High Court revives Frank Buyanga firm's bid to defend Hurungwe property ownership

HARARE – The High Court has reopened a long-running property dispute involving jailed businessman Frank Buyanga's company, Hamilton Property Holdings (Pvt) Ltd, ruling that serious allegations of fraud and disputed ownership can only be resolved through a full trial.

In a judgment delivered by Justice Siyabona Musithu, the court granted Hamilton Property Holdings and conveyancing clerk Martin Murimambeva permission to file their application out of time, rescinded a default judgment issued in October 2024, and removed a procedural bar that had prevented them from defending the lawsuit brought by Monoliser Investments (Pvt) Ltd.

The ruling restores Hamilton's right to contest ownership of Lot 1 of Mvagazi in Hurungwe, after an earlier judgment cancelled the company's title deed and ordered the property to revert to Monoliser Investments.

"The cancellation of registered title is an extraordinary remedy," Justice Musithu said.

"It affects real rights in immovable property and should ordinarily occur after all affected parties have been heard."

The dispute centres on whether Hamilton lawfully purchased the Hurungwe property from Monoliser Investments in June 2009. Hamilton maintains that it bought the property for US$30,000, paid the full purchase price on the day the agreement was signed and subsequently obtained transfer of title later that year.

The company further argues that Monoliser never surrendered vacant possession of the land, prompting eviction proceedings in 2022. While those proceedings were still pending, Monoliser obtained a default judgment in October 2024 after Hamilton failed to enter an appearance to defend the matter. That judgment resulted in the cancellation of Hamilton's registered title.

Hamilton argued that it failed to respond because it had not been properly served with the summons. The company said Buyanga, who signed the original sale agreement on its behalf, has been incarcerated in South Africa since November 2022, delaying instructions to its legal representatives and resulting in its rescission application being filed about two months outside the prescribed time limit. Justice Musithu accepted that explanation.

"The explanation was plausible and bona fide," the judge ruled.

"It was not disputed that Frank Buyanga... was in prison at the time that proceedings were initiated."

The court also found that the delay was not excessive and that the applicants acted promptly once they became aware of the default judgment.

Monoliser Investments disputes Hamilton's version of events, arguing that no genuine property sale took place. Instead, the company contends that the US$30,000 advanced by Hamilton was a loan rather than payment for the property. It further alleges that Hamilton fraudulently transferred ownership using a forged sale agreement and an unauthorised representative.

Monoliser also pointed to inconsistencies in the documentation, arguing that one purported agreement reflected a purchase price of US$80,000, while Hamilton's court papers referred to US$30,000. Justice Musithu ruled that these conflicting claims could not be properly resolved through affidavit evidence alone.

"There are irreconcilable disputes of fact which cannot be resolved on the papers," he said.

"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."

The judge added that allegations of fraud are serious and should be tested through oral testimony during a full trial rather than determined summarily.

Quoting established legal principles, Justice Musithu emphasised that Zimbabwean law strongly protects property rights and that ownership disputes should be determined only after all affected parties have been fully heard. He concluded that refusing Hamilton's application would permanently deprive the company of an opportunity to defend a judgment that cancelled its registered title.

"Such an outcome is grievous," the judge said.

Finding that Monoliser would suffer no comparable prejudice if the case proceeded to trial, the court set aside the October 2024 default judgment and ordered Hamilton Property Holdings and Murimambeva to file their appearance to defend within five days. The substantive dispute over ownership of the Hurungwe property will now proceed to a full hearing before the High Court, where evidence relating to the alleged property sale, the claimed loan arrangement and the fraud allegations will be tested.

Frank Buyanga property dispute