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SC14-20 - SUSAN JANUARY vs NORMAN MAFEREFU

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Appealed


Law of Property-viz vindicatory action re eviction proceedings.
Law of Property-viz rei vindicatio re eviction proceedings.
Damages-viz holding over damages.
Law of Property-viz vindicatory action re claim of right.
Law of Property-viz rei vindicatio re claim of right.
Procedural Law-viz rules of evidence re documentary evidence.
Procedural Law-viz rules of evidence re compellable witness.
Procedural Law-viz rules of evidence re competent witness.
Law of Property-viz proof of title re immovable property iro registered rights.
Procedural Law-viz rules of evidence re corroborative evidence.
Law of Property-viz proof of title to immovable property re registered rights iro cancellation of registered rights.
Procedural Law-viz appeal re findings of fact made by the trial court.
Procedural Law-viz rules of evidence re documentary evidence iro the best evidence rule.
Procedural Law-viz rules of evidence re onus iro burden of proof.
Procedural Law-viz rules of evidence re onus iro standard of proof.
Procedural Law-viz onus re burden of proof iro the principle that he who avers must prove.
Procedural Law-viz onus re burden of proof iro the rule that he who alleges must prove.
Administrative Law-viz the presumption of validity of official documents issued in the course of duty.
Procedural Law-viz rules of evidence re findings of fact iro assessment of evidence.
Procedural Law-viz findings of fact re assessment of evidence iro the doctrine of estoppel.

Passing of Ownership, Proof of Title, Personal Rights and Cancellation or Diminution of Real Rights re: Immovable Property


This is an appeal against the whole judgment of the High Court, upholding the respondent's claim for eviction against the appellant.

The detailed facts of the case can be summarised as follows;

The respondent issued summons for the eviction of the appellant from Stand No.936 Glen Norah Township, Harare (the property) and holding over damages at the rate of US$330 per month. The respondent claimed that he was the owner of the property and that the appellant was unlawfully occupying it. The appellant opposed the respondent's claim alleging that she was lawfully occupying the property because it was owned by Bafion January, her late father. She further claimed that the property had been fraudulently acquired by the respondent.

The following issues were referred for trial:

1. Whether or not the plaintiff (respondent) is the lawful owner of Stand No.936 Glen Norah Township, Harare.

2. Whether or not the plaintiff (respondent) is entitled to damages for unlawful holding over against the defendant (appellant) and the quantum thereof.

At the trial, the respondent testified that he bought the property in 2013 for US$20,000 from Felix Katsvamutima Shamuyarira (Shamuyarira) even though the property was still in the name of one Bafion January. Upon attempting to register the cession of the property from Shamuyarira's name into his name, the respondent was advised, by the City of Harare, that the property had to first be ceded from Bafion January's name to Shamuyarira's name through the registration of a cession of the property at its offices, after which the property could thereafter be ceded to him by Shamuyarira. According to documents in the record, this process was followed and the registration of the cession of the property from Shamuyarira's name to the respondent was recorded by the City of Harare.

Felix Katsvamutima Shamuyarira, who testified on behalf of the respondent, told the court a quo that he bought the property from Bafion January in 1991. Bafion had acquired the property from the City of Harare in 1983 through a Deed of Sale. He further testified that he grew up using his mother's surname, Chabuka, which he later changed to Shamuyarira, and, in support of this he produced his birth certificate. It was also contended that whilst the property was bought in 1991, ownership was only changed into Felix Katsvamutima Shamuyarira's name in 2013 because Ellen Manyanga (Bafion January's ex-wife) was in occupation of the house and had indicated that she wanted to buy back the house from him. Felix Katsvamutima Shamuyarira further explained that the delayed change of ownership was also due to the documents relating to the property having been lost but were found in 2012.

The respondent denied any allegations of fraud.

In support of her case, the appellant called two witnesses who did not give any meaningful testimony in support of her case. They had no direct involvement in the matter and could not dispute the agreement which had been concluded between Bafion January and Felix Katsvamutima Shamuyarira in 1991 and the subsequent agreement between Felix Katsvamutima Shamuyarira and the respondent.

The appellant herself testified and alleged that the property could not be sold because Bafion January's wife had not given her consent to such sale, and, further, that she had the right to occupy the property since it was part of her father's estate. She also alleged fraud in the transfer of the house to the respondent.

In analysing the evidence, the court a quo found Felix Katsvamutima Shamuyarira's explanation, that the transfer had taken long because Bafion`s ex-wife wanted to buy back the property, believable as it was supported by evidence. The issue of whether or not Chabuka and Shamuyarira was the same person was resolved in favour of the respondent as Shamuyarira's birth certificate was produced. It proved that his mother's surname was Chabuka thereby confirming that Chabuka was his mother's surname. This evidence confirms Chabuka's change of surname from Chabuka to Shamuyarira. The court a quo believed the respondent's explanation as to why the property bought in 1991 was transferred 22 years later, in 2013. In the same vein, the court a quo did not believe the appellant's evidence that the property had been fraudulently sold to the respondent.

The court a quo held that the sale was lawful and that the appellant's witnesses' evidence did not deal with the determinant issues of the matter. The appellant's allegations of fraud were dismissed because there was no evidence to prove it and the alleged complaint to the City Council was contradicted by the City Council processing the cession of the property from Bafion January to Felix Katsvamutima Shamuyarira and from Shamhuyarira to the respondent.

It is also surprising that if fraud had occurred the appellant would not have pursued her alleged report to the police. Consequently, the court a quo held that the respondent had proved his claim for eviction and was thus entitled to vacant possession of the property. It however held that the claim for holding over damages had not been proved.

Aggrieved by this decision, the appellant noted an appeal to this Court on four grounds of appeal which raised the issue of “whether or not the court a quo erred by granting the respondent's claim of eviction against the appellant.”

Whether or not the court a quo erred by granting the respondent's claim for eviction against the appellant

The appellant submitted that Felix Katsvamutima Shamuyarira's evidence was contradictory in that what he said and what appeared on his birth certificate was different. She further contended that when her parents died, they were still staying in the property and that she was told that the sale of the property never materialised. She argued that the sale of the property was fraudulent which explained why it took more than 20 years to go through. She stated that she did report the allegations of fraud to the police but Felix Katsvamutima Shamuyarira seemed to have influence over everything. The appellant argued that the transfer of the property ought to be set aside as it was premised on fraud and that the issue was still under investigation at the City Council.

The appellant's evidence and allegations are contradicted by the following evidence in the record:

1. That her parents had divorced and the sale of the house was part of the divorce order;

2. The Agreement of Sale between Bafion January and Chabuka;

3. Letters from Bafion January and his lawyers, Gutu and Jakachira, inviting Bafion January's former wife to come and collect two thirds of the purchase price as had been ordered by the court in the divorce order, her refusal to accept the money, and her opting to buy back the house from Chabuka; and

4. The partial processing of the cession of the house to Chabuka from Bafion January of 1993.

On the other hand, counsel for the respondent submitted that the court a quo was aware of the fraud allegations but held that they had not been substantiated. He submitted that if the appellant was serious about the fraud allegations, she ought to have made a police report and pursued the issue to its logical conclusion.

Counsel for the respondent further argued that the appellant failed to challenge the documentary evidence presented by the respondent which established that the sale of the property was above board and lawful. He submitted that the appellant had failed to establish a greater right to entitle her to continue staying in the property. In concluding his submissions, counsel for the respondent submitted that, as the allegations of fraud had not been proved, the appeal ought to be dismissed as it has no merit.

The court a quo's analysis of the evidence is unassailable.

It correctly analysed the evidence led before it and concluded that Bafion January had lawfully sold his house to Felix Katsvamutima Chabuka who later changed his surname to Felix Katsvamutima Shamuyarira. It further correctly held that Felix Katsvamutima Shamuyarira subsequently sold the house to the respondent.

It is common cause that the respondent's claim for eviction was granted on the basis of the rei vindicatio.

