Trustees of Anglican Diocese of Manicaland Church of the Province of Central Africa v Tafadzwa Takundwa and Nyasha Wedu

### Preamble
1
HMT 39-21
HC 34/21
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TRUSTEES OF ANGLICAN DIOCESE OF MANICALAND

CHURCH OF THE PROVINCE OF CENTRAL AFRICA

vs

TAFADZWA TAKUNDWA

and

NYASHA WEDU

HIGH COURT OF ZIMBABWE

MUZENDA J

MUTARE, 21 June and 08 July 2021

Opposed Application

A Mutungura, for the Applicant

Respondents in person

MUZENDA J: Applicant sued the two respondents seeking the following relief:

IT IS ORDERED THAT

The respondents, their agents and/ or assignees be and are hereby ordered to vacate Applicant’s property being certain piece of property situated in the District of Umtali being Umtali Mission Extension measuring thirty one thousand four hundred and ten thousand square metres, held under Title Deed Registration No 9877.

The respondents are interdicted from harassing, insulting or disturbing the applicant’s employees in the execution of their duties.

Respondents, their agents and or assignees are interdicted from erecting illegal structures on applicant’s property.

The Sheriff or his lawful Deputy is hereby instructed to eject the respondents and all those claiming right of occupation through them from applicant’s property.

The respondents pay costs of suit on legal practitioner and client scale.

The application is opposed.

Facts

The facts appear in the applicant’s papers and they are outlined as follows: Applicant owns the property and attached proof of ownership, a title deed and on that property is built Robert Mugabe House which accommodates orphans and deserted children and is administered by trustees. Respondents occupied the house as beneficiaries and at the pleasure of the applicant and the institute only accommodates beneficiaries aged between one and fourteen years. Both respondents are now majors.

Applicant contend that the respondents have become hostile towards the Institute’s trustees and employees and erected illegal structures on the piece of land without the authority of the applicant. The respondents also harass, intimidate and threaten applicant’s employees. In general respondent’s action cause turmoil and confusion at the Institution.

On the other hand second respondent in his opposing affidavit avers that the matter has been referred to the Anti-Corruption Commission for investigation and alludes to findings. The opposing affidavit is riddled with confused English but it appears second respondent is talking of the property in dispute as being trust property. Second respondent also disputes ownership of the property and vests its ownership into jurisdiction of community leadership but does not name the community leaders in question. He attached the “constitution” of the orphanage which describes owner as the Convent of the Holy Name Community at the St Augustine Mission, Penhalonga.

In its replying affidavit applicant states that St Augustine Mission is its diocesan property and the institution does not belong to the community and prays that the application be granted.

The respondents were admitted to the institution to be kept and cared for by the church. This is not disputed by them. They have since attained ages above 14 years and would no longer be considered to be minors in need of care and orphanage. The property in dispute belongs to the applicant which holds title and can claim rei vindicatio against anyone. Applicant has satisfactorily proved a clear right, and further shown that the refusal by respondents to vacate the premises constitute actual or reasonably apprehended injury and there is no available remedy. The possession or production of proof of title by the applicant proves on a balance of probabilities that any person who stays or enters the property should do so at the permission of the owner. Further any establishment of structures at the property must be done with the blessing of the applicant. Respondents failed to advance any justifiable ground to show that they have a right to remain at the property. They did not dispute that they have put structures at the property without the permission of applicant. First applicant did not oppose the application, he only appeared on the date of hearing. The constitution attached to the notice of opposition by second respondent does not disentitle applicant and also reiterates that the property and institution belongs to the applicant.

Costs

The respondents were not legally represented and from second respondent’s opposing papers, he does not appreciate in principle the nature of application and draft order brought and sought by the applicant. Second respondent mistakenly held comfort in the constitution that the property, the church and institution vests in the community or church leadership. All in all he believed that the institution is a social institution where the government has stacks that is why he approached the Anti-Corruption Commission to investigate the applicant. There is no purpose in awarding costs against the respondents.

Order Sought

Applicant prays in paragraph 4 of its draft that the court orders the Sheriff or his lawful deputy to eject the respondents. There is no need to include this as part of the order. Once an order is granted by the court, necessary papers should be prepared by the applicant to execute the judgment.

Accordingly the following order is granted.

The respondents, their agents and or assignees be and are hereby ordered to vacate applicant’s property being Umtali Mission Extension held under Title Deed No. 9877.

The respondents are interdicted from harassing, insulting or disturbing applicant and its employees.

Respondents, their agents and or assignees are interdicted from erecting illegal structures at applicant’s property.

Each party to pay its own costs.

Mutungura and Partners, applicant’s legal practitioners.