The applicant filed this application seeking an order for the eviction of the first, second and third respondents and costs of suit. The facts of this case can be summarized from the founding affidavit filed by Lovemore Magwenzi. These are as follows:

The applicant is the executor of the estate of the late Robert Tendayi Magwenzi…,. The first and second respondents are his nieces whilst the third respondent is his nephew. Robert Tendayi Magwenzi passed away on 3 August 2000. At that time he was resident at House Number 9399 Unit "K" Seke, Chitungwiza…,.. The property had been sold to him by his brother, the respondents' father, in 1995 and subsequently transferred into his name.

Upon his death he left a will in which he bequeathed the property in question to his second wife Patricia Chitongo.

It is alleged that the respondents have forcibly taken up occupation of the property and refuse to vacate arguing that the property belongs to their father. In support of the application a copy of the Agreement of Sale purportedly entered into by the two brothers for the sale of the property, dated 5 February 1995, has been attached together with the Deed of Transfer dated June 1995 and a copy of the deceased's will.

The application was opposed by the three respondents.

On the merits, the respondents stated that their father had never sold the property to the late Robert Tendayi Magwenzi. They alleged that the Agreement of Sale was a forgery and was not signed by their father. They further allege that the will was a forgery as it was produced eight years after the death of the late Robert Tendayi Magwenzi. They also state that Patricia Chitongo has since passed away and the applicant is merely pursuing the matter so that he can claim the property for himself. They deny having forcibly occupied the property and say that they inherited it from their father's estate.

The issues that fall for determination before me are as follows -

1. Whether the applicant has locus standi in this matter;

2. Whether the matter is res judicata; and

The respondent in this matter is the widow of the late Brigadier General Paul Armstrong Gunda…, who passed away on 21 June 2007. At the time of his passing on, the late Brigadier General Paul Armstrong Gunda was the Commander of 1 Brigade in Bulawayo. By virtue of being the Commander of 1 Brigade he and his family were entitled to occupy a residential property known as Number 14 Lawley Road, Suburbs, Bulawayo. The house is listed at the Army Headquarters as one of the army's “reserved houses.” This particular house is only reserved for any senior army officer who is appointed Commander 1 Brigade and has been so occupied for instance by such commanders as Brigadier General Mugova, Brigadier General Sango and Brigadier General Zingoni before the late Brigadier General Paul Armstrong Gunda took occupation of it from 2004 to 2007 when he passed on.

After her husband passed away on 21 June 2007, the respondent and her children had the right to remain in the house for a period of one month in terms of the army regulations. Section 2 paragraph 01107 of Chapter 2 of the Quartermaster General Standing Orders provides that:-

“When a member of the regular force who is in occupation of government quarters dies, his/her dependents may be permitted to remain in occupation of these premises for a period not exceeding one month after his/her death, provided that the dependants will be responsible for both water and electricity charges raised.”

The respondent's right to lawfully occupy the house should have ended on 31 July 2007 according to the above Regulations.

For some unexplained reasons, the applicant did not seek to evict the respondent at the expiration of the one month. Instead, the notice to vacate was only issued after a period of 15 months. The deponent to the applicant's affidavit took the stance that the Ministry of Defence was under no obligation to explain the inordinate delay to the respondent.

That attitude is wrong and unfortunate. It is the inordinate delay to evict the respondent which led her to believe that what she may have heard about Government houses being offered to sitting tenants may have applied to her late husband when he was still alive. Hence her resistance to vacate the property when requested to do so, belatedly, without any explanation proffered.

A notice to vacate was addressed to her on 20 October 2008 from Army Headquarters and reads in part:-

“Mrs Rangarirai Gunda

Headquarters 1 Brigade Married Quarters

House Number 14 Lawley Road

Suburbs

Bulawayo

20 October 2008

Dear Mrs Rangarirai Gunda

Notice to vacate Government quarters at Headquarters 1 Brigade Married Quarters

Notice is hereby given in terms of paragraph 01107 of section 2 of Chapter 2 of the Quartermaster General Standing Orders for you to vacate Married Quarters at number 14 Lawley Road….,.”

The respondent refused to vacate the premises prompting the Zimbabwe National Army…, instituting proceedings in the Magistrates' Court, Bulawayo seeking her eviction and all those claiming the right of occupation through her from the premises within 7 days of the order being granted.

The learned magistrate who presided over the matter had this to say in his ruling:

“Ruling

This is an application for eviction, with the applicant, the Zimbabwe National Army, seeking to evict the widow of the late Brigadier General Paul Armstrong Gunda, Rangarirai Tatenda Gunda, from House Number 14 Lawley Avenue, Suburbs, Bulawayo.

However, during the trial the matter took a different turn. Instead of the litigants arguing over eviction they started arguing over the ownership of the property. As matters stand, it has to be determined who the owner of that house is in order to deal with eviction. It has to be clear who should evict who. Therefore, this court cannot deal with the determination of the ownership of the property, namely 14 Lawley Avenue, Suburbs, Bulawayo. The litigants will have to approach the High Court for that as this is a lower court which has no jurisdiction to decide matter of ownership of that kind of property.

As such, this application is dismissed for want of jurisdiction, with no order as to costs.”

What is clear from the above ruling of the learned magistrate is that the issue of eviction was not finalized by that court as the parties seemed to have abandoned it when the defendant argued that that court lacked jurisdiction to handle a matter like that. According to the ruling it seems the argument had shifted to the ownership of the property. Having felt that that court lacked jurisdiction to deal with the matter the learned magistrate advised the parties to approach this court for redress. The court accordingly dismissed the application for want of jurisdiction.

The issue of the eviction of the respondent remained undetermined by the court.  In the result, the point in limine raised by the defendant to the effect that the matter was res judicata is without foundation and must be rejected….,.

On the merits, this court was called upon to determine whether or not the respondent's husband was promised by the applicant to purchase the house. The issue was adequately covered…, under the point in limine whether or not the applicant had adopted the correct procedure. I held the view that in the absence of proof to buy the premises her claim remains as speculation and wishful thinking.

The respondent properly conceded that she was not the owner of the house and had no lease agreement entitling her to stay at the house. She is not an employee of the army. It is common ground that her entitlement to stay at the house should have terminated at the end of July 2007 at the latest. This court holds that she had no entitlement to continue staying there thereafter. She must vacate the premises. In the result, I would issue the following order:

It is ordered that:-

1. Respondent vacate the premises at Number 14 Lawley Road, Suburbs, Bulawayo within 10 days of this order;

2. In the event that respondent refuses to vacate the said premises within the period specified in (1) above the Deputy Sheriff of this court is hereby empowered to evict her; and

3. Respondent shall bear the cost of suit on a party and party scale.

The applicant claims the return of the movable property itemized in paragraph (a) of the interim relief. The applicant has failed to establish ownership of the five trucks and six as itemized.

There was a concession that the applicant cannot establish ownership of AAZ 977. Regarding AAZ 9773 and AAZ 9718, the applicant produced what it termed a “confirmatory note” from VID. The applicant submitted that the “note” is confirmation that VID is holding on to the trucks and registration books for the motor vehicles.

The basis for Tawanda approaching this court is that he is the registered owner of the property. He has real rights in the property. He also claims that he is an innocent purchaser.

Marko opposes the matter on the basis that the Agreement of Sale between him and Bernwin was not validly cancelled.

Bernwin did not file any papers in the main application. It filed a notice of opposition to the counter claim whereby it averred that the Agreement of Sale between itself and Marko was cancelled. It gave the requisite notice and refunded Marko the amount he had paid towards the purchase price. Marko has no basis for attaching Tawanda's title.

The eight (8) defendants are beneficiaries of the Trust. They were admitted and housed at Masterson Cheshire Home situated at No.85 Baines Avenue in Harare. They have been residents of this home for considerable periods, most of them having been admitted into the home from the early to the late 1990s.

The trustees served them with notices requiring them to vacate the home by a date specified in the notices. They challenged the ejectment, leading to a protracted trial which raged on for close to three years.

The notices to vacate were preceded by the deterioration of relations between the trustees and the defendants. The relationship deteriorated to the extent that the trustees abandoned most of their responsibilities at Masterson Cheshire Home, and the defendants would, on the other hand, deny the plaintiffs' access to the Home. The situation became desperate leading the defendants to rent out parts of the Home to raise funds for their own sustenance, and the payment of rates, water and electricity bills for the Home. The Home's employees, who should have been assisting the defendants, were no longer available.

The Home was clearly not being run as was expected in terms of clause 3(i)(a) of the Deed of Trust. The trustees had abandoned their responsibilities and lost control of the Home, while the defendants had exceeded the bounds of the terms on which they were admitted into the Home.

The relevant background information in the matter is that during April 2005 Bickelia Majola entered into an Agreement of Sale of the property at the centre of the dispute with its then owners who were being represented by Ebrahim Hassen Esat.

The property was transferred into Bickelia Majola's name on 5 December, 2007.

When Marble T. T. Moyo was made aware of the sale of the property to Bickelia Majola she was not prepared to accept that the property had indeed been sold to Bickelia Majola. She claimed, inter alia, that the previous owners could not have sold the property without offering it to her first. She claimed to have the right of first refusal but produced no evidence to that effect.

On 11 December 2006 Marble T. T. Moyo addressed a letter to Bickelia Majola's legal practitioners wherein she disputed that Bickelia Majola was the lawful owner of the property and would never recognize her as such. She said she would never pay rentals to her but would continue to pay rentals to the Esats like she used to do for the past 25 years.

Further, she said she would not vacate the premises because she had been renting them for 25 years and employed a number of workers there. Above all, she had made significant improvements and had restaurant equipment therein. In conclusion, she emphasized that she did not know Bickelia Majola and did not recognize her claim to the property. Since she felt very strongly about the sale of the property to Bickelia Majola she instituted proceedings against the Sellers and the Purchaser wanting to assert her rights. The matter was, however, not persisted with as it was withdrawn on 23 October 2006.

The applicant changed his stance in his answering affidavit and began to allege that Nkosana Ncube had purchased the garage from Leslie Khumalo who flatly denied ever selling the garage to Nkosana Ncube.

The Agreement of Sale between the applicant and Nkosana Ncube belies the applicant's story that he bought the garage from Nkosana Ncube. There is no mention of the sale of the garage in the Agreement.  It was an afterthought which must be rejected.  Further, the applicant's suggestion that Leslie Khumalo did not dispute the allegation that he had sold the garage to Nkosana Ncube is clearly false because that had always been hotly disputed by Leslie Khumalo….,.

What is true is that there is no evidence whatsoever to show that Leslie Khumalo sold the garage to Nkosana Ncube.  Nkosana Ncube had no right to sell the garage to the applicant. He therefore could not transfer a right which he did not have.

Consequently, the applicant has no right whatsoever, not even a prima facie right let alone a clear right, over the garage. He would suffer no harm when evicted therefrom. After all he, according to the first respondent's then tenant Mr Sebbie Nyoni, had requested to use the garage for a short while as he was building in Kensington. When asked to stop using the garage after six months he caused endless problems culminating in these proceedings.

First Application – HC1583/07

In the first application, the applicants seek the eviction of Nerger Properties, the third respondent.

The salient facts of the first application are the following. The applicants are registered companies of limited liability. The second applicant owns all the issued shares of the first applicant in its entirety. The deponent of the applicant's founding affidavit, one Raphael Howard Chitrin, avers that he is a Director and manager of both applicant companies. He is a holder of all the shares in the second applicant together with his wife. The principal assets of the first applicant are various properties; two of which consist of the building and open area situate at 70 Jason Moyo Street, also known as Jameson Buildings Stand 188 Bulawayo Township which will be referred to as “Jameson Buildings”.

The ownership of the Jameson Buildings has been the subject of protracted litigation. In the litigation, the applicant was R. Chitrin and Company. By act of cession, all rights held by R. Chitrin and Company against shareholders of the first applicant were, in terms of the judgment under HC1676/03 (and Supreme Court case under SC140/05), ceded to the second applicant. The second applicant has acquired all the shares in the first applicant and the second applicant's control, ownership and rights over Jameson Buildings is beyond dispute post the Supreme Court determination under case number SC140/05.

The second applicant became the effective owner by purchasing the entire shareholding of the first applicant. The title deeds of the Jameson Buildings are registered in the name of the first applicant.

The above-mentioned High Court and Supreme Court judgments were between R. Chitrin and Company and a number of respondents, one of which was the third respondent, being the party who claimed to have purchased the shares in the first applicant. The third respondent, despite having lost its appeal at the Supreme Court, has, nonetheless, purported to act as owners and landlord and has taken rentals from the first and second respondents. The first and second respondents have occupied Jameson Buildings without any form of lease agreement from the first applicant. R. Chitrin and Company occupied a portion of Jameson Buildings by virtue of a lease with the first applicant prior to its exercising its rights of first refusal to purchase shares in the first applicant. Other tenants were a Mr. Chiponda trading as Olgas Centre, Hybate Trading, V.M. Elkinton and Two Shillings Boutique. Whilst the abovementioned litigation was pending, the third respondent arranged that each tenant would pay a pro rata contribution towards rates and water and the electricity was metred individually. The collection of these monies by the third respondent was without the authority of the applicants. However, after the Supreme Court dismissed the third respondent's appeal, this practice ceased in 2007, and since then these monies have been paid by the second applicant and no monies have been paid by the respondents. The first and second respondents still continue to enjoy the use of the property and the third respondent continues to exercise assumed rights of administration. No occupational consideration has been paid to the applicants by the respondents. Even though the Supreme Court ruled against them, the third respondent refused to move out when asked to do so by the applicants. However, at a later date, the third respondent appeared to have agreed to move out pursuant to the Supreme Court judgment. The third respondent's legal practitioners even negotiated that they be given time to move out on their own. On 23 February 2007, the respondent's erstwhile legal practitioners wrote a letter to the applicants' legal practitioners couched in the following terms:

“Your letter of the 14^th instant to Mr and Mrs Tayali has been referred to us for our attention and further action.

First of all, we must emphasize that our clients are not in unlawful possession of the premises they occupy. After the Supreme Court judgment, there was communication between the parties, and your clients were fully aware of, and consented to, the occupation of the premises by our clients….,.

Finally, it is unfair to ask our clients to vacate the premises on seven days' notice: it is not possible to find suitable business premises within seven days. The notice to our client should be reasonable, and we believe that three months is adequate.”…,.

The respondents did not put into issue the applicant's right to evict them. They sought the applicant's indulgence to wind up their operations. On 12 May 2007, the first respondent, acting on behalf of the third respondent, wrote a letter to the first applicant's agent in the following terms:

“….,.

Regarding the notice period served on January 31, 2007, we request that the notice be extended to May 31, 2007, because, as you are aware, we are a business and we need to secure new premises as well as wind up our business….,.”

Once more, all that the respondents were seeking was the first applicant's indulgence.

The first applicant's agent did not accept the respondent's request for indulgence and by letter dated 20 March 2007 declined in the following terms:

“(1) ….,.

(2) ….,.

(3) Regarding the adjustments of the notice period we regret to advise that this will not be possible in view of the extent to which the landlord's redevelopment plans have been developed. As such, we expect to have vacant possession of the premises you occupy on 1 May 2007 at the latest…,.”

The first and second respondents agreed to vacate Jameson Buildings by the end of May 2007.  Thereafter, the respondents resisted eviction and their conduct has prevented the applicants from having any sort of access to any portion of the property including such areas over which the respondents have never had any purported rights upon any grounds whatsoever. The respondents have also removed the applicants' lock and chain and violence has been used to deny the applicants' the exercise of their rights.  Mr. Chitrin was assaulted by an employee of the third respondent when he tried to assert the applicants' rights. The respondents then embarked on a media campaign, presumably to seek public sympathy on the matter. They also sought to politicize a legal issue as they sought assistance of the Vice President.  The third respondent is subletting the premises and receiving rentals.

In their opposing papers, the respondent's case is that the above-mentioned negotiations and the letters written in pursuance of such negotiations were on a without prejudice basis. They state, in 5.3 of their opposing affidavit -

The facts which underlie the dispute between the parties are as follows:

The now deceased, Ernest Manota, who died on 9 September 2010, was a former employee of the applicant. During his employment he had been allocated, for occupation, a residential house which is referred to in the papers as an “Assistant Manager's house”, which is located on Good Hope Farm. After the death of Ernest Manota, the respondents remained in occupation of the house. The second respondent is his widow while the first and third respondents are his sons. There are also other children of the deceased who remain in occupation together with the three respondents cited in the instant application. The respondents were given notice to vacate the house on 8 October 2010, but have remained in occupation to date. Faced with the respondents' continued occupation of the house, the applicant instituted an action for their eviction under case no. HC8904/10. 

The respondents entered appearance to defend the action, prompting the applicant to make the instant application for summary judgment.

The respondents have raised two points in limine, namely:

(a) That the deponent to the applicant's affidavit, Peter Bruce Arnott, has no locus standi to represent the applicant in the absence of a resolution of the applicant's Board of Directors; and

(b) That the applicant is not the owner of the land on which the house is located, and therefore has no locus standi to seek the eviction of the respondents from the house.

The facts of the matter are that on 24 March 2010, Efrolou [Private] Limited issued a summons under HC1816/10 against Mrs Muringani for her eviction from premises known as Lot 4 of Lot 9 of Chicago situate in the District of Que Que. The basis of the claim by Efrolou [Private] Limited against Mrs Muringani, as pleaded in its declaration, was that Efrolou [Private] Limited was the owner of the property which it had bought at an auction sale in 1996 following a judgment against Mrs Muringani's late husband; that Efrolou [Private] Limited had obtained title to the property on 14 May 1999 under Deed of Transfer Number 2421/99 and that despite Efrolou [Private] Limited's notice to her on 31 March 2010, Mrs Muringani had refused or neglected to vacate the property.

Mrs Muringani defended the claim.

From her plea, the defence was that Efrolou [Private] Limited was not the lawful owner of the property; that Efrolou [Private] Limited had obtained the title to the property fraudulently; that as the lawful beneficiary to the estate of the late Mr Muringani she had the right, title and interest in the property; that she had issued a summons against Efrolou [Private] Limited and its Directors to have the property transferred back to her late husband's estate and that she was entitled to occupation of the property until the dispute was resolved….,.

On 1 February 2011, the two matters had been consolidated at a pre-trial conference and had been referred to trial on three issues, namely:

[1] Whether the purchase [of the property] by, and the subsequent transfer to Efrolou [Private] Limited, was tainted by fraud. 

[2] Whether the transfer should be set aside.

The plaintiff and the first defendant are engaged in a vicious legal battle over the ownership of a certain piece of immovable property known as Stand Number 381 Goodhope Township. The plaintiff claims to have bought the property from one Robert Campbell Logan, the heir to the estate of the late Johanna Francisca Logan.

He has since obtained title.

On the other hand, the first defendant claims to have inherited the property in dispute from his late father one Lovemore Zhuwake.

The plaintiff's case is that on 15 August 2003 he bought Stand 331 Goodhope Township from one Robert A Logan Campbell the heir to the estate of the late Johana Francisca Logan duly represented by the second defendant, one Carol Leeper,  in her capacity as executrix testamentary. The sale was aborted on account that the Stand had already been sold to someone else in consequence whereof the second defendant substituted Stand 331 with Stand 381 Goodhope - being the Stand in dispute. That much is not in dispute.

The plaintiff has, however, failed to take occupation of the property because the first defendant has refused to vacate the property claiming that it was bequeathed to him by his late father, one Lovemore Zhuwake, in his last will and testament executed at Harare on 2 November 2004 of which paragraph 4 reads:

“4. I GIVE, DEVISE AND BEQUEATH the rest and residue of my estate of whatsoever kind and whatever situate, after payments of all debts, duties and testamentary expenses to my wife Gladys Banda and all my children namely, Stella Zhuwake, Dudzai Zhuwake, Ndiya Zhuwake, Silver Zhuwake and Nicholas Zhuwake as shall survive me as follows:

(i) MY IMMOVABLE PROPERTY: I have worked for Mrs. Maria Johanna Francisca Logan since 1975. Mrs. Logan is now late and her son Robert Adrian Campbell – Logan has now taken over the farm. I have set down with Robert Adrian Campbell with my two children Silver Zhuwake my son and Ndiya Zhuwake my daughter and resolved and agreed on terminal benefits and terms with Mr. Logan. Mr. Logan is subdividing the farm, developing it and selling the stands in other words he is selling the farm. We have then agreed that he is going to give me as my package allocation of four stands that is stand Number 381, 420,426 and 383. The two stands 426 and 381 though held under my title after transfer from the estate of the late Maria Johanna Francisca Logan Mother to Adrian will be given to my sons Silver Zhuwake and Nicholas Zhuwake with Silver getting Stand Number 381 and Nicholas Stand Number 426. I am to get Stand Number 383 where I will stay with my wife Gladys Banda and my daughters and this stand is for their benefit since the boys have been given theirs.

However, it had been agreed that 420 was to be sold and proceeds therefrom given to me so that I develop my stand but 420 was sold to Mr. Newton Amos Murimirwa who is now the owner of the stand. I was not given the proceeds therefrom but have been promised to be given when the estate of Mrs. Maria Johanna Francisca Logan is finalised. I therefore give stand 383 to my wife Gladys Banda, my daughters Ndiya Zhuwake, Stella Zhuwake and Dudzai Zhuwake in equal shares and give to my son Silver Zhuwake Stand Number 381 and to my son Nicholas Zhuwake Stand Number426.

I no longer have any interest in Stand Number 420 since it was sold to one Newton Amos Murimirwa who now owns it.”

What emerges quite clearly in the above extract from Lovemore Zhuwake's last will and testament is that he was bequeathing to members of his family a claim he had against his former employer for terminal benefits. In paragraph 4(i) he tells a patent lie that he had acquired title and transfer of the disputed property. That lie prompted his executor, the late Israel Gumunyu, to list Stand Number 381 as belonging to Lovemore Zhuwake's deceased estate in his First and Final Distribution Account. The executor then allocated the Stand to the first defendant in terms of the defective will of his father.

The Master of the High Court was not amused when he discovered that he had, in fact, been misled into approving a first and final distribution account based on lies. In his report, dated 20 December 2009, he recommended that the distribution in question be declared null and void and he undertook to report both the executor and the first defendant to the police for fraud. The report reads:

“I confirm being served with a copy of the application in terms of the High Court Rules 249 as amended. I have gone through the applicant's declaration affidavit. The administration done in case DR471/07 I recommend that the Honourable Court declare it null and void on the ground that the(y) misrepresented to the Master that they have title deeds to the properties. I respectfully highlight to this Honourable Court that I am reporting this matter to CID Fraud squad for further investigation failure to produce the said title deeds within 14 days. All documents with the applicant I confirm were issued by the Master and they are authentic.”

True to his word, the Master of the High Court reported the matter to the police and shortly thereafter the executor, Mr Gumunyu, committed suicide on 9 December 2010…,., It is, however, not clear whether the suicide had anything to do with this case, for dead men tell no tales. The long and short of it all is however, that it is now common cause that  Lovemore Zhuwake was in fact telling a lie when he stated in his last will and testament that he had obtained title and transfer of the property in dispute. This explains why the first defendant is now seeking transfer of the disputed property into Lovemore Zhuwake's deceased estate.

Thus, the first defendant's claim to Stand Number 381 is based on a defective, fraudulent will.

The first defendant and the then executor to his late father's estate did not help matters by lying and misleading the Master of the High Court that they had title deeds to the disputed property. As I have already pointed out, the late Lovemore Zhuwake's will reads badly because it is based on a claim rather than rights flowing from a contractual arrangement with his previous employer….,. On the other hand, the undisputed evidence before me establishes beyond any shadow of doubt that the plaintiff received untainted lawful title derived from Carol Leeper the lawful executrix testamentary to the estate of the then registered owner of the property, one Johana Francisca Logan. That being the case, his claim and title to the property in dispute cannot be impugned….,.

In the result, the plaintiff's claim can only succeed at the expense of the first defendant's counterclaim. It is accordingly ordered:

1. That the first and second defendants be and are hereby ordered to give vacant possession of Stand Number 381 Goodhope Township to the plaintiff within (7) seven days of service of this order.

2. In the event that the first and second defendants fail to comply with the above order, the Deputy Sheriff is directed to evict the first defendant and all those claiming occupation through him from Stand Number 381 Goodhope and to give vacant possession to the plaintiff.

This is an application for eviction.

The brief facts of this matter are as follows. The applicant is the registered owner of Stand 8141 Salisbury Township of Salisbury Township Lands, otherwise known as Number 17 St Dominic's Road, Milton Park, Harare. Sometime in August 2011, the Sheriff of Zimbabwe advertised the sale of the Stand. The property was to be sold by public auction in a suit involving Kingdom Bank Ltd and Colforth Investments (Pvt) Ltd and 10 Others under case No. HC5917/10. The plaintiff in that matter had obtained default judgment after the defendants had failed to attend a pre-trial conference. The Sheriff advertised the sale of this Stand, which was subject of this suit, by public auction in execution of the default order. On 2 September 2011, the applicant's brother, Ayoob Omar, attended the public auction and was declared the highest bidder. He purchased it for the applicant. On 6 October 2011, the respondent filed an objection to the confirmation of the sale. The sale was confirmed on 20 October 2011. Payment of the purchase price was made and the property was subsequently transferred into the applicant's name on 7 December 2011. The applicant has requested vacant possession of the said property and the respondent has refused to comply alleging that he has objected to the confirmation of the sale of the property. The applicant's prayer is for the eviction of the respondent from the property.

The applicants filed separate applications against the first and the second respondents.

The first respondent was cited in its capacity as the owner of the property which is known as Metro Centre. The property is situated opposite Eastgate Complex between Robert Mugabe Road and Robson Manyika Avenue. It stretches from Wayne Street to Fourth Street. The property, it was submitted, is part of industrial plots 1 and 2 STL measuring 11,823 square metres in extent. It comprises 1,106 square metre 4 storey office building, 3,725 square meter warehouse building split into six lettable units among other shops and warehouse buildings….,.

