Van Der Sanden v Van Der Sanden & Others (20 of 2026) [2026] ZWHHC 11 (8 January 2026)

4 HH 20-26 HCH 1209/18 KHETIWE VAN DER SANDEN versus ROBERTUS ANTOINE WILLY VAN DER SANDEN and BRIGHT MUGOROGODI and REGISTRAR OF DEEDS HIGH COURT OF ZIMBABWE TSANGA J HARARE; 3, 9 &15 July 2025 & 8 January 2026 Civil trial Mr Samundombe, for Plaintiff No appearance by 1st Defendant Mr Maeresera, for 2nd Defendant No appearance for 3rd Defendant TSANGA J: The facts of this matter need to be captured fully from inception in order to grasp the complications that now bedevil it in terms of the parties obtaining a completely clean break. Plaintiff issued summons in February 2018 for divorce against the defendant, her husband named ROBERTUS ANTOINE WILLY VAN DER SANDEN, (Van Der Sanden). They married in Zimbabwe on 15 December 2000. She pleaded that Defendant is ordinarily resident in Holland but was domiciled in Zimbabwe at the time the marriage was contracted and was ordinarily resident in Zimbabwe for a period of more than a year prior to the institution of this action. She herself was born and bred and resides in Zimbabwe. The marriage, according to the Plaintiff, like so many others had come to an end as a result of loss of love and affection with no prospects of restoration of a normal marriage relation. More particularly, her husband had abandoned her. Besides divorce, she sought the matrimonial home described as certain piece of land situate in the District of Salisbury, called Subdivision 6 of Lot 1 A, Greendale measuring 4107 square metres better known as No. 3 Rhodesville Avenue, Greendale, Harare. Effectively she also sought all household goods at No. 3 Rhodesville Avenue, Greendale, Harare to be awarded to her. To the defendant would go all movable and immovable assets that he held in Europe. In his plea Van Der Sanden denied being domiciled in Zimbabwe at any time or even prior to the divorce. He also denied that a valid marriage was contracted between the parties on 15 December 2000, describing that marriage as all but one for convenience, adding that it was never consummated. There was never any intention, he pleaded, to reside as husband and wife. He disputed that he has any legal obligation to maintain the plaintiff pursuant to a marriage, and in any event, she was an able bodied and a gainfully employed adult. As for the immovable property which plaintiff sought, he stated that it belonged solely to him as it was purchased way before the purported marriage. In any event, there was no valid marriage between them and no contributions were made by the Plaintiff towards the acquisition of the immovable property, so he maintained. It is not in dispute that after the summons were issued but pending the finalisation of the divorce, one Bright Mugorogodi who had obtained title to No. 3 Rhodesville Avenue, Greendale, Harare, by way of a purported purchase from Van Der Sanden, brought an action in July 2019 to evict the plaintiff on the basis of vindicating his own rights to the property ( rei vindication). That matter for eviction, as is common cause, proceeded to be heard by Justice Bachi – Muzawazi under HC 5746/19 and a full judgment was written dismissing the claim for eviction. It is not disputed that Judge Bachi-Muzawazi in that case dealt at length with the circumstances relating to the sale of the property and had found that the whole process was tainted with fraud and that there was no valid agreement. Mugorogodi appealed. It is further not in dispute that the Supreme Court had by consent dismissed Mugorogodi’s appeal on 21 March 2023. As the reasons were ex tempore, the lawyers informed this court that the dismissal by consent was because the divorce had not been finalised and that Mugorogodi’s claim to the property should be addressed in the context of the divorce as a whole. Mugorogodi thereafter sought joinder to the divorce which joinder was granted on 17 May 2023 and he became the second defendant in this divorce matter. He then filed his plea and counter claim. Effectively his plea was that the immovable property, as described above, was sold to him by Van Der Sanden on 28 November 2018 for US$220 000-00. A total of US$182 260-00 was paid to the Van Der Sanden leaving a balance of US$37 740-00. Transfer of the property in question to him had been done nonetheless under Deed of Transfer No. 3671/2019. He pleaded that the title deed is extant and that the property in question is therefore no longer available for sharing between the Plaintiff and her husband Van Der Sanden. He also pleaded that at the time of purchase and subsequent transfer, he was not aware of this pending divorce matter between the Plaintiff and the seller. As such, he asserted that he is the owner of the property and sought a declaratur that plaintiff’s claim to the property be dismissed with costs. His prayer to that counter claim is that the court grants the following order: “ A declaratur that the agreement of sale between the first and second Defendants in respect of subdivision 6 of Lot 1 A, Greendale measuring 4 107 square metres also known as No. 3 Rhodesville Avenue, Greendale, Harare be and is hereby declared valid. A