BHUNU
JA:
[1] During
happier times the 1st respondent leased her bird and game sanctuary
to the appellant. Upon termination of the lease the appellant lost
the contest for ownership and possession of animals at the sanctuary
in the High Court (the court a
quo).
She now appeals to this Court for relief.
FACTUAL
BACKGROUND
[2] At
the 22 kilometre peg along the Harare-Shamva Road lies Bally Vaughan
Bird and Game Sanctuary. The first respondent and her late husband
established the sanctuary sometime in 1990 mainly for the care of
birds and animals in need of care. At the time of litigation in the
court a
quo
she was the sole surviving owner of the sanctuary.
[3]
The primary source of animals for the sanctuary was through
donations from members of the public. Funding was mainly derived from
donations and sale of animals at the sanctuary.
[4] Owing
to a conglomeration of advanced age and injuries sustained in a road
traffic accident the first respondent was wheelchair bound and unable
to represent herself in a court of law. She was however lawfully
represented by one Gordon Rees Putterill the deponent to the opposing
affidavit duly authorised thereto by power of attorney. She is now
deceased and was duly substituted according to law by the executor to
her estate one Edward Mark Warhurst.
[5] It
is common cause that on 1 June 2010 the appellant and the first
respondent concluded a written lease agreement. The contract was to
endure for a period of 3 years expiring on 31 May 2013. The material
terms of the contract provide as follows:
“AGREEMENT
OF LEASE entered into by and between Mrs K N McIntosh (Hereinafter
“called The Lessor” on the one part and Miss S. A. L. Carter
(Herein after called the tenant)
Whereas
the lessor is the registered owner of the operation known as Bally
Vaughan Bird and Game Sanctuary situated in the Arcturus [CA District
of Goromonzi].
And
whereas the Lessor has agreed to let to the Tenant the aforesaid
immovable property, as more fully set out in Annexure 'A' which
also includes details of immovable property being kitchen and
catering equipment, restaurant furnishings and fittings of the two
restaurants known as the “Duck or Grouse restaurant”,
all
birds and animals that were resident within the area known as the
Bally Vaughan Bird and Game Sanctuary on one October,
2005
water pump, cold room motor and Mazda B2500 pick-up truck.” (The
emphasis is mine)
NOW
THEREFORE IT IS AGREED AS FOLLOWS:
“Subject
to the provisions of this lease, the lessor hereby lets to the Tenant
who in turn hires from the lessor the leased premises and equipment
specified In Annexure 'A'
2………
3………
4.
Income derived from the sale of animals resident on the farm on 1
October, 2005 shall be divided equally between the Lessor and the
Tenant, and income from the sale of birds resident on 1 October 2005
shall be divided as follows:
45
per cent to Lessor, 45 per cent to Tenant and 10 per cent to staff as
a bonus.
5.…………
6.…………
7…………
8…………
9…………
10…………
11. In
the event of the death of the Lessor or the Tenant, during the
currency of this lease, this lease agreement shall be binding on the
legal representative of the Lessor or the Tenant until the date
provided for the expiry thereof.
12…………
13.
In the event of the Tenant failing to pay the rent or committing any
breach of this agreement and failing to remedy such breach within
fourteen days after receipt from the Lessor of written notice
requiring the Tenant to so remedy such breach, the Lessor shall be
entitled to cancel this lease without any prejudice to any action for
the recovery of rent or any loss or damage arising from such lease.”
[6] Following
disagreements, the first respondent lawfully evicted the appellant
from her sanctuary by court order in November 2013 on grounds of
breach of contract. Upon her eviction the appellant sought to
relocate the disputed animals to Twala Trust Sanctuary in the same
district. The disputed animals are listed as:
Domestic
animals
(ii) 3
cows
(iii) 3
pigs
(iv) 11
sheep
(v) 16
donkeys
(vi) 4
goats
Wild
animals
(i) 3
male lions
(ii) 4
female lionesses
(iii)
1 female spotted hyena
(iv) 2
serval (male and female)
(v) 1
male meekat
(vi) 1
male genet
(vii)
1 male zebra
(viii)
2 female common duikers
(ix) 1
male bush baby
(x) 3
female baboons
(xi) 13
marmoset monkeys
(xii)
13 vervet monkeys
[7] The
appellant's claim was premised on a vindicatory or possessory
order. The first respondent objected to the translocation of the
animals from Bally Vaughan Sanctuary claiming ownership of the same
animals. To protect her title and interest in the animals she applied
for and obtained a temporary interdict from the Magistrates Court
blocking the appellant from removing the animals from the sanctuary
pending determination of ownership of the disputed animals by the
courts. The temporary interdict is in the form of a rule
nisi
dated 3 July 2015 crafted in the following terms:
“IT
IS ORDERED THAT:
1.
A rule nisi issue… in the following terms:
(i) That
pending a court determination on the ownership of the birds, animals,
equipment and motor vehicles on Bally Vaughan Bird and Game
Sanctuary, 22km peg, Shamva road, first and second respondents be and
are hereby temporarily interdicted from removing any birds, animals,
equipment and motor vehicles from the said premises.
(ii) In
the event of the Respondents failing to comply with this order, or
any part thereof, that the Zimbabwe Republic Police, Juru or any
attested member of the Zimbabwe Republic police be and are hereby
authorised to enforce the Order and for so doing, this shall be their
warrant.
(iii)
First and second respondents shall pay costs of suit on a legal
practitioner and client scale.”
