Casper Masvikeni Family Trust and Elizabeth Tete v Lawrence Muteswa and The Sheriff of Zimbabwe

The first applicant, Casper Masvikeni Family Trust, through its trustees, purchased property at No. 13 Coventry Road, Greystone Park, Borrowdale, Harare from a sheriff's sale. The first respondent, Lawrence Muteswa, was the previous owner. After the property was registered in the name of the first applicant, the second applicant, Elizabeth Tete (a Trustee), sought to evict Muteswa based on lawful title to the property. Muteswa resisted eviction on grounds that he had a pending High Court matter (HC 4147/18) challenging the sale and that the applicants had filed a similar earlier matter. The respondent also challenged the registration, arguing it was defective because the property was registered in the name of the trust itself rather than in the names of the trustees for the time being of the trust.

• Whether a trustee of a registered trust has locus standi and authority to bring eviction proceedings on behalf of the trust
• Whether a pending application challenging a sheriff's sale affects the rights of a party in whose name property has been registered
• Whether registration of property in the name of a trust rather than in the names of its trustees vitiates the sale and affects an eviction application
• Whether the deed of transfer could be rectified under section 6(b) of the Deeds Registration Act

1. The 1st Respondent and all those claiming occupation through him were ordered to vacate the property at No. 13 Coventry Road, Greystone Park, Borrowdale, Harare measuring 4337 square metres. 2. Failing compliance, the 2nd Respondent (Sheriff) was authorized to eject the 1st Respondent and all those claiming occupation through him. 3. The Sheriff was authorized to enlist the services of the Zimbabwe Republic Police if the 1st Respondent resisted. 4. The 1st Respondent was ordered to pay costs on a legal practitioner and client scale.

The binding legal principles established are: (1) A trustee of a registered trust derives authority to bring legal proceedings from the trust deed itself, and principles applicable to corporate bodies regarding authorization do not necessarily apply to trusts; (2) Registration of title in one's name constitutes registration of a real right - a right in the thing enforceable against the world, including the right to vindicate that right through eviction proceedings; (3) A pending application to set aside a sale does not affect the real rights of a person in whose name property has been validly registered; (4) Registration of property in the name of a trust rather than in the names of trustees for the time being is an error subject to rectification under section 6(b) of the Deeds Registration Act and does not vitiate the transfer or defeat eviction proceedings where a lawful registered trust with identified trustees exists.

The court observed that the issue of validity of title deeds should properly be the subject of a separate application rather than raised as a defense to eviction proceedings. The court also commented that any scrutiny of a deed by the court without giving notice to the Registrar of Deeds would be improper, as the Registrar is entitled to respond, particularly where the Registrar had already accepted the deed after scrutiny under section 5(b) of the Deeds Registration Act. The court endorsed the observation in Sheriff of Zimbabwe Gara Family Trust & Ors HH 391/16 that a trust can indeed acquire rights and own property, noting that while a trust is a relationship rather than a separate legal entity, what is significant for purposes of property ownership is that there be a lawful trust with recognized trustees.

This case clarifies important principles in Zimbabwean law regarding: (1) the locus standi of trustees to bring proceedings on behalf of registered trusts without the same formalities required for corporate bodies; (2) the binding nature of real rights arising from property registration, which cannot be defeated by pending applications challenging the underlying sale; (3) the proper approach to technical defects in property registration where property is registered in a trust's name rather than trustees' names - such defects are subject to administrative rectification under the Deeds Registration Act rather than invalidation; and (4) the protection afforded to purchasers from sheriff's sales who have obtained registration.