declaratur that Deed of Transfer 3671 /2019 in respect of subdivision 6 of Lot 1 A, Greendale measuring 4 107 square metres also known as No. 3 Rhodesville Avenue, Greendale, Harare dated the 19% of June 2019 in favour of the second Defendant be and is hereby confirmed.An Order that the Plaintiff and the first Defendant, jointly and severally the one paying the other to be absolved, shall pay all utility bills levied on the property in question which shall be determined as at the date of judgement. An Order that the second Defendant shall pay the first Defendant the balance of US$37 740-00. An Order that the Plaintiff and first Defendant and all those claiming occupation through them shall vacate subdivision 6 of Lot 1 A, Greendale measuring 4 107 square metres also known as No. 3 Rhodesville Avenue, Greendale, Harare within ten (10) days from the date of service of this Order. Costs of suit on the legal practitioner and client scale against the Plaintiff and the first Defendant jointly and severally the one paying the other to be absolved. In the alternative to all the above he sought: An Order for cancellation of the agreement of sale between the first and second Defendants in respect of subdivision 6 of Lot 1 A, Greendale measuring 4 107 square metres also known as No. 3 Rhodesville Avenue, Greendale, Harare. An Order directing the third Defendant to cancel Deed of Transfer No. 3671/2019 dated 19 June 2019 and revive Deed of Transfer No. 8410/2000 in favour of the first Defendant and all costs of such cancellation and such revival shall be met by the first Defendant. An Order that the first Defendant shall pay the second Defendant US$182 260-00 together with interest thereon at the prescribed rate calculated from the date of the claim in reconvention to the date of payment in full failing which the immovable property known as subdivision 6 of Lot 1 A, Greendale measuring 4 107 square metres also known as No. 3 Rhodesville Avenue, Greendale, Harare registered under Deed of Transfer No. 3671/2019 in favour of Bright Mugorogodi or under Deed of Transfer No. 8410/2000 in favour of Robertus Antoine Willy Van Der Sanden be and is hereby declared specially executable. Costs of suit against the first Defendant on the legal practitioner and client scale.” What complicates the picture is that on 9 May 2025 the first defendant who is in Germany and has been unwell issued the following notice of withdrawal: “TAKE NOTICE THAT the first Defendant hereby withdraws his appearance to defend, plea and counterclaim against the Plaintiff.” This effectively meant that as against the plaintiff he was no longer resisting the divorce or the ancillary relief as per her summons in terms of which she would get the matrimonial home here in Zimbabwe and all household goods and he would get the assets in Europe. At the trial she took to the stand and gave the necessary evidence pertaining to the existence of the marriage and its break down and sought divorce as per summons as the defendant had not taken any other steps following the withdrawal of the matter. She also abandoned her maintenance claim against Van Der Sanden on account that she would have difficulties enforcing it. On the counter claim by the second Defendant against her, she stated that she had nothing to say as that agreement had not been between her and the second defendant. Further, she also highlighted the fact that the attempt to evict her had been dismissed by the court. Mr Maeresera, on behalf of Mugorododi, submitted that the decision in that case did not set aside his title and that what was simply dismissed was the claim for eviction. He also highlighted that subsequent to the dismissal for eviction, joinder had been granted to the divorce proceedings. An appearance to defend had been filed and a counterclaim. Plaintiff had been served with the counter claim and did not file any plea to the counter claim and neither had she pleaded res judicata. He therefore insisted that the property was subject to the second defendant’s counter claim. In his detailed closing submissions, he highlighted that the plaintiff, on being cross examined, had conceded the fact that the property is registered in Mugorogodi’s name and that though she had previously attempted to challenge title, she had withdrawn her challenge. She had also not filed any pleading to the counter claim. He challenged the notion that the matter should be treated as unopposed as the claim by Mugorogodi had not been withdrawn and neither was it struck off from the record. He emphasised that the withdrawal by Van Der Sanden of his defence and counter claim as against the plaintiff’s claim had no bearing at all on Mugorogodi’s claim and that the issue raised in the counter claim still stands for determination since he had not withdrawn his counter claim. As his lawyer elucidated: “It is submitted that for as long as the second Defendant’s plea and counterclaim have not been withdrawn or struck out pursuant to an application having been made for such an order, they have to be determined by this court hence this matter cannot be treated as unopposed. This court cannot proceed to determine the Plaintiff’s