Donald Sarudzai Makoni v Wambutso Donald Makoni and Others

The Applicant, Donald Sarudzai Makoni, is the registered owner of 8 Tumai mining claims (numbers 7, 8, 9, 10, 11, 12, 20, 21) in Guruve. After suffering a stroke that affected his physical ability but not his mental capacity, the Applicant granted his eldest son (the first Respondent) a special power of attorney in February 2011 to manage mining activities at the then 12 mining claims. The power of attorney excluded authority to sell the claims. In April 2024, the Applicant discovered that the first Respondent had sold some mining claims without approval and received a $20,000 deposit which he allegedly converted for personal use. The Applicant revoked the power of attorney on 16 April 2024. Despite revocation, the first Respondent continued to occupy the mining premises and threatened violence against anyone attempting to manage the mining activities. The Applicant instituted eviction proceedings. The first Respondent opposed, arguing that the Applicant lacked mental capacity to institute proceedings due to his stroke and that his occupation was lawful under the original power of attorney.

• Whether the first Respondent had any right of retention or legal right to hold onto the Applicant's property after revocation of the power of attorney
• Whether the Applicant's physical disability affected his mental capacity to institute legal proceedings
• Whether the requirements for rei vindicatio (vindicatory action) were satisfied
• Whether a curator ad litem was required to be appointed before the Applicant could institute proceedings

1. The first Respondent and all those claiming occupation through him shall vacate from Tumai mining claims numbers 7, 8, 9, 10, 11, 12, 20 and 21, Guruve within 14 (fourteen) days of the order, failing which the Sheriff or his deputy is authorized and empowered to evict the respondent or any person claiming occupation through him from the mining claims. 2. The first Respondent shall pay the Applicant's costs of suit.

1. In a rei vindicatio action, once an owner proves ownership and that the defendant holds the property without consent, the onus shifts to the defendant to establish any right to continue holding the property against the owner. 2. Physical disability resulting from a stroke does not equate to mental incapacity; a person who retains the ability to understand the nature and consequences of transactions and is not motivated by delusions remains mentally competent to give instructions and execute legal documents. 3. A mentally competent person who is physically disabled may lawfully grant a general power of attorney to an agent (including authority to institute legal proceedings) without requiring appointment of a curator ad litem. 4. Valid revocation of a power of attorney immediately terminates the agent's authority, and any occupation of property based solely on that agency becomes unlawful upon revocation. 5. The ability to affix a thumbprint with notarial acknowledgment constitutes valid execution of legal documents by a person who is physically unable to sign.

The Court observed that the law aims to ensure that persons with disabilities are treated fairly, respecting their dignity and rights. This reflects the constitutional and human rights dimension of capacity determinations. The Court also noted that the Applicant could not simply cancel the agreement of sale entered into by the first Respondent (even though unauthorized) because the purchaser had paid $20,000, and cancellation would result in legal and financial consequences including the need to reimburse funds the Applicant could not afford. This pragmatic observation explains why the Applicant authorized his other son to complete the unauthorized sale rather than attempting to unwind it.

This case is significant in Zimbabwean law (and relevant to South African jurisprudence given the shared legal principles) as it clarifies the distinction between physical disability and mental incapacity in the context of legal capacity to institute proceedings. It reinforces that physical disability does not automatically render a person mentally incapacitated or require appointment of a curator. The judgment applies principles of rei vindicatio in the mining law context and confirms that revocation of a power of attorney immediately terminates an agent's authority and any right of occupation derived from that authority. The case also demonstrates the court's approach to protecting the rights and dignity of persons with disabilities while respecting their autonomy when they retain mental capacity.