The rei vindicatio is a common law action in terms of which an owner of a thing is entitled to claim possession of his property from whoever is in possession of it without his consent. In Savanhu v Hwange Colliery Company SC08-15 this Court held as follows:

“The actio rei vindicatio is an action brought by an owner of property to recover it from any person who retains possession of it without his consent. It derives from the principle that an owner cannot be deprived of his property without his consent. As it was put in Chetty v Naidoo 1974 3 SA 13 (A):

'It is inherent in the nature of ownership that possession of the res 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 (eg, a right of retention or a contractual right).'”

According to GIBSON JTR WILLES's “Principles of South African Law” (7th ed, Juta & Co Ltd, Cape Town, 1977)…, it makes no difference whether the possessor is bona fide or mala fide - the owner of a movable may recover it from any possessor without having to compensate him, even from a possessor in good faith who gave value for it. The author further states as follows regarding the vindication of immovable property:

“In the case of land, the absolute owner of the land may claim the ejectment of any person in possession of it, and also an interdict restraining persons from continuing to trespass on it, as well as damages for loss or destruction caused by trespassers.”

In light of the above, the requirements of the common law action of rei vindicatio are two fold, that is;

(i) The plaintiff must prove ownership of the property; and

(ii) That the defendant was in possession of the thing when the action was instituted.

In casu, the respondent proved that he was the owner of the immovable property and he did this through the cession agreement in terms of which Felix Katsvamutima Chabuka Shamuyarira transferred his rights in the immovable property to him. The cession was done pursuant to an agreement of sale dated 17 December 2013 in terms of which the respondent bought the property from Felix Katsvamutima Chabuka Shamuyarira for US$20,000. Consequently, the element of ownership of the immovable property was proved.

That the appellant was in possession of the property is not in dispute. Therefore, the second requirement of the actio rei vindicatio was established.

The appellant, on the other hand failed to establish any defence to the respondent's claim. There are basically four main defences to a claim of rei vindicatio which are:

(i) That the applicant is not the owner of the property in question.

(ii) That the property in question no longer exists and can no longer be identified.

(iii) That the respondent's possession of such property is lawful.

(iv) That the respondent is no longer in physical control of the property.

See the cases of Chetty v Naidoo 1974 3 SA 13 (A) and Residents of Joe Slovo Community v Thabelisha Homes 2010 (3) SA 454 (CC).

The appellant seemed to rely on the first and third defences as she alleged that her possession of the property was lawful because the property was part of her father's estate, and, further, that the respondent had acquired the property fraudulently.

In view of the evidence, the court a quo believed and relied on, it correctly disbelieved the appellant's version and held that the property had been sold before her father's death.

As regards the fraud allegations, it is clear that the alleged fraud was not substantiated and that the appellant's conduct, since 2012, was not consistent with a person who believed that a fraud was being committed against her father's estate.

I am satisfied that the court a quo correctly made these factual findings.

It is trite that this Court will not lightly interfere with factual findings of a lower court. In ZINWA v Mwoyounotsva SC28-15 this Court held that:

“It is settled that an Appellate Court will not interfere with factual findings made by a lower court unless those findings were grossly unreasonable in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the same conclusion; or that the court had taken leave of its senses; or, put otherwise, the decision is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at it, or that the decision was clearly wrong.”

In this case, the appellant failed to establish the basis upon which the court a quo's factual findings can be impugned.

The appellant failed to prove her defence of lawful occupation of the respondent's property and the alleged fraudulent purchase of the property from her late father.

As was held in Nyahondo v Hokonya & Ors 1997 (2) ZLR (S) 457…, it is trite that he who makes an affirmative assertion, whether plaintiff or respondent, bears the onus of proving the facts so asserted.

In view of the appellant's failure to prove any defence to the respondent's claim, she, and all those claiming occupation of the property through her, should be evicted from the respondent's property.

The appeal has no merit. It is therefore dismissed with costs.

Onus, Burden and Standard of Proof and Principle that He Who Alleges Must Prove re: Approach


This is an appeal against the whole judgment of the High Court, upholding the respondent's claim for eviction against the appellant.

The detailed facts of the case can be summarised as follows;

The respondent issued summons for the eviction of the appellant from Stand No.936 Glen Norah Township, Harare (the property) and holding over damages at the rate of US$330 per month. The respondent claimed that he was the owner of the property and that the appellant was unlawfully occupying it. The appellant opposed the respondent's claim alleging that she was lawfully occupying the property because it was owned by Bafion January, her late father. She further claimed that the property had been fraudulently acquired by the respondent.

The following issues were referred for trial:

1. Whether or not the plaintiff (respondent) is the lawful owner of Stand No.936 Glen Norah Township, Harare.

2. Whether or not the plaintiff (respondent) is entitled to damages for unlawful holding over against the defendant (appellant) and the quantum thereof.

At the trial, the respondent testified that he bought the property in 2013 for US$20,000 from Felix Katsvamutima Shamuyarira (Shamuyarira) even though the property was still in the name of one Bafion January. Upon attempting to register the cession of the property from Shamuyarira's name into his name, the respondent was advised, by the City of Harare, that the property had to first be ceded from Bafion January's name to Shamuyarira's name through the registration of a cession of the property at its offices, after which the property could thereafter be ceded to him by Shamuyarira. According to documents in the record, this process was followed and the registration of the cession of the property from Shamuyarira's name to the respondent was recorded by the City of Harare.

Felix Katsvamutima Shamuyarira, who testified on behalf of the respondent, told the court a quo that he bought the property from Bafion January in 1991. Bafion had acquired the property from the City of Harare in 1983 through a Deed of Sale. He further testified that he grew up using his mother's surname, Chabuka, which he later changed to Shamuyarira, and, in support of this he produced his birth certificate. It was also contended that whilst the property was bought in 1991, ownership was only changed into Felix Katsvamutima Shamuyarira's name in 2013 because Ellen Manyanga (Bafion January's ex-wife) was in occupation of the house and had indicated that she wanted to buy back the house from him. Felix Katsvamutima Shamuyarira further explained that the delayed change of ownership was also due to the documents relating to the property having been lost but were found in 2012.

The respondent denied any allegations of fraud.

In support of her case, the appellant called two witnesses who did not give any meaningful testimony in support of her case. They had no direct involvement in the matter and could not dispute the agreement which had been concluded between Bafion January and Felix Katsvamutima Shamuyarira in 1991 and the subsequent agreement between Felix Katsvamutima Shamuyarira and the respondent.

The appellant herself testified and alleged that the property could not be sold because Bafion January's wife had not given her consent to such sale, and, further, that she had the right to occupy the property since it was part of her father's estate. She also alleged fraud in the transfer of the house to the respondent.

In analysing the evidence, the court a quo found Felix Katsvamutima Shamuyarira's explanation, that the transfer had taken long because Bafion`s ex-wife wanted to buy back the property, believable as it was supported by evidence. The issue of whether or not Chabuka and Shamuyarira was the same person was resolved in favour of the respondent as Shamuyarira's birth certificate was produced. It proved that his mother's surname was Chabuka thereby confirming that Chabuka was his mother's surname. This evidence confirms Chabuka's change of surname from Chabuka to Shamuyarira. The court a quo believed the respondent's explanation as to why the property bought in 1991 was transferred 22 years later, in 2013. In the same vein, the court a quo did not believe the appellant's evidence that the property had been fraudulently sold to the respondent.

The court a quo held that the sale was lawful and that the appellant's witnesses' evidence did not deal with the determinant issues of the matter. The appellant's allegations of fraud were dismissed because there was no evidence to prove it and the alleged complaint to the City Council was contradicted by the City Council processing the cession of the property from Bafion January to Felix Katsvamutima Shamuyarira and from Shamhuyarira to the respondent.

It is also surprising that if fraud had occurred the appellant would not have pursued her alleged report to the police. Consequently, the court a quo held that the respondent had proved his claim for eviction and was thus entitled to vacant possession of the property. It however held that the claim for holding over damages had not been proved.