claim in isolation from the second Defendant’s plea and counterclaim as that would result in fragmented judgements. The ancillary relief sought by the Plaintiff against the first Defendant relates to subdivision 6 of Lot 1 A, Greendale measuring 4 107 square metres also known as No. 3 Rhodesville Avenue, Greendale, Harare and the second Defendant’s plea and counterclaim also relate to the same property.” Essentially, he argued against the fragmentation of judgments were his client to pursue a separate claim citing Marsh v African Banking Corporation SC 4/2019. Mr Samundombe on the other hand sought on behalf of the plaintiff that the counter claim dismissed as against her since she was not privy to the agreement and also because what gave rise to the counter claim had been declared a legal nullity under HC 5746/19 and had no bearing on the divorce proceedings. In essence, his argument was that in light of the withdrawal filed by Van Der Sanden the main claim by the plaintiff stands unopposed. He also highlighted that the sale by Van Der Sanden was initiated eight months after the divorce was instituted and that transfer was passed before the finalisation of the divorce. The gist of his submissions was that Mugorogodi should institute his claim against Van Der Sanden as there was no causal connection between the harm he suffered and the plaintiff. In addition, he submitted that not a single element of contract law applied to the plaintiff in this case, namely offer and acceptance; existence of consideration and the capacity to enter into a contract and create a binding legal relationship. He also suggested that the transaction was based on fraud as the sale was entered to circumvent sharing of matrimonial assets. As such it was said to be a nullity and everything based on was a nullity. Citing Korsah J.A in Mbanje and Anor vs Ngani 1987 (2) ZLR 111 at page 115 where he approved the dicta in Mcfoy v United Africa Company Ltd ALL ER 1169: “If an act is in law a nullity, it is not only bad, but incurably bad. There is no need for the order of the Court to set it aside. It is automatically null and void without more ado. .........You cannot put something on nothing and expect it to stay there. It will collapse” He opined that there was nothing to stop the plaintiff hereafter from seeking a reversal of title as the transfer was lying on an illegality as the agreement of sale was a sham. Mr Samundombe crystallised his core submission thus:: “Therefore, for the second Defendant to then put his counter claim against the Plaintiff knowing fully that the transaction was between himself and the first Defendant will be a serious misdirection. The second Defendant has other avenues to recover his money from the first Defendant and on that note he can institute summons against the first Defendant rather than misplacing his counter claim as it has nothing to do with the Plaintiff. Honourable Judge Bhachi Muzawazi had foreseen that the sale and transfer of the property in dispute was not genuine but meant to defeat the Plaintiff’s claim as the first and second Defendant were acting in cahoots to deprive the Plaintiff her share in the matrimonial property.” Analysis The legal consequences of a sham sale to avert property sharing on divorce is one that was addressed in Muganga v Sakupwanya 1996 (1) ZLR 219 ( SC). In that case a wife had sued her husband for divorce and sought a half share of the matrimonial home. Her husband had sold the property after the summons were issued. In so far as a third party claimed to have bought the house, the wife’s rights against that third party were based on the allegation that the latter knowingly collaborated in a scheme to deprive her of her rights under the Act. The agreement was held to be a sham agreement, done in order to take the house out of the matrimonial estate before the divorce was finalised. The transaction was found to have been deliberately entered with the fraudulent intent to deprive the wife of her chance to claim a proper share in the property. The court recognised that the wife’s claim against her husband flowed from the s 7 of the Matrimonial causes act. MacNally J stated as follows on the basis of those facts: “If the facts are proved, the case falls squarely within the terms of the exception set out in Muzanenhamo & Anor v Katanga & Ors 1991 (1) ZLR 182 (S), where I said at the foot of p 186 leading on to 187: I do not believe that a wife can raise such a claim (ie to stop him selling the matrimonial home) just because the husband is disposing of an asset. There must be some evidence that he is disposing of the asset ‗at under-value to a scoundrel, the accomplice of the husband‘ (Chhokar v Chhokar 1984 FLR 313) or that in some way he is attempting to defeat her just rights. In England, under their far more complex and comprehensive legislation, the test is ‘Am I satisfied that the disposition was made with the intention of defeating the wife‘s claim for financial relief’? ” He also asserted that it is for the aggrieved wife to prove that the third party is guilty of fraudulent intent and that where there is a genuine sale, a wife’s personal rights would not appear. To quote: “I do not dispute the point made by Wilberforce J in National Provincial Bank v Ainsworth [1965] 2 All ER 472 and approved in Cattle Breeders Farm (Pvt) Ltd v Veldman (2) 1973 (2) RLR 261 (A) that— ‘Where there is a genuine transfer, there is no reason why the wife‘s personal rights against her husband, which are derived from her status, should enter the field of real property law so as to clog the title of an owner. Mere knowledge that there is a wife will normally not be enough. There must be an intention to defeat the wife’s just rights.’ What is important to note in the case before me is that the issue as to whether that sale was genuine or not has already been canvassed in an extant judgment in Brighton Mugorogodi v Khetiwe Van Der Sanden HH 398/22. It is common cause as highlighted that Mugorogodi brought a matter for her eviction based on rei vindication arising from an agreement of sale and subsequent transfer of the property from Van der Sanden to himself. It is common cause that Judge Bachi-Muzawazi who heard that matter concluded as follows after analysis of the evidence: “In light of the above it is clear that although the plaintiff does have documents that show him as the registered owner of the property he has failed to convince the court that ownership lawfully passed. The registration itself was contrary to a clear provision of the agreement of sale between the seller and the plaintiff. Therefore, its validity is questionable. Registration and all rights of possession and rei vindicatio stipulated in clause 5.1 of the agreement of sale were to pass only after the payment of the last instalment. Based on this ground alone the then transfer of property was dubious and illegal. In my view both the sale and the transfer are a legal nullity. In that regard nothing flows from nothing. See Muchini v Adams 2013 (1) ZWL 67 AT 72A, Mcfoy v United African Company Ltd [1961] (2) All Ed 1169. The plaintiff can therefore not evict defendants as he has no right of ownership of the property. It suffices to say that the defendant has managed to prove that the sale to the plaintiff was a fraud. He was lurking in the shadows during the defendant’s court battles with the first purchaser. All his actions, as well as those of the seller and his legal practitioners point to the fact that he knew this was a sham meant to frustrate the defendant’s entitlement to a share in the marital home. Further, since the sale is a fraud, plaintiff has no legal title to the property in dispute and he cannot be protected by the remedy of rei actio vindicatio. The claim on holding over damages and payment of utility bills automatically falls away. Thus, the defendant has demonstrated that she is in lawful possession of the said property until such time the divorce court determines her marital property rights in the said property.” The fact therefore that the plaintiff did not respond to Mugorogodi’s counter claim when he subsequently joined himself to this divorce matter is of no consequence against an extant judgment in which an appeal was dismissed and which judgment already found that the sale was irregular and that it sought to avert property sharing. The appeal to the Supreme was dismissed. Every case must be treated on its own merits. Granted it is not desirable to have fragmented judgments but the facts in this case necessitate that the second defendant, if he so desires, files a separate claim against Van Der Sanden who was a defendant in this matter and not the plaintiff. The fact that Van Der Sanden withdrew his defence where he was challenging the marriage and the circumstances under which the property was acquired deals a major blow to Mugorogodi. Van Der Sanden is the defendant and in essence he surrendered the property to his wife. This is material as the result is that he is not opposed to the claim for divorce or to the sharing of property as was stated by the plaintiff in her divorce summons. Mugorogodi is cited in this matter as a defendant against the plaintiff. If he has a claim against the backdrop of a fraudulent sale it should be a stand-alone claim against Van Der Sanden only as it makes no sense to hear it with the divorce matter in which they are both defendants and where the other defendant has effectively surrendered that same property to his wife. The withdrawal by Van Der Sanden of his defence leaves this court with no option but to determine the marital property rights as unopposed and to address, as it has done, the counter claim only as it relates to the plaintiff. In the circumstances I grant the following order: 1. A decree of divorce be and is hereby granted. 2. The plaintiff is awarded a certain piece of land situate in the District of Salisbury, called Subdivision 6 of Lot 1A Greendale measuring 4107 square metres. 3. All household goods at No. 3 Rhodesville Avenue, Greendale, Harare are awarded to the Plaintiff. 