On 24 September, 2013 the second respondent, acting under the instructions of the first respondent, served notices of eviction from the property to the following four tenants of the first respondent:

(A) Amurak Investments (Pvt) Ltd;

(B) Logmuc Electrical (Pvt) Ltd;

(C) Tifo Services (Pvt) Ltd; and

(D) ETAA (Pvt) Ltd T/A Johnson's Saddlery And Fine Leatherware (Pvt) Ltd.

The first respondent had successfully instituted legal proceedings against its abovementioned four tenants some time last year and had, pursuant to the court orders it obtained, sought to have all four of them lawfully evicted from its property. The eviction of the four tenants was scheduled for 27 September, 2013. The Notices of Removal which the second respondent served on the tenants prompted the applicants to file with the court the present application on an urgent basis. They prayed the court to:

(i) Bar the first respondent from evicting them when it evicts its tenants from the property; and

(ii) Order the second respondent to stay execution of the writs of ejectment in respect of their properties and/or the premises which they occupy on the property of the first respondent.

The papers which are filed of record show that none of the applicants was cited as a defendant, or respondent, in the proceedings which the first respondent instituted against its tenants some time last year. The court orders which are a result of the mentioned proceedings make no reference at all to any of the four applicants. The writs of ejectment which resulted from the court orders made no reference to any of the applicants. Those writs were, to all intents and purposes, directed at no one else but the first respondent's tenants. The court was, therefore, left to wonder as to what caused the applicants who were not, in any way, joined to the dispute which existed between the first respondent and its four tenants to labour under the apprehension that the eviction of the tenants would adversely affect the applicants themselves.

It was the contention of the applicants that the writs of execution which the first respondent had prepared instructed the second respondent to evict, from the premises, the tenants and all those who occupied the property through them. All the four of them stated that the words “all those who occupied the premises through them” caused in them the apprehension that the respondents, out of ignorance of the correct position of the matter, might be tempted to work under the genuine, but mistaken, presumption that the applicants were occupying the premises through the tenants whose eviction from the property was/is imminent when they were, in fact, occupying the premises in their own right. It is for the abovementioned reasons, if for no other, that the applicants approached and requested the court to intervene and, in the process, ensure that their continued presence on the property is not only protected but is also allowed to remain intact until the first respondent; through due process of law, has evicted them from its premises.

During the hearing of the matter, the court established that:

(i) The four applicants occupy separate apartments at the first respondent's property;

(ii) All four of them entered the apartments which they are in occupation of without the knowledge, consent or authority of the first respondent;

(iii) Zimbabwe National Liberation War Veterans Association (Harare Province) offered the apartments which each of the four applicants is occupying to the applicant;

(iv) None of the applicants is paying rent to the first respondent or to anyone else;

(v) None of them is occupying the apartment it is in occupation of through any of the first respondent's tenants; and

(vi) Each one of them is occupying the premises in its own right.

It was the contention of the applicants that they have no problem with the first respondent evicting from the premises its tenants. They argued that the eviction in question should be limited to the tenants of the first respondent and should not, therefore, be extended to them. They all remained of the view that, where the first respondent decides to evict them from the apartments which they are occupying, the first respondent should institute legal proceedings which are aimed at their eviction.

The first respondent filed notices of opposition to each of the four applications. In each notice which it filed, it raised preliminary matters as well as those which substantively dealt with the applications themselves. It also filed an urgent chamber counter-application to each of the four applications.

The second respondent did not appear either in person or through anyone else….,.

The first respondent…, raised a number of preliminary matters. Among those in limine matters were/are the following:

(i) The certificate of urgency which one Benjamin Machengete of Messers Nyamushaya, Kasuso and Rubaya Legal Practitioners filed with the court does not meet the requirements of Rule 244 of the Rules of this Court;

(ii) Deponent has no authority to institute legal proceedings on behalf of the applicant;

(iii) Applicant has dirty hands;

(iv) Interim relief and final relief sought are effectively the same; and, in the case of the third applicant;

(v) Deponent has not established the applicant's locus standi;

The court will proceed to consider the abovementioned points in limine each in turn….,.

In a paper which is titled Urgent Chamber Application, the applicants' stated in paragraph 4 as follows:

“…, if the respondent wishes to evict the applicant same must institute legal process and do so lawfully.” 

It is in response to this statement that the first respondent filed with the court a chamber urgent counter- application. It prayed the court to order that:

“1. The respondents' (applicants in the main applications) occupation of the premises be and is hereby declared unlawful; 

2. In consequence of the order made in paragraph 1 above, the respondents and all the persons currently occupying the premises through them be and are hereby ordered to vacate the premises and surrender vacant possession of the same to the applicant within forty-eight (48) hours of this order being made failing which the second respondent shall be, and is hereby, directed to eject them from the premises without further notice.

3. In the event that this application is opposed the respondents shall pay the applicant's costs on a legal practitioner and client scale.”

To the extent that it filed the present application praying the court for the abovementioned relief, the applicant's mind is ad idem with the thinking of the respondents on this matter. It instituted due process of law aimed at evicting the respondents from its property lawfully. Due process, as is known, can commence by way of action or application. The applicant chose the second option to realise its desired end-in-view.

Two matters will assist the court in determining the merits, or otherwise, of the application. The matters in question are:

(a) The manner in which the four respondents gained access into, and occupied, the premises of the applicant as measured against.

(b) The action, or reaction, of the applicant to the conduct of the respondents.

The context of the whole case, as stated by the applicant, was that it purchased the property which is the subject of these proceedings in 1992. Its aim and object were to develop on the property a major retail and parking complex. The applicant stated that the deteriorating economic environment of the late nineties, coupled with the hyper-inflationary economic situation which preceded the multi-currency regime of 2009, caused it to shelve the redevelopment of the property. It gave a graphic description of the condition of the property at the time of purchase and subsequent thereto as follows:

“The property's buildings were old and in a bad state at the time of purchase. These continued to deteriorate to a point where they were no longer meeting the minimum safety and health standards. The buildings on the property had become dilapidated. The sewerage system had collapsed, the sewage no longer drained and would overflow into the open space, the roof and gutters were leaking, the brick walls had weathered, the electrical reticulation systems were old and are now in a dangerous state.”

The description of the condition of the property, as given by the applicant, tallies in a material way with the contents of the papers which the four respondents attached to their applications. The respondents attached to their respective applications Annexure E. The annexure is a resolution which the Zimbabwe National Liberation War Veterans Association made when it allocated the apartments on the property to the respondents. The resolution was passed by the Association on 8 October 2012. It, in part, reads:

“RESOLUTION PASSED ON UTILISATION OF UNOCCUPIED BUILDINGS AT IT AND METRO CENTRES:

The executive have resolved that it is necessary to occupy the offices at the abovementioned centres by indigenous business people, individuals and trusts benefiting widows and other disadvantaged groups.

This came as result of unoccupied premises being used by street kids, vagrants and criminals as their safe haven. The City of Harare have established its concern about health hazards being posed by the place hence their desire to close. Looting on things which vagrants can lay their hands on was also a major concern which prompted this office to take this route of occupation after a through vetting on potential occupants. The committee should, therefore, restore sanity throughout the place in compliance to the city by laws.

A recommendation was also made to the effect of engaging the owners for regularising the occupation.

E. CHITERA

Chairman

0772 804 225”

The respondents also attached to their applications Annexure F. It is dated 13 October 2012. The annexure talks about the birth of what the respondents referred to as the Metro and IT Centre Management Committee which the Association of the War Veterans formed and mandated with the responsibility of managing the property and restoring sanity on the same. Part of Annexure F reads:

“RESOLUTION FOR TO FULLY UTILISE DISUSED OFFICES AT METRO AND IT CENTRE BY EMPOWERMENT OF INDIGENOUS GROUPS

After having seen that the entire premises in question are in a sorry state tendered from the previous tenants and street kids. If one or two become occupied to keep the place in one piece a lot of significant work can be done to bring sanity. Electricity need to be restored and fittings redone, doors to be replaced, water to be restored, sewer rectified, drainages to be cleared, toilets to revamped, refuse collection thrice weekly painting and general sprucing up…,.

Mr Rusere

Secretary”

The above constitutes the manner in which the respondents gained entry into, and occupied, the applicant's property. The applicant did not deny that the property was in the condition which the Association of the War Veterans' resolution of 9 October 2012 stated it to have been. It, if anything, confirmed that to have been the state in which it was, or is.

The applicant purchased the property in 1992. It left it unattended up until August 2009 when it, for the first time, decided to offer its tenants six months' notice to vacate the premises and make way for the redevelopment of the site. It, in earnest, started to make some serious decisions about the property in, and around, March, 2010. Before then, it treated its property as a res nullius to which other persons could help themselves without any pain of the law visiting them. Under the above analysed set of matters, therefore, the respondents could not, and cannot, see themselves as squatters or illegal tenants who were, or are, on the property. They saw, and continue to see, themselves as persons who were, and are, occupying a property which its owner abandoned. After all, they did not resort to self-help when they took occupation of the premises. The Association of the War Veterans which organised them under the Indigenous Business Persons' banner remained accountable, so they believed, to the owners of the property.

The reasons which the applicant gave for leaving the property in a condition which attracted unauthorised persons to make use of it are unacceptable. There was nothing which prevented the applicant from employing and placing some guards at the property not only to guard against unauthorised persons from entering and making use of the property but also to protect it from any form of abuse. The applicant had the requisite financial means to continue to announce its presence on the property, the deteriorating economic situation which it referred to notwithstanding. The applicant required very little money to pay a guard, or some guards, who would look after, and protect, its property from vandalism or unauthorised use. The fact that the Zimbabwe Liberation War Veterans Association [Harare Province] could pass a resolution to allocate apartments in the property to other persons, form a Management Committee which managed the premises and dish out apartments in the property to the respondents and others without the applicant raising any finger against such conduct confirms, in a clear and unambiguous way, that the applicant had abandoned its property. The abovementioned matters took place as late as October 2012 – some ten years after the property had been purchased. Takunda Emmanuel Gumbo, who prepared the applicant's certificate of urgency, stated, in paragraph 2.5 of the certificate, that the fact that the respondents are squatters on the premises was previously unknown to the applicant who only became aware of same through allegations to that effect made by the respondents in the affidavits founding the main applications. What this means, in effect, is that even as late as 29 September 2013 – the date the main applications were filed with the court – the applicant was not aware of the presence of the respondents on its property.

It is when such matters as these are taken account of that the court finds it hard, if not impossible, to accept the applicant's contention that its application is urgent. Urgency suggests two things which are:-

(i) That the matter cannot wait; and

(ii) That the applicant treats it with the urgency which it deserves.

GOWORA J…, stated in Gwarada v Johnson & Ors 2009 (2) ZLR 159, 160 (HR) that:

“…., the applicant must exhibit urgency in the manner in which he has reacted to the event or the threat, whatever it may be…,.”

Whether the first defendant is entitled to evict the plaintiff from the Flat in question and all those claiming a right of occupation through him

Having made the findings that the plaintiff never purchased the flat from the second defendant and that the first defendant is the bona fide purchaser and owner of the flat, it inevitably follows that the plaintiff and all those claiming a right of occupation of the flat through him have no legal entitlement to occupy the premises….,.

In the result, I make the following order:

1. The plaintiff's claim be and is hereby dismissed in its entirety.

2. Judgment be and is hereby entered for the first defendant against the plaintiff as follows:

(a) An order ejecting the plaintiff from Flat No.196 Block 40, Odzi Flats, Eastlea, Harare and all those claiming a right of occupation of the said flat through him;

(b) …,.

The plaintiff and the fourth defendant were married in terms of the African Marriages Act [Cap 238] (now 5:07) in 1978. In 1980, the plaintiff entered into a Memorandum of Agreement for the purchase of Stand 8237 Seke Township, Chitungwiza from the Chitungwiza Municipality and the Government of Zimbabwe. By virtue of that agreement, the plaintiff became a registered holder of rights and interests in the said property.

In 1997, the plaintiff sued the fourth defendant for the dissolution of their marriage. Though no copy of the court decision or judgement was tendered it appeared accepted that a decree of divorce was duly granted. The court order did not deal with the sharing or distribution of immovable property as this was not placed before court by either party.

On 18 May 2007, the fourth defendant obtained an order by default for the sharing of the Stand 8237 Unit K, Seke, Chitungwiza in the ratio of 70% to the fourth defendant and 30% to the plaintiff from Chitungwiza Magistrates Court in case no. CC13/07. That order reads as follows: -

“The house which the parties bought together, namely House No. 8237 Unit K, Seke, Chitungwiza be sold and the applicant to get 70% and the respondent 30% of the selling price.”

On 20 June 2007, the plaintiff applied for a rescission of the default judgment and stay of execution. On 24 July 2007, the application for rescission of judgement was granted….,.

It is common cause that the fourth defendant thereafter sold the property, Stand 8237 Unit K, Seke, Chitungwiza to the first defendant through Sparkfin Properties (Pvt) Ltd. In the Agreement of Sale Nancy Kutyauripo (fourth defendant) is described as the seller and the registered owner of the House No 8237 Unit K, Seke. She apparently sold the same property to more than 2 people as is evident from an extract of a court record of convictions tendered and supported by documents tendered unchallenged to the effect that the fraud convictions pertained to sales of the property the fourth defendant had done.

Clause 2.1 of the Agreement of Sale provided, inter alia, that:-

“Transfer to be processed within three months from the date of signing by both parties to the main agreement.

The purchaser shall be entitled to cancel agreement in the event that transfer is not completed within the agreed time.”

Clause 5 also provided that the purchaser can seek specific performance in the event that the seller is at fault in effecting transfer.

It is apparent that there were some challenges in the first defendant obtaining transfer hence he approached the High Court for relief in case No. HC6685/08.

On 7 January 2009, the first defendant obtained an order by default against the fourth defendant, Sparkfin Properties (Pvt) Ltd and Director of Housing, Chitungwiza in case no. 6685/08. In that case, the fourth defendant was cited as the first respondent, Sparkfin Properties (Pvt) Ltd was cited as the second respondent and The Director Housing was cited as the third respondent. The order stated that:-

“It is ordered that:-

a) The 1^st respondent be and is hereby ordered to make herself available at the 3^rd respondent's offices within 48 hours upon service of this order on her in order to effect change of ownership in respect of House No. 8237 Unit  K, Seke, Chitungwiza into Applicant's names. 

b) The 1^st respondent be and is hereby ordered to cede all her rights , title and interest over House No. 8237 Unit K, Seke, Chitungwiza to the Applicant forthwith. 

c) If clause 1 and 2 herein above is not complied with then the Deputy Sheriff be and is hereby directed and authorised to take all such necessary steps to sign the required cession forms and any other documents in order to effect change of ownership of the above mentioned property into the Applicant's names.

d) The 3^rd Respondent be and is hereby to consent to such transfer.

e) The 1^st and 2^nd Respondents jointly and severally with the one paying the other to be absolved pay costs of this application.”

As a consequence of this order, on 5 February 2009, the second and third defendants approved cession to the first defendant of the property in question. On 18 February 2011, the first defendant obtained a Deed of Grant in respect of the said property.

In the meantime, on 15 February 2011, the plaintiff issued this court action against the four defendants.The plaintiff alleged that before the 20^th December 2010 he was the registered owner of rights and interest to title of Stand 8237 Unit K, Seke, Chitungwiza. On that date the first, second and third defendants unlawfully ceded the rights to the first defendant. He further alleged that the first defendant misrepresented to the High Court that the fourth defendant was the owner of rights and interest to title in Stand 8237 Unit K , Seke, Chitungwiza and secured a court order in case no. HC6685/08 against the fourth defendant, when, for all intents and purposes the first defendant knew this was not the case.The second and third defendants then acted unlawfully by ceding the plaintiff's rights to the first defendant when the order presented to them was against the fourth defendant and not the plaintiff.

In the circumstances, the plaintiff sought an order:-

1. Declaring unlawful the cession of his rights and interests to title in Stand 8237 Unit K, Seke, Chitungwiza to the 1^st defendant. 

2. Directing 2^nd and 3^rd Defendants to reverse the cession of rights and interests to title in Stand No. 8237 Unit K, Seke, Chitungwiza back into plaintiff's name, Steven Vhavha.

3. For the eviction of 1^st defendant and all those claiming occupation underneath him from Stand 8237 Unit K, Seke, Chitungwiza.

4. For holding over damages at the rate of USD200= per month with effect from 1^st December 2010 to date of ejectment.

5. Interest on the amount at the prescribed rate from date of service of summons to date of payment in full.

The first defendant was the only defendant to defend the action.

In his plea, he contended that he is now the legal owner as the property is now registered in his name. He denied misrepresenting to the court that the property belonged to the fourth defendant. He further contended that the property was matrimonial property and the court had awarded the fourth defendant a 70% share and the property was then sold to him. As far as he is concerned the sale was proper and the cession and grant of title that followed were proper.

At a pre-trial conference, the issues identified for trial were:-

1. Whether the plaintiff or the third defendant, representing the Ministry of Local Government Rural and Urban Development, was owner of the property, being Stand No. 8237 Unit K, Seke, Chitungwiza at the time of the sale.

2. Whether the second and third defendants acted unlawfully in ceding the plaintiff's rights and interest to title in Stand No. 8237, Unit K, Seke, Chitungwiza to the first defendant.

3. Whether the order in case no. HC6685/08 affected the plaintiff's rights and interest to title in Stand 8237, Unit K, Seke, Chitungwiza.

4. Whether the plaintiff is entitled to the order sought and holding over damages and quantum thereof or to a dismissal of his claim.

5. Which party to bear costs of suit and the scale.

At the commencement of the trial the plaintiff's pleadings were amended by consent in the following manner: paragraph 1 of the relief sought to read:-

“In addition, the Registrar of Deeds Harare be and is hereby ordered to cancel Deed of Grant Number 576/11 dated 7 February 2011 made in favour of 1^st defendant, Msizi Dube (Born 9 August 1968).

An addition to the declaration of paragraph 10(b) to read:-

“In pursuant to the illegal cession, the 1^st Defendant proceeded to secure transfer of the property in his favour in the form of a Deed of Grant Registration number 576/11 dated 7 February 2011.”

The plaintiff gave evidence and tendered documentary evidence in support of his case. In his evidence he basically confirmed the sequence of events as outlined above. He confirmed that he acquired rights and interests in the said property in 1980 by virtue of a Memorandum of Agreement he entered into as purchaser on the one hand and Chitungwiza Municipality and the Government of Zimbabwe as seller on the other hand. That document was tendered as exhibit 1. In that agreement he is cited as the purchaser and his then wife, Nancy Kutyauripo, is not cited as co-purchaser.

In 1997, he divorced the fourth defendant. He, however, allowed her to continue residing at the property in order to take care of their children.

When he learnt that the 4th defendant had obtained a default judgement against him for the sharing of the immovable property in the ratio 70:30 on 18 May 2007 at Chitungwiza Magistrates Court, in case no.CC13/2007, he applied for the rescission of that judgement and the application was duly granted on 24 July 2007.

During this time, he was resident at his place of employment whilst the fourth defendant was at the property with their children. The plaintiff confirmed that he was not aware of the agreement of sale between the first defendant and fourth defendant. At no time had he authorised the fourth defendant to sell the property. When the first defendant approached the High Court, in case HC6685/08, he was not cited as a party and so was not aware of such proceedings till well after cession had been effected into the first defendant's name and the occupants of the property were being evicted. Under cross examination, the plaintiff denied knowledge that his purchase agreement with the Council and Government had been cancelled. He argued that he was never served with a document cancelling the agreement referred to by the defence. In any case, Council had at no time disturbed his holding of rights and interest in the property. As at the time cession to the first defendant was effected, he was still the registered holder of rights and interest in the property. The plaintiff's evidence was brief. As far as he is concerned the court order that led to the Council ceding the property to the first defendant pertained to the fourth defendant and not to the plaintiff's rights and interests in the property. He also alluded to the fact that his claim for holding over damages had not been denied by the first defendant in his plea and so he deserved such.

This is a case where the claim exemplifies a crisis in expectations that often arises in African settings such as ours where people govern their lives by embracing a plurality of norms in their dealings.The formal law on a given issue is often embraced just as much as families may simultaneously craft their own expectations that may be at variance with those that flow from formal rules. Such schisms in expectations between what the formal law provides and what families themselves say they may have intended or not have intended in utilising the formal legal system are common in property dealings. This is one such case whose facts are centred on the acquisition and disposition of certain immovable property within the framework of the formal legal system. The facts which have ignited the dispute which now calls for a resolution by this court are as described hereunder.

The background

The plaintiff, Sithembinkosi Godzongere, acting on behalf of a minor child, Jaden Taongaishe Mutange, whose parents are in the United Kingdom, purchased certain property known as Stand 11095 Teuropa Road, Zengeza. The purchase was from the estate of the late Charles Munatsi who died on the 13^th of September 2007. His widow, Annatoliah Muchemwa Munatsi, listed the property as forming part of his estate. With the requisite consent of the Master, it was put up for sale in August 2008. This was done thorough the executor of the estate, Mr Musunga, and an estate agent, Golden Properties. The property was duly transferred to the minor child and a certificate of occupation of the property granted by the relevant Municipal Authority, namely, Chitungwiza Municipality.

What has inflamed the dispute is the refusal to vacate the property by the second defendant, David Mutanda Munatsi.

Despite the property having been sold and all procedures completed, his refusal is grounded in his assertion that although the property was registered in the name of the late Charles Munatsi, who was his older brother, it, in fact, belonged to their father, the late Andrew Royayi Munatsi, who died in 1996. Flowing from this, his further argument is that the estate of the widow of the late Andrew Royayi Munatsi, that is his mother, Margaret Munatsi, is the owner of the property. Margaret Munatsi, having died before the trial could commence, her estate is represented by the second defendant, David Munatsi. Annatoliah Munatsi, the widow of Charles Munatsi, also died before this trial could commence.

1. That the second defendant and all those claiming occupation through him be and are hereby ordered to vacate the premises known as Stand No.11095 Zengeza 4, Chitungwiza, within 30 days from the date of this order, failing which the Deputy Sheriff be and his hereby ordered and directed to evict the second defendant together with all other persons claiming right of occupation through him.

2. The second defendant pays the costs of suit.

3. That, in the event of the defendant's appealing against the decision of this court in this case, this/these order shall, despite the appeal, be put into force immediately to the effect that the defendants can appeal but the appeal will not stop execution.

The second matter, HC1922/10, is a claim by David Mutanda Munatsi on behalf of the estate of Margaret Munatsi for the following prayer:

a) The plaintiff's claim for ejectment of the defendant together with all persons claiming title through the defendant be dismissed with costs.

b) The contract of sale of the property to Jaden Mutange be and is hereby set aside.

c) The transfer and or cession of the property to Jaden Mutange, the minor child, be and is hereby set aside.

d) The plaintiff pays the costs of the suit in case number HC1922/10.

The issues which this court is asked to consider, after the consolidation of the two matters HC4966/08 and HC1922/10, are as follows:

a) Whether or not the property in dispute formed part of the estate of the late Charles Munatsi.

b) Whether or not the Master of the High Court erred in authorising the sale of the disputed property.

c) Whether or not Sithembinkosi Godzongere was aware of the dispute over the property between the Munatsi family.

d) Whether or not Sithembinkosi Godzongere, as the representative of the minor child, is entitled to the relief sought. 

The third to fifth defendants were not represented in this matter….,.

The plaintiff's evidence

The first to give evidence in this matter was the plaintiff herself, Sithembinkosi Godzongere.

Her evidence was that the parents of the minor child had responded to a classified advert on the sale of this property and had gotten in touch with her regarding a possible purchase. She had gone to the estate agents listed, namely, Golden Properties, who had confirmed the sale of the house in Chitungwiza. She had been accompanied by two representatives from the estate agent to see the property. In addition, she said that she had undertaken a check with the Chitungwiza Municipality to ascertain who owned the property and if it could indeed be sold. She had satisfied herself that the property was indeed registered to Charles Munatsi. She had met with the executor, the agent and had also met with the widow, Annatoliah Munatsi, who confirmed that the house belonged to her husband. The widow's explanation was that she was selling the property because she needed to settle her husband's hospital bills. She also told her that she had children at University who needed financial support. She also said that she had seen the letters appointing Mr Musunga as executor. According to her evidence, the second defendant, Mr David Munatsi, was at the property when they got there. She confirmed to the court that this was the same Mr Munatsi present in court. Her evidence was that he had shown them around and she had satisfied herself that she liked the property. She described the house as she saw it. She also stated that the estate agents had informed him that she was a prospective buyer. Satisfied with what she had seen she had then finalised the paperwork and made payment which resulted in the final sale of the house and its transfer. The Agreement of Sale was availed as part of the evidence as was the Certificate of Occupation.

The plaintiff further asserted that after the finalisation of the sale they had made arrangements to put tenants in the house. However, the second defendant had been given three months following a plea that alternative accommodation was proving hard to come by. During this three months period, it was her evidence that the defendant had paid rentals into their Bank account. Proof of these rental payments which she had tried to obtain from the bank could, however, not be provided as they were in Zimbabwean dollars and the bank had said they were no longer able to provide this data.

