Kuvimbana Housing Scheme and 4 Others v Estate Late Walter August Theodore Baars and 3 Others

### Preamble
1
HCC 63/24
HCC 132/23
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KUVIMBANA HOUSING SCHEME

And

DZINGAI NZVENGA

And

ELPHAS CHANGORE

And

ZACHARIAH NYAJENA

And

FANUEL BUKUTA

Versus

ESTATE LATE WALTER AUGUST THEODORE BAARS

And

REGISTRAR OF DEEDS

And

MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS

And

ZVIMBA RURAL DISTRICT COUNCIL

HIGH COURT OF ZIMBABWE

MUZOFA J
CHINHOYI ,5 July 2024

Chamber Application

MUZOFA J:	In terms of s3 of the Titles Registration and District Lands Act (Chapter 20:20) any person who has acquired a lawful right to ownership of any immovable property by prescription, by contract or any other manner may apply to the High Court to order registration of such title into his/her name.

This right to property derives from acquisitive prescription. The applicant must show that he/she has been in undisturbed possession for a period of over 30 years. In that period no one claimed ownership.  Secondly that the registered owner cannot competently hold tittle, is insolvent or is no longer in Zimbabwe. Masenda v Masawi 124/03.

The applicants were granted a Provisional Order by this court and they seek confirmation of the said order. The applicants seek to register immovable property commonly called subdivision D of subdivision A of Rest Farm held under Deed of Transfer 197/40 in terms of s3 of the Act in the name of the 1st applicant. Their claim is that they acquired a lawful right through acquisitive prescription.

The 1st applicant is a cooperative governed by a Constitution which was filed of record. The 2nd applicant is the chairperson of the 1st applicant. He was authorised to depose to the founding affidavit on behalf of the 1st applicant by a resolution filed of record. The 2nd to 6th applicants are members of the 1st applicant and have resided on the property for the past 43 years.

The 1st respondent whose further particulars were said to be unknown is the registered owner of the property. It was also alleged that the beneficiaries to the estate are unknown. The 2nd to 4th respondents were cited as the official bodies involved in the administration and registration of the property in question.

According, to the applicants they were employed by the 1st respondent as general hands at the farm in 1963. Since then, they have lived on the property. They consider the property as their home. The 2nd applicant attached his national identity card which shows that he was born on the 6th of June 1941. Simple arithmetic shows that he was employed at the property when he was 22 years as at the date of application, he was 83 years. He has lived the better part of his life on the property.

The registered owners are said to have abandoned the property in 1980 and from there on not even the beneficiaries have communicated with the applicants. To safeguard their occupational interests the occupants at the property organised themselves and registered the 1st applicant in 1992. A cooperative regulated by a constitution which was last amended in 2005.

The applicants attached the following documents to establish that the property remains unclaimed;

An unencumbered Deed of Transfer registered in the name of the 1st respondent.

A letter from the Ministry of Lands, Agriculture Fisheries Climate and Rural Development dated 12 February 2024 advising that subdivision D of subdivision A of the Rest Farm District of Salisbury was not gazetted. It was not allocated to anyone. The farm measures 366.000 morgen.

A certificate from Zvimba Rural District Council in whose administrative jurisdiction the land falls indicating its non-opposition subject to payment of the outstanding rates, dues and 10% land value.

The applicants obtained a provisional order of this court which ordered the applicants to advertise the notice and the advert in the Herald was duly attached to this application. No objections were filed.

The provisional order required the applicants to serve the notice to the law firm Honey & Blanckenberg which did the conveyancing for the transfer of property to the 1st respondent. A letter from the said law firm was attached advising that it facilitated conveyancing some 83 years ago, which obviously is a long time ago. They searched for documents in their archives with no joy. It therefore had no information on the whereabouts of the 1st respondent’s beneficiaries.

I inquired if the 10% land value had been paid and whether the rates were cleared. The applicants attached a statement of account dated 25 February 2024 from the 4th respondent which showed no arrears on the property account held. Similarly, a letter was written by the 4th respondent’s Chief Executive Officer confirming that the 10 % intrinsic land value is payable after the court order has been granted and transfer effected.

The applicant must show that he/she has exercised the ownership rights openly or freely for an uninterrupted period of 30 years. As already stated, the applicants have demonstrated that they have been on the property for more than 30 years. As observed by my sister Judge BACHI- MZAWAZI  the farm was not even acquired by Government for land redistribution. Silberberg and Schoeman opine that the possession need not be mala fide or bona fine. What the applicant must establish is possession for the stated period. The rationale for acquisitive prescription according to the same author is to penalise an owner who neglects his or her property and promote public interest. The rationale was aptly started in Ex parte puppl 1975 (3) SA 461 (D) cited in the applicants’ heads of argument @ 463 that “The rationale of our law of acquisitive prescription is that an owner who negligently fails to protect his interests against a stranger in possession of his property should forfeit thee property to the possessor.”

In this case the applicants have complied with the procedural requirements. The notice having being advertised in the Herald Newspaper for 10 days. No objections having been filed, nothing impedes the granting of the order.

Accordingly, the following order is made;

The application be and is hereby granted.

The 2nd respondent is ordered to register Subdivision D of Subdivision A of Rest Farm situate in the District of Salisbury under Deed of Transfer No 197/40 in the name of the 1st applicant.

No order as to costs