On
16 March 2007, and at Harare, the applicant entered into a sale
agreement with Gatsikanayi Enock Nyamupanda (herein after referred to
as Nyamupanda) for the purchase of a certain piece of land being
Stand Number 9642 A Salisbury Township also known as Number 2 Umuguza
Close, Wilmington Park, Cranborne, Harare, held under Deed of
Transfer number 896/03.
The
applicant duly paid the purchase price and title was passed to him on
20 April 2007 under Deed of Transfer number 2076/07.
He
however could not take occupation of the property as the respondent's
son, Killian Chipendo, was in occupation. As a result, the applicant
instituted legal proceedings for the eviction of Killian Chipendo and
all those claiming occupation through him in case number HC2951/07.
On
26 February 2008, the eviction order was granted and a writ of
eviction issued. On 26 August 2008, Killian Chipendo and all those
claiming occupation through him were duly evicted by the Deputy
Sheriff.
The
respondent, who was amongst those evicted on that date, re-took
occupation of the property without any court order.
The
respondent contended that she was not claiming occupation through
Killian Chipendo but in her own right as the surviving spouse of the
late Ronnie T Chipendo.
It
is common cause that the Estate late R T Chipendo was administered by
an executor dative – Muchivete Hungwe of Messrs Hungwe and Partners
legal practitioners.
The
executor dative obtained authority to sell the property in terms of
section 120 of the Administration of Deceased Estates Act [Chapter
6:01]
from the Master of the High Court.
Upon
obtaining the Master of the High Court's consent he duly sold the
property to Gatsikanayi Enock Nyamupanda. Title was passed to
Gatsikanayi Enock Nyamupanda by virtue of Deed of Transfer number
896/03.
After
the sale, the executor dative did a final Administration Account and
distribution plan. The proceeds of the sale were shared amongst the
children of the late Ronnie T Chipendo.
The
respondent did not partake in the proceeds as she was said to have
divorced the late R T Chipendo in 1991 - well before his death.
Gatsikanayi
Enock Nyamupanda, as the new owner, sold the property to the
applicant on 16 March 2007. The applicant duly obtained title by
virtue of Deed of Transfer number 2076/07 dated 20 April 2007.
It
was in furtherance of his title to the property, that, on 26 February
2008, the applicant obtained an order for the eviction of Killian
Chipendo and all those claiming occupation through him from this
court.
The
eviction was duly executed by the Deputy Sheriff on 26 August 2008.
As
already alluded to, the respondent was one of those who were evicted
from the property. She however re-took occupation without any court
order. In Mairos
Lisimba v Lizzy Chipendo
HC868/09, the applicant therein instituted contempt of court
proceedings against the respondent for re-occupying the property
after eviction.
The
respondent opposed the application claiming that she was never cited
in the proceedings that led to Killian Chipendo being evicted. As a
surviving spouse she occupied the house in her own right.
In
this case, HC2220/09, the applicant sought an eviction order against
the respondent, her guests and invitees, and all those claiming
occupation through her from the property in question.
The
respondent opposed the application.
Her
opposition was based on her contention that she was the surviving
spouse as she had never divorced the late R T Chipendo.
There
was no denying that the respondent did not challenge the initial sale
of the property by the executor dative to Gatsikanayi Enock
Nyamupanda. She also had not objected to the subsequent sale by
Gatsikanayi Enock Nyamupanda to the present applicant.
It
was further not disputed the property was now registered in the
applicant's name.
Section
14(a) of the Deeds Registries Act [Chapter 20:05]
states that “the ownership of land maybe conveyed from one person
to another only by means of a deed of transfer executed or attested
by a Registrar.”
This
is what transpired in this instance when ownership passed to
Gatsikanayi Enock Nyamupanda, and, later, to the applicant in that
order. As owner, the applicant is entitled to claim the property from
anyone who is in occupation.
Indeed,
as noted in Chetty
v Naidoo
1974 (3) SA 13 A:
“There
can be no doubt that one of the incidents is the right of the
exclusive possession of the res with the necessary corollary that the
owner may claim his property wherever and from whosoever is holding
it. It is inherent in the nature of ownership that possession of the
res would usually be with the owner; it follows that no other person
may withhold it.”
The
respondent's defence to the application was bound to be affected by
the decision in Lizzy
Chipendo v Tinashe Muchivete Zenda & Ors
HC2655/09.
In
that case, the applicant, who is the present respondent, was seeking
condonation for the late filing of an application for review in
HC2575/09.
After
the ruling in HC2655/09 in which I dismissed the respondent's
application for condonation for the late filing of HC2575/09, counsel
for the applicant inquired on whether the respondent was still intent
on opposing the applicant's application in HC2220/09 and HC868/09.
Counsel
for the respondent indicated that in view of the ruling in HC2655/09
she was no longer opposing the relief sought by the applicant in
HC2220/09. She however expressed reservations about the relief in
HC868/09 which is an application for contempt of court.
I
did not hear the applicant's counsel to insist with that particular
relief.
It
was conceded that essentially what the applicant was seeking in both
HC868/09 and HC2220/09 was the eviction of the respondent from the
premises in question. In HC2220/09 the respondent was cited by her
preferred name, and there is no doubt as to who the order affects,
thus it may not be necessary to proceed to HC868/09.
Should
she defy the order in HC2220/09 then contempt proceedings may be
brought against her. This time she would have no excuse that the
court order was not in her name.
In
the circumstances, the application in HC2220/09 is granted in terms
of the draft order, that is:
It
is hereby ordered that:-
1.
The respondent, her guests, invitees, and all those claiming through
her, shall, within 48 (forty eighty) hours of the granting of the
order vacate the premises known as Number 2 Umguza Close, Wilmington
Park, Harare failing which the Deputy Sheriff is hereby empowered to
evict them.
2.
In the event that the respondent notes an appeal against this order,
such appeal shall not have the effect of suspending the execution of
this order.
3.
There is no order as to costs.