After the expiration of the three months, she and her husband had gone to the house and found the second defendant's wife. It was the plaintiff's evidence that all goods had been packed. There was, again, a plea for more time which the plaintiff said they could not entertain due to the fact that they had already done so and had a tenant who was waiting to take occupation. It was also the plaintiff's evidence that she and her husband were, in fact, given keys by the defendant's wife which they gave to the tenant. They were satisfied that they had introduced their tenant and went back home. On arrival, they got a telephone message from the tenant saying that the defendant and his family were refusing to vacate. The plaintiff stated that her husband had then gone back to Chitungwiza where he had found a sizeable gathering of people from the neighbourhood at the residence. He learnt that the second defendant was refusing to vacate on the grounds that the house belonged to his parents. The crowd had also threatened to turn violent in support of the second defendant whom they said they knew as the occupant of the house over many years. Following this development, the plaintiff and her husband had then gone back to seek the assistance of the estate agent and the seller, the now late Annatoliah Munatsi. The plaintiff averred that the widow had reiterated her position that the house belonged to her husband. The plaintiff's evidence was also that the widow had indicated that the property would have been sold a long time ago since the money needed at the hospital was a lot. She had also said that she had a letter from her husband saying she should sell the house. The house had, at one time, been advertised but unfortunately her husband had died on the day the advert came out. She also stated that had the widow survived this letter and advert were to have been produced as evidence. The plaintiff was adamant that she would not have bought the property had she known of any dispute. Her position was that none had been brought to her attention until the day the tenant tried to take occupancy. It was also her evidence that the first time that they heard of the second defendant's claim was when the second defendant refused to allow the tenant to take over.

In cross examination, counsel for the second defendant argued that the plaintiff was lying that she saw the second defendant when she went to view the property since he would have been at work. The plaintiff was, however, resolute that she had been shown the house by the second defendant. She was also challenged on the issue of rentals and keys and she again remained unwavering in what she had told the court. Much was also made of the fact that she could not possibly have known of the private arrangements within the Munatsi family regarding the house. Her response was that she had bought the house on the strength of the papers that she had examined which showed that the house was owned by Charles Munatsi….,.

The second witness to give evidence was Mr Honerwa from Golden Estate Agents.

His evidence was essentially that when selling property belonging to a deceased estate steps are taken to ensure that the person selling has the authority to sell. The sale was done because they were Letters of Administration and consent to the sale from the Master. He confirmed going to view the property when the second defendant was there, having made a prior appointment with him by phone. He also said that the second defendant had indicated to him that the fence was his as he had put it up and that whoever was buying the house should pay him for the fence. It was after the meeting with the second defendant that the property was advertised officially. The visit where representatives of the Estate Agent accompanied the plaintiff to view the house was later after she had responded successfully to the advert. He confirmed the second defendant's presence, again, on this occasion.

He too, under cross examination, maintained his stance that he had interacted with the second defendant and that the sale of the property was kosher. Asked if he agreed that it is possible for a family to agree to register a property under the name of a particular person without the intention of it belonging to him, he agreed that it can happen but opined that it would be stupidity because nothing could stop that person legally from saying that the property belongs to him. It was put to him that the family had lodged their complaint with the Master regarding the inclusion of the property under the late Charles Munatsi's estate. His response was that if that was indeed the case, then the fact that the Master consented to the sale was evidence that he did not put any store to these objections as he would not have consented otherwise. It was also his view that if all these objections to ownership had been raised during the late Charles Munatsi's lifetime, it would have helped to shed light on the matter. In his assessment, the difficulties had arisen because in-laws usually do not want the property to be acquired by a daughter-in-law. The issue only arose after Charles Munatsi's death to prevent a stranger taking over the property. He also stated that it would not have been possible for him to go into the house without the parent's permission since the children had clearly refused the first time that he had gone to look at the property. This is why he had made an appointment with the second defendant.

The second defendant's evidence

The second defendant, David Munatsi, gave evidence in his capacity as executor in Margaret Munatsi's estate and in his own interest. However, he did not produce any evidence confirming his appearance as executor.

His evidence regarding how Stand No.11095 Zengeza 4, Chitungwiza was acquired was that their rural home was burnt down during the height of the liberation struggle in the mid-1970s. His brother, Charles Munatsi, already then a teacher, had taken in the whole family at his place in Glen Norah. However, as he was sharing this accommodation with another teacher, the arrangement was not practical as the place was overcrowded. Their father, Andrew Munatsi, who was working in South Africa, tasked Charles Munatsi to look for a property where the family could stay. This was done. A two-roomed core house was found, which, according to the second defendant, was paid for by his father who sent money to his mother, who in turn gave the money to Charles Munatsi. This was in 1978-9. The house was later developed into a five-roomed house and it was his evidence that his father, Andrew Munatsi, and not Charles Munatsi, who paid for the extensions. He also told the court that the house was put in Charles Munatsi's name because his father had acquired South African citizenship and believed that he was not allowed to own a house in Zimbabwe as a foreign citizen. He averred that the house was acquired as a family home and was never meant to benefit Charles Munatsi alone.

On why his father had not registered the house in his name when he returned to Zimbabwe in the 1990's, he stated that this was because there was no need to rock the boat since all were staying peacefully. He emphasised that the acquisition of the house predated Charles Munatsi's marriage to Annatoliah Munatsi. He said that he only got to know about the registration of the estate when he was phoned by the now late Annatoliah Munatsi that he was wanted at the High Court. This was also when he got to know that Mr Musunga had been appointed as executor. Following family consultations his sister, Longina, and he, were tasked to unearth further particulars regarding the winding up of the late Charles Munatsi's estate. Upon discovery that Stand No.11095 Zengeza 4, Chitungwiza had been listed as part of Charles Munatsi's property, he said that he had written a letter to the Master which he left at the Master's office. The purpose of the letter was to highlight that the property in question should not have been listed under the late Charles Munatsi's estate….,.

He says that he was under the impression that the objections had been accepted.

Though probably unintended, the second defendant's letter in fact lends support to the late Charles Munatsi as an enterprising developer. He acquired the house in Glen Norah under the home ownership scheme. In addition, the second defendant's letter points out that when their father eventually returned to Zimbabwe he gave each of them money. The second defendant bought himself a Stand in Glen Norah which he admits he failed to develop. He states that it was the late Charles Munatsi who then constructed five rooms on this property. Regarding Stand No.11095 Zengeza 4, Chitungwiza, he insists, in this letter, that it was developed for the family using money sent by his father. He also states that he has resided in this house with his wife and four children from the time it was completed. While he paints his brother in somewhat of an unpleasant light regarding the use of the second defendant's car which he said that he had been given by his father, the letter clearly paints a picture of Charles Munatsi as the one who was prone to take the bull by the horns. Regarding the sale of the house, he denied ever showing the plaintiff the house maintaining that she must have been shown by a ghost as it was not him. He further vehemently denied ever seeing the estate agent. He said he had met Mr Godzongere only whom he told that the person selling the house was not the owner and said that the Godzongeres had proceeded to buy the house at their own peril. He denied ever paying rent to the Godzongeres in any account. He also denied that his wife had, at any time, surrendered keys. He acknowledged the altercation with Mr Godzongere on the day the tenant was supposed to take occupation and said he had told him that the only person who could remove him was the one who had put him there in the first place. He said it was not true that the house needed to be sold to pay hospital bills as a relative who had been looked after by his mother had paid the bill as an act of gratitude. He emphasised the point that Annatoliah Munatsi wanted to take property which does not belong to her. In his estimation, that house was supposed to remain as is since they were staying well. Although his father built himself a house in the rural areas when he returned, the second defendant said that he still regarded the Zengeza house as his and would occasionally visit. He said that he had heard that it was Annatoliah Munatsi who advertised the house for sale on the day her husband died. He said he had been cheated into signing the documents appointing Mr Musunga as executor and that he did not understand these documents.

He maintained that his prayer was for the sale to be set aside and also for the cession to Jaden Matange to be set aside….,.

While the history surrounding the acquisition of the original core house has truth to it, there was no evidence placed before the court to categorically support the assertion that the house was, from start to finish, inclusive of the extensions, entirely funded by their late father, Andrew Munatsi, who was based in South Africa. Despite the fact that the late Andrew Munatsi did return to Zimbabwe in 1990, particularly at a time when the legal consequences of letting the eldest son remain with title were well appreciated, he did nothing to change the status quo. The law of inheritance at the time when he died was that the eldest son inherited in his individual capacity. This property was already in the eldest son's name. Absolutely nothing was done to change this reality or that is not what the family intended. The argument that nothing was done because things were going smoothly and that “a good thing is a good thing” as the second defendant put cannot absolve the inaction in light of the very well-known legal consequences of the single heir at that time. Indeed, there may have been no need for the transfer into Andrew Munatsi's name because he saw Charles Munatsi as his legitimate heir and the property was already in his name. In 1996, the property would not have gone to Margaret Munatsi if he died intestate but to Charles Munatsi. The Administration of Estates Amendment Act, which changed the position of inheritance under customary law, only came into effect on the first of November 1997. There was no challenge to ownership when the purported real owner of the property, Andrew Munatsi, returned to Zimbabwe. There was, again, no challenge regarding the property being in Charles Munatsi's name when Andrew Munatsi, his father, died. During Charles Munatsi's lifetime, there was no effort to challenge his sole ownership either. In fact, it is only after the sale was effected and the transfer had gone through that the matter was legally challenged.

Longina Munatsi, the sister to the second defendant, also gave evidence. She confirmed the story relating to the history of the acquisition of the house. She said that she was staying with her brother, Charles Munatsi, at the time the house was acquired and going to school in Glen Norah. She recalled that they did things as family and that they all agreed that the registration be done in Charles Munatsi's name. She said that during the time her father was in South Africa, it was Charles Munatsi who looked after the family. Her evidence was that her father returned in 1990 and died in 1996. The reason why he did not change the status quo was because he found everyone staying well. Also, she said he wanted to rebuild his rural home. Unlike David Munatsi, whose stance was that the house forms part of his mother's estate, her evidence was that the house belongs to all of them. In her view, it was not put in a Trust because under customary law it is the eldest son who acts in trust for the whole family and that is exactly what Charles Munatsi did. She said that Charles Munatsi's salary would not have been enough to do the extensions hence her insistence that it was her father who sent the money. She acknowledged that neither of them had any proof to show to the court that their father sent the money but that she knew that the money would come in letters. The letters were also no longer available. She was of the view that Charles Munatsi would have had the receipts for the materials because the money was sent to him and he would go and buy the materials. Her opinion was that the house was claimed by Annatolia Munatsi as part of her husband's estate because she was being greedy and selfish yet she and her husband already had properties of their own.

When asked whether her father's estate was not wound because there was nothing to wind up her response was that Charles Munatsi had been the one who saw to the winding up of their father's estate.

Regarding the edict meeting, she said that she had only heard from David Munatsi when he came to report that he had been called by Annatoliah Munatsi. She confirmed that the family had met and had decided to challenge Annatoliah Munatsi's registration of the property as belonging to her husband. She had also heard about the sale from her brother who had told her that the Godzongere's had come and that he had been held by the collar by Mr Godzongere. She also said that she had told her brother not to leave the house as Sithembinkosi Godzongere had no right to buy that house. She described Annatoliah Munatsi as someone who did things crookedly behind their backs.

After the preliminaries on 18 March 2013, the trial in this matter began in earnest on 8 April 2013. The defendant had the duty to begin. That had been the agreement at the pre-trial conference.

At the close of the defendant's case the plaintiff applied for absolution from the instance. I reserved judgment.

This is the judgment.

The facts of this case are virtually common cause. The plaintiff, a duly registered private company, seeks an order for the eviction of the defendant from premises known as Lot 4 of Lot 9 of Chicago situate in the District of Kwe Kwe. The plaintiff is the registered owner of the property. Through one of its Directors at the time, one Emmanuel Papayianis, now deceased, the plaintiff had bought the property at an auction sale in June 1996. The owner of the property had been one Anesu Anthony Muringani, now deceased [“the late Muringani”]. The defendant is his surviving widow.

The property had been auctioned at the instance of the City of Kwe Kwe as the judgment creditor. The late Muringani had been the judgment debtor. The plaintiff's bid, at $120,000=, had been the highest. The plaintiff had paid a deposit of $30,000= on the date of the sale. The Provincial Magistrate at Kwe Kwe had subsequently confirmed the sale to the plaintiff. However, the late Muringani had successfully challenged the purchase price on the basis that it was too low. The magistrate had increased the purchase price from $120,000= to $160,000= and had directed a sale by private treaty. The late Muringani had further challenged the new price in this court. That had been in 1997. He had lost. The sale by private treaty to the plaintiff had been confirmed by the magistrate in September 1997.

The plaintiff had paid the balance of the purchase price in the sum of $130,000=. Transfer of the property to the plaintiff had been registered in the Deeds Office on 14 May 1999 under Deed of Transfer No. 2421/99.

The plaintiff's summons for eviction was issued on 24 March 2010. That was more than ten years after the registration of transfer. In its pleadings, the plaintiff's explanation for the delay was that its Director at the time, the said Emmanuel Papayianis, had subsequently died. His surviving widow had subsequently fallen ill. No one had had any knowledge of the existence of the property and its registration in the plaintiff's name and in its books until in late 2009.

It transpired through the defendant's case that the defendant and her husband, the late Muringani, had, at one time, been estranged. He had wanted to take on another wife. The late Muringani had died in 2004. In September 2008, the defendant had obtained from the Master's Office a certificate of authority authorising her to take transfer of the property. However, she did not succeed. In proceedings in this court, in 2010, under HC355/10, the plaintiff, represented by one of its Directors at the time, one Daniel Mackenzie Ncube, sought an order not only to stop the defendant's bid to take transfer of the property, but also to have the certificate of authority set aside. The defendant consented to those orders. She only sought to be excused from the order of costs.

In the current proceedings, the defendant's defence to the plaintiff's claim for eviction was that the plaintiff was not the lawful owner of the property; that the plaintiff had obtained the title to the property fraudulently; that as the lawful beneficiary to the estate of the late Muringani she had the right, title and interest in the property; that she had issued her own  summons against the plaintiff and its Directors to have the property transferred back to her late husband's estate and that she was entitled to occupation of the property until the dispute was resolved….,.

The parties had subsequently filed further pleadings in the two matters. On 1 February 2011, the two matters had been consolidated at a pre-trial conference and had been referred to trial on three issues.

The three issues on which the matters had been referred to trial were:

(a) Whether the purchase of the property by the plaintiff, and the subsequent transfer, was tainted by fraud;

(b) Whether the transfer should be set aside; and

(c) Whether the plaintiff was entitled to eviction.

The defendant's summons was issued on 17 May 2010, under the name Emily Ntombizodwa Luwaca, in HC3285/10. She sought an order setting aside the transfer of the property from the late Muringani to the plaintiff that had occurred in May 1999. She also sought an order directing the Messenger of Court, Kwe Kwe, to sign all the necessary transfer papers….,.

The defendant testified that the property had been illegally transferred by the Messenger of Court to the plaintiff; that neither she nor her husband, the late Muringani, had been aware of the purported sale and transfer; that the transfer bordered on fraud; that the Messenger of Court was not supposed to have made the transfer, and that she had contributed directly to the purchase of the property through mortgage finance.

The plaintiff's plea on the merits of the defendant's claim was filed on 15 June 2010. It stated that it had bought the property from an auction sale and had subsequently obtained title on 14 May 1999. It further stated that there had been nothing illegal or improper about the sale; that the late Muringani would have known about the sale in execution and the subsequent transfer and that the defendant had not laid out any basis upon which the transfer of the property should be set aside….,.

At the close of the defendant's case there was no shred of evidence relating to any fraudulent dealings or illegal conduct by anyone associated with the sale and transfer of the property to the plaintiff. The sale and transfer had been open, public and plainly above board.

The defendant was at first adamant that the transactions had not been clear to her and that the plaintiff had not paid the full purchase price. She said she had not been privy to the goings-on. However, she eventually conceded the absence of fraud after she was shown the documentary proof. The crucial exhibits produced in court included, among others, the letter to the Messenger of Court from the Provincial Magistrate dated 16 September 1997, exhibit 5, confirming the auction sale and authorising the transfer; the proof of payment of the full purchase price by the plaintiff in the form of a receipt of $30,000= on 31 October 1997, exhibit 8(a); a statement by the conveyancers, Danziger & Partners dated 3 December 1997, exhibit 8(c), showing receipt of the full purchase price; and a schedule of distribution by the Messenger of Court on 18 September 1997, exhibit 8(d) showing that all the creditors of the late Muringani had been paid out and, crucially, that 82% of the balance of the proceeds amounting to $167,378=16 had been remitted to him.

After the defendant's evidence, particularly her concession aforesaid, one would have thought that that would have been the end of the matter. However, the defendant insisted on calling her daughter….,.

In terms of the Deeds Registries Act [Chapter 20:05] an owner of an immovable property is the registered owner. Registration of real rights in the Deeds Office is not a mere matter of form. In the case of Takafuma v Takafuma 1994 (2) ZLR 103 (S) the Supreme Court…., stated as follows:

“The registration of rights in immovable property in terms of the Deeds Registries Act [Cap 139] 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. See the definition of 'real right' in s2 of the Act. The real right of ownership, or jus in re propria, is 'the sum total of all the possible rights in a thing' – see WILLES's Principles of South African Law 8 ed p255.”

On the merits, comprehensive heads of argument were filed by the parties on the law on rei vindicatio. 

In Chetty v Naidoo 1974 (3) SA 13…, the court said;

“The owner, in instituting a rei vindicatio, need, therefore, do no more than allege and prove that he is the owner and that the defendant is holding the res: the onus being on the defendant to allege and establish any right to continue to hold against the owner.”

The position was confirmed in our jurisdiction in the case of Musanhi v Mt Darwin Rushinga Co-operative Union 1997 (1) ZLR 120 SC.

The respondent submitted that he has discharged the onus to establish “any right” to continue to hold against the owner. He referred to Chetty v Naidoo 1974 (3) SA 13…, where the court said;

“…, and it follows that no other person may withhold it from the owner unless he is vested with some impossible right against the owner e.g. a right of retention or contractual right.”

The applicant, in its founding affidavit, conceded that reinstatement will entitle the respondent to retain the motor vehicle. In the applicant's founding affidavit, Judith Tsamba, the applicant's Company Secretary, after noting that the respondent was challenging the termination of his contract of employment said, in paragrapg 6;

“I am informed that whatever views he may have regarding the legality of his dismissal and whatever challenge he has or may file with the courts against this dismissal will not entitle him to retain the vehicle until and if at all an order is made for re-employment.”

On 30 July 2013, an order reinstating the respondent was made by the arbitrator and in line with the above paragraph in the founding affidavit, the respondent actually expected litigation to cease.

The court views paragraph 6 of the founding affidavit as an acknowledgement by the applicant that the respondent, after reinstatement, has established a right of retention or contractual right. That acknowledgement is a correct analysis, from a legal point of view. The case of Standard Chartered Bank of Zimbabwe Ltd v Matsika 1997 (2) ZLR 389 referred to by the respondent is relevant. At page 392, the court said;

“The appellant was directed to reinstate the respondent without loss of pay and other benefits from the date of his suspension without pay. Implicit in the order is that the contract of employment had not been severed and that the contractual chains still bind the one to the other. Thus, the appellant…, was to put the respondent back into the position the respondent occupied and pay him as though the misconduct and other proceedings had not been brought against him.” 

While it is common cause that the applicant has neither reinstated the respondent or paid him, it is expecting too much for the applicant to expect the respondent to hand over the motor vehicle at this stage when he has been reinstated and is expecting more employment benefits or damages from the applicant. The motor vehicle is the only thing the respondent has in his possession to “retain” or “continue to hold” against the employer until its established employment benefits or damages have been paid out….,.

It would not be stretching the imagination too far to point out that land is a basic necessity for both human beings and animals. It is on land that food and water are derived and shelter is constructed.

The action before the court is centered on Plot 8, Village 62, Hoyuyu, Mutoko. The plaintiff brought a claim for eviction of the defendant from the said Plot. The basis of the eviction claim being that the plaintiff claims to be the owner of the plot. It is the plaintiff's contention that the Plot was ceded to him in 2007 by his late father, Enerst Chakanetsa Mazarura. He had by way of evidence an affidavit and general power of attorney. Further, the plaintiff's evidence was that after getting the cession affidavits he paid subscription fees to the Rural District Council which culminated in him getting a confirmation Certificate of Ownership of Plot 8.

The defendant, on the other hand, presented argument that Plot 8, Village 62, Hoyuyu, Mutoko, was her piece of land and that at the time of death of the late Enerst Chakanetsa Mazarura, she was the surviving spouse and that Plot 8, Village 62, Hoyuyu, Mutoko was the matrimonial home. She got married to the plaintiff's father when the latter was staying at Plot 5. The plot was acquired through the Government Land Acquisition Programme and that a directive was issued that they move to bigger plots leaving the old plot as grazing land and this was done in respect of all the other resettled villagers. She thus moved with her husband to Plot 8, Village 62, Hoyuyu, Mutoko - the Plot in issue. She subsequently acquired a confirmation letter of ownership of the piece of land from the relevant authority.

Given this background, the court had to grapple with;

(a) Whether or not the plaintiff has cession to Plot 8, Village 62, Hoyuyu, Mutoko.

(b) Whether or not the Plot belonged to the plaintiff thus having a legal basis to evict the defendant.

c) Whether or not the non-citing of the allocating authority is fatal to the proceedings.

(d) Whether or not the eviction case was dismissed on merit by Mutoko Magistrate Court.

The plaintiff testified on his own behalf and also adduced evidence from three witnesses, namely, Josiah Nyamhure the Village Head, Lazarus Musara, his uncle, and Nevson Jemwa a Lands Officer with the Ministry of Lands.

It will not be necessary to recount word for word what the witness told to court but it is important to comment on the witnesses' evidence and seek to relate it to the issues at stake in a bid to come up with a disposition.

Josiah Nyamhute's evidence was basically to confirm that, as a Village Head, he was aware the late Enerst Mazarura was allocated Plot 5 under the land resettlement and that when other villages were moved in line with the scheme he was moved to Plot 8, and, by then, he was married to the defendant. He indicated that the late Enerst Mazarura always wanted to have the plot in his son, the plaintiff's, name although it was not registered in the plaintiff's name.

The witness' evidence was not of assistance insofar as the central issues for determination are concerned. He did not know and did not testify on whether or not the plaintiff had the plot in question ceded. Even his evidence on the alleged divorce token was not concrete; he only heard the parties wanted the matter resolved amicably but could not say with certainty there was passing or exchange of divorce token. It was clear from his evidence he was the Village Head of the village wherein the Plot in issue is situated.

Lazarus Musara, an uncle of the plaintiff, confirmed that the late Enerst Chakanetsa Mazarura moved to Plot 8 together with the defendant after marriage to the defendant. He recalled in the year 2012 he was sent to deliver “gupuro” token of 2 rand and some affidavits to the defendant. He left these with Prudence, a daughter to the defendant.

The witness's story was not of any assistance in the determination of the issues at hand. It is not that the witness was not being candid with the court but that the evidence did not take the matter anywhere. He testified on common cause aspects that the plaintiff's father was married and staying with Rhoda at the village. Rhoda, the defendant, claims she did not receive any divorce token and the witness said he left it with a third party, a child, one Prudence. One only wonders what custom that is aligned to….,.

After all that evidence was adduced, the court is still to grapple with the issues central to the matter. What is at stake is whether or not the plaintiff's father ceded his Plot 8, Village 62, Hoyuyu, Mutoko to the plaintiff.

The evidence from the plaintiff and witnesses does not point to the cession as having been effected. In 2007, the plaintiff instituted proceedings for eviction of the defendant from the plot; which application was dismissed on merit and/or for want of jurisdiction since the magistrate's ruling is not clear cut. Effectively, however, the defendant went back to the matrimonial home.

In casu, the plaintiff presented affidavits signed by his father for purported cession. Clearly, such affidavits tended in court are not due process of cession, and, in any event, they were not originated from the relevant authority, Mutoko Rural District Council. The exhibit, annexure A and B, simply outline but do not prove that indeed the cession was effected. Even the payment of cession fees as shown in exhibit 2A and 2B do not suffice as proof that the cession was effected. The last witness in the plaintiff's case, Mr Nevson Jemwa, clearly pointed out that the cession was not finalised and that the meeting held on 22 May 2012, exhibit 3 on the plaintiff's bundle, was a process to commence the cession process. The meeting resolved the Plot should be ceded to the plaintiff but that does not change the complexion of the status of the plot in the absence of the cession. It is clear there is no cession which was effected in 2007 because if that was so the meeting of 22 May 2012 recommending such cession would not have been necessary….,.

Upon consideration the totality of the evidence before the court it is sticking out that due process of cession was not effected and that there is no evidence to show the cedent ceded rights to the cessionary who then signed to confirm transfer. There is no evidence to show that the relevant authorities, Mutoko Rural District Council, were engaged in due process of cession to pass title rights and interest in the land to the plaintiff.

This is an application for a rei vindicatio….,.

On the merits, the respondent's argument is that he was entitled to purchase the vehicle in terms of the motor vehicle scheme and contract of employment….,.

The rei vindicatio is a common law remedy which is based on the principle that an owner is entitled to recover his property from whoever may possess it without his consent. See Chetty v Naidoo 1974 (3) SA 13. The same principle was enunciated in Mashave v Standard Bank of South Africa Ltd 1998 (1) ZLR 436 (S) where McNALLY JA stated that the law protects the right of an owner to vindicate his property and "as a matter of policy favours him as against an innocent purchaser."

The same principles governing the law of vindication were outlined in Oakland Nominees Ltd v Gelria Mining & Investment Co Ltd 1976 (1) SA 441 (A)…, where the court remarked as follows:-

"Our law jealously protects the right of ownership and the correlative right of the owner in regard to his property, unless, of course, the possessor has some enforceable right against the owner." See also Grosvenor Motors (Potchefstroom) Ltd v Douglas 1956 (3) SA 420 (A) and Stanbic Finance Zimbabwe v Chivhunga 1999 (1) ZLR 262 where the court, in dealing with the question of onus, remarked as follows;

'The owner may claim his property wherever found, from whosoever is holding it. It is inherent in the nature of ownership that possession of the rei 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). The owner, in instituting a rei vindicatio, need, therefore, do no more than allege and prove that he is the owner and that the defendant is holding the res, the onus being on the defendant to allege and establish any right to continue to hold against the owner.'

