Dzingirai Dingwiza v Campion Masunzambwa and Lynette Masunzambwa

In November 2006, the plaintiff purchased immovable property (Stand No. 4154 Tynwald Township) through an estate agent for Z$4,500,000. The agreement of sale reflected the defendants as sellers. However, the plaintiff was a victim of fraud - the true owners (the defendants) had not sold the property; fraudsters had used their names. The plaintiff, believing he owned the property, submitted building plans to the City of Harare and constructed a house up to wall plate level. He also incurred expenses for water and sewer connections. A previous court action (HC 805/08) to compel transfer was dismissed, confirming no valid agreement existed. The defendants later sold the property to Thembekile Dumbu in October 2009 for US$16,000, with the written agreement expressly including the improvements (incomplete four-bedroomed house at roof level). The plaintiff then claimed US$14,000 compensation for the improvements he effected.

• Whether the plaintiff qualified as a bona fide possessor entitled to compensation for improvements
• Whether the defendants were enriched by the improvements effected by the plaintiff
• What is the appropriate measure of compensation for useful improvements made by a bona fide possessor
• Whether the improvements were included in the sale to the subsequent purchaser

Judgment granted in favour of the plaintiff against the first and second defendants jointly and severally for: (a) Payment of US$5,483 together with interest at the prescribed rate from date of service of summons to date of full and final payment; (b) Costs of suit.

A bona fide possessor who mistakenly but genuinely believes he is the owner of property is entitled to compensation for useful improvements based on principles of unjust enrichment. The action lies against the person who is the owner at the time the action is instituted. The measure of compensation is the amount by which the value of the property has been enhanced or the actual expenditure incurred in effecting the improvements, whichever is the lesser. To prove enrichment, it must be established either that the yield of the property has increased or that the person claiming the benefit has the intention of selling the property. Usefulness of improvements is measured in terms of added value, not in terms of what is appealing to the owner.

The court observed that it was dealing with an equitable remedy in respect of which it enjoys wide discretion, and must endeavour to be fair to both parties. The court noted it would be an improper exercise of discretion to make an award that does not adequately compensate the plaintiff or one that unduly burdens the defendant. The court also commented that the suggestion that improvements were included in the written agreement merely to avoid problems with tax authorities must be rejected out of hand, particularly where a 'whole agreement' clause exists in the contract.

This case clarifies the application of bona fide possessor principles in Zimbabwean law, particularly in fraud scenarios. It confirms that compensation for improvements is based on unjust enrichment principles and lies against the owner at the time the action is instituted. The case demonstrates the court's equitable discretion in determining compensation, balancing adequate compensation for the improver against undue burden on the property owner. It also illustrates the evidential requirements for proving both enhancement of value and actual expenditure, and confirms that usefulness of improvements is measured by added value, not the owner's subjective preferences.