WHO CAN PLACE A CAVEAT ON A PIECE OF PROPERTY

INTRODUCTION

The writing of this article is largely inspired by one of the matters that I had to personally oversee during my internship with Coghlan, Welsh and Guest. By way of background, our client had recently lost the title deed to one of the properties he had owned and wanted to use as his official place of business. He approached us seeking to undergo the process of “lost deed replacement” with the Deeds Registry of Harare, Zimbabwe. Additionally, because corruption and abuse of office was so rife in the Deeds Registry with fraudulent deeds being issued out, double-property sales and transfers occurring amongst others he also wanted to find out if it was possible for a caveat to be placed on the property. Thus, the writing of this article. In this article I will seek to address the question of “Who can place a caveat on a piece of property?”.

THE LAW

CASE HIGHLIGHT: Warambwa and others v Simbamukaka (Pvt) Ltd & Anor (175 of 2024) [2024] ZWHHC 175 (15 May 2024).

This particular matter was an opposed application in the High Court of Harare wherein the Applicants sought permission from the court to have five pieces of land owned by first respondent placed under a caveat. This application before the court was the result of another pending court case between the parties. The allegations in the main suit were that Bevan and Mordecai Warambwa (the applicants) and the late duo of Failas Mushipe and Philip Nyamayaro Masika formed a company in 1984 called Simbamukaka (Pvt) Ltd in which they were all shareholders and also directors of the company[1]. The company was incorporated so as to conduct farming operations on the pieces of land that were the subject of the court application. Additionally, Jabulani Chisoro (the second respondent) used and abused his position as the managing director of the company to remove the other four aforementioned parties from the positions as directors and shareholders of the company and this removal was being disputed[2]. Therefore, the application before the court was put forward to stop Jabulani Chisoro from unilaterally disposing of the company’s land whilst a decision was still pending over who was shareholder and director of Simbamukaka (PVT) Ltd.

In adjudicating the facts before him, the learned Judge in this case articulated well the meaning purpose and effect of a caveat. It was said that a caveat “is a notice or warning that is registered over a property by a person who claims to have some interest in the property concerned”[3] and that its purpose is “to preserve and protect the rights of a person who seeks to have a caveat placed on a property known as a caveator”[4]. All of this would have the effect that the “property cannot be sold or disposed of without giving effect to the caveator’s interest” [5] because “once a caveat is placed over a property, the said property cannot be transferred, mortgaged or disposed of without the caveator’s consent”[6] and that “no further dealings over the property are allowed unless the caveator consents to the upliftment of the caveat, it lapses, is cancelled, withdrawn or removed.

Moving on from the meaning and effect of a caveat he went on further to articulate just what must be proved by an applicant when approaching the court or the Deeds Registry for the issuance of a caveat. It was said (my emphasis added):

“The law does not permit a person to lodge a caveat over another without good cause. An applicant who applies to place a caveat over a property must show that he has an interest in the property concerned. The interest claimed must exist at the time the caveat is lodged and should not be an interest that arises in the future. The caveator must show that his claim arises from some dealing with the registered property. It is only those interest that are connected to the land that can be subject of a caveat. The interest must attach to the property, thus a person seeking to place a caveat over a property is required to show that he has a caveatable interest to lodge the caveat. A caveator does not have to show that the other party is about to dispose of the property. The applicant has to show that he has a matter pending that concerns the property. The moment the pending matter is determined, the caveat lapses by operation of law. The caveat cannot continue in perpetuity. The interest claimed by the caveator may be challenged by the owner of the property. It is the duty of the court to determine the validity and correctness of the application of the caveat” [7] – See also Stenhop Investments (Pvt) ltd v Blessing Mukoko & Anor HH 132/18

The highlighted texts demonstrate the ‘caveatable interest’ that must be presented to the court and to the Deeds Registry in order to succeed with placing a caveat on property. In applying the above parameters, the Court dismissed the application as the “applicants failed to show that they have good cause to lodge a caveat over the pieces of land in question”[8] because they failed to show how their shareholding claim “arises from some dealing with the registered property”. According to CHIKOWERO J, the main court case between the parties concerned the identity of identity of the shareholders and the directors of the company that owned the lands and “has nothing to do with the who the owner of the registered property is and how the ownership rights are to be exercised.”[9]

CASE HIGHLIGHT: The Cold Chain Zambia Ltd v Kingsley & Ors 2020 (1) ZLR 1168 (H)