4. The defendant shall retain all movable and immovable assets owned by him in the European countries in which they are located as known to him. Tsanga J:……………………………………. Samundombe & Partners: Plaintiff’s Legal Practitioners Chizengeya Maeresera & Partners: second Defendant’s Legal Practitioners 4 HH 20-26 HCH 1209/18 4 HH 20-26 HCH 1209/18 KHETIWE VAN DER SANDEN versus ROBERTUS ANTOINE WILLY VAN DER SANDEN and BRIGHT MUGOROGODI and REGISTRAR OF DEEDS HIGH COURT OF ZIMBABWE TSANGA J HARARE; 3, 9 &15 July 2025 & 8 January 2026 Civil trial Mr Samundombe, for Plaintiff No appearance by 1st Defendant Mr Maeresera, for 2nd Defendant No appearance for 3rd Defendant TSANGA J: The facts of this matter need to be captured fully from inception in order to grasp the complications that now bedevil it in terms of the parties obtaining a completely clean break. Plaintiff issued summons in February 2018 for divorce against the defendant, her husband named ROBERTUS ANTOINE WILLY VAN DER SANDEN, (Van Der Sanden). They married in Zimbabwe on 15 December 2000. She pleaded that Defendant is ordinarily resident in Holland but was domiciled in Zimbabwe at the time the marriage was contracted and was ordinarily resident in Zimbabwe for a period of more than a year prior to the institution of this action. She herself was born and bred and resides in Zimbabwe. The marriage, according to the Plaintiff, like so many others had come to an end as a result of loss of love and affection with no prospects of restoration of a normal marriage relation. More particularly, her husband had abandoned her. Besides divorce, she sought the matrimonial home described as certain piece of land situate in the District of Salisbury, called Subdivision 6 of Lot 1 A, Greendale measuring 4107 square metres better known as No. 3 Rhodesville Avenue, Greendale, Harare. Effectively she also sought all household goods at No. 3 Rhodesville Avenue, Greendale, Harare to be awarded to her. To the defendant would go all movable and immovable assets that he held in Europe. In his plea Van Der Sanden denied being domiciled in Zimbabwe at any time or even prior to the divorce. He also denied that a valid marriage was contracted between the parties on 15 December 2000, describing that marriage as all but one for convenience, adding that it was never consummated. There was never any intention, he pleaded, to reside as husband and wife. He disputed that he has any legal obligation to maintain the plaintiff pursuant to a marriage, and in any event, she was an able bodied and a gainfully employed adult. As for the immovable property which plaintiff sought, he stated that it belonged solely to him as it was purchased way before the purported marriage. In any event, there was no valid marriage between them and no contributions were made by the Plaintiff towards the acquisition of the immovable property, so he maintained. It is not in dispute that after the summons were issued but pending the finalisation of the divorce, one Bright Mugorogodi who had obtained title to No. 3 Rhodesville Avenue, Greendale, Harare, by way of a purported purchase from Van Der Sanden, brought an action in July 2019 to evict the plaintiff on the basis of vindicating his own rights to the property ( rei vindication). That matter for eviction, as is common cause, proceeded to be heard by Justice Bachi – Muzawazi under HC 5746/19 and a full judgment was written dismissing the claim for eviction. It is not disputed that Judge Bachi-Muzawazi in that case dealt at length with the circumstances relating to the sale of the property and had found that the whole process was tainted with fraud and that there was no valid agreement. Mugorogodi appealed. It is further not in dispute that the Supreme Court had by consent dismissed Mugorogodi’s appeal on 21 March 2023. As the reasons were ex tempore, the lawyers informed this court that the dismissal by consent was because the divorce had not been finalised and that Mugorogodi’s claim to the property should be addressed in the context of the divorce as a whole. Mugorogodi thereafter sought joinder to the divorce which joinder was granted on 17 May 2023 and he became the second defendant in this divorce matter. He then filed his plea and counter claim. Effectively his plea was that the immovable property, as described above, was sold to him by Van Der Sanden on 28 November 2018 for US$220 000-00. A total of US$182 260-00 was paid to the Van Der Sanden leaving a balance of US$37 740-00. Transfer of the property in question to him had been done nonetheless under Deed of Transfer No. 3671/2019. He pleaded that the title deed is extant and that the property in question is therefore no longer available for sharing between the Plaintiff and her husband Van Der Sanden. He also pleaded that at the time of purchase and subsequent transfer, he was not aware of this pending divorce matter between the Plaintiff and the seller. As such, he asserted that he is the owner of the property and sought a declaratur that plaintiff’s claim to the property be dismissed with costs. His prayer to that counter claim is that the court grants the following order: “ A declaratur that the agreement of sale between the first and second Defendants in respect of subdivision 6 of Lot 1 A, Greendale measuring 4 107 square metres also known as No. 3 Rhodesville Avenue, Greendale, Harare be and is hereby declared valid. A declaratur that Deed of Transfer 