GOWORA J: In this application the applicants have sought the eviction of the
respondent from 33 Taomina Avenue,
New Marlborough, together with all those claiming occupation through.
I will start with the facts which
are common cause. The applicants are husband and wife. On 30 June 2008, the
property in question was transferred into their joint names, and it is still
registered in their joint names. The respondent is in occupation the property
in question.
As the disputed facts from which the
contentious issues emanate, the allegations are these: The applicants allege firstly that the
respondent is in illegal occupation of the residence. The respondent has
countered that by alleging that he purchased the stand from them on 3 October
2008 and has attached an agreement of sale in respect of the alleged agreement
of sale. He has also attached identity documents allegedly proving that he did
indeed purchase the property from its registered owners. He also has a copy of
the title deeds which he says he obtained from the sellers.
Clearly there are disputes of fact
on the papers on this issue and I have to decide whether or not the disputes
are material and further if they can be resolved on the papers.
It is correct that some person or
persons entered into an agreement of sale with the respondent. The question is
were those persons the applicants.
The identity documents produced by
the respondents reflect persons totally different in looks from the documents
produced by the applicants.
The applicants have produced copies
of their passports, visas for their stay in America and a copy of the marriage
certificate. In addition the second applicant has produced her American
driver's licence and her Zimbabwe
identity document. A part from the difference in facial features, the identity
documents produced by the respondent has the same particulars as those on the
first applicant's documents. The difference in the documents is glaring when
one has regard to the documents pertaining to the second applicant.
The second applicant's maiden
surname is Makamba and all her identity documents bear that name. Further
scrutiny reveals that according to the marriage certificate the ID number for
the second applicant is 14-095383 S 83. All her documents, her passport, her
national identity bear this number. According to her national identity she was
born in Chiredzi.
On the documents produced by the
respondent, the second applicant was born in Zvishavane and her national
identity is 67-086259 W 67. This is the number that appears on the agreement of
sale that the respondent relies on. When this detail is compared with what
appears on the marriage certificate, the person being reflected on the alleged
agreement of sale is not the person who married the first applicant. It has to be a different person. The second
applicant obtained a visa on 16 August 2002. The visa is in her maiden name as
that is the name on her passport. The copy of the passport produced by the
respondent shows that a passport was issued to Dornica Mazhawidza on 24 May
2002 here in Harare.
The face, the identity number and place of birth differ from those of the
second applicant.
In my view the persons who concluded
the agreement of sale with the respondent are not the applicants.
It is accepted by the respondent
that the applicants are the registered owners of the house in dispute. The next
issue for determination is whether or not the applicants have the right to vindicate
their property from the respondent.
The effect of registration of title
to the property with the Deeds Office is to create exclusive rights for the
holders of such title. Real rights are entrenched rights and their registration
is a declaration to the general public as who the holder of title is. It is a
right in rein which is indefeasible.
It is enforceable against the world at large.
In Takafuma v Takafuma 1994
(2) ZLR 103, McNALLY JA said:
“The registration of rights in
immovable property in terms of the Deeds Registries Act is not a mere matter of
form, nor is it simply a device to confound creditors or the tax authorities.
It is a matter of substance. It conveys real rights upon those in whose name
the property is registered”.
The applicants are thus vested with
real rights which entitle them to recover the property from whomsoever.
The respondent is on the property
without their consent and they are entitled to an order for his eviction as
prayed.
Sinyoro & Partners, applicants' legal practitioners
C
Mutsahuni Chikore & Partners,
respondent's legal practitioners