See also Unimark Distributors (Pvt) Ltd v EFR 94, Silvertondale (Pvt) Ltd 1999 [2] SA 986 where the following sentiments touching on the respondent's defence appear;

'It is inherent in the 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 rights enforceable against that owner, e.g. right of retention or a contractual right.'”

An applicant seeking to rely on the rei vindicatio must prove the following;

1. That he is the owner of the property. See Jolly Shannon and Anor 1998 [1] ZLR 78.

2. That at the commencement of the action, the thing sought to be vindicated was still in existence and the respondent was in possession of the property. See Masuli v Jera HH67-07.

3. That the respondent's possession is without his consent. See Stanbic Finance Zimbabwe v Chivhunga 1999 (1) ZLR 262.

It is common cause that the vehicle in issue is owned by the applicant and the respondent possesses the vehicle without its consent. The respondent's term of employment has been terminated. He is only entitled to hold onto the vehicle upon establishing a defence that entitles him to continue holding onto the vehicle. The onus is on the respondent to allege and establish the right to continue holding onto the vehicle.

The respondent contends that he is entitled to purchase the vehicle in terms of the motor vehicle scheme negotiated at the time he was employed. The respondent avers that in the first three years of his employment he used his own vehicle and the applicant paid all running costs. That he was issued with the vehicle in terms of his contract of employment in June 2010 and only used the vehicle for two years. He contends that his contract of employment entitled him to purchase the vehicle and further that the years during which he used his personal vehicle are part and parcel of the five years, thus entitling him to purchase the vehicle. Clause 6 of his letter of appointment reads as follows:

“Company Car; An executive car to be provided in terms of the company's Management Car Scheme which the CEO is expected to develop and operationalize in respect of all managers.”

The clause entitles him to use of a company vehicle only and makes no reference to purchase.

The respondent was, in terms of his contract, required to develop a vehicle scheme.The respondent has produced a Motor Vehicle Scheme which he avers he developed. The applicant contends that he failed to produce one. The applicant disputed the existence of the undated scheme produced which it claims is fictitious and a fraud and contends that it was created only for purposes of this application.

The fourth legal issue raised is pertaining to whether or not the plaintiff's claim has prescribed in terms of the Prescription Act [Chapter 8:11].

It is important to look at the Prescription Act [Chapter 8:11] and see if the claim falls under it.

Section (2) of the Prescription Act [Chapter 8:11] defines a debt thus;

“Debt, without limiting the meaning of the term, incudes anything which may be sued for or claimed by reason of an obligation arising from statute, contract, or delict otherwise.”

Section 15(d) of the Prescription Act [Chapter 8:11] provides that any other debt shall prescribe after a period of 3 years.

From the evidence and nature of the claim, the plaintiff brought the action in her capacity as a cessionary in a cession of right of action by the owner of the property (The State) with the plaintiff as the creditor. The action is a vindicatory action in respect of which the period of prescription is 30 years as given in section 4 of the Prescription Act [Chapter 8:11].

The 76 applicants are employees, or is it former employees, of Trauma Centre & Hospital, which, as that name suggests, is not a juristic person.

The exhibits they have sampled, in the form of 2 payslips for Watson Katemadaro (the 29^th applicant) and his employment contract, suggest that they were employed by an entity known as African Medical Investments PLC which traded as Trauma Centre. That entity is not a party to this application. In fact, it cannot possibly be because it is not the one which won the Supreme Court judgment which has been taken into execution.

The first respondent did.

The first respondent is, in fact, the lawful owner of the premises located at Number 15 Lanark Road, Belgravia Harare.

Following a protracted dispute over that property between the first respondent and an entity known as Autoband Investments (Pvt) Ltd, we are informed that the latter had unlawfully and forcibly removed the first respondent from the premises in 2011 and commenced operating a medical centre there. The Supreme Court resolved that dispute by judgment delivered on 17 June 2014 (SC43-14) the operative part of which reads:-

“1. The appeal is upheld with costs.

2. The judgment of the court a quo is set aside and substituted with the following:-

(a) The eviction order granted by the Magistrates Court Harare, in the matter between Autoband Investments (Private) Ltd t/a Trauma Centre v African Medical Investments Plc, under Case No.MC 16435/11 be and is hereby declared to be of no force, effect and application as against the applicant. 

(b) It is ordered that the applicant be and is hereby restored to possession and occupation of premises known as Stand 2924 Salisbury Township of Salisbury Township Lands situated at Number 15 Lanark Road Belgravia, Harare.

(c) It is ordered that the respondent pays the costs of this application on a legal practitioner client scale.”

In pursuance of the order of the Supreme Court, the first respondent issued a writ and moved for the eviction of Autoband Investments (Pvt) Ltd t/a Trauma Centre from the premises. Kicking and screaming, Autoband Investments (Pvt) Ltd t/a Trauma Centre has been evicted, obviously with all those claiming through it including its patients, and, indeed, employees.

Following that, the employees have approached this court, on an urgent basis, arguing that they were not party to the Supreme Court matter and for that reason they cannot be evicted on the basis of its order. They seek the following relief:-

“TERMS OF THE FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

A. The order by the Supreme Court in Case No. SC43/14 does not give the first respondent a right to dismiss the applicants from their employ, evict or interfere with their respective staff operations at Trauma Centre and Hospital situate at Stand No. 2924 Salisbury Township of Salisbury Township Lands situate at No.15 Lanark Road Belgravia, Harare.

B. The 1^st respondent to pay costs at an attorney and client scale.

INTERIM RELIEF (sic)

It is hereby ordered that pending the confirmation of this matter (sic) the applicant is granted the following relief:-

A. The 1^st and 2^nd respondents be and are hereby ordered to stay eviction of all staff at premises known as Stand 2924 Salisbury Township of Salisbury Township Lands situate at No.15 Lanark Road, Belgravia, Harare pending the determination of the final order. 

B. That the 1^st and 2^nd respondents shall not interfere with the respective staff operations at Trauma Centre and Hospital situate at Stand No.2914 Salisbury Township Land situate at No.15 Lanark Road, Belgravia, Harare.”

The applicants state in their affidavits that they seek a stay of eviction/dismissal from employment because they were “at all material times employees employed at Trauma Centre and Hospital with respective contracts of employment thereto.” They go on to say that in pursuance of the Supreme Court judgment, the first respondent has ordered their “dismissal and eviction” from there. The first respondent has, after the dismissal and eviction, barred them from the premises and from performing their duties. To them, the first respondent's conduct “amounts to unlawful summary dismissal” from employment in violation of section 16 of the Labour Act [Chapter 28:01] which prohibits the alienation or transfer of their employment.

They therefore seek a reversal of what they perceive to be an illegality….,.

The first respondent's case, as presented in the opposing affidavit of Peter John Annesley, its Chief Operating Officer, is a straight forward one. It is that although it is the owner of the premises, which it occupied with its employees, it was evicted unlawfully by Autoband Investments (Pvt) Ltd t/a Trauma Centre, an alter ego of one Vivek Solanki. That company went on to unlawfully run a hospital facility at the premises and employed the applicants while doing so.

The applicants have never been employees of the first respondent.

The first respondent finally obtained an order of the Supreme Court reinstating its occupation of the premises on the strength of which it has evicted Autoband Investments (Pvt) Ltd t/a Trauma Centre and all those claiming through it, including the applicants, from the premises. An eviction cannot be a transfer of undertaking as a going concern as to bring it under the provisions of section 16 of the Labour Act [Chapter 28:01] and there is no agreement between those parties to inherit the employees.

I have already stated that the applicants have not alluded to any legal basis upon which they lay a claim to occupation of the premises or to employment by the first respondent.

What they have placed before me is a Spanish omlete, which, to say the least, is an excursion in purposeless activity. They appear to suggest that because they were employed by an employee who ran a hospital facility at the premises, they should remain there till kingdom come and anyone taking over the premises for whatever reason should inherit them - even when there is no contractual relationship with them.

They appear to suggest that for them to be evicted, they should have been cited as party to the proceedings which terminated the tenancy of their employer.

What is beyond doubt is that they were at that property on the basis of their employment by Autoband Investments (Pvt) Ltd t/a Trauma Centre and were therefore claiming occupation through that entity. It having lost the right of occupation, the applicants cannot then acquire miraculously a non-existent right of extended occupation. They should be evicted along with their employer.

While surprises never cease really in the practice of law, it is difficult to comprehend how the applicants can seek to continue executing duties at the premises. They were not employed by the walls of the building. One wonders what it is they would like to remain doing there after the departure of their employer. They would like to force the first respondent to employ them against its will. The applicants are employed by Autoband Investments (Pvt) Ltd t/a Trauma Centre which should continue to employ them even after its eviction or should terminate them according to law.

The plaintiff issued summons claiming;

1. The restoration of possession and delivery of a motor vehicle, namely, a Nissan Civilian Registration Number AAS 1066 presently in the custody of the Defendant.

2. Alternatively, payment of the replacement value of the said motor vehicle as at the time of judgment. (The replacement value was given in court as a minimum of $19,700= through the use of written quotations).

3. Interest thereon at the prescribed rate with effect from the date of judgment to the date of payment in full.

4. Costs of suit on an attorney and client scale.

The Defendant, on the other hand, filed his plea denying the plaintiff's entitlement to the motor vehicle in question, and, in fact, the defendant alleged in his plea that the plaintiff sold the motor vehicle to him (the Defendant).

The defendant claimed, in his counter-claim, that the plaintiff be compelled to transfer the said motor vehicle to him, or, alternatively, to refund him the sum of ZAR15,000= being the total amount paid by the defendant to the plaintiff as part payment towards the purchase price. The defendant further claims the sum of $1,380=, being the amount spent on spare parts for repairs on the same motor vehicle. He also claims the sum of $700= being for labour. The defendant further claims the sum of ZAR20= per day being storage charges with effect from 1 October 2008 to date of full payment.  He also claims costs at an attorney and client scale.

The main issue for determination by this court is whether the plaintiff is entitled to take control and possession of the said motor vehicle from the defendant. The whole issue thus revolves around under what circumstances did the defendant come into possession and control of the plaintiff's motor vehicle.

The plaintiff gave evidence to the effect that the defendant, who claimed to be a mechanic, and whom the plaintiff met through the War veterans Association, offered to repair the plaintiff's motor vehicle as he found it parked and broken down at the plaintiff's place of residence. This was, according to the plaintiff, around October 2008. The plaintiff also gave evidence to the effect that he never, at any given time, sold his motor vehicle to the defendant, neither did he receive any payment for it. The plaintiff further stated that he actually financed the repairs that the defendant had advised were to be undertaken on the motor vehicle as he gave the defendant the money to purchase the spare parts. The plaintiff further stated that the defendant remained in control and possession of the motor vehicle in question as he kept on saying the motor vehicle, although running, was not yet smooth; he still needed to fine tune it so that its performance would be at the best.  

In brief, those were the material respects of the plaintiff's evidence….,.

The defendant also gave evidence to the effect that the two did attend the War Veterans Association meetings together and that he would occasionally pass by the plaintiff's house. He confirms that the plaintiff's motor vehicle was indeed broken down and parked at the plaintiff's place of residence. He stated that in one of the days, sometime in 2008, the plaintiff mentioned that he was selling the motor vehicle. The plaintiff also told the court that initially he had not given the defendant the registration book but only gave him when the defendant advised the plaintiff that he had problems with officials from the Vehicle Inspection Department while testing the vehicle and they had advised the defendant that since the car licence disc had since expired, he should carry the vehicle registration book inside the vehicle at all times.

The defendant said that he told the plaintiff that he was interested in the motor vehicle and he went with the plaintiff to the plaintiff's place of residence in order for him to be shown the motor vehicle. They subsequently agreed on selling the motor vehicle to each other. They managed to start and run the motor vehicle, although this happened after a struggle. The defendant then drove the motor vehicle to his place of residence. This was in April 2008 according to the defendant. The defendant further stated that sometime in October and November 2008, the plaintiff told him that there were many other people who wanted the car since the defendant had not paid anything. They then agreed that the defendant would try to raise some money at the earliest. The defendant stated that he subsequently managed to pay ZAR15,000= to the plaintiff. He stated that he was later given the car registration book. He said that he then advised the plaintiff that he was not sure of when he would clear the remainder as he was not certain of the remaining expenses in fixing the motor vehicle. He said they had seen an advert for a similar car priced at P40,000= in a Botswana paper. He said that he bought the spare parts to fix the motor vehicle during the period from 2008 to 2009. He then said he subsequently got arrested at Egodini Terminus whilst pirating as the plaintiff had reported to the police that the defendant was unlawfully holding on to his (Plaintiff's) motor vehicle. 

The plaintiff purchased the right, title and interest in House Number 3750, Magwegwe North in Bulawayo from the second defendant in 1978. He lived in the house thence up to 1999 when he retired from employment and went to live at his rural home in Zhombe. He left his wife, Tombana, his two sons, Nkululeko and Melusi Ndlovu, living in the house. The plaintiff's case is that Nkululeko Ndlovu sold the house to the first defendant and several other people without his knowledge, authority, or consent, using a fake general power of attorney to achieve the fraudulent sale of the property. As a result of the fraudulent sale, Nkululeko Ndlovu was arrested on charges of fraud and theft by false pretences and subsequently died in prison. 

The first defendant is one of the several purchasers of the house from Nkululeko Ndlovu. The first defendant has refused to vacate from the house or transfer it back to the plaintiff thus necessitating this action against the defendants claiming the following reliefs:

1. An order declaring the sale of House Number 3750 Magwegwe North, Bulawayo to the 1^st defendant by Nkululeko Ndlovu unlawful, null and void;

2. An order that the plaintiff is the rightful and legal owner of Stand Number 3750 Magwegwe North, Bulawayo;

3. An order directing the 1^st defendant to transfer Stand Number 3750 Magwegwe North, Bulawayo into the plaintiff's name at the 2^nd defendant's offices within 5 days of this order failure of which the Deputy Sheriff is directed to sign the transfer papers in the stead of the 1^st defendant;

4. An order directing the 1^st defendant and all those claiming occupation through him to vacate House Number 3750 Magwegwe North, Bulawayo within 5 days of this order failure of which the Deputy Sheriff is directed to evict the 1^st defendant and all those claiming occupation through him;

5. Alternatively, the 1^st defendant be ordered to pay the plaintiff the sum of R150,000= being the current market value of the house on grounds of unjust enrichment within 10 days of this order;

6. The 1^st defendant to bear costs of suit on an attorney-client scale.

The plaintiff's evidence was as follows:

He purchased the property in question from the second defendant in 1978 as evidenced by the Agreement of Sale….,. He resided in the property thenceforth up to 1999 when he retired from his employment and went to live at his rural home. He left his wife, Tombana Ndlovu, his two sons, Nkululeko and Melusi, and two tenants, staying in the house. Occasionally, he would come to Bulawayo to pay rates for his property. When he came here for the same purpose, in February 2002, he discovered a document in the house bearing his house number but with the first defendant's name on it. When he took this document to the second defendant's offices to enquire, it was then that he discovered that the house had been sold to the first defendant by his son, Nkululeko. and change of ownership effected.

At the time, his son, Nkululeko, was already under arrest for having fraudulently sold the same house to one Masuku. In all, five buyers of the house, including the first defendant, Thathalephi Moyo, Masuku and Edmond Nherudzo had been duped and paid money to Nkululeko. He went to Bulawayo Central Police Station where he gave a statement on 21 February 2002 explaining what transpired. That statement is exhibit 11…,.

He remained resolute that he never authorized Nkululeko or anyone else to sell his house. He vehemently denied ever signing the General Power of Attorney used by Nkululeko to defraud the purchasers of his house. He rubbished his wife's affidavit which purported to confirm that he had given Nkululeko power of attorney to sell his house. He knew his wife as Tombana and not Norah as stated in her affidavit. He last saw his wife in 2002 at the police station where she was saying she just signed the affidavit as told to do so without knowing the contents thereof.

When Nkululeko subsequently died in prison it had to take the intervention of the community for him to agree to go and collect his corpse and bury him as he was very bitter for what Nkululeko had done to him. The first defendant is still occupying his house and that propelled him to issue summons against him seeking the relief outlined above. The plaintiff then closed his case.

The first defendant's evidence was this:

He resides in the house in dispute, having assumed occupation in February 2002. He purchased it in September 2001. What happened was that he returned to Zimbabwe from the Democratic Republic of Congo (DRC) in 2001. He grew up in a two-roomed house in Makokoba so he needed a house of his own. He then bought the Chronicle Newspaper to search for a house on sale. He then came across exhibit 3, an advertisement of the sale of the house in question with phone numbers. He telephoned the number and was directed to an agent who then facilitated him to meet with Norah and Nkululeko. He went to view the house and Norah showed him around. He was interested in the house so they proceeded to the Housing Office. While there, he asked the two the whereabouts of the plaintiff upon which he was shown a power of attorney (exhibit 5), an affidavit deposed to by Norah (exhibit 4) and a marriage certificate (exhibit 9). He was told that the plaintiff was at the rural home in Kwekwe and that they were given the power of attorney to sell the house. After seeing the certified copy of the power of attorney he accepted it and a letter requesting for consent to sell the house (exhibit 6) was then drafted by Nkululeko Ndlovu. Two weeks later, the agent phoned him advising that the consent to sell had been granted. He then proceeded to make payment for the house. After paying the full purchase price of Z$500,000= they went to the Housing Office to effect change of ownership which was done after he had cleared outstanding bills owed to ZESA and the second defendant which had not been paid for eight months. At no time did he ever suspect that there was something amiss with the purchase of the house.

He then called his father, Ernest Ndlovu, who told the court that he knows nothing concerning the sale/purchase of the house save for what his son told him. 

Thereafter, the first defendant closed his case….,. 

It is clear from the facts of the case that the plaintiff's action is squarely predicated upon the actio rei vindicatio whose legal principle is that the true owner of a thing is entitled to recover it from any person who has possession of it without his consent. The two essential elements of this principle, which the plaintiff must establish in order to be successful, are;

(i) That he is the owner of the thing; and

(ii) That possession of it is with the first defendant.

The basic principle under the actio rei vindicatio, according to SILBERBERG and SCHOEMAN, The Law of Property, 2^nd edition, Butterworth, Durban…, is that “an owner cannot, as a general rule, be deprived of his property against his will; nemo plus iuris transfer e potest quam ipse habet. Therefore, neither a thief nor any other person who is not the owner (e.g. hirer or a borrower) can transfer the right of ownership to another person, irrespective of whether the person who acquires the thing from a thief or a hirer acts in good or in bad faith and gives value for it or whether the transferor or himself was a bona fide possessor or genuinely but mistakenly believed that he is authorized by the owner to dispose of it.”

R.H. CHRISTIE, Business Law in Zimbabwe, 2^nd edition, Juta & Co…, succinctly expressed the position in these words:

“An owner whose property has been sold and delivered without his consent remains the owner, as the seller cannot pass ownership that was not his. The true owner can bring a vindicatory action to recover his property from anyone, including a bona fide buyer, in his hands he finds it. The general rule that the seller can give no better title than he has operates in favour of the true owner, unless the purchaser proves that the true owner is estopped from denying the seller's authority to sell.” 

See also Mashave v Standard Bank of South Africa Ltd 1998 (1) ZLR 436 (S).

In Oakland Nominees Ltd v Gelria Mining & Investment Co Ltd 1976 (1) SA 441 (A)…, HOLMES JA said:

“Our law jealously protects the right of ownership and the correlative right of the owner in regard to his property, unless of course the possessor has some enforceable right against the owner.”

The legal principle enunciated above is solidly noble because since time immemorial, at every stage of human evolution, societies have suffered the inevitable unfortunate phenomenon of having in their midst, an array of thieves, fraudsters, robbers, cut-throats, the throwbacks in evolution, etc, with no qualms whatsoever in employing force or chicanery to dispossess fellow humans of ownership of their property. If the law did not jealously guard and protect the right of ownership and the correlative right of the owner to his/her property, then ownership would be meaningless and the jungle law would prevail to the detriment of legality and good order.

In the instant case, the first defendant did not plead any estoppel against the plaintiff. 

It is common cause that the plaintiff did buy the property in dispute from the second defendant as evidenced by exhibit 8 – the Agreement of Sale between them. The plaintiff gave his evidence credibly well and the court has no reason to fault that evidence. The crux of that evidence is that he never gave his rogue son, Nkululeko Ndlovu (may his soul rest in peace), any general power of attorney or consent to his erstwhile wife, Tombana/Norah Ndlovu, to sell his house. Both the general power of attorney (exhibit 5) and Norah's affidavit (exhibit 4) were fake documents. That Nkululeko Ndlovu had no mandate whatsoever to sell the plaintiff's house is clearly borne out by his selling it to at least five buyers (the first defendant included) and that he was subsequently arrested for that fraud and met his demise in prison whereupon the plaintiff refused to bury him and had to be persuaded by the community to relent, forgive, and bury his son in spite of his waywardness. A close analysis of the circumstances surrounding the first defendant's purchase of the house in question bears no iota of evidence that the plaintiff ever at all made out to the first defendant that Nkululeko Ndlovu had any semblance of authority granted him by the plaintiff to dispose of that house to anyone. The evidence reveals clearly that both the plaintiff and the first defendant (not to mention the other four buyers) were defrauded by Nkululeko Ndlovu….,.

In the event, on the given facts, the plaintiff has succeeded in establishing the requirements of the action rei vindicatio on a preponderance of probabilities and accordingly I make the following order:

1. An order declaring the sale of House Number 3750 Magwegwe North, Bulawayo to the 1^st defendant by Nkululeko Ndlovu unlawful, null and void;

2. An order that the plaintiff is the rightful and legal owner of Stand 3750, Magwegwe North, Bulawayo;

3. An order directing the 1^st defendant to transfer Stand Number 3750, Magwegwe North, Bulawayo into the plaintiff's name at the 2^nd defendant's offices within 5 days of this order failure of which the Deputy Sheriff is authorized to sign the transfer papers in the stead of the 1^st defendant;

4. An order directing the 1^st defendant and all those claiming occupation through him to vacate House Number 3750 Magwegwe North, Bulawayo within 5 days of this order failure of which the Deputy Sheriff is directed to evict the 1^st defendant and all those claiming occupation through him;

The plaintiff in this matter initially instituted proceedings by way of a Court application filed on the 11^th July 2013. The plaintiff sought the following relief against the defendant:

“IT IS ORDERED THAT:

1. The Respondent and all those claiming occupation of House Number 20339, Pumula South, Bulawayo, vacate the said house within 5 days of the granting of the order.

2. Failing which the Deputy Sheriff and his lawful assistant are authorised to evict the Respondent or anyone claiming through her from House 20339, Pumula South, Bulawayo.”…,.

The issues for determination in this trial are summarised in the Pre-Trial Conference memorandum as follows:

1. Whether or not Stand 20339 Pumula South, Bulawayo was transferred to the plaintiff after the death of her husband.

2. Whether or not the defendant or her husband bought the property in question.

The burden of proof on the first issue lay with the plaintiff whilst on the second issue the defendant had the burden of proving that she, or her late husband, purchased the property from the plaintiff.

The background to this matter is as follows:-

The plaintiff was married to the late Njani Majola who died on the 16^th July 1999. It is not in dispute that the plaintiff and her late husband acquired Stand 20339 from the City of Bulawayo as an un-developed Stand on 26^th August 1997. The purchase price for the Stand was Z$6,000=. It is further not disputed that the plaintiff and her husband were required to erect a residential property upon the vacant Stand upon submission of approved building plans to the City of Bulawayo's Housing Office. The plaintiff registered the late Njani Majola's estate under DRB Number 633/10 and Letters of Administration were duly issued in favour of the deceased's sister Getrude Lusinga who was appointed Executrix Dative. The plaintiff then proceeded to execute a cession of the rights, title and interest in and to the property into her names on the 4^th of May 2011. 

Once the plaintiff had finalised the process of cession of the rights into her names she sought to take occupation of the house that she had constructed on the Stand in dispute. The defendant resisted her efforts to evict her and instead averred that the property belonged to her and her late husband. 

The defendant contends that she was married to the late Njani Majola's brother, one Ambrose Majola, in 2003. Ambrose Majola fell ill and passed away in 2004. The defendant contends that the house on the Stand in dispute was built by Ambrose Majola and herself after the plaintiff had sold the Stand to Ambrose Majola for Z$20,000= because she had fallen in arrears in respect of rates for the property. The defendant vehemently denied that when she married Ambrose Majola there was already a house on the Stand and that she simply moved into a dwelling house that was ready for occupation.

The relief sought by the plaintiff in the Court application was opposed and after both parties had filed Heads of Argument it became apparent that the dispute between the parties could not be resolved on the papers without leading viva voce evidence. On the 21^st June 2013, the court issued the following order by consent:

“The matter be and is hereby referred to trial. The papers filed of record shall stand as pleadings. Costs shall be costs in the cause.”

THE CLAIM OF RIGHT  

The action rei vindicatio is available to an owner of property who seeks to recover it from a person in possession of it without his consent. It is based on the principle that an owner cannot be deprived of his property against his will. He is entitled to recover it from any one in possession of it without his consent. He has merely to allege that he is the owner of the property and that it was in the possession of the defendant/respondent at the time of commencement of the action or application. If he alleges any lawful possession at some earlier date by the defendant then he must also allege that the contract has come to an end. The claim can be defeated by a defendant who pleads a right of retention or some contractual right to retain the property.

In the present case, the respondent raised a claim of right. It was based on the company's motor vehicle policy scheme for its employees, clause 5.2 of which provides:

“The vehicle will be replaced on completion of four years of purchase.”

And clause 6:1

“Disposal

6.1. All matters of vehicle disposal shall be administered by the Group Human Resources.

6.2. The vehicle user will be given the first option to purchase the vehicle on disposal time. Purchase price will be set by the Executive Committee reviewed as necessary…,.”