The background to this matter is that the first and second respondents were formally married in terms of the Marriage Act [Chapter 5:11]. Their marriage ended in divorce on the 28^th of July 2011 and as part of the divorce settlement, the second respondent transferred the title of the matrimonial home from its name to that of the first respondent. This transfer was duly registered on the 28^th of November 2011. This transfer was also where the Applicant’s claim arose from. The Applicant alleged that the transfer was unlawful because it occurred when:

1. “Two caveats were, and are, extant;
2. the property which is the subject of its dispute with the first respondent was under judicial attachment; and
3. the interpleader proceedings which the first filed was, and is still”[10]

The Applicant’s standing to challenge the transfer stems from its employer-employee relationship with the second respondent. Following the second respondent’s dismissal for misappropriating the Applicant’s money, the Applicant secured a civil judgement against him. Crucially however, prior to the Respondents’ divorce, the Applicant had obtained and registered caveats against the second respondent’s immovable property, which included the matrimonial home in question.

MANGOTA J in this case based his ‘caveatable interest’ analysis on the same legal principles as those used in the Warambwa case above in which he highlighted ten pertinent matters which were discernible from the entire quotation;

1. The caveat preserves and protects the rights of a caveator;
2. It bars the owner of the caveated property from disposing of the same without the caveator’s consent
3. Only the caveator can, in general, consent to the upliftment of the caveat
4. A caveat can, in some instances, be cancelled or removed from the caveated property
5. The caveator’s interest must be in existence at the time the caveat is being lodged
6. The caveator must show that his claim arises from some dealing which he had with the owner of the caveated property;
7. The caveator’s interest must attach to the property
8. The caveator must show that he has a matter pending which relates to the property;
9. When the pending matter is decided, the caveat lapses; and
10. A caveat can only be placed on another’s property where the caveator has shown good cause for the same, like an interest in the property [11]

In arriving to its decision that the applicant proved its case on a balance of probabilities thereby setting aside the property transfer between the Respondent’s the court relied heavily on the fact that “it is tried (in law) that, unless it (i.e. caveat) is uplifted, no registration of a real right can be effected against the title to the property”[12]. The applicant’s moved to transfer the property amongst each other whilst the caveat was in place. Which was viewed to a be a fundamental error by the court.

CASE HIGHLIGHT: Chitotombe v Chitotombe and Another (310 of 2024) [2024] ZWHHC 310 (24 May 2024)

This case concerns an application by Portia Chitotombe for caveats to be placed on three immovable properties that were registered in the name of her husband, Prosper Chitotombe, pending their divorce. The parties, married since 1994, acquired the properties through their joint efforts. The Applicant alleged that the first respondent deliberately excluded her from the titles following their separation, threatened to dispose of the assets, prejudicing her claimed share of the matrimonial estate. It must be said that the parties had since moved to Australia in 2006 and the finalization of their divorce was going to occur under that jurisdiction. Why this is pertinent is because “on the dissolution of a marriage in Australia, the property of spouses is not automatically split 50/50. The requirement is Australia is for a ‘just and equitable’, rather than an equal division of property.”[13] If it occurs that the split between the parties is 50/50 “it will be due to an agreement of the spouses or the discretion of the court, not the application of an automatic rule”. [14]

In ruling in favour of Portia Chitotombe, the Court assessed the definition of ‘caveatable interest’ that was accurately stated in the Warambwa case ( see also Stenhop Investements (Pvt) Ltd case) [relevant highlights above], the court attributed her caveatable interest to be premised section 7 of the Matrimonial Causes Act [Chapter 5:13] which “empowers the court to divide, apportion, or distribute assets of the spouses on granting a decree of divorce, judicial separation, nulling of marriage, or at any time thereafter”. Against the backdrop of Australian divorce proceedings wherein it was required that there be some sort of apportionment of the marital property that was where Portia’s caveatable interest lay even if her

HOW TO REGISTER A CAVEAT IN ZIMBABWE

In Zimbabwe there are two ways in which a caveat can be placed over a property.

