The
applicant instituted the present proceedings in a bid to evict the
respondent and repossess Stand Number 9919 Phase 3 Kuwadzana, Harare.
The
respondent opposed the application on the basis that the applicant
was not married to the deceased, one Junerose Phosa, and, as such,
not entitled to inherit the deceased's half share in the property.
The respondent further argued that the property in question, Stand
Number 9919 Phase 3 Kuwadzana was not matrimonial home and that the
applicant was not residing there, and, as such, could not inherit
the property in terms of section 68F(2) of the Administration of
Estates Act.
The
brief background to this application has to be put into perspective.
The
applicant was customarily married to one Junerose Phosa in 1986, per
evidence filed of record. In 2000 the applicant and the deceased
purchased a residential Stand, 9919 Phase 3 Kuwadzana, Harare. The
property was duly registered in both their names; Annexure A refers,
Deed of Transfer number 3230/2000.
In
April 2010 the applicant's wife passed on and the applicant was
appointed the Executor of the deceased estate per Letters of
Administration by the Master of High Court. As a surviving spouse,
the applicant was awarded half share of his wife's share and thus
registered the said property in his name per Annexure B31/2014
transfer in terms of the Deceased Estates Succession Act [Chapter
6:02].
The
respondent is a step grand-daughter to the applicant, in that she is
a daughter of the late Junerose Phosa's daughter, one Violet Posi.
The
applicant's claim is based on the common law remedy of rei
vindicatio.
The applicant, as the owner of the property, is entitled to recover
his property from whoever may possess without his consent. The
applicant, by virtue of being the registered owner, would have locus
standi
to
vindicatio.
Our
law is settled that an applicant seeking to rely on rei
vindicatio
must prove that;
1.
He is the owner of the property.
2.
That, at the institution of proceedings, the thing or property sought
to be vindicated was still in existence and the respondent was in
possession.
3.
That the respondent's possession is without his consent or
respondent has no right to retain possession of the property.
The
cases of Unimark
Distributors (Pvt) Ltd v EFR 94;
Silverstondale
(Pvt) Ltd
1999 (2) SA 986; and Stanbic
Finance Zimbabawe v Chivhunga
1999
(1) ZLR 262 are instructive.
In
Stanbic Finance Zimbabwe v Chivhunga 1999 (1) ZLR 262 the court
remarked;
“The
owner may claim his property whenever found from whosoever is holding
it. It is inherent in the nature of ownership that possession of the
rei should normally be with the owner and it follows that no other
person may withhold it from the owner unless he is vested with some
right enforceable against the owner. The owner, in instituting a rei
vindicatio, need, therefore, do no more than allege and prove that he
is the owner and that the defendant is holding the res; the onus
being on the defendant to allege and establish any right to continue
to hold against the owner.”
I
fully subscribe to the sentiments by the court in that case.
Once
the applicant establishes he is the owner and that the property
exists which the respondent is holding on to or possessing without
consent or trespassing then he ought to have his rights restored.
In
casu,
it is evident the applicant has always enjoined ownership of the
property in issue with his wife through sharing as both their names
were registered per the initial title deed. Upon the death of his
wife, following the registrations of the estate and his appointment
as executor, the applicant became the sole owner of the property in
question per the current title deed.
It
is not in dispute that registration of rights in immovable property,
in terms of the Deeds Registries Act [Chapter
20:05],
passes real rights upon the individuals in whose name property is
registered; Chapenyama
v Chapenyera
2000 (2) ZLR 103 (S) underscored that registration of title conveys
real rights.
The
applicant in this case has the property registered in his name and
that title deed is prima facie evidence of his ownership of the
property. The applicant is, further, the surviving spouse of Junerose
Phosa, and, as such, a recognised beneficiary under the Deceased
Estate Administration Act [Chapter 6:01].
Even
if the respondent's argument that the applicant, at the time of the
death of his wife, was not staying at the matrimonial home, he cannot
be stripped of his beneficiary rights. Section 68(F)2(d) of the
Administration of Estates Act [Chapter 6:01] reads:
“Where
the deceased person is survived by one spouse and one or more
children, the surviving spouse should get;
(1)
Ownership of, or, if that is impracticable, a usufruct of the house
in which the spouse lived at the time of the deceased person's
death, together with all the household goods in that house; and
(2)
A share in the remainder of the net estate determined in accordance
with the Deceased Estate Succession Act [Chapter
6:02].”
This
section should not be read in the abstract to mean a spouse will be
disinherited because he or she was not in the matrimonial house for
one reason or the other at the time of death of the spouse. The
legislative intention to protect surviving spouses in a polygamous
situation should not be ignored and misconstrued in the manner
projected by the respondent. Interestingly, it should be noted the
respondent is not a surviving spouse or child of the late wife of the
applicant.
Further,
the respondent's possession of the property in question is not with
the consent of the applicant. The respondent has no right to retain
possession of the property for she has no legal basis for such
retention. Her claims of hold over being that her grandmother, the
late wife of the deceased, claimed 50% share which should have passed
on to her mother has no legal standing given the applicant, as a
surviving spouse, is entitled to inheritance when the spouse died
intestate. The fact that the respondent's mother is a daughter to
the applicant's wife does not change the applicant's entitlement
as a surviving spouse and equally it does not clothe the respondent
in
casu
with retention or contractual rights over the applicant who has real
rights over the property, and who, further, is a surviving spouse
entitled to inherit from the estate of his late wife.
It
is clear from the foregoing that the applicant, who is the owner of
the property in question, is, without consent, being deprived of his
property by the respondent which has no legal basis to claim
retention of the property.
There
is no merit in the respondent's opposition of the applicant's
relief. It is clearly calculated with mala fides in a bid to prolong
unlawful stay at the applicant's property. The applicant, being the
owner of the property, has clearly shown that he is entitled to the
relief sought.
Accordingly,
it is ordered that:
1.
The respondent and all those claiming occupation or possession
through her are hereby ordered to forthwith vacate Stand Number 9919
Phase 3 Kuwadzana and restore undisturbed and peaceful possession to
the applicant.
2.
To the extent that it becomes necessary, the Deputy Sheriff is hereby
authorised and empowered to attend to eviction and removal of any
person claiming occupation or possession through the respondent.
Pursuant thereto, the Deputy Sheriff be and is hereby authorized to
enlist the assistance of Zimbabwe Republic Police who are hereby
directed to provide such assistance to the Deputy Sheriff so as to
ensure that provisions of this order are executed and implemented.
3.
The respondent shall pay the costs of the suit.
