Anna Ncube v Barbra Lunga N.O (Executrix Dative of Estate Late Bima Sibanda: DRBY 359/11) and The City of Bulawayo

In April 1958, the Applicant purchased immovable property (stand 44126 (027) Mzilikazi Township, Bulawayo) from a Zambian national. At that time, as a single African woman, she could not register the property in her own name due to regulations and by-laws of the City of Bulawayo. She sought assistance from her brother, the late Bima Sibanda, who had a registered marriage and was eligible to have title registered in his name. The property was registered in Bima Sibanda's name in April 1959, with a certificate of occupation issued in his name. However, the Applicant assumed full juristic occupation of the premises from 1959 to date, an uninterrupted period of more than 50 years, openly and without force as if she were the owner. Bima Sibanda never occupied the property and took no steps to disturb the Applicant's occupation during his lifetime. Bima Sibanda died on 13 November 1999. When the Applicant sought to transfer ownership from her late brother's name to hers, the Executrix Dative of the estate (1st Respondent) demanded that she vacate the property, prompting this application.

• Whether the application could be determined on the papers or required oral evidence due to alleged disputes of fact
• Whether the Applicant should have asserted her rights in terms of the Administration of Estates Act [Chapter 6:01] rather than approaching the High Court directly
• Whether the Applicant satisfied the requirements for acquisitive prescription under common law and section 4 of the Prescription Act [Chapter 8:11]
• Whether the Applicant possessed the property openly and as if she were the owner thereof for an uninterrupted period of thirty years or more

1. The 1st Respondent was directed to sign all documents and take necessary steps to effect transfer of stand 44126 (0.27) Mzilikazi, Bulawayo into the names of the Applicant within 7 days, failing which the Deputy Sheriff was authorised to sign all necessary documents on behalf of 1st Respondent. 2. The 2nd Respondent was directed to give effect to the order. 3. The 1st Respondent was ordered to pay the costs of suit.

A person who possesses immovable property openly and as if they were the owner thereof (with animus domini) for an uninterrupted period of 30 years or more acquires ownership through acquisitive prescription, both at common law (nec vi, nec clam, nec precario) and under section 4 of the Prescription Act [Chapter 8:11]. The essential elements are: (1) open possession; (2) possession as if the person were the owner; and (3) uninterrupted possession for at least 30 years. Where these elements are established and uncontroverted, ownership transfers to the possessor regardless of who holds formal registered title. The High Court has original jurisdiction under section 171(1)(a) of the Constitution to determine such claims, and this jurisdiction is not ousted by provisions in the Administration of Estates Act.

The court observed that the argument that the Applicant could not acquire immovable property through acquisitive prescription because African women were not allowed to own property at the time was not founded on any solid legal principles, as acquisitive prescription relates to acquisition of property rights by occupation for a continuous and uninterrupted period of time, not to the initial capacity to purchase. The court also noted that where there is an allegation that disputes of fact exist, the court must take a robust view and common sense approach and not take an over-fastidious view of conflicts, but should seek to resolve the dispute despite apparent conflict.

This case is significant in Zimbabwean property law as it illustrates the application of acquisitive prescription principles under both common law and the Prescription Act [Chapter 8:11]. It demonstrates how historical discriminatory practices that prevented African women from owning property can be remedied through the doctrine of acquisitive prescription. The case also confirms that the High Court's original jurisdiction under the Constitution cannot be ousted by provisions in the Administration of Estates Act, and that courts should adopt a robust approach to resolve apparent disputes of fact in motion proceedings where the essential facts are not genuinely in dispute. The judgment reinforces that possession with animus domini for an uninterrupted period exceeding 30 years, openly and without challenge, confers ownership rights even where formal title rests with another party.