The High Court has reopened a property dispute involving incarcerated businessman Frank Buyanga’s Hamilton Property Holdings Limited, ruling that the company s...
The High Court has reopened a property dispute involving incarcerated businessman Frank Buyanga’s Hamilton Property Holdings Limited, ruling that the company should be allowed to challenge a default judgment that cancelled its ownership of a disputed Hurungwe property. Justice Siyabona Musithu said the matter involves serious allegations of fraud and conflicting evidence that can only be resolved through a full trial.
In a judgment delivered by Justice Musithu, the court granted Hamilton Property Holdings Limited and conveyancing clerk Martin Murimambeva condonation for filing their rescission application out of time. The court also rescinded a default judgment granted in October 2024 and lifted the bar that had prevented the two applicants from defending a lawsuit filed by Monoliser Investments (Pvt) Ltd.
The ruling restores Hamilton Property Holdings’ opportunity to defend its ownership of Lot 1 of Mvagazi in Hurungwe. The earlier default judgment had cancelled the company’s title deed and ordered that ownership of the property revert to Monoliser Investments after Hamilton failed to enter an appearance to defend the claim.
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Justice Musithu said cancelling a registered title deed is an exceptional legal remedy that should not be granted where important factual disputes remain unresolved. He noted that the case presents conflicting versions of events which cannot be fairly determined through written court papers alone.
“The cancellation of registered title is an extraordinary remedy,” Justice Musithu said.
The judge further ruled that the dispute contains “irreconcilable disputes of fact” and allegations that are criminal in nature. He said accusations of fraud require oral evidence before a court so that witnesses can be questioned and credibility assessed.
“There are irreconcilable disputes of fact which cannot be resolved on the papers,” the judge ruled. “The allegations are also criminal in nature and likely to attract heavy criminal sanctions if proven… Such allegations require the adducing of viva voce evidence.”
According to Hamilton Property Holdings, it purchased the Hurungwe property from Monoliser Investments in June 2009 for US$30,000. The company maintains that the full purchase price was paid on the day the agreement of sale was signed and that transfer of the property was completed later that year. However, Hamilton says Monoliser never handed over vacant possession of the land, prompting the company to institute eviction proceedings in 2022.
While those eviction proceedings were still pending, Monoliser obtained a default judgment in October 2024 cancelling Hamilton’s title deed after the company failed to defend the action. Hamilton argued that it had not been properly served with court papers because Buyanga, who signed the original agreement on the company’s behalf, has been imprisoned in South Africa since November 2022. The company said this delayed instructions to its lawyers, resulting in the rescission application being filed about two months after the prescribed deadline.
Justice Musithu accepted that explanation, describing it as both reasonable and genuine. He observed that it was not disputed that Buyanga was incarcerated when the proceedings commenced and found that the delay was not excessive. The judge also noted that Hamilton acted promptly once it became aware of the default judgment.
Monoliser Investments disputes Hamilton’s version of events, arguing that no genuine sale of the property ever took place. The company claims the US$30,000 advanced by Hamilton was a loan rather than payment for the land. It further alleges that Hamilton fraudulently transferred ownership using a false agreement of sale and an unauthorised representative. Monoliser also argued that Hamilton’s application lacked merit because one agreement referred to a purchase price of US$80,000 while Hamilton’s court papers cited US$30,000.
Justice Musithu said those conflicting claims reinforce the need for a full hearing rather than a summary determination. He ruled that the true nature of the agreement between the parties, including whether the money advanced was a purchase price or a loan, can only be established after witnesses give evidence in court. The judge added that Zimbabwean law strongly protects property ownership rights and that refusing rescission would permanently deny Hamilton an opportunity to defend the cancellation of its registered title. He found that Hamilton would suffer substantial prejudice if the application were refused, while Monoliser would not suffer comparable prejudice if the matter proceeds to trial. The court consequently set aside the October 2024 default judgment, ordered Hamilton Property Holdings and Martin Murimambeva to file their appearance to defend within five days, and directed that the substantive ownership dispute over the Hurungwe property proceed to a full High Court trial where the alleged sale, loan agreement and fraud claims will be fully tested.