Aggrieved by this decision, the appellant noted an appeal to this Court on four grounds of appeal which raised the issue of “whether or not the court a quo erred by granting the respondent's claim of eviction against the appellant.”

Whether or not the court a quo erred by granting the respondent's claim for eviction against the appellant

The appellant submitted that Felix Katsvamutima Shamuyarira's evidence was contradictory in that what he said and what appeared on his birth certificate was different. She further contended that when her parents died, they were still staying in the property and that she was told that the sale of the property never materialised. She argued that the sale of the property was fraudulent which explained why it took more than 20 years to go through. She stated that she did report the allegations of fraud to the police but Felix Katsvamutima Shamuyarira seemed to have influence over everything. The appellant argued that the transfer of the property ought to be set aside as it was premised on fraud and that the issue was still under investigation at the City Council.

The appellant's evidence and allegations are contradicted by the following evidence in the record:

1. That her parents had divorced and the sale of the house was part of the divorce order;

2. The Agreement of Sale between Bafion January and Chabuka;

3. Letters from Bafion January and his lawyers, Gutu and Jakachira, inviting Bafion January's former wife to come and collect two thirds of the purchase price as had been ordered by the court in the divorce order, her refusal to accept the money, and her opting to buy back the house from Chabuka; and

4. The partial processing of the cession of the house to Chabuka from Bafion January of 1993.

On the other hand, counsel for the respondent submitted that the court a quo was aware of the fraud allegations but held that they had not been substantiated. He submitted that if the appellant was serious about the fraud allegations, she ought to have made a police report and pursued the issue to its logical conclusion.

Counsel for the respondent further argued that the appellant failed to challenge the documentary evidence presented by the respondent which established that the sale of the property was above board and lawful. He submitted that the appellant had failed to establish a greater right to entitle her to continue staying in the property. In concluding his submissions, counsel for the respondent submitted that, as the allegations of fraud had not been proved, the appeal ought to be dismissed as it has no merit.

The court a quo's analysis of the evidence is unassailable.

It correctly analysed the evidence led before it and concluded that Bafion January had lawfully sold his house to Felix Katsvamutima Chabuka who later changed his surname to Felix Katsvamutima Shamuyarira. It further correctly held that Felix Katsvamutima Shamuyarira subsequently sold the house to the respondent.

It is common cause that the respondent's claim for eviction was granted on the basis of the rei vindicatio.

The rei vindicatio is a common law action in terms of which an owner of a thing is entitled to claim possession of his property from whoever is in possession of it without his consent. In Savanhu v Hwange Colliery Company SC08-15 this Court held as follows:

“The actio rei vindicatio is an action brought by an owner of property to recover it from any person who retains possession of it without his consent. It derives from the principle that an owner cannot be deprived of his property without his consent. As it was put in Chetty v Naidoo 1974 3 SA 13 (A):

'It is inherent in the nature of ownership that possession of the res 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 (eg, a right of retention or a contractual right).'”

According to GIBSON JTR WILLES's “Principles of South African Law” (7th ed, Juta & Co Ltd, Cape Town, 1977)…, it makes no difference whether the possessor is bona fide or mala fide - the owner of a movable may recover it from any possessor without having to compensate him, even from a possessor in good faith who gave value for it. The author further states as follows regarding the vindication of immovable property:

“In the case of land, the absolute owner of the land may claim the ejectment of any person in possession of it, and also an interdict restraining persons from continuing to trespass on it, as well as damages for loss or destruction caused by trespassers.”

In light of the above, the requirements of the common law action of rei vindicatio are two fold, that is;

(i) The plaintiff must prove ownership of the property; and

(ii) That the defendant was in possession of the thing when the action was instituted.

In casu, the respondent proved that he was the owner of the immovable property and he did this through the cession agreement in terms of which Felix Katsvamutima Chabuka Shamuyarira transferred his rights in the immovable property to him. The cession was done pursuant to an agreement of sale dated 17 December 2013 in terms of which the respondent bought the property from Felix Katsvamutima Chabuka Shamuyarira for US$20,000. Consequently, the element of ownership of the immovable property was proved.

That the appellant was in possession of the property is not in dispute. Therefore, the second requirement of the actio rei vindicatio was established.

The appellant, on the other hand failed to establish any defence to the respondent's claim. There are basically four main defences to a claim of rei vindicatio which are:

(i) That the applicant is not the owner of the property in question.

(ii) That the property in question no longer exists and can no longer be identified.

(iii) That the respondent's possession of such property is lawful.

(iv) That the respondent is no longer in physical control of the property.

See the cases of Chetty v Naidoo 1974 3 SA 13 (A) and Residents of Joe Slovo Community v Thabelisha Homes 2010 (3) SA 454 (CC).

The appellant seemed to rely on the first and third defences as she alleged that her possession of the property was lawful because the property was part of her father's estate, and, further, that the respondent had acquired the property fraudulently.

In view of the evidence, the court a quo believed and relied on, it correctly disbelieved the appellant's version and held that the property had been sold before her father's death.

As regards the fraud allegations, it is clear that the alleged fraud was not substantiated and that the appellant's conduct, since 2012, was not consistent with a person who believed that a fraud was being committed against her father's estate.

I am satisfied that the court a quo correctly made these factual findings.

It is trite that this Court will not lightly interfere with factual findings of a lower court. In ZINWA v Mwoyounotsva SC28-15 this Court held that:

“It is settled that an Appellate Court will not interfere with factual findings made by a lower court unless those findings were grossly unreasonable in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the same conclusion; or that the court had taken leave of its senses; or, put otherwise, the decision is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at it, or that the decision was clearly wrong.”

In this case, the appellant failed to establish the basis upon which the court a quo's factual findings can be impugned.

The appellant failed to prove her defence of lawful occupation of the respondent's property and the alleged fraudulent purchase of the property from her late father.

As was held in Nyahondo v Hokonya & Ors 1997 (2) ZLR (S) 457…, it is trite that he who makes an affirmative assertion, whether plaintiff or respondent, bears the onus of proving the facts so asserted.

In view of the appellant's failure to prove any defence to the respondent's claim, she, and all those claiming occupation of the property through her, should be evicted from the respondent's property.

The appeal has no merit. It is therefore dismissed with costs.

Findings of Fact re: Assessment of Evidence and Inferences iro Evidentiary Concessions & Conduct Resulting in Estoppel


This is an appeal against the whole judgment of the High Court, upholding the respondent's claim for eviction against the appellant.

The detailed facts of the case can be summarised as follows;

The respondent issued summons for the eviction of the appellant from Stand No.936 Glen Norah Township, Harare (the property) and holding over damages at the rate of US$330 per month. The respondent claimed that he was the owner of the property and that the appellant was unlawfully occupying it. The appellant opposed the respondent's claim alleging that she was lawfully occupying the property because it was owned by Bafion January, her late father. She further claimed that the property had been fraudulently acquired by the respondent.

The following issues were referred for trial:

1. Whether or not the plaintiff (respondent) is the lawful owner of Stand No.936 Glen Norah Township, Harare.

2. Whether or not the plaintiff (respondent) is entitled to damages for unlawful holding over against the defendant (appellant) and the quantum thereof.

At the trial, the respondent testified that he bought the property in 2013 for US$20,000 from Felix Katsvamutima Shamuyarira (Shamuyarira) even though the property was still in the name of one Bafion January. Upon attempting to register the cession of the property from Shamuyarira's name into his name, the respondent was advised, by the City of Harare, that the property had to first be ceded from Bafion January's name to Shamuyarira's name through the registration of a cession of the property at its offices, after which the property could thereafter be ceded to him by Shamuyarira. According to documents in the record, this process was followed and the registration of the cession of the property from Shamuyarira's name to the respondent was recorded by the City of Harare.