It is common cause that in 2011 the vehicle had reached “completion of four years of purchase” and that the appellant was dismissed in 2012. However, by the time of his dismissal, the respondent had neither made a decision to dispose of the vehicle nor offered the vehicle for sale to the appellant. The ownership of the vehicle, therefore, remained vested in the respondent. Upon his dismissal, which was not suspended by the appeal noted against it (see section 92E(2) of the Labour Act [Chapter 28:01], the appellant ceased to be an employee of the respondent and any former right acquired, by virtue of his employment, to possession of the vehicle for his use, also ceased.

It may be mentioned here that in most cases the option granted by an employer to purchase a used company car is a privilege accorded to its employees, perhaps in the hope that this will induce loyal service as well as a culture of caring for the company property or some other reason beneficial to the employer/company. Therefore, unless the contract specifically states so, a court ought to be careful not to read a legal right into a policy matter which is for the discretion of the employer. In my judgment, the question of a right to purchase could only arise after an offer had been made to, and accepted by, the employee to purchase the vehicle, and not before.

As matters now stand, no offer has been made to the appellant by the respondent employer. The terms of the purchase have not been set. The appellant has no sale agreement on which to found his alleged right to purchase. He is not entitled to hold onto the vehicle pending agreement. As it was put by MAKARAU JP…, in Medical Investments Limited v Pedzisayi HH26-10:

“I am unaware of any law that entitles a prospective purchaser to have possession of the merx against the wishes of the seller prior to delivery of the merx in terms of the sale agreement.”…,.

In conclusion, I would respectfully adopt the remarks by MTSHIYA J in FBC Bank Limited v Energy Deshe HH285-11 that:

“…, employers deserve the protection of the law from employees who…, take the law into their own hands as demonstrated by the respondent in casu.”

In the result, no claim of right having been established, the court a quo was correct in dismissing the application.

LOCUS STANDI

In support of its argument that the applicant did not have the requisite locus standi to seek its eviction from the property because such an action could only be based on the rei vindicatio remedy, TBIC Investments (Private) Limited referred to the South African cases of Hartland Implemente (EDMS) Bpk v EnalEiendomme BK En Andere 2002 (3) SA 653 (NC); Joosabv. J. I. Case SA (Private) Limited and Others 1992 (2) SA 665 (N); Mngadi NO v Ntuli and Others 1981 (3) SA 478 (D); and Vumane and Another v Mkize 1990 (1) SA 465 (W).

The common thread running through those cases was that in order for an applicant to vindicate a property he was required to prove his ownership of the property and the respondent's possession of same.

Vumane and Another v Mkize 1990 (1) SA 465 (W) dealt with a statute, the Black Communities Development Act, which conferred on the applicants, inter alia, the right to occupy buildings on certain premises. The court held that the applicants could not, in law, be regarded as owners of the premises and consequently that they could not vindicate.

In Zimbabwe, the issue of offer letters, and, inter alia, the right of beneficiaries over agricultural lands offered for resettlement is governed by the Constitution.

In Commercial Farmers' Union & Ors v The Minister of Lands and Resettlement & Ors 2010 (1) ZLR 576 (H) and Commercial Farmers Union & Ors v Minister of Lands & Ors 2010 (1) ZLR 576 (S), the Supreme Court, sitting as a Constitutional Court, held that an “offer letter” conferred on the holder or beneficiary the right to occupy and use the land so offered. Thus, the South African authorities cited by TBIC Investments (Private) Limited are irrelevant. In Zimbabwe, the holder of an offer letter, in respect of land acquired for resettlement in terms of the land reform programme, is entitled to occupy the land and to use it. He or she is entitled to sue for the eviction of anyone interfering with that right, unless that person proves a superior right of occupation.

The dispute centred on a cluster of some mining claims at Mashava in Masvingo Province. They are chrome mines. The fourth respondent, the Sheriff, through a writ issued by the second respondent [“SMM Holdings”], was evicting the applicants from those claims. The writ was against one Takunda Mujumi ['Mujumi'] in case no HC2721/09.

It was that eviction by the Sheriff that the applicants wanted stopped in the urgent application.

The applicants did not explain who Takunda Mujumi was. They did not explain how he might have been linked to the applicants. They also did not explain what HC2721/09 might have been all about.

This was a material omission. It was not a very clever thing to do.

The respondents forcefully made the point and supplied the details. They explained who Takunda Mujumi was; how he was directly and materially linked to the applicants; and what HC2721/09 had been all about. That did not leave the applicants in very good light. Among other things, their sincerity was put into question. However, this was beside the point. The non-disclosure did not decide the case. The lack of urgency, or rather the failure by the applicants to act when the need to do so had arisen, did.

The facts were these.

At all relevant times, SMM Holdings was the registered owner/holder of six of those mining claims, and the lessee in respect of the seventh one. In 2004, it was placed under a reconstruction order in terms of the Reconstruction of State-Indebted Insolvent Companies Act [Chapter 24:27] [“the Reconstruction Act”].

A reconstruction order is issued by Government, through the Minister of Justice, against a company that is indebted to the State, or to a statutory corporation, or to a State-controlled company.

Once under a reconstruction order, among other things, the company is placed under the directorship and management of an Administrator, the equivalent of a judicial manager in a company under judicial management. The administrator must strive to nurse the State-indebted company back to profitability so that, among other things, it can pay back the Government funds.

The Reconstruction of State Indebted Insolvent Companies Act [Chapter 24:27], inter alia, voids every disposition of the property of the company under a reconstruction order made without the approval of the Administrator.

In August 2007, SMM Holdings, allegedly, without the approval of its Administrator, the first respondent herein, purported to abandon three of its mining claims in terms of the procedure for abandonment of mining claims set out in the Mines and Minerals Act [Chapter 21:05].

The applicants said the abandoned portions opened the areas to prospecting by third parties. They said in 2009 they applied to the third respondent, the local authority, for a lease over the abandoned claims. They said the lease was approved and granted. But they did not produce a copy, or a more credible document in lieu of it. Instead, they produced, as proof of the lease, some sketch drawing or map of the mining site, dated 9 June 2008, but with no name on it. They also produced, as proof of their lease, an invoice for a mineral milling licence issued by the third respondent and dated 28 October 2016; two receipts, also by the third respondent: one for some small-scale land levy, also dated 28 October 2016, and the other for some mining levy. This latter receipt was dated 17 February 2017. It was from this date that the applicants argued that their clock for urgency had begun to tick.

They were wrong. It had begun to tick much earlier….,.

The third and final document produced by the applicants, as proof of their lease with the third respondent, or of their entitlement to the abandoned claims, was some point of sale bank transfer, also on 28 October 2016. It only had the third respondent's name on it.

The first and second respondents said that the purported abandonment by SMM Holdings of its claims, without the first respondent's approval, amounted to a disposal of the assets of a State-indebted company. As such, it was null and void. They also said they had no idea why the applicants could have been making payments to the third respondent, but that whatever those payments were for, they could not possibly have been for any colour of right over the mines.

The third respondent filed no papers. But counsel, on its behalf, said that every person carrying out any kind of mining activity under its jurisdiction is liable for these levies. She said because the applicants were occupying, mining and milling chrome ore at those sites, the third respondent would bill them for mining levies and land levies, even if their title was under contest.

In 2008, the first respondent approached the Ministry of Mines to have the purported abandonment revoked. He succeeded. But Takunda Mujumi had already acquired, in his own name, an interest in some of the mines. So, in August 2008, the Mining Commissioner gave him written notice of the intention to cancel his interest. This was followed, a month later, by publication by the Mining Commissioner, of a general notice cancelling Takunda Mujumii's certificate of registration.

That the applicants had obtained a lease or permit over the purportedly abandoned mines was hotly contested by the first and second respondents. They said the applicants had never acquired a lease or any other form of entitlement over those claims. It was pointed out that, firstly, Takunda Mujumi, in person, and not the applicants, had been the one featuring on the relevant documents for the relevant period. Secondly, as proof that the applicants had never acquired a right over the mines, the first and second respondents produced a letter from the third respondent. In that letter, the third respondent denied that it had issued any permit to the applicants in respect of the mines. From this premise, the first and second respondents argued that the applicants' continued occupation of the mines had only been through Takunda Mujumi's cancelled certificate of registration.

It turned out that Takunda Mujumi was a Director and principal officer of both applicants. The second applicant had been floated in 1998, and the first applicant in 2003….,.

The applicants claimed they had the necessary authority to be occupying the mines and exploiting whatever else was found there.

All they needed to do was to produce the proof and assert their right.

This court, as upper guardian of the minors, will not gamble with their right to parental care from the defendant and their right to shelter. It cannot evict the plaintiff and the children in the hope that they will be able to find appropriate accommodation with the US$200= the defendant offered.

The eviction of a former spouse who has children should not be lightly granted.

The respondents flatly refused to recognise or accept that the proceedings before me were a rei vindicatio.

They were mistaken.

In Dodhill (Pvt) Ltd & Another v Ministry of Lands & Another 2009 (1) 182 (H) it was held that a person claiming right to land is not entitled to evict the occupier without following legal process.

It would appear that conveyancing laws of this country are not foolproof because fraudsters continue to exploit the weaknesses in the procedure for registration of transfers to defraud innocent property seekers.

The leakages in the system have meant that cases of unlawful transfers of immovable property continue to reach the courts with alarming frequency.

For how long will these fraudsters, who strut among communities, continue to hold sway, to make a mockery of transfer rules to milk unsuspecting home seekers dry in order to make a dishonest living?

These shameless individuals bring the whole process of private ownership of immovable property and registration of title to disrepute. There is a pressing need for reforms to be introduced in conveyancing rules, in order, not only to modernise the system, but also to render the system foolproof and hopefully protect property owners.

Counsel for the applicant has drawn my attention to the remarks of HOLMES JA, which are apposite, in the case of Oakland Nominees Ltd v Gelria Mining & Investment Co Ltd 1976 (1) SA 441 (A) 452A where the learned judge of appeal made emphasis that our law jealously protects the right of ownership and the correlative right of the owner over his property. He further stated:

“The legal principle enunciated above is solidly noble because since time immemorial, at every stage of human evolution, societies have suffered the inevitable unfortunate phenomenon of having in their midst, an array of thieves, fraudsters, robbers, cut-throats, the throwbacks in evolution etc with no qualms whatsoever in employing force or chicanery to dispossess fellow humans of ownership of their property.

If the law did not jealously guard and protect the right of ownership and the correlative right of the ownership to his/ her property, then ownership would be meaningless and the jungle law would prevail to the detriment of legality and good order.”

Just how does a fraudster and a thief, coveting another person's property, succeed to advertise the property, attract a buyer, sign a sale agreement, and engage a conveyancer to successfully transfer that property from the true owner to the buyer before gleefully skipping away with the proceeds?

Cosmas Luckyson Zavazava is employed by an international organisation which posts him to various parts of the world and is currently stationed in Geneva, Switzerland. He and his wife, Vongai, identified an under-developed piece of land, Stand 816 Ruwa Township of Stand 659 Ruwa Township (the property) and purchased it on 29 November 1996.

They took transfer on 20 March 1997 and held title by Deed of Transfer number 997/1997.

They did not commence developing the property owing to their sojourn in foreign territories in pursuit of the husband's employment. When they tried to do so, in 2013, they discovered, to their amazement, that, Jonah Tendere and Tendai Idzai Anania Tendere, husband and wife, who are the first and second respondents in this matter, were busy trying to develop the property.

It turns out that, unbeknown to the Zavazava family, who are the applicants in this matter, a stranger, by the name Wilson Madziva, who is now deceased and was running an estate agency known as Thermo-Dynamics Real Estate (what a name), which is the third respondent in this matter, had advertised the property through the agency of another estate agent, Elite Real Estate (Pvt) Ltd, attracting the interest of the first and second respondents.

A sale agreement was entered into between them and the third respondent and signed on 17 July 2009 in terms of which the property was sold for $8,500. It was subsequently transferred from the third respondent to the first and second respondents with the active involvement of the late Wilson Madziva, by Deed of Transfer Number 204/2011.

The third respondent had itself taken transfer of the property by Deed of Transfer Number 1680/2009.

The conveyance of the property, from the applicants to the third respondent, was handled by one Walter Bherebhende, a conveyancer practising at Mavhunga & Sigauke Legal Practitioners of Harare.

The applicants say they never sold their property and never instructed Walter Bherebhende to transfer it to the third respondent. Only Walter Bherendere knows what transpired and he has deposed to an affidavit which has not been challenged stating:

“4. My knowledge of this matter is as follows:

4.1. In March 2009, I was practising under Messrs Mavhunga & Sigauke Legal Practitioners when I was approached by a Mr Wilson Madziva who was a client of our law firm and also the proprietor of an estate agent known as Thermo Dynamics Real Estate which is the third respondent herein.

4.2. Mr Madziva instructed me to process the transfer of Stand 816 Ruwa Township of Stand 659 Ruwa Township which was registered under the applicant's names under Deed of Transfer No.997/1997 into the name of the third respondent.

4.3. I confirm that I was shown an agreement of sale which purported to have been signed by all the parties.

4.4. I then proceeded to prepare the necessary powers of attorney to pass transfer and I requested that all of the parties appear at our offices to attend to the signing of the declarations and powers of attorney. I also requested the parties to bring their original identity documents and the original title deed.

4.5. Wilson Madziva appeared on behalf of the third respondent and persons purporting to be the applicants also appeared on behalf of them with the original title deed and identity documents in the applicants names.

4.6. I confirm that I had no reason to suspect that the persons purporting to be the applicants were in actual fact not the applicants.

4.7. Accordingly, the transaction proceeded as normal, and, after all normal channels and procedures were followed, the property only transferred into the name of the third respondent under Deed of Transfer No.1680/2009.

4.8. I was surprised, when, five years later, I was approached by the police and advised that the persons who had appeared before me were in actual fact not the applicants. Unfortunately, I had not made copies of the identity documents and I tried to access them from ZIMRA; however, ZIMRA insisted that it would only release the same upon a court order compelling them to do the same.

4.9. I can however confirm that the parties who appeared before me are not the applicants in this present matter.

4.10. Mr Wilson Madziva is however now deceased therefore he is also not in a position to clarify the issues.

5. In the circumstances, in light of the fact that initial transfer was done through a misrepresentation, I would aver that the applicants are entitled to the relief they seek in respect of cancellation of the title deeds.”…,.

Therein lies the problem.

The conveyancing instructions given to the conveyancer came from the purported purchaser of the property, Wilson Madziva, representing the third respondent, and not from the purported sellers and owners of the property - the applicants.

This did not stop the conveyancer, purporting to act on behalf of the sellers, from proceeding with such instructions.

He says he only requested that all the parties should appear before him, which is as difficult to believe as it is very unlikely in the circumstances of a busy law practice - assuming his was also busy.

A conveyancer is the agent of the seller and undertakes transfer at the instance of the seller and not the purchaser.

As long as legal practitioners in this jurisdiction do not grasp that basic fact, we will continue to have fraudulent transfers of property as occurred in this matter.

I must add, that, as long as law firms continue to relegate conveyancing practice to clerks and paralegals the rot that is presently manifesting itself will perpetuate.

For one thing, these conveyancing clerks and lodging clerks do not appreciate the legal implications of the procedure provided for transfer, and, as far as they are concerned, as long as the necessary documents have been signed, no matter by who, and the conveyancing fees paid, the job has been done.

Invariably, the conveyancer is merely presented with processed documents and happily appends his signature on the top of the Deed and appropriates the fee before hastily leaving the office to play golf.

No effort is made to verify the documentation and to ensure compliance with the rules.

In short, the rules are adulterated for expediency and the most important element in legal practice, conveyancing, is reduced to a mockery.

Once signed, the deeds are taken to the Deeds Registry by a lodging clerk for lodgement, and, although the contents announce to the world that the conveyancer appeared before the Registrar of Deeds to convey the transfer; in practice, the conveyancer never does that.

It is for that reason that we are now experiencing an influx in cases of fraudulent transfers.

What we have here therefore is an unfortunate situation indeed borne out of laxity and inattention.

The conveyancer was remiss in a big way and only succeeded in transferring property belonging to the applicants unlawfully. A fraudster took that transfer and later sold the same property to the first and second respondents who are also victims of a fraud.

The question which arises therefore is: what was the legal effect of all that activity and where does it leave the parties?

The papers before me clearly demonstrate that the applicants did not sell their property to the third respondent. They did not transfer it either. That was done by someone else - without their knowledge or consent.

The position of the law, in that regard, is aptly stated by the leaned author R.H. CHRISTIE, Business Law in Zimbabwe, 2nd Ed, Juta & Co Ltd…,:

“An owner whose property has been sold and delivered without his consent remains the owner, as the seller cannot pass ownership that was not his. The true owner can bring a vindicatory action to recover his property from anyone, including a bona fide buyer, in whose hands he finds it. The general rule that the seller can give no better title than he has operates in favour of the true owner, unless the purchaser proves that the true owner is estopped from denying the seller's authority to sell.”

McNALLY JA developed that point further in Mashave v Standard Bank of South Africa Ltd 1998 (1) ZLR 436 (S)…, when he pronounced:

“The Roman-Dutch law protects the right of an owner to vindicate his property, and, as a matter of policy, favours him against an innocent purchaser. See for instance Chetty v Naidoo 1974 (3) SA 13 (A) at 20 A-C. The innocent purchaser's only defence is estoppel.”

The nemo dat quod non habet and nemo plus iuris ad alium transferre potest quam ipse habit; that is, no one can give what he does not have and noone can transfer any right greater than he himself possesses are firmly rooted in our legal science.

Therefore, where a person who is not the owner, and possesses no mandate to do so, purports to transfer property, such transfer is a nullity; see SILBERBERG and SCHOEMAN, The Law of Property, 2nd ed…,.

The applicants therefore have a vindicatory right against whomsoever is in possession of their property - even an innocent purchaser.

The actio rei vindicatio is available to the owner whose property is in the possession of another without his authority or consent. Its concept is that an owner cannot be deprived of his property against his will. Such owner is entitled to recover the property from any person who is in possession of it without his consent.

All the owner is required to prove is that he is the owner and that the property is in the possession of another at the commencement of the action. Proof of ownership shifts the onus to the possessor to prove a right of retention; see Jolly v A Shannon & Anor 1998 (2) ZLR 78 (H)…,; Chetty v Naidoo 1974 (3) SA 13 (A)…,; Stanbic Finance Zimbabwe Ltd v Chivhungwa 1999 (1) ZLR 262 (H).

It is regrettable that the possessors of the applicants' property are an innocent couple which was trying to find a home for themselves and have lost their money to a trickster who has already met his maker.

There is however a glimmer of hope for them because the third respondent, the vehicle through which Wilson Madziva operated, is said to be still operational presenting them with a chance to recover damages from it.

For our purposes, to the extent that the applicants did not alienate their property, the attempt to do so by someone else was a nullity. Therefore, the purported transfer from the applicants to the third respondent, by Deed of Transfer No.1680/2009 was invalid as a non-owner could not transfer what he or she did not own. It follows, therefore, that, the purported transfer from the third respondent to the current holders was also a monumental nullity.

At all times, the applicants legally retained ownership.

As a necessary consequence, the provisions of section 8(2) of the Deeds Registries Act [Chapter 20:05] apply. It provides:

“Upon the cancellation of any deed pursuant of an order of court -

(a) The deed under which the land or any real right in land was held immediately prior to the registration of the deed which is cancelled shall be revived to the extent of such cancellation unless a court orders otherwise; and

(b) The registrar shall make the appropriate endorsement on the relevant deeds and entries in the registers.”

In the result, it is ordered that:

1. The 4th respondent is hereby directed to cancel Deed of Transfer No.1680/2009 and Deed of Transfer No.204/2011 in favour of the 3rd respondent and the 1st and 2nd respondents respectively in respect of the immovable property described as certain piece of land in the district of Goromonzi called Stand 816 Ruwa Township of Stand 659 Ruwa Township and to make any appropriate endorsements on the said Deeds of Transfer and entries in the registers to reflect the said cancellations.

2. Deed of Transfer No.997/1997 is hereby declared the valid deed in respect of the immovable property described as certain piece of land situate in the district of Goromonzi called Stand 816 Ruwa Township of Stand 659 Ruwa Township.

3. The 1st and 2nd respondents and all those occupying through them the immovable property described as certain piece of land situate in the district of Goromonzi called Stand 816 Ruwa Township of Stand 659 Ruwa Township, shall give vacant possession of the said property to the applicants within fifteen (15) days of this order failing which the Sheriff of the High Court or his lawful deputy is hereby authorised and directed to evict them and give vacant possession to the applicants.

4. The 1st, 2nd and 3rd respondents shall bear the costs of suit jointly and severally the one paying the others to be absolved.

The first defendant filed a counterclaim, or claim in reconvention, for an order for the eviction of the plaintiff and all those claiming occupation of the said property through her….,.

In support of the counter-claim, the first defendant states that on 30 June 2011, through his legal practitioners, gave the plaintiff and her husband three (3) months notice to vacate this said property. The notice expired on 30 September 2011 and the plaintiff and her husband have remained in occupation of the said property. According to the first defendant, the plaintiff and her husband have no right to remain in occupation of the said property….,.

The first defendant's counter claim for eviction and holding over damages was not put in issue. Most significantly, his evidence that he jointly owns the property with his wife was not challenged….,.

I now turn to the first defendant's counter-claim seeking the eviction of the plaintiff and all those claiming underneath her from the property and holding over damages from the date of filing of the counter claim.

As already stated, the property in issue is jointly-owned by the first defendant and his wife. See exhibit 6. In the absence of a donation it means that the plaintiff and her husband, Dickson Kudzanga, have been staying at this property at the benevolence of the first defendant and his wife. It has not been disputed that the relationship between the plaintiff and the first defendant became strained as way back as 2011. In fact, the plaintiff and those claiming occupation of the property were given the eviction notice to vacate the property which then expired on 30 September 2011. The plaintiff has not, in any way, challenged the first defendant's counterclaim.

While the property in issue is jointly-owned, it is trite law that the first defendant, being a joint owner has vindicatory rights against all third parties. The first defendant, therefore, can competently seek the eviction of the plaintiff….,.

While I am cognisant of the plaintiff's failure to vacate the property within the period she was asked to do so, I believe I should at least grant her a period of 30 days to enable her and the children to find alternative accommodation….,.

1….,.

2….,.

3….,.

4. The plaintiff, and all those claiming occupation of Stand No.9781 Kuwadzana Phase 3, Harare through her, be and are hereby directed to vacate the said property within thirty (30) days of the grant of this order failing which the Sheriff should eject them.

On 23 August 2012, the plaintiff, a religious organisation with the capacity to sue and be sued in its own name, instituted an action for the ejectment of the defendant and all persons claiming occupation through him from a house located at Stand 7314 Rimuka Township, Kadoma.

The property is owned by the plaintiff in terms of a Deed of Transfer No.194/2012.

The defendant contests his eviction from the premises on the ground that he is entitled to occupy the house thereat by reason of the fact that he is the pastor, known in his religion as the Sheikh, of the plaintiff. According to his plea, he was authorised to occupy the main dwelling house on the property following the death of one Abdullah who was the pastor of the plaintiff. The authority to occupy the house was given to him by the elders of the plaintiff. The defendant admitted to being given three months' notice to vacate the premises but averred that there was no resolution made on behalf of the plaintiff for him to vacate.

The parties led evidence from one witness each.

The plaintiff's witness, Jabilu Phiri, joined the plaintiff in 1996. He testified that he is the Chairman of the plaintiff elected in terms of the latter's Constitution. He produced a copy of the Constitution, exhibit 2. Although the Constitution refers to “Rimuka Muslim Society” no issue was made of that fact by both parties. The Constitution is signed on the last page, on 12 June 2011, by Jabilu Phiri as Chairman, Magidu Janatu as Secretary, and the defendant as a member, presumably of the executive committee referred to in section 6 of the Constitution. On the last page, bearing the signatures, the document states the following:

“This Constitution was formally accepted by a special meeting.”

The witness produced minutes of the meeting at which the Constitution was adopted on 12 June 2011. At the same meeting the witness was elected to be the Chairman of the plaintiff. The defendant gave the opening prayer and closing speech at that meeting. According to the witness, the defendant's other name, which is recorded in the minutes, is Sheik Ahmad. The witness testified that the dwelling house in dispute was previously occupied by one Abdullah who was the pastor of the plaintiff. Following the death of Abdullah, the plaintiff gave notice to his widow to vacate the house. When she failed to vacate the property the plaintiff instituted proceedings for her eviction. The proceedings were instituted in terms of the Constitution of the plaintiff, exhibit 2. The decision to evict the widow of Abdullah was taken at a meeting which was attended by members - including the defendant. He stated that the defendant took occupation of the house in August 2011 without the authority of the plaintiff's committee. The witness stated that when the defendant failed to vacate the premises, after being requested, the members convened a meeting on 2 October 2011. A petition was prepared and signed by the members of the plaintiff.

A copy of the petition was produced in evidence…,.

The meeting resolved that the defendant should vacate the premises. Among the demands listed in the petition was that the defendant and his family must vacate the house in dispute. On 30 April 2012, the plaintiff, through its legal practitioners, gave the defendant three months' notice to vacate the house. The witness stated that there is no organ bearing the name “Elders” in the Constitution of the plaintiff. He stated that when the defendant failed to vacate the premises, after being given three months' notice, the executive committee of the plaintiff passed a resolution for eviction proceedings to be instituted.

A copy of the resolution was exhibited in evidence…,.

The defendant gave evidence himself. He became a member of the plaintiff in 1983. He became the Vice Pastor of the plaintiff, deputising the late Ali Abdullah who died in 2011. He was appointed to be the Pastor by the elders of the plaintiff after a period of forty days had passed following the death of Abdullah. The same elders gave him the authority to occupy the house in dispute. He stated that prior to the adoption of the Constitution of the plaintiff, exhibit 2, there was in existence another Constitution. He produced a copy of that Constitution which is headed:

“Constitution of Rimuka Islamic Centre.”