• The first way is directly through the Deeds Registry. There are multiple key provisions that empower the Deed Registry to place a caveat over a property:

Section 5(t) of the Deeds Registry Act Chapter 20:05 places a duty on the Registrar to “make, in connexion with the registration of any deed or other document, or in compliance with the requirements of any enactment, such endorsements on any registered deed or other document as may be necessary to give effect to such registration or to the objects of such enactment”. [15]

Furthermore, section 13 of the Deeds Registries Act states that:

      “If any document is to be dealt with in conjunction with a document which has been or is to be lodged by some other person –

• A note to that effect shall be made on the lodging covers by the persons responsible for the lodging of the documents concerned:
• If a note is not made in terms of paragraph (a) the document may, if it is in order, be dealt with independently of such other document”[16]

An Applicant or caveator must write a letter addressed to the Registrar of Deeds, outlining their caveatable interest in the property. This caveatable interest must be in line with the above-mentioned case authority therefore it must:

• Exist at the time the caveat is lodged and should not be an interest that arises in the future
• Must arise from some dealing with the registered property – therefore interests must be connected to the property[17]

Onus is placed on the caveator to showcase that he has a matter pending that relates to the property.

This letter must also come with the express consent of the registered owner of the property, usually in the form of an affidavit.

• The second method is through placing a judicial caveat through an order of court. The caveator must file an application in any competent court and must showcase their caveatable interest in the property as per the findings above. Each requirement will be applied to the facts, and the matter will be determined according to its own facts and given findings.

APPLICATION AND CONCLUSION

In applying the law to the initial circumstances, it was difficult to definitively advise the client that they could successfully apply for the placement of a caveat on their own property for the following reasons:

1. They did not have an interest in the property for the purposes of a caveat as they were the registered owner the result of which would mean that the property could not be encumbered without their express consent to begin with. The interest in wanting to place a caveat on the property lapses as soon as the Deeds Registry has issued out a replacement copy of the initial lost title deed. At which point any chance of a fraudulent transaction involving the property will now be nullified as they can prove their ownership in title. This would follow the words of MUSAKWA J wherein he annunciated that:

“The law of property gives the owner of the land the right to freely enjoy his or her property without the interference of third parties. The owner of the property has exclusive rights to deal with it as he or she wishes.”[18]

2. In the same vein, the client did not have potential dealing or was facing a pending matter concerning the property. He merely wanted to safeguard his ownership to his property; the property itself was not subject to a transfer of ownership or any other encumbrance.

Be that as it may, the client insisted that we go along with the caveat placement procedure directly with the Deeds Registry. In the application letter we noted that we represented the owner of the property, the fact that the deed was lost and that we would soon apply for a replacement copy and that we consented to the placing of the caveat on the property. These three elements would signify our ‘caveatable interest’, the result of which was a surprise to us. The Deeds Registry wrote back to us confirming the placement of the caveat subject to the issuance of a replacement copy of the lost title deed.

Upon careful analysis of the case law both in my research and the three highlighted in the writing of this article, the answer to the question of ‘who can place a caveat on a piece of property’ is ‘ANYONE’, so long in the view of the court and/or Deeds Registry you can accurately state your case and your reasoning is within the confines of the accepted criteria of what a ‘caveatable interest’ is. The scrutiny that would be applied would not go so far as question your relationship with the property (as demonstrated in the Warambwa case) even though by design and practice, caveats are mainly for and used by third parties as a means of securing a debt. Instead, your role as the caveator is to showcase why a limitation is being applied to an individual’s ownership rights.

REFERENCE(S):

[1] Warambwa and Others v Simbamukaka (Pvt) Ltd  [2024] ZWHHC 175

[2] Ibid.

[3] Ibid [12]

[4] Ibid

[5] Ibid

[6] Ibid

[7] Ibid [13]

[8] Ibid [18]

[9] Ibid [19]

[10] The Cold Chain Zambia Ltd v Kingsley & Others [2020] (1) ZLR 1168 (H)

[11] Ibid [F] – [H]

[12]  Burdock Investments (Pvt) Ltd v Time Bank of Zimbabwe Ltd & Others [2003] (2) 437 (H)

[13] AJB STEVENS LAWYERS, ‘Australia’s No.1 Family Law Myth – Partners Automatically Get Half The Property on Separation or Divorce’ (12 August 2020) < https://www.ajbstevens.com.au/australias-no-1-family-law-myth-partners-automatically-get-half-the-property-on-separation-or-divorce/#:~:text=Conclusion,from%20an%20experienced%20family%20lawyer.> accessed 24 September 2025

[14] Ibid.

[15] Deeds Registries Act Chapter 20:05

[16] Deeds Registries Regulations,2025

[17] Supra note 7.

[18] Matewa (In her capacity as Executrix Dative of the Estate Late Judith Matewa v City of Harare [2023] ZWSC 17.