Felix Katsvamutima Shamuyarira, who testified on behalf of the respondent, told the court a quo that he bought the property from Bafion January in 1991. Bafion had acquired the property from the City of Harare in 1983 through a Deed of Sale. He further testified that he grew up using his mother's surname, Chabuka, which he later changed to Shamuyarira, and, in support of this he produced his birth certificate. It was also contended that whilst the property was bought in 1991, ownership was only changed into Felix Katsvamutima Shamuyarira's name in 2013 because Ellen Manyanga (Bafion January's ex-wife) was in occupation of the house and had indicated that she wanted to buy back the house from him. Felix Katsvamutima Shamuyarira further explained that the delayed change of ownership was also due to the documents relating to the property having been lost but were found in 2012.

The respondent denied any allegations of fraud.

In support of her case, the appellant called two witnesses who did not give any meaningful testimony in support of her case. They had no direct involvement in the matter and could not dispute the agreement which had been concluded between Bafion January and Felix Katsvamutima Shamuyarira in 1991 and the subsequent agreement between Felix Katsvamutima Shamuyarira and the respondent.

The appellant herself testified and alleged that the property could not be sold because Bafion January's wife had not given her consent to such sale, and, further, that she had the right to occupy the property since it was part of her father's estate. She also alleged fraud in the transfer of the house to the respondent.

In analysing the evidence, the court a quo found Felix Katsvamutima Shamuyarira's explanation, that the transfer had taken long because Bafion`s ex-wife wanted to buy back the property, believable as it was supported by evidence. The issue of whether or not Chabuka and Shamuyarira was the same person was resolved in favour of the respondent as Shamuyarira's birth certificate was produced. It proved that his mother's surname was Chabuka thereby confirming that Chabuka was his mother's surname. This evidence confirms Chabuka's change of surname from Chabuka to Shamuyarira. The court a quo believed the respondent's explanation as to why the property bought in 1991 was transferred 22 years later, in 2013. In the same vein, the court a quo did not believe the appellant's evidence that the property had been fraudulently sold to the respondent.

The court a quo held that the sale was lawful and that the appellant's witnesses' evidence did not deal with the determinant issues of the matter. The appellant's allegations of fraud were dismissed because there was no evidence to prove it and the alleged complaint to the City Council was contradicted by the City Council processing the cession of the property from Bafion January to Felix Katsvamutima Shamuyarira and from Shamhuyarira to the respondent.

It is also surprising that if fraud had occurred the appellant would not have pursued her alleged report to the police. Consequently, the court a quo held that the respondent had proved his claim for eviction and was thus entitled to vacant possession of the property. It however held that the claim for holding over damages had not been proved.

Aggrieved by this decision, the appellant noted an appeal to this Court on four grounds of appeal which raised the issue of “whether or not the court a quo erred by granting the respondent's claim of eviction against the appellant.”

Whether or not the court a quo erred by granting the respondent's claim for eviction against the appellant

The appellant submitted that Felix Katsvamutima Shamuyarira's evidence was contradictory in that what he said and what appeared on his birth certificate was different. She further contended that when her parents died, they were still staying in the property and that she was told that the sale of the property never materialised. She argued that the sale of the property was fraudulent which explained why it took more than 20 years to go through. She stated that she did report the allegations of fraud to the police but Felix Katsvamutima Shamuyarira seemed to have influence over everything. The appellant argued that the transfer of the property ought to be set aside as it was premised on fraud and that the issue was still under investigation at the City Council.

The appellant's evidence and allegations are contradicted by the following evidence in the record:

1. That her parents had divorced and the sale of the house was part of the divorce order;

2. The Agreement of Sale between Bafion January and Chabuka;

3. Letters from Bafion January and his lawyers, Gutu and Jakachira, inviting Bafion January's former wife to come and collect two thirds of the purchase price as had been ordered by the court in the divorce order, her refusal to accept the money, and her opting to buy back the house from Chabuka; and

4. The partial processing of the cession of the house to Chabuka from Bafion January of 1993.

On the other hand, counsel for the respondent submitted that the court a quo was aware of the fraud allegations but held that they had not been substantiated. He submitted that if the appellant was serious about the fraud allegations, she ought to have made a police report and pursued the issue to its logical conclusion.

Counsel for the respondent further argued that the appellant failed to challenge the documentary evidence presented by the respondent which established that the sale of the property was above board and lawful. He submitted that the appellant had failed to establish a greater right to entitle her to continue staying in the property. In concluding his submissions, counsel for the respondent submitted that, as the allegations of fraud had not been proved, the appeal ought to be dismissed as it has no merit.

The court a quo's analysis of the evidence is unassailable.

It correctly analysed the evidence led before it and concluded that Bafion January had lawfully sold his house to Felix Katsvamutima Chabuka who later changed his surname to Felix Katsvamutima Shamuyarira. It further correctly held that Felix Katsvamutima Shamuyarira subsequently sold the house to the respondent.

It is common cause that the respondent's claim for eviction was granted on the basis of the rei vindicatio.

The rei vindicatio is a common law action in terms of which an owner of a thing is entitled to claim possession of his property from whoever is in possession of it without his consent. In Savanhu v Hwange Colliery Company SC08-15 this Court held as follows:

“The actio rei vindicatio is an action brought by an owner of property to recover it from any person who retains possession of it without his consent. It derives from the principle that an owner cannot be deprived of his property without his consent. As it was put in Chetty v Naidoo 1974 3 SA 13 (A):

'It is inherent in the nature of ownership that possession of the res 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 (eg, a right of retention or a contractual right).'”

According to GIBSON JTR WILLES's “Principles of South African Law” (7th ed, Juta & Co Ltd, Cape Town, 1977)…, it makes no difference whether the possessor is bona fide or mala fide - the owner of a movable may recover it from any possessor without having to compensate him, even from a possessor in good faith who gave value for it. The author further states as follows regarding the vindication of immovable property:

“In the case of land, the absolute owner of the land may claim the ejectment of any person in possession of it, and also an interdict restraining persons from continuing to trespass on it, as well as damages for loss or destruction caused by trespassers.”

In light of the above, the requirements of the common law action of rei vindicatio are two fold, that is;

(i) The plaintiff must prove ownership of the property; and

(ii) That the defendant was in possession of the thing when the action was instituted.

In casu, the respondent proved that he was the owner of the immovable property and he did this through the cession agreement in terms of which Felix Katsvamutima Chabuka Shamuyarira transferred his rights in the immovable property to him. The cession was done pursuant to an agreement of sale dated 17 December 2013 in terms of which the respondent bought the property from Felix Katsvamutima Chabuka Shamuyarira for US$20,000. Consequently, the element of ownership of the immovable property was proved.

That the appellant was in possession of the property is not in dispute. Therefore, the second requirement of the actio rei vindicatio was established.

The appellant, on the other hand failed to establish any defence to the respondent's claim. There are basically four main defences to a claim of rei vindicatio which are:

(i) That the applicant is not the owner of the property in question.

(ii) That the property in question no longer exists and can no longer be identified.

(iii) That the respondent's possession of such property is lawful.

(iv) That the respondent is no longer in physical control of the property.

See the cases of Chetty v Naidoo 1974 3 SA 13 (A) and Residents of Joe Slovo Community v Thabelisha Homes 2010 (3) SA 454 (CC).

The appellant seemed to rely on the first and third defences as she alleged that her possession of the property was lawful because the property was part of her father's estate, and, further, that the respondent had acquired the property fraudulently.

In view of the evidence, the court a quo believed and relied on, it correctly disbelieved the appellant's version and held that the property had been sold before her father's death.

As regards the fraud allegations, it is clear that the alleged fraud was not substantiated and that the appellant's conduct, since 2012, was not consistent with a person who believed that a fraud was being committed against her father's estate.

I am satisfied that the court a quo correctly made these factual findings.