He stated that the Constitution produced by the plaintiff's witness came about through the efforts of Jabilu Phiri who had advised the congregants that he had found a person who was prepared to donate to the plaintiff in order to uplift the welfare of the children. He signed the Constitution because he and the other members of the plaintiff were happy with it. He confirmed that Jabilu Phiri was elected to be the Chairman of the plaintiff by the members. According to the defendant, the understanding was that that Constitution had to do with the management of the plaintiff's school. He stated that problems started when Jabilu Phiri started to claim to be the leader of the plaintiff. Because of those problems the plaintiff's members held a meeting on 25 September 2011 at which they repealed the Constitution, exhibit. 2. The members resolved to revert to the old Constitution….,.

The dispute between the parties turns on whether the Constitution of the plaintiff, exhibit 2, was repealed and replaced with exhibit 7. There are mutually destructive versions in that one party asserts that exhibit 2 is still operational while the other party states that it was repealed.

The onus is on the plaintiff to prove its case against the defendant on a balance of probabilities.

The position of the law is that where there are two versions which are mutually destructive, before the onus is discharged, the court must be satisfied, upon sufficient grounds, that the version advanced by the party upon which the onus rests is true and the other is false. National Employers Mutual General Insurance Association v Gany 1931 AD 187…,.; cited with approval in Matiza v Pswarayi 1999 (1) ZLR 140 (S)…,.

This court must weigh the probabilities arising from the evidence tendered and all the circumstances of the case in order to determine which of the two versions regarding the applicable Constitution is more probable. See Selamolele v Makhado1988 (2) SA 372 (V)…,.

The defendant admitted that he accepted exhibit 2. He appended his signature on it. He accepted, too, that Jabilu Phiri was elected Chairman of the plaintiff in terms of that Constitution. While counsel for the defendant suggested to Jabilu Phiri that there was another Constitution in existence a copy of it was not exhibited to that witness when he was cross-examined.

Indeed, all the documents which the defendant produced in evidence were not shown to the plaintiff's witness. He therefore did not have an opportunity to comment on them. That omission severely weakens the defendant's case in view of the fact that the plaintiff's witness disputed the existence of any Constitution other than exhibit 2 when he gave his evidence.

It is improper for a legal practitioner who is in possession of a document which he intends to produce in evidence not to show that document to a witness for the other side to comment thereon when that witness disputes the existence or authenticity of the document. In such a situation the Court is entitled to infer that the failure to show the documents to the witness was deliberate and calculated to avoid the discrediting of the document by that witness.

Exhibit 7 does not contain an effective date. It is not signed by any of the members or officials of the plaintiff. There is nothing to authenticate it. There is a list of names attached to exhibit 7. Nothing is said either in the Constitution or in the document containing the names as to the relevance of those names to the Constitution. There are no signatures of the persons whose names are listed. In fact, the names listed appear to have been written by one person. In the absence of signatures it is difficult for the court to accept that the persons whose names are listed attended the meeting and made the resolutions attributed to them.

Also, the meeting of 25 September 2011 was scheduled to commence at 1000 hours according to the defendant. Exhibit 8 shows that the meeting started an hour earlier at 0900 hours. No sound explanation is given as to why such a meeting, to discuss the issue of the Constitution of the plaintiff, would start earlier than the time notified to the members. The attendance register relating to that meeting does not contain the signatures of the persons listed as having attended the meeting. The names also appear to have been written by one person. The minutes make reference to a vote in which the defendant, whose other name is Sheikh Ahmad, won 130 votes against one Sheik Yard's 0. The minutes then record that:

“The result of the vote was that Sheikh Ahmad was the winner.”

Nothing is said about what was being voted for or what it is that the defendant became the winner of. Immediately after that, it is recorded that:

“People resolved that: (1) Old Constitution was to be in place.”

Nothing is said about the repeal of the Constitution, exhibit 2. The minutes do not state who chaired the meeting. There is no signature on the portion for the Chairman on the last page of the minutes. As pointed out earlier, both the minutes (exhibit 8) and the so-called old Constitution were not shown to the plaintiff's witness in cross-examination.

The version of Jabilu Phiri that there was no such “old Constitution” is more probable than that of the defendant. Indeed, if that Constitution had been in existence it would have been referred to in exhibit 2 when the latter Constitution was adopted. The probabilities point to the conclusion that exhibit 7 and exhibit 8 were prepared for the purposes of the instant proceedings.

A letter addressed to the Officer in Charge, Zimbabwe Republic Police, Rimuka, by the defendant's legal practitioners…, states that:

“The old committee of the Society, led by Mr Mwashuhwa, was the one which was valid…,.”

In other words, the defendant was claiming chairmanship of the plaintiff. That contradicts his evidence that some other person chaired the meeting. The statement would also contradict Article 12.2 of exhibit 7 which the defendant referred to as the old Constitution. In terms of that Article, the Sheikh Imaam, the defendant, is not part of the committee and has no voting powers in meetings of the executive committee provided for in exhibit 7. Clearly, the evidence of the defendant is contradictory and does not accord with the probabilities in this case.

The defendant struck me as an intelligent man who was very calculating in the manner in which he answered the questions put to him. He is certainly not the unsophisticated witness that he sought to present himself as. I do not believe his evidence that he was allowed to occupy the plaintiff's property by the elders when he knew that there was a committee in existence.

I am, therefore, convinced that the proper Constitution of the plaintiff is exhibit 2 and that the committee authorised to represent the plaintiff is that which is chaired by Jabilu Phiri.

The plaintiff passed a resolution that the defendant must be evicted from its premises. He has not tendered any valid defence to the claim for eviction. The allegation that he was authorised by the elders to occupy the house is not founded upon the provisions of the Constitution as there is no provision for such elders to authorise persons to occupy the plaintiff's properties.

The defendant is therefore in occupation of the plaintiff's property without the consent of the plaintiff. Accordingly, judgment must be granted in favour of the plaintiff against the defendant.

In view of the time that the defendant has been in occupation of the property, it would seem to me to be unfair to ask him to forthwith vacate the property. Although neither he nor the plaintiff addressed that point, it seems to me that in all fairness he should be given a period of fourteen days to look for alternative accommodation. In coming up with that period, I have considered the fact that the defendant was given three months' notice to vacate the premises before summons was issued for his ejectment. It would therefore be unfair to the plaintiff to give the defendant a further period of more than two weeks to vacate the premises when he has known all along that the plaintiff requires the premises for some other purpose.

In the result, IT IS ORDERED THAT:

1. The defendant, together with all persons claiming occupation through him, shall vacate the plaintiff's house which is situate at Stand 7314 Rimuka Township, Kadoma, within fourteen days from the date of this order.

2. The costs of suit shall be paid by the defendant.

The owner of a thing who has been deprived of possession against his will is entitled to claim it wherever he finds it and from whomsoever has got it; Chetty v Naidoo 1974 (3) 13 (A),…,. All that he has to prove is that he is the owner; that his thing is in the defendant's possession; and that it is still in existence and clearly identifiable; SILBERBERG and SCHOEMAN'S The Law of Property, 5^th ed…, and the cases cited there.

R.H. CHRISTIE in his book “Business Law in Zimbabwe” states as follows:

“An owner whose property has been sold and delivered without his consent remains the owner, as the seller cannot pass ownership that was not his. The true owner can bring vindicatory action to recover his property from anyone - including a bona fide buyer.”…,.

The title of an owner is so respected that the rei vindicatio operates against a third party who innocently purchases the property even where improvements or developments were made. The owner remains entitled to his property. This was made clear in the case of Alspite Investments (Pvt) Ltd v Westerhoff 2009 (2) ZLR 236 where MAKARAU JP…, said:

“There are no equities in the application of the rei vindicatio. Thus, in applying the principle, the court may not accept and grant pleas of mercy or for extension of possession of the property by the defendant against an owner for the convenience or comfort of the possessor once it is accepted that the plaintiff is the owner of the property and does not consent to the defendant holding it. It is a rule or principle of law that admits no discretion on the part of the court. It is a legal principle heavily weighted in favour of property owners against the world at large and is used to ruthlessly protect ownership. The application of the principle conjures up in my mind the most uncomfortable image of a stern mother standing over two children fighting over a lollipop. If the child holding and licking the lollipop is not the rightful owner of the prized possession and the rightful owner cries to the mother for intervention, the mother must pluck the lollipop from the holder and restore it forthwith to the other child notwithstanding the age and size of the owner-child or the number of lollipops that the owner child may be clutching at the time. It matters not that the possessor child may not have had a lollipop in a long time or is unlikely to have one in the foreseeable future. If the lollipop is not his or hers, he or she cannot have it.”…,.

Ownership is a well-guarded title in property law….,.

One of the critical maxims of property law is nemo plus iuris transfer e protest quam ips habet – translated as meaning that an owner cannot, as a general rule, be deprived of his property against his will.

Therefore, where an owner's property is sold and delivered without his consent his right to ownership can be vindicated from any person.

SILBERBERG and SCHOEMAN, in their second edition of “The Law of Property”…, make it clear that the maxim stands firm even where the third party acquires the property in good faith, having paid a fair market value and acted in all innocence.

Our law calls for ruthless vindication and protection of the right of ownership.

Counsel for the appellants cited the words of HOLMES JA in the case of Oakland Nominees Ltd v Gelria Mining & Investment Ltd 1976 (1) SA 441 (A)…, where he said:

“Our law jealously protects the right of ownership and the correlative right of the owner in regard to his property…,. If the law did not jealously guard and protect the right of ownership and the correlative right of the owner to his/her property, then ownership would be meaningless and the jungle law would prevail to the detriment of legality and good order.”…,.

In Mashave v Standard Bank of South Africa 1998 (1) ZLR 436 (S) McNALLY JA…, said:

“…,. Roman-Dutch law protects the right of an owner to vindicate his property, and, as a matter of policy favours him as against an innocent purchaser. See for instance Chetty v Naidoo 1974 (3) SA 13 (A) at 20A-C. The innocent purchaser's only defence is estoppel. Estoppel depends upon an allegation that a representation was made by the owner or claimant.”

Hillock and Another v Hilsage Investments (Pty) Ltd 1975 (1) SA 508…, is authority that a party, other than the owner, can recover premises from a third party without having to prove ownership.

This flows from the legal premise that a lessee is not allowed to challenge the right or title of the lessor. See Hillock and Another v Hilsage Investments (Pty) Ltd 1975 (1) SA 508 at 516 D.

Given that legal position, the appellant was within its rights, as the lessor, to evict the respondent…,.

This is an application for bail pending appeal against both conviction and sentence.

The applicant pleaded guilty to, and was duly convicted, of Stock Theft as defined in section 114 of the Criminal Law (Codification and Reform) Act [Chapter 9.23]. He was sentenced to 12 years imprisonment of which 3 years imprisonment were suspended for 5 years on condition of future good behaviour. He remained with an effective sentence of 9 years.

The undisputed facts were that the applicant proceeded to the cattle pen of the complainant at night, around 2300 hours, and removed one brown ox. He drove the ox to Macheke Business Centre and tied the beast with a rope to a tree. He then began to look for buyers. He, unfortunately, approached one Farai Maimba, the owner of TC Butchery, who, instead of buying the ox, tipped the police. The applicant was arrested and the stolen ox, valued at $650=, was recovered.

In his Notice of Appeal, the applicant attacked the conviction and sentence of the court a quo on the basis that the trial court failed to take into account the employer and employee relationship that existed between the applicant and the complainant. He claimed that he had worked for the complainant who had not paid him for 8 months. When asked for special circumstances his explanation was as follows -

“The complainant did not pay me as he promised and I ended up taking his beast unlawfully. That is all.”

The applicant, in fact, raised a defence of claim of right which was dismissed by the trial court as not constituting special circumstances.

The application is opposed by the respondent….,.

Counsel for the respondent submitted that the applicant was properly convicted and dismissed the defence of claim of right. She contended that the claim of right would not succeed in terms of section 122 of the Criminal Law (Codification and Reform) Act [Chapter 9.23], in that the applicant had taken possession of the ox, not intending to hold the property as a pledge or security pending the satisfaction of a debt owed by the complainant. He intended to deprive the complainant permanently hence he sought a buyer.

Section 122 of the Criminal Law (Codification and Reform) Act [Chapter 9.23], which could be applicable to the defence raised by the applicant, reads as follows -

“122 Pledge–taking cases

(1) Where a person takes possession or control of property capable of being stolen which is owned, possessed or controlled by another person, intending to hold the property as a pledge or security pending the satisfaction of a debt owed by that other person, he or she shall not be chargeable with theft of the property or stock theft unless he or she intended to deprive the other person permanently of his or her ownership, possession or control of the property, but he or she may be charged with unauthorised borrowing or use of the property.

(2) A person who takes property capable of being stolen, intending to deprive the owner permanently of his or her ownership, contrary to the terms on which the person received possession or control of it from the owner as a pledge or security pending the satisfaction of a debt owed to him or her, shall be chargeable with theft or stock theft, as the case may be.”

In casu, the applicant went to the cattle pen of the owner at night. He took the property without the knowledge or permission of the owner. He was arrested in the process of selling the ox to a butcher. He therefore, intended to deprive the owner permanently. He cannot raise a defence of claim of right. His chances of success on appeal against conviction are nil.

In this matter, there can be no doubt the balance of convenience weighs heavily against the granting of an interdict in that the delay in the sale of the fixtures and fittings over a frivolous claim of right by the applicant will prejudice all the creditors of the second respondent who are intended to benefit from the sale of such property.

A company, being a legal persona, owns its own property. Shareholders do not own company property.

Whilst accepting the principle that company property does not belong to the shareholders and that only officials duly authorized by resolutions can claim company property from third parties, counsel for the respondent argued that this was a proper case where the circumstances justified the lifting of the corporate veil in order that justice could be done…,.

The appellant was convicted of theft of trust funds as defined in section 113(2)(d) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] [“the Code”]. The amount involved was $2,500=….,.

The Law Society of Zimbabwe (LSZ)…, brought to the police's attention the provisions of section 20 of the Legal Practitioners Act [Chapter 27:07]. In a nutshell, this provision restores, or affirms, inter alia, a legal practitioner's common law right of set-off against, or upon moneys held, or received by him/her on account of another person….,.

The magistrate held that the provisions of section 20 of the Legal Practitioners Act [Chapter 27:07] did not apply to his situation because, if after a dispute arises on a legal practitioner's fee, it must first be referred for taxation before the legal practitioner can exercise his or her right of set off; something that the appellant had failed to do….,.

Section 113[2][d] of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) defines theft of trust property as follows:

“[2] Subject to subsection [3], a person shall also be guilty of theft if he or she holds trust property, and, in breach of the terms under which it is so held, he or she intentionally -…,.

[a]…,.; or

[b]…,.; or

[c]….,.; or

[d] Converts the property, or part of it, to his or her own use.”…,.

Sub-section [2] above says it is subject to sub-section [3]….,. The sub-section says:

“[3] Subsection [2] shall not apply if -

[a] The person holding or receiving the property has properly and transparently accounted for the property in accordance with the terms of the trust; or

[b]..,.”…,.

What the court a quo failed to grasp was that the appellant's defence was a claim of right to the money, by means of set-off, both in terms of section 113[2][d], as read with section 113[3] of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) and section 20 of the Legal Practitioners Act [Chapter 27:07].

Section 20 of the Legal Practitioners Act is in Part IV of that Act that deals with trust accounts. It is Part IV of the Act that sets out the do's and donts in the opening and running of trust accounts by legal practitioners. There are certain penalties for misconduct in relation to the misuse of trust account funds. But section 20 of the Legal Practitioners Act [Chapter 27:07]says:

“20 Saving of set-off, etc.., against trust account

Nothing in this Part contained shall be construed so as to take away or affect a just claim, lien, counterclaim, right of set-off or charge of any kind which a registered legal practitioner may, at common law or in terms of an enactment have against or upon moneys held or received by him on account of another person.”….,.

The defence of estoppel was explained by McNALLY JA in Mashave v Standard Bank of SA Ltd 1998 (1) ZLR 436 (SC)…, as follows:

“The Roman-Dutch law protects the right of an owner to vindicate his property, and, as a matter of policy, favours him as against an innocent purchaser. See for instance Chetty v Naidoo 1974 (3) SA 13 (A) at 20A-C.

The innocent purchaser's only defence is estoppel.

Estoppel depends upon an allegation that a representation was made by the owner/claimant. In Aris Enterprises (Finance) (Pty) Ltd v Protea Assurance Co Ltd 1981 (3) SA 274 (A), Corbett JA (as he then was) said at 291:

'The essence of the doctrine of estoppel by representation is that a person is precluded, i.e estopped, from denying the truth of a representation previously made by him to another person if the latter, believing in the truth of the representation, acted thereon to his prejudice (see Joubert, The Law of South Africa, vol 9 para 367 and the authorities there cited). The representation may be made in words, i.e expressly, or it may be made by conduct - including silence or inaction, i.e tacitly (Ibid para 371); and, in general, it must relate to an existing fact (Ibid para 372).'”

See also Grosvenor Motors (Potchefstroom) Ltd v Douglas 1956 (3) SA 420 (A)…,.; Johaadien v Stanley Porter (Paarl) (Pty) Ltd 1970 (1) SA 394 (A); Oakland F Nominees (Pty) Ltd v Gelria Mining & Invstm Co Ltd 1976 (1) SA 441 (A); Jones & Ors v Trust Bank of Africa Ltd & Ors 1993 (4) SA 415 (C)…,.; Basson t/a Repcomm Community Repeater Svcs v Postmaster General 1994 (3) SA 224 (SE)…,.; RABIE, The Law of Estoppel in South Africa…,.; MILLER, The Acquisition and Protection of Ownership…,.; VISSER and G POTGIETER, Estoppel: Cases and Materials….,.; SILBERBERG & SCHOEMAN's The Law of Property 3ed…,.; GIBSON's SA Mercantile & Company Law 6ed…,.

After a full trial, the High Court made an order for the eviction of the appellant, and all claiming through her, from premises known as 8916 Hwiramiti Street, Chesvingo Suburb, Masvingo and for payment of arrear rentals in the sum of $14,000= as well as holding over damages in the sum of $6,67 per day. The court further ordered payment of interest at the prescribed rate together with costs of suit.

This appeal is against that order.

FACTUAL BACKGROUND

The first respondent, Molly Chiuraise, got married to one Walter Style Matumba (“Matumba”) at Masvingo on 6 August 1993. Having been on the housing waiting list of the second respondent since 1996, Walter Style Matumba and the Ministry of Local Government and National Housing entered into an Agreement of Sale in respect of Stand Number 8916, Chesvingo Township, Masvingo (“the property”). In terms of the agreement, payment of the balance of the purchase price was to be effected in monthly instalments and the purchaser was to take occupation of the property from 1 June 1999. It was also a condition of the agreement that until such time as title to the property was transferred to the purchaser, he was not, without the prior written consent of the Minister, to let the property to any other person, or part with possession or otherwise cede or hypothecate any rights thereunder.

Between 2001 and 2002, the appellant and her husband, Simbarashe Shuro (“Shuro”) took occupation of the property. The basis of such occupation was bitterly disputed between the parties in the court a quo. The appellant alleged that her husband, Simbarashe Shuro had purchased the property from Walter Style Matumba in December 2001, and that, as a consequence, her family had taken occupation in March 2002. The first respondent's version, on the other hand, was that the appellant and her family were paying rentals in respect of their occupation of the property.

As fate would have it, Walter Style Matumba became ill and passed on in January 2005 at his rural home in Bikita. As surviving spouse, the first respondent registered the estate of her late husband and was given authority to administer the estate in January 2006. She proceeded to administer the estate, and, as executrix, caused notices to be flighted in the Herald and other major papers calling upon all creditors and other interested persons to lodge any claims with her. There having been no claims lodged, she proceeded to wind up the estate, and, in particular, awarded the property in question to herself as surviving spouse. The final distribution account was subsequently accepted by the Master of the High Court in November 2006. On 8 December 2006, pursuant to the winding up of the estate, the second respondent formerly ceded the property in question to her, which cession she duly accepted.

Thereafter, the first respondent's legal practitioners wrote a letter to the appellant's husband, Simbarashe Shuro, demanding that he vacates the property. In turn, Simbarashe Shuro approached the Masvingo Legal Projects Centre who wrote a letter to the Master of the High Court on 12 April 2007 submitting a claim against the estate. The response by the Master of the High Court was that the distribution had since been completed and that Simbarashe Shuro was free to approach the courts for relief. Nothing of significance occurred until 31 May 2009 when Simbarashe Shuro also passed on.

PROCEEDINGS BEFORE THE HIGH COURT

In December 2014, the first respondent instituted an action in the High Court for the eviction of the appellant and all who claimed title through her. She also sought an order for the payment of arrear rentals, holding over damages and interest at the prescribed rate on the amounts claimed. The basis of her claim was that upon the rights, title and interest in the property being ceded to her by the second respondent, she had become the owner thereof. Since the appellant had stopped paying rentals, and owing to the fact that she now wanted to use the premises for her own purposes, she now demanded the eviction of the appellant as well as the payment of arrear rentals and holding over damages.

The appellant, as defendant, entered an appearance to defend. She averred that her late husband, Simbarashe Shuro, had purchased the property from the first respondent's husband, Walter Style Matumba. The purchase price of $600,000= had been paid in full after which Simbarashe Shuro and his family had consequently been allowed to take occupation of the property in question. She attached a copy of what she alleged was the written Agreement of Sale between the two. She averred that, following the demise of her husband, she had become the owner of the property. She accordingly prayed for an order dismissing the claim, and, in her counterclaim, prayed for an order compelling the first and second respondents to facilitate the cession of the property into her name and for the first respondent to pay her costs.

During the trial proceedings, the first respondent and her niece gave evidence whilst the appellant and one Jakata, who described himself as an unregistered property consultant, gave evidence for the defence. It was Jakata's evidence that he was present when the appellant's husband, Simbarashe Shuro, paid the deposit of $550,000= by bank cheque and the balance in cash.

During submissions before the court a quo various issues were raised, and, in particular, whether the remedy of the actio rei vindicatio was available to the first respondent.

The real issue that fell for determination, in my view, was whether the property in question was correctly included as part of the deceased estate of the late Walter Style Matumba.

In order for the court a quo to answer this question, the need arose to determine the claim by the appellant that the property in question had been purchased by her late husband and that therefore it ought not to have formed part of the estate of the late Walter Style Matumba but rather that of her late husband.

In its analysis of the evidence adduced before it, the court a quo came to the conclusion that the version given by the first respondent was the more probable. It found that the appellant's version was riddled by inconsistencies and that the authenticity of the written agreement allegedly entered into between Walter Style Matumba and Simbarashe Shuro was questionable. The court further found that the appellant had not been able to substantiate how the deposit of $550,000= had been paid and had not produced any proof in regard thereto. Further, having seen water bills in respect of the property in the name of the first respondent, the appellant and her late husband had done nothing to regularise the situation. The court was also of the view that, not having been appointed as executrix dative or heir to the estate of the late Simbarashe Shuro, her locus standi to defend this action was doubtful.

As regards the evidence of Jakata, the court found that his evidence was unreliable and that he had been discredited. Jakata had been unable to explain how the appellant and her husband had approached him at his office when it was common cause that the property had been advertised by Messrs Mugabe and Partners, Legal Practitioners. He had admitted he had no mandate from anyone to sell the property. He could not remember giving the late Simbarashe Shuro a receipt for the cash he paid to him for onward transmission to Mugabe and Partners. He did not himself get a receipt for the money he had transmitted to Mugabe and Partners. He further claimed, contrary to a clause in the agreement which recorded that a cash deposit had been paid on signature, that the deposit had been paid by bank cheque. The appellant's version, during the trial, was that it was a bank transfer. The court found Jakata to be evasive and expressed the view that he gave the unfortunate impression that he was a hired witness. He could not say who had paid him for all his troubles or how much he had been paid. All the evidence considered, the court preferred the evidence of the first respondent and rejected that of the appellant.

On the probabilities, the court found it highly improbable that, in the written agreement of sale he allegedly entered into with Walter Style Matumba, Simbarashe Shuro would have used the address of the property in question as his own when he was still to buy the same. It found that since the late Walter Style Matumba's bank statements were being delivered at the property in question, it was not surprising that the appellant and her husband had been able to have access to them and had thereafter fraudulently incorporated some of Walter Style Matumba's personal details into the agreement in question.

The court also found that in any event, Walter Style Matumba's estate had been wound up in terms of the law and the property properly ceded to the first respondent who had then legally acquired the property. The appellant could not have relied on the agreement allegedly signed by her late husband as she had not been appointed executrix dative. Nor could she, for the same reason, seek an order directing that the property be transferred to her by the second respondent.

After considering all the above-mentioned features, the court a quo made a finding in favour of the first respondent, and, consequently, issued an order for the eviction of the appellant and for her to pay arrear rentals as well as holding over damages. Hence the present appeal.

PROCEEDINGS BEFORE THIS COURT

In her notice of appeal, the appellant listed nine grounds upon which she sought to attack the decision of the court a quo. Shortly thereafter, she filed an additional three grounds of appeal. At the hearing of this matter, she however abandoned some of the grounds, in particular grounds 7,8 and 9.

Perusal of the grounds of appeal shows that what is impugned is the finding by the court a quo that no sale agreement had been concluded between the first respondent's late husband and the appellant's husband, and that, consequently, the appellant and her late husband had taken occupation of the property as tenants and not as purchasers. What is also impugned by the appellant was the decision of the court a quo awarding arrear rentals and holding over damages in a situation where, so the appellant contended, the first respondent had not proved the quantum of such arrear rentals or holding over damages…..,.

