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