It is trite that this Court will not lightly interfere with factual findings of a lower court. In ZINWA v Mwoyounotsva SC28-15 this Court held that:

“It is settled that an Appellate Court will not interfere with factual findings made by a lower court unless those findings were grossly unreasonable in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the same conclusion; or that the court had taken leave of its senses; or, put otherwise, the decision is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at it, or that the decision was clearly wrong.”

In this case, the appellant failed to establish the basis upon which the court a quo's factual findings can be impugned.

The appellant failed to prove her defence of lawful occupation of the respondent's property and the alleged fraudulent purchase of the property from her late father.

As was held in Nyahondo v Hokonya & Ors 1997 (2) ZLR (S) 457…, it is trite that he who makes an affirmative assertion, whether plaintiff or respondent, bears the onus of proving the facts so asserted.

In view of the appellant's failure to prove any defence to the respondent's claim, she, and all those claiming occupation of the property through her, should be evicted from the respondent's property.

The appeal has no merit. It is therefore dismissed with costs.

Appeal re: Findings of Fact or Exercise of Discretion Made by Lower Court iro Terminated or Complete Proceedings


This is an appeal against the whole judgment of the High Court, upholding the respondent's claim for eviction against the appellant.

The detailed facts of the case can be summarised as follows;

The respondent issued summons for the eviction of the appellant from Stand No.936 Glen Norah Township, Harare (the property) and holding over damages at the rate of US$330 per month. The respondent claimed that he was the owner of the property and that the appellant was unlawfully occupying it. The appellant opposed the respondent's claim alleging that she was lawfully occupying the property because it was owned by Bafion January, her late father. She further claimed that the property had been fraudulently acquired by the respondent.

The following issues were referred for trial:

1. Whether or not the plaintiff (respondent) is the lawful owner of Stand No.936 Glen Norah Township, Harare.

2. Whether or not the plaintiff (respondent) is entitled to damages for unlawful holding over against the defendant (appellant) and the quantum thereof.

At the trial, the respondent testified that he bought the property in 2013 for US$20,000 from Felix Katsvamutima Shamuyarira (Shamuyarira) even though the property was still in the name of one Bafion January. Upon attempting to register the cession of the property from Shamuyarira's name into his name, the respondent was advised, by the City of Harare, that the property had to first be ceded from Bafion January's name to Shamuyarira's name through the registration of a cession of the property at its offices, after which the property could thereafter be ceded to him by Shamuyarira. According to documents in the record, this process was followed and the registration of the cession of the property from Shamuyarira's name to the respondent was recorded by the City of Harare.

Felix Katsvamutima Shamuyarira, who testified on behalf of the respondent, told the court a quo that he bought the property from Bafion January in 1991. Bafion had acquired the property from the City of Harare in 1983 through a Deed of Sale. He further testified that he grew up using his mother's surname, Chabuka, which he later changed to Shamuyarira, and, in support of this he produced his birth certificate. It was also contended that whilst the property was bought in 1991, ownership was only changed into Felix Katsvamutima Shamuyarira's name in 2013 because Ellen Manyanga (Bafion January's ex-wife) was in occupation of the house and had indicated that she wanted to buy back the house from him. Felix Katsvamutima Shamuyarira further explained that the delayed change of ownership was also due to the documents relating to the property having been lost but were found in 2012.

The respondent denied any allegations of fraud.

In support of her case, the appellant called two witnesses who did not give any meaningful testimony in support of her case. They had no direct involvement in the matter and could not dispute the agreement which had been concluded between Bafion January and Felix Katsvamutima Shamuyarira in 1991 and the subsequent agreement between Felix Katsvamutima Shamuyarira and the respondent.

The appellant herself testified and alleged that the property could not be sold because Bafion January's wife had not given her consent to such sale, and, further, that she had the right to occupy the property since it was part of her father's estate. She also alleged fraud in the transfer of the house to the respondent.

In analysing the evidence, the court a quo found Felix Katsvamutima Shamuyarira's explanation, that the transfer had taken long because Bafion`s ex-wife wanted to buy back the property, believable as it was supported by evidence. The issue of whether or not Chabuka and Shamuyarira was the same person was resolved in favour of the respondent as Shamuyarira's birth certificate was produced. It proved that his mother's surname was Chabuka thereby confirming that Chabuka was his mother's surname. This evidence confirms Chabuka's change of surname from Chabuka to Shamuyarira. The court a quo believed the respondent's explanation as to why the property bought in 1991 was transferred 22 years later, in 2013. In the same vein, the court a quo did not believe the appellant's evidence that the property had been fraudulently sold to the respondent.

The court a quo held that the sale was lawful and that the appellant's witnesses' evidence did not deal with the determinant issues of the matter. The appellant's allegations of fraud were dismissed because there was no evidence to prove it and the alleged complaint to the City Council was contradicted by the City Council processing the cession of the property from Bafion January to Felix Katsvamutima Shamuyarira and from Shamhuyarira to the respondent.

It is also surprising that if fraud had occurred the appellant would not have pursued her alleged report to the police. Consequently, the court a quo held that the respondent had proved his claim for eviction and was thus entitled to vacant possession of the property. It however held that the claim for holding over damages had not been proved.

Aggrieved by this decision, the appellant noted an appeal to this Court on four grounds of appeal which raised the issue of “whether or not the court a quo erred by granting the respondent's claim of eviction against the appellant.”

Whether or not the court a quo erred by granting the respondent's claim for eviction against the appellant

The appellant submitted that Felix Katsvamutima Shamuyarira's evidence was contradictory in that what he said and what appeared on his birth certificate was different. She further contended that when her parents died, they were still staying in the property and that she was told that the sale of the property never materialised. She argued that the sale of the property was fraudulent which explained why it took more than 20 years to go through. She stated that she did report the allegations of fraud to the police but Felix Katsvamutima Shamuyarira seemed to have influence over everything. The appellant argued that the transfer of the property ought to be set aside as it was premised on fraud and that the issue was still under investigation at the City Council.

The appellant's evidence and allegations are contradicted by the following evidence in the record:

1. That her parents had divorced and the sale of the house was part of the divorce order;

2. The Agreement of Sale between Bafion January and Chabuka;

3. Letters from Bafion January and his lawyers, Gutu and Jakachira, inviting Bafion January's former wife to come and collect two thirds of the purchase price as had been ordered by the court in the divorce order, her refusal to accept the money, and her opting to buy back the house from Chabuka; and

4. The partial processing of the cession of the house to Chabuka from Bafion January of 1993.

On the other hand, counsel for the respondent submitted that the court a quo was aware of the fraud allegations but held that they had not been substantiated. He submitted that if the appellant was serious about the fraud allegations, she ought to have made a police report and pursued the issue to its logical conclusion.

Counsel for the respondent further argued that the appellant failed to challenge the documentary evidence presented by the respondent which established that the sale of the property was above board and lawful. He submitted that the appellant had failed to establish a greater right to entitle her to continue staying in the property. In concluding his submissions, counsel for the respondent submitted that, as the allegations of fraud had not been proved, the appeal ought to be dismissed as it has no merit.

The court a quo's analysis of the evidence is unassailable.

It correctly analysed the evidence led before it and concluded that Bafion January had lawfully sold his house to Felix Katsvamutima Chabuka who later changed his surname to Felix Katsvamutima Shamuyarira. It further correctly held that Felix Katsvamutima Shamuyarira subsequently sold the house to the respondent.

It is common cause that the respondent's claim for eviction was granted on the basis of the rei vindicatio.

The rei vindicatio is a common law action in terms of which an owner of a thing is entitled to claim possession of his property from whoever is in possession of it without his consent. In Savanhu v Hwange Colliery Company SC08-15 this Court held as follows:

“The actio rei vindicatio is an action brought by an owner of property to recover it from any person who retains possession of it without his consent. It derives from the principle that an owner cannot be deprived of his property without his consent. As it was put in Chetty v Naidoo 1974 3 SA 13 (A):

'It is inherent in the nature of ownership that possession of the res 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 (eg, a right of retention or a contractual right).'”