APPELLANT'S SUBMISSIONS ON APPEAL

The appellant's submissions before this Court are as follows;

(a) The first respondent is neither the owner nor lessor of the property. Consequently, the actio rei vindicatio is not available to her. She cannot, therefore, seek the eviction of the appellant.

(b) Secondly, that although the quantum of rentals had been put in issue, the court a quo had failed to make a determination on the matter. In the absence of evidence proving the monthly rentals payable in respect of the property, the court a quo erred in awarding arrear rentals and holding over damages based on a monthly rental of $200=. The court therefore wrongly exercised its discretion and its decision should therefore be set aside.

(c) Lastly, she submitted that the court a quo erred in finding that the appellant was a tenant of the first respondent in the absence of any evidence pointing towards the existence of a lease agreement between the parties and in the face of the written Agreement of Sale which confirmed the sale of the property in question to the late Simbarashe Shuro.

THE FIRST RESPONDENT'S SUBMISSIONS ON APPEAL

In her submissions, the first respondent argues that she acquired real rights in the property and is therefore entitled to vindicate the property. The property, initially ceded to her late husband, had subsequently been ceded to her. She further submitted that the many findings of fact made by the court a quo, in particular, that no sale agreement had been concluded, were made after a careful analysis of all the evidence. She further submitted that rental in the sum of $200= per month had been proved.

ISSUES FOR DETERMINATION

It seems to me, on a consideration of the submissions made by the parties to this appeal, that the real issue between the parties is whether the court a quo correctly found that no Agreement of Sale had been concluded between the late Walter Style Matumba and the late Simbarashe Shuro. The disposition of this issue would, in turn, dispose of the question whether the appellant and her late husband were tenants, in which event they would have been obliged to pay rentals, or whether they had validly purchased the property, in which event the prayer for her eviction and payment of rentals would fall away.

In the event that this Court finds in favour of the appellant, two other issues would arise, namely;

(i) Whether the agreement of sale would have been, in any event, valid; and

(ii) Whether the appellant, who is not executrix dative, is entitled to sue for specific performance.

WHETHER THE PROPERTY WAS PURCHASED BY THE LATE SIMBARASHE SHURO

It is clear, on a perusal of the Agreement of Sale entered into by and between the Minister of Local Government and National Housing and the late Walter Style Matumba, that the first respondent was not, in fact, a co-purchaser of the property in question. Her name and particulars appear on the agreement merely on account of her having been a spouse. She did not sign the agreement as a co-purchaser but as a witness.

In these circumstances, the late Walter Style Matumba could have, with the consent of the seller, namely, the Minister of Local Government and National Housing, or, thereafter the second respondent, validly sold the property to a third party without the need for the consent of the first respondent. This position is now well established in our law.

In Muzanenhamo and Anor v Katanga and Others 1991 (1) ZLR 182, 186 E (SC) McNALLY JA stated as follows:

“So, as a matter of broad principle, I am of the opinion that the rights of the husband and wife must be regarded as purely personal inter se and that these rights do not affect the rights of third parties…,.”

In Maponga v Maponga and Others 2004 (1) ZLR 63, 68 D–E MAKARAU J…, also remarked:-

“It would appear to me, in summary, that the status of a wife does not grant her much in terms of rights to the immovable property that belongs to her husband. She only has limited rights to the matrimonial home that she and her husband set up. Those rights are personal against the husband and can be defeated by the husband providing her with alternative suitable accommodation or the means to acquire one. The husband can literally sell the roof from above her head if he does so to a third party who has no notice of the wife's claims…,.”

Attention is also drawn to the remarks of BHUNU J in Joseph Mhuruyengwe v Margaret Vhiriri HH10-05.

As already indicated, the main bone of contention between the parties was whether the property in question was the subject of an agreement of sale between the late Walter Style Matumba and the late Simbarashe Shuro.

The court a quo found the appellant and her witnesses not worthy of being believed. It found the evidence of Jakata, the so-called property consultant, to have been utterly discredited. It concluded that the probabilities did not support a finding that there had been a valid written agreement and that the written agreement produced during the trial must have been fraudulently prepared.

It is an established tenet of our law that an Appellate Court should be slow in interfering with the factual findings made by a lower court and that this should happen only where it is clear that the decision of the lower court is irrational, in the sense that no sensible court, seized with the same facts, could have reached such a conclusion. More particularly, on the issue of credibility, a trial court enjoys an advantage that an Appellate Court would never have. In short, an Appellate Court can only interfere with the findings of a lower tribunal where it is convinced that the findings by the lower court are not supported by the evidence or are otherwise irrational.

See Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S).

In this case, the authenticity of the written agreement allegedly entered into by the parties' late husbands was in issue. No handwriting expert was called. The onus was on the appellant, as defendant, to prove that the agreement was genuine. She did not discharge that onus. The court a quo had no choice but to make its own observations based on some of the characteristics in the letters. Based on its observations, it found that the authenticity of the agreement was in doubt.

The court a quo did not end there.

It also looked at the probabilities and found that they did not favour the appellant. The appellant did not have a single document to show how the purchase price had been paid. Initially, she claimed that the deposit had been paid by bank cheque. The copy of that bank cheque was not produced. She then changed her story and stated it was in fact a bank transfer. She was not able to produce proof of that either. The court also noted a number of unsatisfactory features in her evidence. Having allegedly purchased the house in December 2001, no effort was made, either by her or her late husband, to enforce the agreement. It is common cause that her husband only died on 21 May 2009 – eight years later. She and her husband had admitted seeing water bills for the property in the name of the first respondent. Faced with such a situation, they did nothing. In December 2006, a letter written by Mpame & Associates, demanding the eviction of the appellant and her late husband was served on them. The appellant and her late husband approached the Masvingo Legal Projects Centre who wrote to the Master of the High Court indicating that the appellant intended to lodge a claim against the deceased estate of the late Walter Style Matumba. They did nothing further. Moreover, the written agreement curiously reflected the late Simbarashe Shuro's address as that of the property in question.

The court found the evidence of Jakata to be highly improbable. Jakata had no written mandate from anyone to sell the house. How he handled the money that he says was given to him by the appellant and her late husband raised more questions than answers. Jakata did not provide a receipt for the money he says he received from the appellant nor was he provided with one when he eventually passed on the money to Messrs Mugabe and Partners, the purchaser's legal practitioners. He could not remember who paid him for the role he played in facilitating the sale or how much he was paid. The court a quo found him to be evasive and described him as a “hired” witness.

The above observations by the court a quo were supported by the evidence. Consequently, there is no basis upon which this court can possibly interfere with those findings. The probabilities also do not favour the appellant's version of the events.

This is an appeal against the judgement of the High Court in Case No. HC9914/15 handed down as Judgement No. HH599-17. There is also a related judgement of the High Court, to which I shall revert later, in Case No. HC9438/15 handed down as Judgement No. HH609-17.

Factual Background

In the present matter, i.e. in Case No. HC9914/15, the applicant, Kunganda Farm (Pvt) Ltd, was represented by its liquidator. The applicant sought the eviction of the respondent, who is the executor of a deceased estate, from two pieces of land owned by the applicant company and held under one title deed.

The deceased, Francis Siamsipa, was, until his demise, a shareholder of the applicant company, together with one Owen Maswela. On 22 October 2003, the applicant was placed under liquidation and Cecil Madondo was appointed as its liquidator. At that stage, the deceased used to live on the company land carrying on his own farming activities.

In order to amicably resolve the interests of the two shareholders, the liquidator suggested two options, either to subdivide or sell the two pieces of land. In the absence of agreement between the shareholders, the liquidator decided to subdivide the property and to sell one piece of land to a purchaser that had already been found. The deceased refused to vacate the farm. Hence, the applicant mounted an application for his ejectment in the High Court. After the application was instituted, the deceased passed away and was subsequently represented by the executor of his estate, i.e. the appellant herein.

Judgement in Case No. HC9438/15

In a separate but related matter, i.e. Case No. HC9438/15, the applicant was the present appellant, the executor of the deceased estate. In that matter, the applicant sought the nullification of the appointment of Cecil Madondo as the liquidator of Kunganda Farm (Pvt) Ltd and his removal from that position as well as the setting aside of all liquidation proceedings instituted by him. More importantly, for present purposes, the applicant in that matter also sought the setting aside of the sale and transfer, if any, of one of the pieces of land owned by Kunganda Farm.

Both matters were heard and determined at the same time by the same judge. In Case No. HC9438/15, the learned judge dismissed various points in limine that had been raised by the liquidator. However, he upheld two other objections in limine relating to the citation of the liquidator and the citation of Owen Maswela who was no longer alive at that stage. Consequently, the applicant, in that matter, was granted leave for the citation of Cecil Madondo to be corrected. The applicant was also granted leave to apply for the joinder of the executor of the estate of Owen Maswela. It was further ordered that these applications should be instituted within 10 days from the date of the order, failing which the application would be deemed to be dismissed. In the meantime, the matter was removed from the roll.

Subsequently, the applicant, having failed to institute the requisite applications timeously as ordered, the Registrar of the High Court duly notified the parties that the main application was deemed to have been abandoned and dismissed.

Judgement of the High Court In Casu

In the present matter, i.e. in Case No. HC9914/15, the High Court found that the authority of the liquidator to recover the assets of the applicant company was firmly entrenched in section 276(2) of the Companies Act [Chapter 24:03]. The court did not agree that this provision did not apply to the recovery of company assets for the purposes of the sale of any of those assets.

The court also held that there was no legal basis for the respondent, as shareholder, to contest the liquidator's entitlement to recover possession of company property where he was exercising his powers in terms of the law. Thus, the fact that the land to be recovered had been or was being sold did not clothe the respondent with any right to occupy the land.

In the event, the court a quo granted an order evicting the respondent and all persons claiming occupation through him from both pieces of land. The respondent was given 10 days to vacate the farm, failing which the Sheriff was directed to take all steps necessary for his eviction. The respondent was also ordered to pay the costs of the application.

Grounds of Appeal

There are three grounds of appeal in this matter. It is necessary to set them out in full for reasons which will become apparent later in this judgement. The grounds of appeal are as follows:

1. The court a quo erred in holding that the respondent had power to subdivide and subsequently sell the immovable property without the leave of court. The court a quo therefore erred in granting an application for the eviction of the appellant which was predicated on the sale of property which the court never approved.

2. The court a quo erred in placing undue emphasis on Cecil Madondo's capacity as the liquidator of the respondent company when in actual fact the basis of the appellant's contention was not so much that he was the liquidator of the respondent company but that the property had been sold improperly without an order of the court thus rendering the sale a nullity.

3. The learned judge in the court a quo misdirected himself at law in that he relied on the provisions of section 276(2) of the Companies Act in granting the application when the facts which ought to have given rise to such reliance were never placed before him.

Sale of Property without Leave of Court

The first two grounds of appeal herein bemoan the absence of any order of court granting the liquidator leave to sell one of the pieces of land belonging to the respondent company.

It is not in dispute that such leave of court must be obtained, as is required by section 221(2)(h) of the Companies Act [Chapter 24:03], before the liquidator of a company in liquidation can sell, deliver or transfer the movable or immovable property of the company.

What is in issue, according to the grounds of appeal, is whether the actual or impending sale of company property precludes the liquidator from recovering into his possession all the movable and immovable assets and property of the company as is specifically enjoined by section 276(2) of the Companies Act.

Before addressing that issue, however, it is necessary to determine whether or not it is properly before this Court in the first place.

It is common cause that the present appeal concerns the judgement of the High Court in HH599-17 and not its judgement in HH609-17. It is also common cause that the application in the latter case i.e. Case No. HC9438/15, was dismissed for failure to comply with the time frame prescribed by the court in its judgement. The fact of this dismissal was duly communicated to the parties by the Registrar of the High Court through his letter dated 19 December 2017.

Nevertheless, despite conceding that the judgment in HH599-17, which is the subject of the present appeal, deals with the respondent's claim for eviction of the appellant rather than the sale of the respondent's property, Counsel for the appellant persists with the contention that such sale remains pertinent for the purposes of this appeal. This contention is premised on the assertion that the court a quo made its ruling on the basis of the subdivision and sale of the property. It is argued that the permit to subdivide the property, which permit was granted on 26 January 2015, is reflected in paragraph 1 of the order made by the court a quo. Furthermore, so it is argued, this sub-division necessarily implicates the sale of the property as appears from the respondent's founding affidavit in the proceedings below.

A perusal of that affidavit demonstrates the following.

The deponent, being the liquidator, sets out the background to this matter, to wit, the options available to him pursuant to his appointment as the liquidator of the respondent company. He indicates that after subdivision was completed, he opted to sell the farm. He was issued with a subdivision permit dividing the property into two separate pieces of land. He has already sold one piece of land and there are prospective purchasers interested in the other piece of land. He avers that he has an obligation to give the purchasers vacant possession of the farm. Lastly, he avers that the respondent (the appellant herein) has failed, refused and/or neglected to vacate the farm. Consequently, he prays for the eviction of the respondent and all those claiming occupation through him on the farm.

What emerges from this affidavit is that the liquidator has subdivided the property, sold one subdivided portion and wishes to dispose of the other remaining portion. He states, quite clearly, that following the non-cooperation of the appellant, he used his powers, in terms of the Companies Act, to subdivide and sell the farm. He also makes it clear that it was the appellant's refusal to vacate the farm that has prompted him to seek the eviction of the appellant.

It is relatively clear that the subdivision of the farm and the sale of its subdivided portions are the inevitable consequences of the powers and functions vested in the liquidator to liquidate the assets of the respondent company. These are things that the liquidator is enjoined and duly entitled to do in terms of the Companies Act. They did not, in my view, constitute the cause of the application before the court a quo. The true causa in those proceedings was the appellant's refusal to vacate the farm and the relief sought therefor was his eviction from the property.

As was clearly recognised by the liquidator, in his answering affidavit, the duty of a liquidator in the winding up of a company is to ensure that “the assets of the company are realised and its liabilities minimised to the best possible advantage of the creditors and contributories of the company”. Moreover, in granting the relief sought, the court a quo had no option but to precisely identify the property in its present subdivided form. The fact that these subdivided portions were so identified does not mean that the court based its judgement and eviction order on the subdivision and sale of the property.

As I have already highlighted, the application instituted by the appellant, in Case No. HC9438/15, sought, amongst other things, the setting aside of the sale of one of the subdivided portions of the respondent's farm. The principal basis of that application was that the liquidator had imposed liabilities upon the respondent company and had sold a portion of its property without the leave of court having been obtained. The application was disposed of by the High Court in HH609-17 having regard to the preliminary objections raised by the respondents, and the appellant was granted leave to apply for the citation of the liquidator to be corrected and for the joinder of the executor of the deceased estate of the other shareholder. The appellant was given 10 days to institute these applications but failed to comply with the stipulated deadline. Consequently, the application was dismissed in accordance with the specific terms of the court's interlocutory order.

It is indisputable that the appellant questioned the legality of the sale and sought its nullification in Case No. HC9438/15. In his opposing affidavit in Case No. HC9914/15 he expressly acknowledges that fact by stating that he has made a separate application to have the disposal of any portion of the farm without court approval declared null and void. That separate application, having been dismissed by reason of the inaction of the appellant himself, the question of the validity of the sale was never finally determined. What the appellant now attempts to do, through his first two grounds of appeal, is to improperly smuggle that question into the determination of the present appeal.

In my view, this stratagem is totally unacceptable and cannot be allowed. It follows that the first two grounds of appeal are not properly before this Court and must therefore be struck out.

For the sake of completeness, even assuming that those grounds are properly before us, I take the view that they are entirely devoid of merit. They are not sustainable for the simple reason that the motives of a liquidator in seeking the eviction of an unlawful occupier of company property is entirely irrelevant and cannot found any defence to his claim for eviction. Moreover, the fact that the liquidator has subdivided or sold any of the company's assets, whether with or without the leave of court, is wholly immaterial to the functions vested in him and the powers lawfully conferred upon him in the exercise of those functions. His statutory duty, in terms of section 276(2) of the Companies Act [Chapter 24:03], is to “proceed forthwith to recover and reduce into possession all the assets and property of the company, movable and immovable.”

Thus, even if the appellant had succeeded in his application to set aside the sale of the property, this would not have served to prevent his eviction from that property. The two processes, namely, the sale of the property and the eviction of the appellant therefrom, are two entirely distinct and separate processes. The former does not present any impediment or avail any defence to the latter. Accordingly, in the instant case, the actual or impending sale of the respondent's property, even without the leave of court, would not preclude the liquidator from seeking and obtaining the eviction of the appellant from that property.

For this reason, I would have dismissed the first two grounds of appeal, even if they had been properly advanced herein.

Reliance on section 276(2) of the Companies Act

The third and only remaining ground of appeal impugns the reliance placed by the court a quo on the provisions of section 276(2) of the Companies Act [Chapter 24:03]. It is contended that the facts which might have justified such reliance were never placed before the court. Furthermore, the court made its determination in this regard without the benefit of any argument thereon.

Counsel for the appellant submits that the relevant facts for the purpose of section 276(2) of the Companies Act would include the following:

(i) The dates when the liquidator was appointed;

(ii) That the liquidator acted forthwith to recover all the property of the respondent company; and

(iii) The refusal of the party in possession, i.e. the appellant, to comply with the process of recovery.

Counsel for the appellant further submits that the liquidator was appointed in 2009 and the application for ejectment in casu was only launched in 2015. The liquidator therefore did not act “forthwith” to recover the respondent company's property.

It is difficult to comprehend counsel for the appellant's contentions regarding the date when the liquidator was appointed and the refusal of the appellant to vacate the farm when called upon to do so. These facts are amply articulated in the founding affidavit alluded to earlier as read with the supporting documents contained in the founding papers.

With respect to the liquidator's obligation to act forthwith, the salient facts also appear relatively clearly from the founding papers. The judgment ordering the liquidation of the respondent company was handed down on 22 October 2003. That judgement was then appealed against. At the stage when the provisional liquidator was appointed, in 2009, the appeal was yet to be determined. The appeal was only finalised by this Court on 26 March 2012, when it was struck off the roll, with costs to be borne by the deceased, Francis Siamsipa. On 31 August 2015, Cecil Madondo was appointed as the final liquidator of the respondent company. He attempted to communicate with the appellant at that time to no avail and consequently instituted the application in Case No. HC9914/15 on 15 October 2015.

From the foregoing facts, it is clear that the liquidator acted without delay in the given circumstances. After being appointed as the provisional liquidator, and after the appeal against the order of liquidation had been finalised, he attempted to resolve and settle the matter by obtaining the consent of both shareholders to the subdivision and/or sale of the property. Later, after his appointment as the final liquidator, he requested the appellant to vacate the property but the latter refused to accede to his request. He then sought the eviction of the appellant through the application in casu within a period of less than two months. In the circumstances, I am satisfied that he acted forthwith to recover and repossess the assets and property of the respondent company in conformity with his statutory obligation under section 276(2) of the Companies Act [Chapter 24:03].

Disposition

I have concluded that the first two grounds of appeal raise issues that were determinable aliunde and are therefore not properly before this Court. In any event, even if these grounds of appeal were properly raised herein, they are not legally or factually sustainable.

As for the third ground of appeal, I am of the view that the salient facts supporting the invocation of section 276(2) of the Companies Act were adequately adduced and canvassed before the court a quo. Moreover, the court was amply justified, on those facts and in the circumstances of this case, in granting the order sought by the respondent for the eviction of the appellant from the property in question.

As regards costs, I am persuaded by counsel for the respondent that an order of punitive costs is warranted by the conduct that the appellant has displayed in this matter.

He has resisted every overture made and action taken by the liquidator without just cause. Moreover, he has inexplicably abandoned his application in Case No. HC9438/15. In effect, he has delayed his eviction and removal from the respondent's property without any modicum of bona fides through this frivolous and vexatious appeal.

It is accordingly ordered that the appeal be and is hereby dismissed with the appellant to bear costs on a legal practitioner and client scale.

This was an appeal against an order of eviction granted by the court a quo in favour of the respondent against the appellant. The order of eviction was in relation to certain premises, a dwelling house, situate Shabani Mine, Zvishavane, owned by the respondent but which had, at all relevant times, been allocated to, and was occupied by the appellant by virtue of his employment with the respondent.

In the court a quo, the grounds of claim, as pleaded by the respondent by way of a court application, were these:

(i) That the appellant was once employed by the respondent as Underground Manager;

(ii) That by virtue of his contract of employment he was entitled to a company house;

(iii) That in accordance with the contract of employment he had been allocated the premises in question;

(iv) That his entitlement to, and occupation of those premises, or any others that he might have been allocated during the currency of his employment, would cease upon the termination of his employment with the respondent;

(v) That the appellant had left the respondent's employment on 31 January 2012 [i.e. more than 4 years ago];

(vi) That on various occasions the respondent had requested the appellant to surrender the premises back to it but that he had not done so;

(vii) That despite a formal letter of demand by the respondent to the appellant to vacate the premises, he had remained in occupation.

The appellant opposed the application.

First, he took a point in limine that this was a labour dispute over which, by virtue of section 89[6] of the Labour Act [Chapter 28:01], the court a quo had no jurisdiction. He then pleaded to the merits and denied that he had left the respondent's employ or that his contract of employment as Underground Manager with the respondent had been terminated but that he had merely been seconded from Shabani Mine to the Zimbabwe Development Corporation [“ZMDC”], which, in turn, had seconded him to Kusena Zim Diamonds.

In brief, the appellant's main grounds of defence in the court a quo were:

(i) That at all relevant times the respondent was a company under a reconstruction order in terms of the Reconstruction of State Indebtedness Insolvent Companies Act [Chapter 24:27];

(ii) That when it was placed under a reconstruction order the Zimbabwe Development Corporation (ZMDC) “took over” the respondent;

(iii) That on 8 November 2011 the appellant was seconded to Kusena Zim Diamonds;

(iv) That secondment simply means a period when an employee is sent by his employer to work for a different organisation or a different part of the same organisation;

(v) That at Kusena Zim Diamonds, the appellant had been staying in a one-roomed cottage at the Mine Compound;

(vi) That on 22 April 2015 the appellant had further been transferred to Jena Mines, a subsidiary of the Zimbabwe Development Corporation (ZMDC);

(vii) That at Jena Mines the appellant was staying in a guest lodge;

(viii) That as such, the appellant was still employed by the respondent and that until such time that his contract of employment with the respondent was terminated, his entitlement to occupy the premises in question remained.

The respondent produced several documents to back up his claims. One such was “Annexure M”, the letter dated 8 November 2011 written to him by the Zimbabwe Development Corporation (ZMDC). It advised him of his secondment to Kusena Zim Diamonds upon the terms and conditions spelt out therein.

On the duration of the secondment, Annexure M said this would depend on the exigencies of the work at both Kusena Zim Diamonds and some other mines named therein. On accommodation, the letter said the company would provide him with accommodation at the mine, subject to availability. On termination of employment, the letter said subject to the right of dismissal, notice of termination of employment would be three calendar months by either party. It stressed that the termination of that contract, as a disciplinary measure, would in no way give him the option to return to the respondent.

The other document produced by the appellant, “Annexure O”, was the letter to him by the Zimbabwe Development Corporation (ZMDC) on 22 April 2015, advising of his further transfer to Jena Mines until further notice.

On the conditions of service, Annexure O said those obtaining at Jena Mines would apply, and that they included salary and benefits. However, the letter further said that this did not change the appellant's original secondment status from Shabani Mine.

In an answering affidavit, the respondent, among other things, pointed out that Annexure M was the Zimbabwe Development Corporation's letter to him, not a letter from the respondent; that the letter was the appellant's contract of employment with the Zimbabwe Development Corporation (ZMDC); that this showed that his contract of employment with the respondent had since been terminated as one could not report to two masters.

In granting the order of eviction, the court a quo found, or reasoned, as follows:

(i) That the issue before it was not of termination of employment but of eviction, and that as such, the court was empowered to entertain the application;

(ii) That the appellant [then respondent in the court a quo] was on secondment to the Zimbabwe Development Corporation (ZMDC);

(iii) That it had been clearly stated that the mine would provide accommodation and allocate the appellant with new residences at the new stations;

(iv) That, therefore, there was no valid reason why the appellant should have two houses from different mines at the same time, in the same way that he did not receive two salaries at the same time.

(v) That upon transfer one could not hold onto the property of the previous station.

Before us, the parties have largely repeated the same arguments as in the court below. Counsel for the appellant has insisted that the Zimbabwe Development Corporation (ZMDC) had “taken over” the operations of the respondent after it was placed under reconstruction and that none of the employees, the appellant included, had any say over their fate, except that the take-over should not prejudice them. He said the premises in question remained the appellant's main accommodation which was tied to his contract of employment and that all the other residences that he might have been allocated at his new stations on secondment remained temporary accommodation.

Counsel for the respondent denied that the Zimbabwe Development Corporation (ZMDC) had taken over the respondent. He denied that there could have been any such thing as “taking over” of a company by another company. He said the respondent was a company under a reconstruction order and which was under the control and direction of an administrator. Counsel for the respondent insisted that the ZMDC was the appellant's new employers and that it was the ZMDC, not the respondent, which was seconding the appellant every time it saw fit.

There were some grey areas on some aspects of the matter which none of the parties could properly shed light. For example, what did it mean that the Zimbabwe Development Corporation (ZMDC) had “taken over” the operations of the respondent? What were the terms and conditions of that take over, particularly with regards to the respondent's labour force and its assets such as housing?

But, undoubtedly, there had been some kind of transfer or relationship between the respondent, under reconstruction, and the Zimbabwe Development Corporation (ZMDC). In the case of Badza v SMM Holdings [Pvt] Ltd [Under Reconstruction] t/a SMM Properties HMA 20-17, it was common cause that the ZMDC, a parastatal, had become the respondent's sole or major shareholder after it had poured a substantial sum of money to resuscitate the respondent's operations. Surely, for such sums of money to pass hands like that some sort of agreement would have been signed to govern the parties' new relations. These agreements might, or might not, shed light on, among things, the fate of the respondent's employees. None of the parties made reference to any such documents - let alone produce them.