[8] The
appellant did not violate the terms of the above temporary interdict
but properly took the dispute to the court a
quo
claiming the right to relocate the animals by virtue of being the
rightful owner and possessor of the animals. On the other hand, the
first respondent resisted the appellant's claim on the basis that
she was the lawful owner and in
defacto
lawful
possession of the disputed animals.
[9] In
the court a
quo,
the appellant claimed ownership and possession of the disputed
animals on the basis that in terms of the lease agreement she only
leased the animals that were on the sanctuary as of October 2005. All
the other animals that came onto the sanctuary thereafter were
donated to her as her personal property. Her claim was based on
vindication and/or a possessory order.
[10]
The first respondent countered that the appellant was not leasing
Bally Vaughan as a sanctuary for animals donated to her but for
animals donated to the sanctuary. She therefore as owner of the
sanctuary assumed ownership of the animals regardless of who had
facilitated the donations.
[12]
As we have already seen, the court a
quo
resolved the dispute in favour of the first respondent. It now
behoves this Court to determine the correctness or otherwise of the
judgment a
quo.
ISSUES
FOR DETERMINATION ON APPEAL
[13]
Despite having raised 7 grounds of appeal which are in the main
prolix and argumentative, before us Mr Magwaliba
for
the appellant abandoned all the other issues raised in the grounds of
appeal leaving only one issue for determination on appeal. He
submitted that the sole issue for determination is, whether the court
a
quo
was correct in restricting itself to ownership. I now turn to
determine that issue.
WHETHER
THE COURT A
QUO
WAS CORRECT IN RESTRICTING ITSELF TO THE QUESTION OF OWNERSHIP
[14] Right
from the onset I must point out that the way the sole issue for
determination is crafted is misconceived and misleading in so far as
it gives the impression that the learned judge a
quo
did not determine the question of possession. In his concluding
remarks the learned judge a
quo
had this to say at page 11 of his cyclostyled judgment:
“The
hurdles which stand in the way of the application are many and
varied. The applicant could not succeed under the given
circumstances. She
could not establish a prima facie case in respect of the animals, let
alone proof of ownership or possession
of
the same albeit on a balance of probabilities.”
(My emphasis)
[15] It
is plain that the learned judge was not guilty of any omission to
determine the issue of possession as alleged by the appellant. This
really should be the end of the matter because the sole issue to be
determined is founded on the wrong and false misapprehension of the
reasons for judgment. Notwithstanding the defect, I proceed to
briefly ventilate the validity of the appeal on the merits.
[16] The
appellant's submission before us presupposes that the appellant is
no longer contesting the issue of ownership on appeal. That amounts
to a concession that the first respondent is in fact the owner of the
disputed animals. That concession was well made because there is
overwhelming evidence before us that the animals were donated to the
institution called Bally
Vaughan Bird and Game Sanctuary owned
by the first respondent. The written lease agreement makes no
provision whatsoever for the appellant to keep her own animals on the
Sanctuary. It only permitted her to lease and not to own animals on
the sanctuary. Donors could not have donated animals to the appellant
for safe keeping in her personal capacity when she had nowhere to
keep them in her personal capacity.
[17]
The natural inclination and presumption at law is that the owner of
land is presumed to own all property on his/her land until the
contrary is proved. In Chetty
v Naidoo
1974 (3) SA 13 (A), the Appellate Court held that:
“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
withdraw 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.)”
[18] The
above proposition of law was quoted with approval in Savanhu
v Hwange Colliery Company
SC8/15
and in Indium
Investments (Pvt) Ltd v Kingshaven
(Pvt) Ltd & Ors SC40/15. The cited cases make it abundantly clear
that it is only the owner who can vindicate. The appellant having
failed to prove that she was the owner of the disputed animals, could
not vindicate the animals from the first respondent. The court a
quo
was therefore correct in dismissing the appellant's claim for
vindication because she failed to prove ownership of the animals.
[19] We
have already seen that case law establishes that the owner is
entitled to possess the property which he/she owns. No one can take
away that property from the owner without his/her consent save where
the claimant has proved that he/she has some lawful residual right to
possess the property such as contractual or retention rights.
[20] The
appellant having failed to prove ownership of the disputed animals
the ball was squarely in her court to prove that she had the right to
possess the animals despite not being the owner. Her claim for the
right to possess the animals was grounded on her claim of ownership
of the animals. Her failure to prove ownership of the animals
automatically by operation of law divested her of the right to
possess the animals because the law vested the right of possession on
the owner.
[21] Her
lease agreement with the first respondent could not assist her
because according to her claim the contract did not apply to the
disputed animals. It only applied to the animals resident at the
sanctuary on 1 October 2005. These animals were not the subject of
the dispute. The dispute only related to the animals that came to
the sanctuary after 1 October 2005.
[22] In
any case the lease agreement terminated when she was evicted from the
sanctuary. She could therefore not continue to hold onto the first
respondent's property on the basis of an expired contract.
[23]
In the final analysis we find that the appellant having failed to
prove ownership of the disputed animals, had no legal basis to claim
possession of the animals from the owner. That being the case, the
learned judge a
quo's
judgment is unassailable.
DISPOSAL
[24] In
the result it is ordered that the appeal be and is hereby dismissed
with costs.
MAVANGIRA
JA: I
agree
CHATUKUTA
AJA: I
agree
Kantor
and Immerman, the appellant's
legal practitioners
Matizanadzo,
1st
respondent's legal practitioners