According to GIBSON JTR WILLES's “Principles of South African Law” (7th ed, Juta & Co Ltd, Cape Town, 1977)…, it makes no difference whether the possessor is bona fide or mala fide - the owner of a movable may recover it from any possessor without having to compensate him, even from a possessor in good faith who gave value for it. The author further states as follows regarding the vindication of immovable property:

“In the case of land, the absolute owner of the land may claim the ejectment of any person in possession of it, and also an interdict restraining persons from continuing to trespass on it, as well as damages for loss or destruction caused by trespassers.”

In light of the above, the requirements of the common law action of rei vindicatio are two fold, that is;

(i) The plaintiff must prove ownership of the property; and

(ii) That the defendant was in possession of the thing when the action was instituted.

In casu, the respondent proved that he was the owner of the immovable property and he did this through the cession agreement in terms of which Felix Katsvamutima Chabuka Shamuyarira transferred his rights in the immovable property to him. The cession was done pursuant to an agreement of sale dated 17 December 2013 in terms of which the respondent bought the property from Felix Katsvamutima Chabuka Shamuyarira for US$20,000. Consequently, the element of ownership of the immovable property was proved.

That the appellant was in possession of the property is not in dispute. Therefore, the second requirement of the actio rei vindicatio was established.

The appellant, on the other hand failed to establish any defence to the respondent's claim. There are basically four main defences to a claim of rei vindicatio which are:

(i) That the applicant is not the owner of the property in question.

(ii) That the property in question no longer exists and can no longer be identified.

(iii) That the respondent's possession of such property is lawful.

(iv) That the respondent is no longer in physical control of the property.

See the cases of Chetty v Naidoo 1974 3 SA 13 (A) and Residents of Joe Slovo Community v Thabelisha Homes 2010 (3) SA 454 (CC).

The appellant seemed to rely on the first and third defences as she alleged that her possession of the property was lawful because the property was part of her father's estate, and, further, that the respondent had acquired the property fraudulently.

In view of the evidence, the court a quo believed and relied on, it correctly disbelieved the appellant's version and held that the property had been sold before her father's death.

As regards the fraud allegations, it is clear that the alleged fraud was not substantiated and that the appellant's conduct, since 2012, was not consistent with a person who believed that a fraud was being committed against her father's estate.

I am satisfied that the court a quo correctly made these factual findings.

It is trite that this Court will not lightly interfere with factual findings of a lower court. In ZINWA v Mwoyounotsva SC28-15 this Court held that:

“It is settled that an Appellate Court will not interfere with factual findings made by a lower court unless those findings were grossly unreasonable in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the same conclusion; or that the court had taken leave of its senses; or, put otherwise, the decision is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at it, or that the decision was clearly wrong.”

In this case, the appellant failed to establish the basis upon which the court a quo's factual findings can be impugned.

The appellant failed to prove her defence of lawful occupation of the respondent's property and the alleged fraudulent purchase of the property from her late father.

As was held in Nyahondo v Hokonya & Ors 1997 (2) ZLR (S) 457…, it is trite that he who makes an affirmative assertion, whether plaintiff or respondent, bears the onus of proving the facts so asserted.

In view of the appellant's failure to prove any defence to the respondent's claim, she, and all those claiming occupation of the property through her, should be evicted from the respondent's property.

The appeal has no merit. It is therefore dismissed with costs.

Vindicatory Action or Rei Vindicatio re: Approach, Ownership Rights, Claim of Right, Estoppel and Lien


This is an appeal against the whole judgment of the High Court, upholding the respondent's claim for eviction against the appellant.

The detailed facts of the case can be summarised as follows;

The respondent issued summons for the eviction of the appellant from Stand No.936 Glen Norah Township, Harare (the property) and holding over damages at the rate of US$330 per month. The respondent claimed that he was the owner of the property and that the appellant was unlawfully occupying it. The appellant opposed the respondent's claim alleging that she was lawfully occupying the property because it was owned by Bafion January, her late father. She further claimed that the property had been fraudulently acquired by the respondent.

The following issues were referred for trial:

1. Whether or not the plaintiff (respondent) is the lawful owner of Stand No.936 Glen Norah Township, Harare.

2. Whether or not the plaintiff (respondent) is entitled to damages for unlawful holding over against the defendant (appellant) and the quantum thereof.

At the trial, the respondent testified that he bought the property in 2013 for US$20,000 from Felix Katsvamutima Shamuyarira (Shamuyarira) even though the property was still in the name of one Bafion January. Upon attempting to register the cession of the property from Shamuyarira's name into his name, the respondent was advised, by the City of Harare, that the property had to first be ceded from Bafion January's name to Shamuyarira's name through the registration of a cession of the property at its offices, after which the property could thereafter be ceded to him by Shamuyarira. According to documents in the record, this process was followed and the registration of the cession of the property from Shamuyarira's name to the respondent was recorded by the City of Harare.

Felix Katsvamutima Shamuyarira, who testified on behalf of the respondent, told the court a quo that he bought the property from Bafion January in 1991. Bafion had acquired the property from the City of Harare in 1983 through a Deed of Sale. He further testified that he grew up using his mother's surname, Chabuka, which he later changed to Shamuyarira, and, in support of this he produced his birth certificate. It was also contended that whilst the property was bought in 1991, ownership was only changed into Felix Katsvamutima Shamuyarira's name in 2013 because Ellen Manyanga (Bafion January's ex-wife) was in occupation of the house and had indicated that she wanted to buy back the house from him. Felix Katsvamutima Shamuyarira further explained that the delayed change of ownership was also due to the documents relating to the property having been lost but were found in 2012.

The respondent denied any allegations of fraud.

In support of her case, the appellant called two witnesses who did not give any meaningful testimony in support of her case. They had no direct involvement in the matter and could not dispute the agreement which had been concluded between Bafion January and Felix Katsvamutima Shamuyarira in 1991 and the subsequent agreement between Felix Katsvamutima Shamuyarira and the respondent.

The appellant herself testified and alleged that the property could not be sold because Bafion January's wife had not given her consent to such sale, and, further, that she had the right to occupy the property since it was part of her father's estate. She also alleged fraud in the transfer of the house to the respondent.

In analysing the evidence, the court a quo found Felix Katsvamutima Shamuyarira's explanation, that the transfer had taken long because Bafion`s ex-wife wanted to buy back the property, believable as it was supported by evidence. The issue of whether or not Chabuka and Shamuyarira was the same person was resolved in favour of the respondent as Shamuyarira's birth certificate was produced. It proved that his mother's surname was Chabuka thereby confirming that Chabuka was his mother's surname. This evidence confirms Chabuka's change of surname from Chabuka to Shamuyarira. The court a quo believed the respondent's explanation as to why the property bought in 1991 was transferred 22 years later, in 2013. In the same vein, the court a quo did not believe the appellant's evidence that the property had been fraudulently sold to the respondent.

The court a quo held that the sale was lawful and that the appellant's witnesses' evidence did not deal with the determinant issues of the matter. The appellant's allegations of fraud were dismissed because there was no evidence to prove it and the alleged complaint to the City Council was contradicted by the City Council processing the cession of the property from Bafion January to Felix Katsvamutima Shamuyarira and from Shamhuyarira to the respondent.

It is also surprising that if fraud had occurred the appellant would not have pursued her alleged report to the police. Consequently, the court a quo held that the respondent had proved his claim for eviction and was thus entitled to vacant possession of the property. It however held that the claim for holding over damages had not been proved.

Aggrieved by this decision, the appellant noted an appeal to this Court on four grounds of appeal which raised the issue of “whether or not the court a quo erred by granting the respondent's claim of eviction against the appellant.”

