Farayi Zvavamwe v Charles Chombo

The respondent was the former owner of Stand 625 Athlone Township of Lot 2 Township of Greengrove, also known as number 10 Athlone Avenue, Greendale. The property was sold to the applicant through a writ of execution issued by the Magistrates Court under case number 79/20 pursuant to a sale by auction. The property was transferred to the applicant under Deed of Transfer No. 6420/2016 dated 30 December 2016. Despite the transfer, the respondent remained in occupation without the applicant's consent. On 17 January 2017, the applicant's lawyers demanded the respondent vacate by 20 January 2017, but the respondent refused, insisting he required 3 months' notice. The respondent had lived at the property for ten years. The applicant issued summons claiming eviction, holding over damages of $1,500.00 per month from 1 February 2017, and costs. The respondent entered appearance to defend on 10 February 2017. The applicant then filed for summary judgment under Rule 64 of the High Court Rules, 1971, believing the respondent had no bona fide defence.

• Whether the applicant was entitled to summary judgment under Rule 64 of the High Court Rules, 1971
• Whether the respondent had a bona fide defence to the eviction claim
• What constitutes a reasonable notice period for eviction where a former owner remains in occupation after the property has been transferred to a new owner
• Whether the new owner is entitled to vindicate his property rights against the former owner

1. The respondent and all those claiming occupation through him shall vacate the property, namely stand number 625 Athlone Township also known as number 10 Athlone Avenue, Greendale, Harare by the 31st July 2017, failing which, the Sheriff is authorised to evict the respondent and all those claiming occupation through him from the said property. 2. The respondent shall bear the costs of suit.

A former owner who has lost title to property through execution proceedings and remains in occupation without the new owner's consent is entitled to reasonable notice before eviction, ordinarily at least one month. However, where the former owner has already occupied the property for a substantial period (nearly six months) without compensating the new owner after being put on notice to vacate, and has had ample time to seek alternative accommodation, the court will not grant additional extended notice periods as this would cause undue prejudice to the new owner. The new owner is entitled to vindicate their property rights. What constitutes reasonable notice must be assessed in the context of all the circumstances, including the period already elapsed and any prejudice to the property owner.

The court observed that ordinarily a party who wishes to stay on longer than a reasonable notice period should compensate the new owner by way of agreed rentals, failing which they should vacate the property. The court also noted that the respondent's appearance to defend appeared to have been entered purely for purposes of delay, there being no bona fide defence to the claim.

This case is significant in Zimbabwean property law as it addresses the balance between the rights of a new property owner to vindicate their property rights and the former owner's right to reasonable notice before eviction. It establishes that while a reasonable notice period is required (normally at least one month), courts will consider the entire timeline of occupation when determining what is reasonable. The case reinforces the principle that a former owner who has lost title through execution proceedings cannot indefinitely remain in occupation on their own terms or against the new owner's wishes, particularly when no compensation is being paid. It also demonstrates the application of summary judgment procedures where there is no bona fide defence to an eviction claim.