PATEL JA:
This appeal involves a dispute over the ownership and occupation of Stand No.
381 Goodhope Township. The court a quo found that the first respondent
was the lawful owner of the stand and granted him vacant possession thereof,
failing which the appellant was to be evicted therefrom. The appellant's
counterclaim was dismissed in its entirety and he was ordered to pay the costs
of suit on a legal practitioner and client scale. He now appeals against that
judgment.
The first
respondent purchased Stand No. 331 in the same Township from the beneficiary of
the estate of the late Johanna Logan in August 2003. Because that stand had
already been sold to a third party, the beneficiary and the executrix of the
estate substituted Stand No. 331 with Stand No. 381. The first respondent had
fully paid for the property and the Master subsequently consented to the
transaction as a whole, resulting in the transfer of title in Stand No. 381 to
the first respondent in September 2007. He then approached the court a quo
seeking vacant possession or the eviction of the appellant.
The
appellant claimed the right to occupy the property through a purported donation
from the deceased, Johanna Logan, to his late father, Lovemore Zhuwaki, who in
turn purported to bequeath the stand to the appellant through his will,
executed on 2 November 2011, in anticipation of an employment gratuity to
be received from the beneficiary of the Logan estate. As was correctly held by
the court a quo, the bequest and disposition in terms of the will, and
the subsequent inclusion of the property in the distribution account of the
Zhuwaki estate, were both null and void ab initio. This was because the
stand had never in fact been donated to the appellant's father and the latter
could not lawfully bequeath what he did not himself own. The appellant
therefore had no lawful right or claim whatsoever to occupy the property.
In the
result, it is the unanimous view of this Court that the decision of the court a
quo cannot be faulted on any ground. The appeal is accordingly dismissed
with costs.
GWAUNZA
JA:
I agree.
GOWORA
JA:
I agree.
Mbidzo, Muchadehama & Makoni, appellant's legal practitioners
Hute & Partners, 1st respondent's legal
practitioners