Whether or not the court a quo erred by granting the respondent's claim for eviction against the appellant

The appellant submitted that Felix Katsvamutima Shamuyarira's evidence was contradictory in that what he said and what appeared on his birth certificate was different. She further contended that when her parents died, they were still staying in the property and that she was told that the sale of the property never materialised. She argued that the sale of the property was fraudulent which explained why it took more than 20 years to go through. She stated that she did report the allegations of fraud to the police but Felix Katsvamutima Shamuyarira seemed to have influence over everything. The appellant argued that the transfer of the property ought to be set aside as it was premised on fraud and that the issue was still under investigation at the City Council.

The appellant's evidence and allegations are contradicted by the following evidence in the record:

1. That her parents had divorced and the sale of the house was part of the divorce order;

2. The Agreement of Sale between Bafion January and Chabuka;

3. Letters from Bafion January and his lawyers, Gutu and Jakachira, inviting Bafion January's former wife to come and collect two thirds of the purchase price as had been ordered by the court in the divorce order, her refusal to accept the money, and her opting to buy back the house from Chabuka; and

4. The partial processing of the cession of the house to Chabuka from Bafion January of 1993.

On the other hand, counsel for the respondent submitted that the court a quo was aware of the fraud allegations but held that they had not been substantiated. He submitted that if the appellant was serious about the fraud allegations, she ought to have made a police report and pursued the issue to its logical conclusion.

Counsel for the respondent further argued that the appellant failed to challenge the documentary evidence presented by the respondent which established that the sale of the property was above board and lawful. He submitted that the appellant had failed to establish a greater right to entitle her to continue staying in the property. In concluding his submissions, counsel for the respondent submitted that, as the allegations of fraud had not been proved, the appeal ought to be dismissed as it has no merit.

The court a quo's analysis of the evidence is unassailable.

It correctly analysed the evidence led before it and concluded that Bafion January had lawfully sold his house to Felix Katsvamutima Chabuka who later changed his surname to Felix Katsvamutima Shamuyarira. It further correctly held that Felix Katsvamutima Shamuyarira subsequently sold the house to the respondent.

It is common cause that the respondent's claim for eviction was granted on the basis of the rei vindicatio.

The rei vindicatio is a common law action in terms of which an owner of a thing is entitled to claim possession of his property from whoever is in possession of it without his consent. In Savanhu v Hwange Colliery Company SC08-15 this Court held as follows:

“The actio rei vindicatio is an action brought by an owner of property to recover it from any person who retains possession of it without his consent. It derives from the principle that an owner cannot be deprived of his property without his consent. As it was put in Chetty v Naidoo 1974 3 SA 13 (A):

'It is inherent in the nature of ownership that possession of the res 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 (eg, a right of retention or a contractual right).'”

According to GIBSON JTR WILLES's “Principles of South African Law” (7th ed, Juta & Co Ltd, Cape Town, 1977)…, it makes no difference whether the possessor is bona fide or mala fide - the owner of a movable may recover it from any possessor without having to compensate him, even from a possessor in good faith who gave value for it. The author further states as follows regarding the vindication of immovable property:

“In the case of land, the absolute owner of the land may claim the ejectment of any person in possession of it, and also an interdict restraining persons from continuing to trespass on it, as well as damages for loss or destruction caused by trespassers.”

In light of the above, the requirements of the common law action of rei vindicatio are two fold, that is;

(i) The plaintiff must prove ownership of the property; and

(ii) That the defendant was in possession of the thing when the action was instituted.

In casu, the respondent proved that he was the owner of the immovable property and he did this through the cession agreement in terms of which Felix Katsvamutima Chabuka Shamuyarira transferred his rights in the immovable property to him. The cession was done pursuant to an agreement of sale dated 17 December 2013 in terms of which the respondent bought the property from Felix Katsvamutima Chabuka Shamuyarira for US$20,000. Consequently, the element of ownership of the immovable property was proved.

That the appellant was in possession of the property is not in dispute. Therefore, the second requirement of the actio rei vindicatio was established.

The appellant, on the other hand failed to establish any defence to the respondent's claim. There are basically four main defences to a claim of rei vindicatio which are:

(i) That the applicant is not the owner of the property in question.

(ii) That the property in question no longer exists and can no longer be identified.

(iii) That the respondent's possession of such property is lawful.

(iv) That the respondent is no longer in physical control of the property.

See the cases of Chetty v Naidoo 1974 3 SA 13 (A) and Residents of Joe Slovo Community v Thabelisha Homes 2010 (3) SA 454 (CC).

The appellant seemed to rely on the first and third defences as she alleged that her possession of the property was lawful because the property was part of her father's estate, and, further, that the respondent had acquired the property fraudulently.

In view of the evidence, the court a quo believed and relied on, it correctly disbelieved the appellant's version and held that the property had been sold before her father's death.

As regards the fraud allegations, it is clear that the alleged fraud was not substantiated and that the appellant's conduct, since 2012, was not consistent with a person who believed that a fraud was being committed against her father's estate.

I am satisfied that the court a quo correctly made these factual findings.

It is trite that this Court will not lightly interfere with factual findings of a lower court. In ZINWA v Mwoyounotsva SC28-15 this Court held that:

“It is settled that an Appellate Court will not interfere with factual findings made by a lower court unless those findings were grossly unreasonable in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the same conclusion; or that the court had taken leave of its senses; or, put otherwise, the decision is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at it, or that the decision was clearly wrong.”

In this case, the appellant failed to establish the basis upon which the court a quo's factual findings can be impugned.

The appellant failed to prove her defence of lawful occupation of the respondent's property and the alleged fraudulent purchase of the property from her late father.

As was held in Nyahondo v Hokonya & Ors 1997 (2) ZLR (S) 457…, it is trite that he who makes an affirmative assertion, whether plaintiff or respondent, bears the onus of proving the facts so asserted.

In view of the appellant's failure to prove any defence to the respondent's claim, she, and all those claiming occupation of the property through her, should be evicted from the respondent's property.

The appeal has no merit. It is therefore dismissed with costs.

UCHENA JA: This is an appeal against the whole judgment of the High Court, upholding the respondent's claim for eviction against the appellant.

The detailed facts of the case can be summarised as follows;

The respondent issued summons for the eviction of the appellant from Stand No.936 Glen Norah Township, Harare (the property) and holding over damages at the rate of US$330.00 per month. The respondent claimed that he was the owner of the property and that the appellant was unlawfully occupying it. The appellant opposed the respondent's claim alleging that she was lawfully occupying the property because it was owned by Bafion January her late father. She further claimed that the property had been fraudulently acquired by the respondent.

The following issues were referred for trial:

1. Whether or not the plaintiff (respondent) is the lawful owner of Stand No. 936 Glen Norah Township, Harare.

2. Whether or not plaintiff (respondent) is entitled to damages for unlawful holding over against defendant (appellant) and the quantum thereof.

At the trial, the respondent testified that he bought the property in 2013 for US$20,000.00 from Felix Katsvamutima Shamuyarira (Shamuyarira) even though the property was still in the name of one Bafion January. Upon attempting to register the cession of the property from Shamuyarira`s name into his name, the respondent was advised by the City of Harare that the property had to first be ceded from Bafion January's name to Shamuyarira`s name through the registration of a cession of the property at its offices, after which the property could thereafter be ceded to him by Shamuyarira. According to documents in the record this process was followed and the registration of the cession of the property from Shamuyarira's name to the respondent was recorded by the City of Harare.

Shamuyarira, who testified on behalf of the respondent, told the court a quo that he bought the property from Bafion January in 1991. Bafion had acquired the property from the City of Harare in 1983 through a deed of sale. He further testified that he grew up using his mother`s surname, Chabuka which he later changed to Shamuyarira and in support of this he produced his birth certificate. It was also contended that whilst the property was bought in 1991, ownership was only changed into Shamuyarira`s name in 2013 because Ellen Manyanga (Bafion`s ex-wife) was in occupation of the house and had indicated that she wanted to buy back the house from him. Shamuyarira further explained that the delayed change of ownership was also due to the documents relating to the property having been lost but were found in 2012. The respondent denied any allegations of fraud.

