A.V. Zeederburg (Pvt) Ltd and Maturin Investments (Pvt) Ltd v Terry Tevera Mapfuwa

The 1st applicant was the registered owner of Lot 104A Essexvale Estate, which it had leased to the respondent for a bottle store, kiosk and vegetable market stall for an indefinite period. On 1 March 2015, the 1st applicant sold the property to the 2nd applicant. The respondent was notified of the sale and given 3 months notice to vacate to allow the 2nd applicant to take possession. The respondent failed to vacate the premises. The applicants issued summons on 10 September 2015 seeking cancellation of the lease and eviction of the respondent. The respondent filed a plea claiming he owned the property and had no legal relationship with the 2nd applicant, alleging the sale was null and void or fraudulent. The respondent also claimed he had a partnership agreement with Walter Rodney Taylor (director of Zeederburg) and a right of first refusal. Significantly, on 29 July 2015, the respondent had deposed to an affidavit in another court matter describing himself as a 'sitting tenant' with a right of first refusal.

• Whether the respondent had a bona fide defence to defeat the application for summary judgment
• Whether the respondent's claim of ownership of the property was sustainable against the registered title holder
• Whether there was a material dispute of fact requiring oral evidence
• The effect of a formal admission made in prior proceedings on the current matter
• Whether a right of first refusal could be successfully relied upon where property had already been sold and transferred to an innocent party

Summary judgment granted in favour of the applicants: (a) The lease agreement between the 1st applicant and the respondent was cancelled; (b) The respondent and all those claiming title or occupation through him were evicted from Lot 104A Essexvale Estate within 30 days from the date of the order; (c) The respondent was ordered to pay costs of suit.

In summary judgment proceedings, a defendant must raise a bona fide defence with sufficient clarity and completeness, alleging facts which if established would enable success. A formal admission made in pleadings or prior sworn affidavits cannot be ignored and becomes conclusive of the admitted facts unless withdrawn. When property is registered, prima facie the person in whose name the property is registered has a real right in the property, and no one may claim a greater right over that property. A party does not create a real dispute of facts by merely denying allegations; that party must present a credible story in defence which would lead the court to conclude that indeed a dispute of facts exists that cannot be resolved on the papers. Alleged contractual rights such as partnership agreements cannot confer rights on leased property greater than those of the registered title holder.

The court expressed doubt (while leaving the issue open for future consideration) whether a right of first refusal can be successfully relied upon where the property in issue has already been sold and transferred to an innocent third party. The court suggested that the respondent's remedy, if any, regarding being overlooked as a person with the right of first refusal would have to be pursued after vacating the leased property. The court also observed that care must be taken in suits for ejectment not to elevate every alleged dispute of fact into a real issue necessitating oral evidence, as this might encourage lessees to raise fictitious issues thereby delaying resolution to the detriment of lessors.

This case reinforces important principles in Zimbabwean civil procedure regarding summary judgment applications, particularly that: (1) defendants cannot defeat summary judgment merely by making bare denials or raising illusory disputes of fact; (2) formal admissions made in prior proceedings are conclusive and binding unless withdrawn; (3) registered title to property creates a prima facie real right that cannot be defeated by unsubstantiated claims of ownership unsupported by documentation; (4) alleged contractual rights (such as partnership agreements or rights of first refusal) cannot override the rights of a registered property owner; and (5) courts will not allow tenants to delay eviction proceedings by raising fictitious issues of fact. The case demonstrates the court's intolerance for dishonest litigation tactics where a party contradicts their own prior sworn statements.