The other grey area was in some of the expressions used in certain documents. For example, Annexure O, namely, the Zimbabwe Development Corporation's second letter to the appellant, on 22 April 2015, further transferring him from Kusena Zim Diamonds to Jena Mines said, among other things, that the conditions of service obtaining at Jena Mines and which would now govern the appellant regarding his salary and benefits, would not change the appellant's original status from Shabani Mine. This would seem to support the appellant's argument that, contrary to the respondent's claim, his original contract of employment with it had never been terminated and that he was merely on secondment to the Zimbabwe Development Corporation (ZMDC).

It is true an employee who is on secondment to another branch of the employer or enterprise is transferred on a temporary basis. He remains employed by the seconding office or employer: see Shumba v Commercial Bank of Zimbabwe HH100-06 and Dairibord Zimbabwe Limited v Muyambi 2002 [1] ZLR 448 [S].

In Dairibord Zimbabwe Limited v Muyambi 2002 [1] ZLR 448 [S], Dairibord, the employer, had seconded Muyambi, the employee, from its main operations in Zimbabwe to one of its subsidiaries in Malawi, on a contract of secondment. Disgruntled by alleged non-performance, in Malawi, Dairibord terminated the contract of secondment. The Supreme Court held that the termination of Muyambi's contract of secondment had not terminated his original contract of employment in Zimbabwe.

Further ambiguity in the present case is brought by Annexure M's clause on termination of employment. It said:

“Subject to the right of dismissal, notice of termination of employment shall be three calendar months notice from either party in writing. Please be advised that termination of this contract as a disciplinary measure will in no way give you the option to return to SMM.”

That clause would seem to imply that only the termination of the secondment contract, on disciplinary grounds, would disentitle him to return to the respondent on his original contract, suggesting that any other reason for termination would not present that difficulty for him.

However, having looked at this matter holistically, we have found no misdirection by the court a quo in refusing to be entangled in issues of employment contracts and in confining itself to the narrow issue of eviction.

There is no doubt that the premises in question belong to the respondent. We did not hear counsel for the appellant arguing that the form of the alleged “take over” of the respondent by the ZMDC entailed assuming ownership of the respondent's houses by the ZMDC. In Badza v SMM Holdings [Pvt] Ltd [Under Reconstruction] t/a SMM Properties HMA 20-17, it was pointed out that one of the incidents of ownership of a thing is the owner's entitlement to its exclusive possession. The law presumes possession of the thing as being an inherent nature of ownership. Flowing from this, no other person may withhold possession from the owner unless they are vested with some right that is enforceable against the owner: see SILBERBERG and SCHOEMAN's The Law of Property, 5^th ed….,. Otherwise, an owner deprived of possession against his will can vindicate his property wherever found and from whomsoever holding it: see Chetty v Naidoo 1974 [3] SA 13 [A]…,.

In the present case, the appellant's original right to the occupation of the respondent's premises in question stemmed from his original contract of employment with it. It was not in dispute that such original right would be extinguished by the termination of that original contract of employment. The respondent said the contract had terminated. The appellant said it had not. However, the documents produced by the appellant himself suggest that it had. Annexure M was the contract of secondment by the Zimbabwe Development Corporation (ZMDC) with the appellant in respect of the ZMDC's other operations. It was not the original contract of employment with the respondent. So was Annexure O. By the time of those documents the respondent had long since gone out of the picture.

The appellant's argument is self-defeating. If ZMDC's taking over of the respondent entailed its taking over the of respondent's houses, then if he was being seconded and being given new accommodation at his new work stations, he would not be entitled to retain the original premises. As the court a quo noted, he would not be entitled to two houses from the same employer at the same time, in the same way that he would not be entitled to two or more salaries and benefits from the same employer at the same time. If it was the quality of the accommodation at the new work stations that the appellant was complaining about, then this would be a different case altogether.

But, we consider the correct position to be that the appellant's original contract of employment with the respondent, which had carried with it an entitlement to accommodation in the premises in question, had long since terminated, and that, as the generality of the documentation showed, he was now on a new and separate contract of employment with the Zimbabwe Development Corporation (ZMDC).

In the premises, we find the appeal to be un-meritorious. It is hereby dismissed with costs.

The plaintiff sues for the eviction of the defendant from her plot while the defendant counter-sues for the transfer of title, rights and interest in a portion of the same plot.

The plaintiff testified and called the evidence of two other witnesses who were her daughter, Eneresi Simon, and an employee of the Epworth Local Board, Cagewell Muzangaza. The defendant gave evidence and called the testimony of two other witnesses who were Pastor Elizabeth Nyakudanga and Tedius Kagande. A total of six (6) documentary exhibits were produced by both parties.

THE PLAINTIFF'S CASE

The plaintiff is an 83 year old woman. She cannot read or write. She has difficulty in walking. According to her summary of evidence, her husband died on 18 February 1982. In their pleadings, both parties accepted that she was appointed an executrix dative on 22 August 2007 and subsequently became the legal holder of the rights, title, and interest in Stand 1125 Makomo Extension, Epworth in Harare.

After the death of her husband she survived on handouts from well-wishers. She became a member of the Ambassadors for Christ Ministries; a church led by, amongst others, Tedius Kagande. Kagande doled out handouts to her, and, purporting to act under the auspices of the church, built for her a more habitable two roomed structure on the Stand in question. He requested her to sign a certain document on which he purportedly wrote out her grandchildren's names and the materials required for the construction of the more habitable structure. She did not know whether he built it from his or church funds. Thereafter, he introduced her to the defendant, who was a teacher by profession, and a member of the same church. The defendant was supposed to look after her. She allowed the defendant to build another two-roomed house for his use on the Stand after she was assured that he would be there for a short while. The defendant has been ensconced on her Stand for the past nine (9) years. He neither pays rentals nor municipal charges.

She was adamant that she did not sell the smaller portion for $16,000= or the bigger one for $23,000=. She disputed executing exhibit 1A and 1B averring that she was illiterate. She denied seeking the subdivision of the Stand in 2000. She averred that it was in 2008 that she went with the defendant to the Epworth Local Board to have the dispute resolved; and not to seek the subdivision of the Stand.

She was cross examined.

She considered Tedius Kagande as a leader of the church in Epworth and did not know Pastor Nyakudanga and Pastor Matyora. She disputed that she advised Kagande, in 1999, that she was selling a portion of her Stand. She denied receiving $16,000= in the presence of Tedius Kagande, the defendant's wife, and her daughter, Eneresi Simon. She disputed that the amount in question was used by Tedius Kagande in the construction of her two rooms. She denied requesting Eneresi Simon to sign exhibit 1A on her behalf before a Commissioner of Oaths. She also denied executing exhibit 1B. She disputed using her daughter to sign legal documents on her behalf.

She related how the defendant sought to evict her from her Stand at the Magistrates' Courts. She did not appear to be aware of exhibit 2, the warrant for the ejectment of the defendant which she obtained on 3 August 2001 in the Magistrates Court; exhibit 3, the affidavit signed on 16 May 2001, in her name, in the hand similar to that of her daughter in exhibit 1A and exhibit 4; her application for a peace order dated 13 December 2001 in which she graphically set out how the defendant was disturbing her peace. She denied attending a funeral in Malawi using the proceeds of the sale of a portion of the Stand. She was given money by her daughter who was her breadwinner. She denied informing Pastor Nyakudanga and Charles Shamuyarira of the sale of a portion of her Stand to the defendant.

Eneresi Simon stated that her mother never sold a portion of the Stand to the defendant. She identified exhibit 1A as the blank document on which she wrote out the plaintiff's name and national identity number. She stated that her mother did not sell a portion of the Stand for $16,000= or $23,000=. She denied signing exhibit 1A before a Commissioner of Oaths.

She stated that her mother's trip to Malawi was funded by her daughter-in-law in Malawi. In 2008, she accompanied her mother and the defendant to the Epworth Local Board offices where they saw Mr. Muzangaza. The plaintiff was against the subdivision of her Stand.

She was cross-examined.

She admitted to signing a blank exhibit 1A but denied signing exhibit 1B. She stated that the defendant sought to evict the plaintiff notwithstanding that exhibits 2 and 3 indicated her mother as the plaintiff. That the defendant sought to evict the plaintiff from the Stand was confirmed by exhibit 6, the summons issued out of the Magistrates' Court by him on 27 June 2002. She denied signing for her mother in exhibit 3 and 4. She disputed that $16,000= was paid in her presence. She averred that her mother, who is of Nyanja origin, could not converse in Shona.

Cagewell Muzangaza is a Building Inspector for the Epworth Local Board. In that capacity he deals, inter alia, with sub-divisions of residential Stands in Epworth. He told the court that the Stand is registered in the plaintiff's name. He stated that temporary structures, which are not based on an approved plan, are on the Stand. He explained that a subdivision of a Stand is initiated by the registered holder who writes to the local authority and fills in a special document to this effect identifying to whom the sub-division is to be registered. The Housing department vets the information and makes its recommendations and forwards these to his department. The witness checks the Stand on his master plan prepared by town planners and approved by the Department of Physical Planning in the Ministry of Local Government to satisfy himself whether it is feasible to subdivide the Stand. He forwards his recommendations to the Urban Development Corporation (UDCORP). He stated that it is only the local authority which approaches UDCORP and not the registered holder, or, for that matter, anyone else.

He stated that in the file of the Stand in his custody is a request purportedly made by the plaintiff in 2000 for a subdivision in favour of the defendant. The application was rejected for two reasons. Firstly, she was not the registered holder; her husband was, and, secondly, there was no subdivision permit for the Stand.

He further revealed that on 20 December 2007 the Urban Development Corporation (UDCORP) wrote an unsolicited letter, exhibit 5, to the local authority. The local authority ignored it because it had not originated from it. He categorically stated that a sale of a portion of a Stand cannot be approved by the local authority prior to sub-division.

He was cross examined.

He disputed the averment that he was interested in the portion that was allegedly disposed to the defendant. He denied that the Urban Development Corporation (UDCORP) wrote its letter in response to that of the local Board. At one time in 2008 the parties came to see him. The defendant wanted sub division but the plaintiff was against it as the matter was pending in Court and alleged that the defendant was forcing her to sub-divide the Stand.

As will more fully appear when I determine the issues referred to trial, I believed the plaintiff and her witnesses. They gave consistent and credible testimony.

THE DEFENDANT'S CASE

The defendant stated that he purchased a portion of the Stand from the plaintiff through the medium of Tedius Kagande. He paid $16,000= to the plaintiff in the presence of his wife, Tedius Kagande and Eneresi Simon in September 1999. They drove into town to Mr. Gode, a Commissioner of Oaths, before whom Eneresi Simon signed for her illiterate mother on exhibit 1A. The plaintiff persuaded him to buy the bigger portion of the Stand by an additional payment of $7,000=. She accepted periodic payments.

The latter agreement was recorded as exhibit 1B and executed for the plaintiff by her daughter, Eneresi Simon.

He commenced construction and started to reside on the Stand on 1 February 2000. Even though the Stand was in her late husband's name, the plaintiff submitted an application for sub-division to the local Board. The application failed because the plaintiff had not constructed the main house on the Stand. The plaintiff was not in a position to do so; so he suggested that he build the main house and have it registered in his name. She took the view that he wanted to evict her and all hell broke loose.

The plaintiff issued summons for his eviction and obtained a default judgment on 19 May 2001, in case number 7926/2001, as shown in exhibit 2. She deposed in an affidavit, exhibit 3, on 16 May 2001, that the defendant was her grown up son who was giving her problems. It was purportedly signed by her; her full names were handwritten above her typed name.

He confirmed the visit to Cagewell Muzangaza in 2008 where the plaintiff refused to have the Stand sub-divided into his name. He produced exhibit 5, a letter written to the local Board by the Urban Development Corporation (UDCORP) on 20 December 2007 for Stand 1171. The typewritten Stand number 1171 was cancelled by pen and the number 1125 inserted. The cancellation was not countersigned. It does not refer to any previous correspondence from the local authority. Its authenticity is questionable. In my view, it does not assist the defendant in his case.

He was cross-examined.

He stated that he borrowed $16,000= from his employers. Tedius Kagande told him of the purchase price and it was confirmed by the plaintiff. Tedius Kagande's young brother authored exhibit 1A. He further averred that the sum of $16,000= was paid in the presence of the young brother after he had drafted exhibit 1A. On 28 October a new agreement on the additional payment for the bigger portion was executed. The typed agreement, exhibit 1B, was typed by Tedius Kagande at his town offices. By then, the plaintiff had commenced building her two roomed structure. He commenced building on the portion sold to him after the execution of exhibit 1B. He paid the installments of $7,000= in two batches of $3,000= and 4,000= in February and April 2000, respectively, to the plaintiff in the presence of Eneresi Simon.

He disputed issuing summons to evict her contrary to exhibit 6, the summons in his name dated 27 June 2002, for the eviction of the plaintiff alleging he had purchased the Stand. He maintained buying the bigger portion of the Stand and denied conniving with Tedius Kagande to defraud the plaintiff of a portion of her Stand.

He called the evidence of Elizabeth Nyakudanga, a pastor of the church attended by the parties in 1999. The pith of her testimony was that the plaintiff informed her that she had sold a portion of the Stand so that she could use the proceeds to build a better house. Her church was not involved in humanitarian work at the time of the sale.

Under cross examination, she alleged that the defendant paid the full amount of $23,000= in 1999. She revealed that the defendant refreshed her memory of the events of 1999 in January 2009.

The last witness to testify for the defendant was Tedius Kagande. He stated that he was asked by the plaintiff to find a buyer and he connected her to the defendant. He took him to the plaintiff and handed $16,000= to Eneresi Simon who was with the plaintiff. On his suggestion exhibit 1A was executed. It was drawn up by his young brother and signed before a Commissioner of Oaths.

He built the cottage of cement blocks for her after listing the required materials. The materials cost half the amount paid by the defendant. He did not charge her for his labour. He did not supply her with free food handouts. She later approached him for the sale of the bigger portion and he referred her to the defendant. He was not involved in the latter agreement.

Under cross examination, he revealed that the defendant raised the purchase price without viewing the Stand. The price was fixed by the plaintiff and her daughter. His brother was not at the plaintiffs where the money was paid but was in town. The first agreement was signed at his town offices and taken to a commissioner for affirmation only. He denied cheating the plaintiff.

For the reasons that will become apparent when I determine the issues referred to trial, I found the defendant and his witnesses incredible witnesses.

THE ISSUES

At the pre-trial conference that was held on 1 July 2009, the matter was referred to trial on the issues set out in the defendant's minute of 20 May 2009. The issues for determination are as follows:

1. Whether the plaintiff sold to the defendant a subdivision of Stand 1125 Makomo, Epworth.

2. Whether the plaintiff should cede or assign her rights, interests and title to the subdivision to the defendant.

3. Whether the plaintiff is entitled to evict the defendant from the property.

RESOLUTION OF THE ISSUES

1. Whether the plaintiff sold to the defendant a subdivision of Stand 1125 Makomo, Epworth

The onus to show that an agreement of sale was executed lies on he who avers that such an agreement was concluded. In the present matter the incidence of proof falls on the defendant.

He relied on exhibit 1A and 1B.

Exhibit 1A is a pro forma of an affidavit that is sold at Kingstons Booksellers and Stationers. It was common cause that the name of the deponent and her national identity number and address were handwritten by Eneresi Simon. Eneresi stated that she was the one who wrote out the plaintiff's name, national identity card, address and signature in exhibit 1A.

The plaintiff purportedly swore that she had sold a subdivision of Stand 1125 Makomo to the defendant who had paid the full amount of $16,000=. She further indicated that she was granting him change of ownership. The affidavit was purportedly executed on 23 September 1999 before R. Gode, a Commissioner of Oaths.

The defendant did not disclose where exhibit 1A was drawn. He stated that it was signed before the Commissioner of Oaths by Eneresi Simon in the presence of the plaintiff because the plaintiff could not read or write.

The defendant's witness, Tedius Kagande, disclosed that the affidavit was purchased at Kingstons when the parties were on their way to his town offices. Kagande further indicated that the contents of the affidavit were written by his young brother at his town offices and signed by Eneresi Simon before the parties proceeded to a commissioner of oaths. The commissioner of oaths simply confirmed with the plaintiff the contents of the affidavit.

The version of the plaintiff and her daughter differed from that adduced by the defendant. The plaintiff stated that Tedius Kagande brought the affidavit, in the absence of her daughter, and requested her to fill in her personal details and signature ostensibly as a record of the building materials he would purchase for her. The daughter confirmed that when she visited her mother, as she was wont to do at the end of each month, she wrote out her mother's details and signed the affidavit for her. Both mother and daughter were adamant that Eneresi Simon signed a blank document and denied the present contents in the affidavit.

The versions of the defendant and Tedius Kagande were contradictory on whether Eneresi Simon signed the document before a commissioner of oaths or prior to the visit.

A commissioner of oaths worthy his salt would have requested the plaintiff to append her mark and thumb print on the document. He would have known that it was improper for Eneresi Simon to sign as the plaintiff without indicating that she was signing as her duly authorised agent.

The defendant did not disclose why and how Tedius Kagande's young brother became involved in the matter.

It does not appear that the plaintiff was ever given a copy of the affidavit in question.

Neither Tedius Kagande's young brother nor the Commissioner of Oaths was called to confirm the versions of the defendant and Tedius Kagande.

The two defence witnesses also contradicted each other on when the money was paid. Tedius Kagande averred that it was paid at the plaintiff's home. The defendant prevaricated. In his evidence in chief he averred that it was paid at the plaintiff's home while under cross examination he alleged that it was paid after the affidavit had been compiled.

While the defendant stated that Tedius Kagande's young brother was present at the plaintiff's home when the money was paid, Tedius Kagande stated that his young brother was never at the plaintiff's home. Notwithstanding that, Kagande was of the view that the purchase price of $16,000 was too high in comparison with similar Stands in Glen View at the time. The defendant borrowed the money and paid it before he had visited the site. He did not negotiate for a lower price.

The contradictions in the defendant and Tedius Kagande's testimonies and the other shortcomings that I have highlighted show that exhibit1A is a questionable document. I am not satisfied that the defendant has discharged the onus on him to show, on a balance of probabilities, that it was executed by the plaintiff.

Exhibit 1B was purportedly executed on 28 October 1999.

The plaintiff purportedly sold her rights in the portion of the Stand where the main house was to be built for an additional payment of $7,000=. The amounts were to be paid on 30 February and 30 April 2000 in the sum of $4,000= and $3,000= respectively.

Again, the document indicates that the plaintiff signed the document. The defendant averred that it was signed by Eneresi Simon for her mother. The signature in exhibit 1B appears to be similar to the one in exhibit 1A and exhibit 3. The latter was an affidavit filed by the plaintiff for default judgment against the defendant but is different from the one in exhibit 4, an ex parte application for a peace order that she filed on 13 December 2001.

The defendant alleged that exhibit 1B was typed by Tedius Kagande. In his testimony, Tedius Kagande expressed ignorance about it. Unlike the defendant, Kagande alleged that he facilitated the purchase of the larger portion of Stand 1125. The defendant alleged that he paid the $7,000= on the due dates. He did not produce any proof of payment. The agreement records 30 February as a date for the payment of the first installment. Such a date does not exist. The application failed because the plaintiff was not then the registered holder of rights in the property, as averred by Cagewell Muzangaza and not because of the absence of a main house on the Stand, as alleged by the defendant.

The contradictions outlined above call into question the authenticity of exhibit 1B, especially in the face of the denials by the plaintiff and her daughter that they were involved in its creation and execution.

Counsel for the defendant submitted that the agreements were authentic. He predicated his submission on the basis that the plaintiff permitted the defendant to build a cottage on the Stand and allowed him to reside thereat without paying rentals.

The plaintiff stated that she fell under the influence of Tedius Kagande, whom she trusted as an elder in her church and as a philanthropist who helped her with food handouts and built a two-roomed cottage for her.

I found that her age and low intellect adequately explained her naivety, which Tedius Kagande and the defendant exploited to the latter's advantage.

In any event, notwithstanding his allegations that he had purchased a portion of the Stand, the defendant never volunteered to pay for his proportional measure of the supplementary charges due to the local Board.

I am unable to find the non-payment of rentals by the defendant indicative of the authenticity of the agreements.

Counsel for the defendant further submitted that the attempt by the plaintiff, in 2000, to register a portion of the Stand in the defendant's name was conclusive evidence that she had disposed her rights to him.

It was common cause that the plaintiff is illiterate.

Cagewell Muzangaza highlighted the elaborate paper work that is required of the registered holder in seeking a subdivision permit. The defendant did not produce the application in question. He did not adduce evidence on how the plaintiff applied for the subdivision in his favour. As she is illiterate it could very well be that someone else completed and signed the forms that are required. The plaintiff denied ever having done so. The defendant did not produce any credible evidence to show that she made the application in person. Cagewell Muzangaza's statement as to what he found in his file is insufficient to show that the plaintiff sold the Stand to the defendant.

There were unsatisfactory features in the plaintiff's version concerning her professed inability to understand Shona; her apparent ignorance that she once sued the defendant for eviction and the source of the funds she used to go to Malawi. These were, however, irrelevant to the resolution of the first issue.

Pastor Elizabeth Nyakudanga did not assist the defendant discharge the onus on him as it became clear when she was cross-examined that she was relying on what the defendant said to her in January 2009 rather than on her own recollection of events. She contradicted herself on the terms of the agreement of sale. I found her evidence unreliable.

Accordingly, I hold that the plaintiff did not sell her rights in a portion of Stand 1125 Makomo Extension to the defendant.

In any event, it was common cause that when the purported agreements of sale were executed, the rights in Stand 1125 vested in the deceased estate of the plaintiff's late husband. The only person who has control of property in a deceased estate is the executor duly appointed to that office by the Master of the High Court. The plaintiff was appointed an executrix dative on 22 August 2007. At the time she allegedly disposed of rights in the property she lacked the legal capacity to do so. She could not lawfully dispose of rights that she did not have. See Nyandoro & Anor v Nyandoro & Ors HH89-08…,.

I hold that the plaintiff did not sell a portion of Stand 1125 Makomo, Epworth to the defendant.

The resolution of the first issue in the plaintiff's favour would dispose of the matter both in the main and in reconvention. However, in the event that I am wrong on the first issue, I proceed to deal with the alternative submissions that were made by counsel.

2. Whether the plaintiff should cede or assign her rights, interests and title to the subdivision to the defendant

It was common cause that the onus lay on the defendant to show that he was entitled to take cession.

Counsel for the defendant contended that such cession was predicated on the validity of the agreement of sale. He submitted that the agreement of sale was valid.

Counsel for the plaintiff, on the other hand, submitted that even if the agreements were entered into, they were invalid ab initio for two reasons. The first reason being that no sale was concluded as the merx was not ascertainable. She correctly set out the three essential elements of a contract of sale. These are;

(i) Agreement (consensus ad idem);

(ii) A thing sold (merx); and

(iii) A price (pretium).

On the authority of Chanock v Barnard 1921 OPD 207…, she submitted that no contract of sale was executed in the absence of an agreement on the merx. She contented that the defendant had failed to describe and identify the portion of the Stand that was sold to him.

Counsel for the defendant, on the other hand, contended that the portion sold was capable of ascertainment.

We are dealing with land.

The portion of land sold can only be identified by area often expressed in square metres. The defendant was not able to use this medium to identify the portion of land sold to him. The obvious impediment being that Stand 1125 is an indivisible unit. It was not subdivided at the time or at present. Thus, had I found that the parties concluded exhibits 1A and 1B, I would have found those agreements invalid for failure to meet an essential requirement of a contract of sale. The defendant cannot rely on Exhibit 5, the letter from the Urban Development Corporation (UDCORP) whose authenticity is questionable. The letter actually confirms that Stand 1171, or if it correctly refers to Stand 1125, has not been subdivided.

The second reason advanced by counsel for the plaintiff was that the agreement of sale contravened section 39 of the Regional Town and Country Planning Act [Chapter 29:12]. She submitted, on the authority of X-Trend-A-Home (Pvt) Ltd v Hoselaw Investments (Pvt) Ltd 2000 (2) ZLR 348 (S)…, that an agreement for the change of ownership of an unsubdivided portion of a Stand is prohibited by the section in question.

The contention by counsel for the defendant, that the agreement was for cession and not ownership, may legally be correct; but it runs contrary to the contents of exhibit1A wherein the plaintiff is alleged to have declared that she was granting change of ownership to the defendant in these words: “therefore, I now grant the change of ownership without delay.”

Counsel for the defendant, with reference to Chanda v Mutadzi & Anor SC74-94 and Mukarati v Mkumbu SC36-96, submitted that the Regional Town and Country Planning Act is excluded from the purview of cessions involving local Boards. That submission runs contrary to X-Trend-A-Home (Pvt) Ltd v Hoselaw Investments (Pvt) Ltd 2000 (2) ZLR 348 (S).

In any event, the two cases he referred to involved the sale of rights in single units. They did not involve sales of unsubdivided portions.

I would uphold the submissions made by counsel for the plaintiff and deny the defendant cession of an unsubdivided portion of Stand 1125 of Makomo Extension, Epworth. A fortiori, the defendant's counter claim fails.

3. Whether the plaintiff is entitled to evict the defendant from the property

The corollary to my findings on the first two issues is that the plaintiff holds cession in Stand 1125. The defendant has no legal basis to be on that Stand. Accordingly, she is entitled to the order of eviction that she seeks.

DISPOSITION

It is ordered that:

1. The defendant and all those claiming occupation through him be and is hereby evicted from Stand No. 1125 Makomo Extension, Epworth, Harare.

2. The defendant's counterclaim be and is hereby dismissed.

3. The defendant shall pay the plaintiff's costs of suit for both the claim in convention and counter-claim.