3671 /2019 in respect of subdivision 6 of Lot 1 A, Greendale measuring 4 107 square metres also known as No. 3 Rhodesville Avenue, Greendale, Harare dated the 19% of June 2019 in favour of the second Defendant be and is hereby confirmed. An Order that the Plaintiff and the first Defendant, jointly and severally the one paying the other to be absolved, shall pay all utility bills levied on the property in question which shall be determined as at the date of judgement. An Order that the second Defendant shall pay the first Defendant the balance of US$37 740-00. An Order that the Plaintiff and first Defendant and all those claiming occupation through them shall vacate subdivision 6 of Lot 1 A, Greendale measuring 4 107 square metres also known as No. 3 Rhodesville Avenue, Greendale, Harare within ten (10) days from the date of service of this Order. Costs of suit on the legal practitioner and client scale against the Plaintiff and the first Defendant jointly and severally the one paying the other to be absolved. In the alternative to all the above he sought: An Order for cancellation of the agreement of sale between the first and second Defendants in respect of subdivision 6 of Lot 1 A, Greendale measuring 4 107 square metres also known as No. 3 Rhodesville Avenue, Greendale, Harare. An Order directing the third Defendant to cancel Deed of Transfer No. 3671/2019 dated 19 June 2019 and revive Deed of Transfer No. 8410/2000 in favour of the first Defendant and all costs of such cancellation and such revival shall be met by the first Defendant. An Order that the first Defendant shall pay the second Defendant US$182 260-00 together with interest thereon at the prescribed rate calculated from the date of the claim in reconvention to the date of payment in full failing which the immovable property known as subdivision 6 of Lot 1 A, Greendale measuring 4 107 square metres also known as No. 3 Rhodesville Avenue, Greendale, Harare registered under Deed of Transfer No. 3671/2019 in favour of Bright Mugorogodi or under Deed of Transfer No. 8410/2000 in favour of Robertus Antoine Willy Van Der Sanden be and is hereby declared specially executable. Costs of suit against the first Defendant on the legal practitioner and client scale.” What complicates the picture is that on 9 May 2025 the first defendant who is in Germany and has been unwell issued the following notice of withdrawal: “TAKE NOTICE THAT the first Defendant hereby withdraws his appearance to defend, plea and counterclaim against the Plaintiff.” This effectively meant that as against the plaintiff he was no longer resisting the divorce or the ancillary relief as per her summons in terms of which she would get the matrimonial home here in Zimbabwe and all household goods and he would get the assets in Europe. At the trial she took to the stand and gave the necessary evidence pertaining to the existence of the marriage and its break down and sought divorce as per summons as the defendant had not taken any other steps following the withdrawal of the matter. She also abandoned her maintenance claim against Van Der Sanden on account that she would have difficulties enforcing it. On the counter claim by the second Defendant against her, she stated that she had nothing to say as that agreement had not been between her and the second defendant. Further, she also highlighted the fact that the attempt to evict her had been dismissed by the court. Mr Maeresera, on behalf of Mugorododi, submitted that the decision in that case did not set aside his title and that what was simply dismissed was the claim for eviction. He also highlighted that subsequent to the dismissal for eviction, joinder had been granted to the divorce proceedings. An appearance to defend had been filed and a counterclaim. Plaintiff had been served with the counter claim and did not file any plea to the counter claim and neither had she pleaded res judicata. He therefore insisted that the property was subject to the second defendant’s counter claim. In his detailed closing submissions, he highlighted that the plaintiff, on being cross examined, had conceded the fact that the property is registered in Mugorogodi’s name and that though she had previously attempted to challenge title, she had withdrawn her challenge. She had also not filed any pleading to the counter claim. He challenged the notion that the matter should be treated as unopposed as the claim by Mugorogodi had not been withdrawn and neither was it struck off from the record. He emphasised that the withdrawal by Van Der Sanden of his defence and counter claim as against the plaintiff’s claim had no bearing at all on Mugorogodi’s claim and that the issue raised in the counter claim still stands for determination since he had not withdrawn his counter claim. As his lawyer elucidated: “It is submitted that for as long as the second Defendant’s plea and counterclaim have not been withdrawn or struck out pursuant to an application having been made for such an order, they have to be determined by this court hence this matter cannot be treated as unopposed. This court cannot proceed to determine the Plaintiff’s claim in isolation from the second