working and sending money to third respondent to pay the mortgage. The parties contributed jointly until the mortgage was paid off and cancelled sometime in 2004.

Third respondent relocated to Malawi where he opened a business and subsequently married another woman. Applicant came back to Zimbabwe and started staying at the matrimonial home. She extensively renovated it and erected a durawall. Third respondent issued summons for divorce wherein he was claiming sole ownership of the immovable property. He however admitted that applicant was entitled to a share of the matrimonial property. The parties did not agree on the percentage of the share. They tried to reach out of court settlement. Sometime in 2023 applicant was approached by the first respondent who advised her to vacate the property as he had bought it from the third respondent.

Applicant prayed for the cancellation of the sale and transfer of the property on the basis that the property was undervalued and sold at a lower market value than the actual value in order to circumvent the divorce proceedings. She disputed that first and second respondents are innocent purchasers, alleging that they acted in cahoots with the third respondent.

The application was opposed by the first, second and third respondents. First respondent deposed to the opposing affidavit. He disputed that applicant sent money to pay off the mortgage bond as there was no proof tendered. He also pointed out that applicant’s allegation that she renovated and upgraded the property was not substantiated. First respondent submitted that he was not aware of the divorce matter between the applicant and the third respondent and was also not aware of applicant’s interest in the property. Further that they only got to know of her interest well after obtaining title pursuant to paying the full purchase price to the third respondent. First respondent disputed that the property was undervalued and denied conniving with third respondent. Second respondent deposed to a supporting affidavit. First and second respondents prayed for the dismissal of the application. Though third respondent filed an opposing affidavit, he did not file heads of argument and did not appear on the date of the hearing. In Muswere v Makanza 2004 (2) ZLR 262 Makarau J (as she then was) expressed the position of our law as follows;

“The position of our law is therefore that a wife cannot even stop her husband from selling the matrimonial home or any other immovable property registered in his sole name but forming the joint matrimonial estate. See Muzanenhamo & Anor v Katanga 1991 (1) ZLR 182 (S). There must be some evidence that, in disposing of the property, the husband is disposing it at under the value and to a scoundrel; See Muganga’s case (supra). Mere knowledge that the seller of the property is a married man who does not have the consent of his wife to dispose of the property is not enough: Prestorious v Prestorious 1948 IDSA 250 (A)”

It therefore follows that the third respondent had the right to dispose of the property registered in his sole name. The transfer of title can only be reversed if there is evidence that the first and second respondent are mala fide purchasers. Applicant argued that the property was undervalued and sold at a lower market value than the actual value. Issues of value are factual and must be proved through valuation by registered valuers. In the founding affidavit, applicant merely stated that the property was undervalued and sold at a lower market value than the actual value. No amount was stated. In the answering affidavit, applicant boldly stated that the property in the current market is valued at US$40 000.00 at most. The basis of that valuation is not given. The first and second respondents submitted that the purchase price was the correct market value for the property. Applicant had the onus of proving that the property was valued at more than $20 000.00. It is trite that he who alleges anything against another person bears the onus of proving such allegation. See Zimasco (Pvt) Ltd v Chizema SC 38/07 and Delta Corporation Ltd v Forward Wholesalers & Anor HH 53/17.

I find that applicant did not discharge the onus of proving that the property was undervalued and sold for a value lower than the actual market value.

The other issue to consider is whether or not first and second respondents acted in cahoots with the third respondent. First respondent stated in the opposing affidavit that he did not know the third respondent prior to the sale of the property and only met the applicant at ZIMRA when they went for the Capital Gains Tax Interview. These specific averments were not disputed by the applicant. Her sole basis for alleging connivance seems to be the alleged under value sale. I have already found that the undervaluing was not proven. There is therefore no basis for the allegation of connivance in this matter.

As a result no basis was laid for the cancellation of the deed of transfer in favour of the first and second respondents. The application fails. I am not persuaded to award costs on a higher scale. I therefore make the following order,

The application be and is hereby dismissed with costs.

Maxwell J: …………………………………………………………..

Claude, Petronella & Nomazulu at Law, applicant’s legal practitioners

Kwenda & Chagwiza, first and second respondent’s legal practitioners

Hamunakwachi & Nyandoro Law Chambers, third respondent’s legal practitioners