In support of her case, the appellant called two witnesses who did not give any meaningful testimony in support of her case. They had no direct involvement in the matter and could not dispute the agreement which had been concluded between Bafion January and Shamuyarira in 1991 and the subsequent agreement between Shamuyarira and the respondent.

The appellant herself testified and alleged that the property could not be sold because Bafion January`s wife had not given her consent to such sale and further that she had the right to occupy the property since it was part of her father's estate. She also alleged fraud in the transfer of the house to the respondent.

In analysing the evidence, the court a quo found Shamuyarira`s explanation that the transfer had taken long because Bafion`s ex-wife wanted to buy back the property believable as it was supported by evidence. The issue of whether or not Chabuka and Shamuyarira was the same person was resolved in favour of the respondent as Shamuyarira's birth certificate was produced. It proved that his mother's surname was Chabuka thereby confirming that Chabuka was his mother's surname. This evidence confirms Chabuka's change of surname from Chabuka to Shamuyarira. The court a quo believed the respondent`s explanation as to why the property bought in 1991 was transferred 22 years later in 2013. In the same vein, the court a quo did not believe the appellant`s evidence that the property had been fraudulently sold to the respondent.

The court a quo held that the sale was lawful and that the appellant`s witnesses' evidence did not deal with the determinant issues of the matter. The appellant`s allegations of fraud were dismissed because there was no evidence to prove it and the alleged complaint to the City Council was contradicted by the City Council processing the cession of the property from Bafion January to Shamhuyarira and from Shamhuyarira to the respondent. It is also surprising that if fraud had occurred the appellant would not have pursued her alleged report to the police. Consequently, the court a quo held that the respondent had proved his claim for eviction and was thus entitled to vacant possession of the property. It however held that the claim for holding over damages had not been proved.

Aggrieved by this decision, the appellant noted an appeal to this Court on four grounds of appeal which raised the issue of “whether or not the court a quo erred by granting the respondent's claim of eviction against the appellant”.

Whether or not the court a quo erred by granting the respondent's claim for eviction against the appellant?

The appellant submitted that Shamuyarira's evidence was contradictory in that what he said and what appeared on his birth certificate was different. She further contended that when her parents died, they were still staying in the property and that she was told that the sale of the property never materialised. She argued that the sale of the property was fraudulent which explained why it took more than 20 years to go through. She stated that she did report the allegations of fraud to the police but Shamuyarira seemed to have influence over everything. The appellant argued that the transfer of the property ought to be set aside as it was premised on fraud and that the issue was still under investigation at the City Council.

The appellant's evidence and allegations are contradicted by the following evidence in the record:

1. That her parents had divorced and the sale of the house was part of the divorce order;

2. The Agreement of Sale between Bafion January and Chabuka;

3. Letters from Bafion January and his lawyers Gutu and Jakachira, inviting January's former wife to come and collect two thirds of the purchase price as had been ordered by the court in the divorce order, her refusal to accept the money and her opting to buy back the house from Chabuka; and

4. The partial processing of the cession of the house to Chabuka from Bafion January of 1993.

On the other hand, Mr Chitima for the respondent submitted that the court a quo was aware of the fraud allegations but held that they had not been substantiated. He submitted that if the appellant was serious about the fraud allegations, she ought to have made a police report and pursued the issue to its logical conclusion.

Mr Chitima further argued that the appellant failed to challenge the documentary evidence presented by the respondent which established that the sale of the property was above board and lawful. He submitted that the appellant had failed to establish a greater right to entitle her to continue staying in the property. In concluding his submissions Mr Chitima submitted that as the allegations of fraud had not been proved the appeal ought to be dismissed as it has no merit.

The Court a quo's analysis of the evidence is unassailable.

It correctly analysed the evidence led before it and concluded that Bafion January had lawfully sold his house to Felix Katsvamutima Chabuka who later changed his surname to Shamuyarira. It further correctly held that Shamuyarira subsequently sold the house to the respondent.

It is common cause that the respondent`s claim for eviction was granted on the basis of the rei vindicatio.

The rei vindicatio is a common law action in terms of which an owner of a thing is entitled to claim possession of his property from whoever is in possession of it without his consent. In Savanhu v Hwange Colliery Company 15-SC-008 this Court held as follows:

“The actio rei vindicatio is an action brought by an owner of property to recover it from any person who retains possession of it without his consent. It derives from the principle that an owner cannot be deprived of his property without his consent. As it was put in Chetty v Naidoo 1974 3 SA 13 (A):

'It is inherent in the nature of ownership that possession of the res 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 (e.g., a right of retention or a contractual right).'”

According to Gibson JTR Wille's “Principles of South African Law” (7th ed, Juta & Co Ltd, Cape Town, 1977) at p 203, it makes no difference whether the possessor is bona fide or mala fide, the owner of a movable may recover it from any possessor without having to compensate him, even from a possessor in good faith who gave value for it. The author further states as follows regarding the vindication of immovable property:

“In the case of land, the absolute owner of the land may claim the ejectment of any person in possession of it, and also an interdict restraining persons from continuing to trespass on it, as well as damages for loss or destruction caused by trespassers.”

In light of the above, the requirements of the common law action of rei vindicatio are two fold, that is;

(i) the plaintiff must prove ownership of the property; and

(ii) that the defendant was in possession of the thing when the action was instituted.

In casu, the respondent proved that he was the owner of the immovable property and he did this through the cession agreement in terms of which Felix Katsvamutima Chabuka Shamuyarira transferred his rights in the immovable property to him. The cession was done pursuant to an agreement of sale dated 17 December 2013 in terms of which the respondent bought the property from Shamuyarira for US$20,000. Consequently, the element of ownership of the immovable property was proved.

That the appellant was in possession of the property is not in dispute. Therefore, the second requirement of the actio rei vindicatio was established.

The appellant, on the other hand failed to establish any defence to the respondent`s claim. There are basically four main defences to a claim of rei vindicatio which are:

(i) that the applicant is not the owner of the property in question.

(ii) that the property in question no longer exists and can no longer be identified.

(iii) that the respondent's possession of such property is lawful.

(iv) that the respondent is no longer in physical control of the property.

See the cases of Chetty v Naidoo (supra) and Residents of Joe Slovo Community v Thabelisha Homes 2010 (3) SA 454 (CC).

The appellant seemed to rely on the first and third defences as she alleged that her possession of the property was lawful because the property was part of her father's estate and further, that the respondent had acquired the property fraudulently.

In view of the evidence the court a quo believed and relied on, it correctly disbelieved the appellant's version and held that the property had been sold before her father's death.

As regards the fraud allegations, it is clear that the alleged fraud was not substantiated and that the appellant`s conduct since 2012 was not consistent with a person who believed that a fraud was being committed against her father's estate.

I am satisfied that the court a quo correctly made these factual findings.

It is trite that this Court will not lightly interfere with factual findings of a lower court. In ZINWA v Mwoyounotsva 15-SC-028 this Court held that:

“It is settled that an Appellate Court will not interfere with factual findings made by a lower court unless those findings were grossly unreasonable in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the same conclusion; or that the court had taken leave of its senses; or, put otherwise, the decision is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at it, or that the decision was clearly wrong.”

In this case, the appellant failed to establish the basis upon which the court a quo's factual findings can be impugned.

The appellant failed to prove her defence of lawful occupation of the respondent's property and the alleged fraudulent purchase of the property from her late father.

As was held in Nyahondo v Hokonya & Ors 1997 (2) ZLR (S) 457 at 459 it is trite that he who makes an affirmative assertion, whether plaintiff or respondent, bears the onus of proving the facts so asserted.

In view of the appellant's failure to prove any defence to the respondent's claim, she and all those claiming occupation of the property through her should be evicted from the respondent's property.

The appeal has no merit. It is therefore dismissed with costs.

GOWORA JA: I agree

MAVANGIRA JA: I agree







Mutandiro, Chitsanga & Chitima Attorneys, respondent's legal practitioners

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