Defendant’s plea and counterclaim as that would result in fragmented judgements. The ancillary relief sought by the Plaintiff against the first Defendant relates to subdivision 6 of Lot 1 A, Greendale measuring 4 107 square metres also known as No. 3 Rhodesville Avenue, Greendale, Harare and the second Defendant’s plea and counterclaim also relate to the same property.” Essentially, he argued against the fragmentation of judgments were his client to pursue a separate claim citing Marsh v African Banking Corporation SC 4/2019. Mr Samundombe on the other hand sought on behalf of the plaintiff that the counter claim dismissed as against her since she was not privy to the agreement and also because what gave rise to the counter claim had been declared a legal nullity under HC 5746/19 and had no bearing on the divorce proceedings. In essence, his argument was that in light of the withdrawal filed by Van Der Sanden the main claim by the plaintiff stands unopposed. He also highlighted that the sale by Van Der Sanden was initiated eight months after the divorce was instituted and that transfer was passed before the finalisation of the divorce. The gist of his submissions was that Mugorogodi should institute his claim against Van Der Sanden as there was no causal connection between the harm he suffered and the plaintiff. In addition, he submitted that not a single element of contract law applied to the plaintiff in this case, namely offer and acceptance; existence of consideration and the capacity to enter into a contract and create a binding legal relationship. He also suggested that the transaction was based on fraud as the sale was entered to circumvent sharing of matrimonial assets. As such it was said to be a nullity and everything based on was a nullity. Citing Korsah J.A in Mbanje and Anor vs Ngani 1987 (2) ZLR 111 at page 115 where he approved the dicta in Mcfoy v United Africa Company Ltd ALL ER 1169: “If an act is in law a nullity, it is not only bad, but incurably bad. There is no need for the order of the Court to set it aside. It is automatically null and void without more ado. .........You cannot put something on nothing and expect it to stay there. It will collapse” He opined that there was nothing to stop the plaintiff hereafter from seeking a reversal of title as the transfer was lying on an illegality as the agreement of sale was a sham. Mr Samundombe crystallised his core submission thus:: “Therefore, for the second Defendant to then put his counter claim against the Plaintiff knowing fully that the transaction was between himself and the first Defendant will be a serious misdirection. The second Defendant has other avenues to recover his money from the first Defendant and on that note he can institute summons against the first Defendant rather than misplacing his counter claim as it has nothing to do with the Plaintiff. Honourable Judge Bhachi Muzawazi had foreseen that the sale and transfer of the property in dispute was not genuine but meant to defeat the Plaintiff’s claim as the first and second Defendant were acting in cahoots to deprive the Plaintiff her share in the matrimonial property.” Analysis The legal consequences of a sham sale to avert property sharing on divorce is one that was addressed in Muganga v Sakupwanya 1996 (1) ZLR 219 ( SC). In that case a wife had sued her husband for divorce and sought a half share of the matrimonial home. Her husband had sold the property after the summons were issued. In so far as a third party claimed to have bought the house, the wife’s rights against that third party were based on the allegation that the latter knowingly collaborated in a scheme to deprive her of her rights under the Act. The agreement was held to be a sham agreement, done in order to take the house out of the matrimonial estate before the divorce was finalised. The transaction was found to have been deliberately entered with the fraudulent intent to deprive the wife of her chance to claim a proper share in the property. The court recognised that the wife’s claim against her husband flowed from the s 7 of the Matrimonial causes act. MacNally J stated as follows on the basis of those facts: “If the facts are proved, the case falls squarely within the terms of the exception set out in Muzanenhamo & Anor v Katanga & Ors 1991 (1) ZLR 182 (S), where I said at the foot of p 186 leading on to 187: I do not believe that a wife can raise such a claim (ie to stop him selling the matrimonial home) just because the husband is disposing of an asset. There must be some evidence that he is disposing of the asset ‗at under-value to a scoundrel, the accomplice of the husband‘ (Chhokar v Chhokar 1984 FLR 313) or that in some way he is attempting to defeat her just rights. In England, under their far more complex and comprehensive legislation, the test is ‘Am I satisfied that the disposition was made with the intention of defeating the wife‘s claim for financial relief’? ” He also asserted that it is for the aggrieved wife to prove that the third party is guilty of fraudulent intent and that where there is a genuine sale, a wife’s personal rights would not appear. To quote: “I do not dispute the point made by Wilberforce J in National Provincial Bank v Ainsworth [1965] 2 All ER 472 and approved in Cattle Breeders Farm (Pvt) Ltd v Veldman (2) 1973 (2) RLR 261 (A) that— ‘Where there is a genuine transfer, there is no reason why the wife‘s personal rights against her husband, which are derived from her status, should enter the field of real property law so as to clog the title of an owner. Mere knowledge that there is a wife will normally not be enough. There must be an intention to defeat the wife’s just rights.’ What is important to note in the case before me is that the issue as to whether that sale was genuine or not has already been canvassed in an extant judgment in Brighton Mugorogodi v Khetiwe Van Der Sanden HH 398/22. It is common cause as highlighted that Mugorogodi brought a matter for her eviction based on rei vindication arising from an agreement of sale and subsequent transfer of the property from Van der Sanden to himself. It is common cause that Judge Bachi-Muzawazi who heard that matter concluded as follows after analysis of the evidence: “In light of the above it is clear that although the plaintiff does have documents that show him as the registered owner of the property he has failed to convince the court that ownership lawfully passed. The registration itself was contrary to a clear provision of the agreement of sale between the seller and the plaintiff. Therefore, its validity is questionable. Registration and all rights of possession and rei vindicatio stipulated in clause 5.1 of the agreement of sale were to pass only after the payment of the last instalment. Based on this ground alone the then transfer of property was dubious and illegal. In my view both the sale and the transfer are a legal nullity. In that regard nothing flows from nothing. See Muchini v Adams 2013 (1) ZWL 67 AT 72A, Mcfoy v United African Company Ltd [1961] (2) All Ed 1169. The plaintiff can therefore not evict defendants as he has no right of ownership of the property. It suffices to say that the defendant has managed to prove that the sale to the plaintiff was a fraud. He was lurking in the shadows during the defendant’s court battles with the first purchaser. All his actions, as well as those of the seller and his legal practitioners point to the fact that he knew this was a sham meant to frustrate the defendant’s entitlement to a share in the marital home. Further, since the sale is a fraud, plaintiff has no legal title to the property in dispute and he cannot be protected by the remedy of rei actio vindicatio. The claim on holding over damages and payment of utility bills automatically falls away. Thus, the defendant has demonstrated that she is in lawful possession of the said property until such time the divorce court determines her marital property rights in the said property.” The fact therefore that the plaintiff did not respond to Mugorogodi’s counter claim when he subsequently joined himself to this divorce matter is of no consequence against an extant judgment in which an appeal was dismissed and which judgment already found that the sale was irregular and that it sought to avert property sharing. The appeal to the Supreme was dismissed. Every case must be treated on its own merits. Granted it is not desirable to have fragmented judgments but the facts in this case necessitate that the second defendant, if he so desires, files a separate claim against Van Der Sanden who was a defendant in this matter and not the plaintiff. The fact that Van Der Sanden withdrew his defence where he was challenging the marriage and the circumstances under which the property was acquired deals a major blow to Mugorogodi. Van Der Sanden is the defendant and in essence he surrendered the property to his wife. This is material as the result is that he is not opposed to the claim for divorce or to the sharing of property as was stated by the plaintiff in her divorce summons. Mugorogodi is cited in this matter as a defendant against the plaintiff. If he has a claim against the backdrop of a fraudulent sale it should be a stand-alone claim against Van Der Sanden only as it makes no sense to hear it with the divorce matter in which they are both defendants and where the other defendant has effectively surrendered that same property to his wife. The withdrawal by Van Der Sanden of his defence leaves this court with no option but to determine the marital property rights as unopposed and to address, as it has done, the counter claim only as it relates to the plaintiff. In the circumstances I grant the following order: 1. A decree of divorce be and is hereby granted. 2. The plaintiff is awarded a certain piece of land situate in the District of Salisbury, called Subdivision 6 of Lot 1A Greendale measuring 4107 square metres. 3. All household goods at No. 3 Rhodesville Avenue, Greendale, Harare are awarded to the Plaintiff. 4. The defendant shall retain all movable and immovable assets owned by him in the European countries in which they are located as known to him. Tsanga J:……………………………………. Samundombe & Partners: Plaintiff’s Legal Practitioners Chizengeya Maeresera & Partners: second Defendant’s Legal Practitioners