Francis Makandirasa Mazarura v Rhodah Kativhu

The plaintiff sought to evict the defendant from Plot 8 Village 62 Hoyuyu Mutoko, claiming ownership based on an alleged cession from his late father, Enerst Chakanetsa Mazarura, in 2007. The plaintiff presented affidavits and a general power of attorney, and had paid subscription fees to the Rural District Council, receiving a confirmation certificate of ownership. The defendant opposed the claim, stating that she was the surviving customary law spouse of the late Enerst Chakanetsa Mazarura, and that Plot 8 was their matrimonial home. She had moved to Plot 8 with her husband from Plot 5 under a Government Land Acquisition Programme that relocated villagers to bigger plots. The defendant had also acquired a confirmation letter of ownership from the relevant authority dated 12 January 2012, prior to the plaintiff's confirmation dated 10 May 2012. The plaintiff had previously instituted eviction proceedings in the Magistrates Court in 2007 while his father was still alive, which was dismissed. The plaintiff alleged the defendant had been divorced through customary divorce token ('gupuro'), which was disputed.

• Whether the plaintiff had validly acquired Plot 8 through cession from his late father
• Whether the plaintiff had legal standing to evict the defendant from the property
• Whether the failure to cite the allocating authority (Mutoko Rural District Council) was fatal to the proceedings
• Whether the earlier Magistrates Court dismissal constituted res judicata
• Whether the defendant's rights as a surviving customary law spouse entitled her to remain on the matrimonial property
• Whether customary practices that discriminate against women in land ownership are constitutional

The plaintiff's claim for eviction was dismissed with costs.

For a valid cession of land acquired through government resettlement schemes to be effected, due process must be followed, including engagement with the relevant allocating authority (Rural District Council), and mere affidavits or payment of fees are insufficient to establish transfer of title. Where there are competing claims to land ownership based on confirmation certificates issued by the same authority, the principle of sanctity of contracts requires giving effect to the first confirmation in the absence of evidence of revocation or cancellation. A surviving spouse in a customary marriage has rights to the matrimonial home acquired during the subsistence of the marriage, and these rights are protected by constitutional provisions on equality and non-discrimination (sections 56 and 80 of the Constitution of Zimbabwe Amendment (No 20) Act 2013). Any customs, traditions, or cultural practices that seek to discriminate against women in land ownership or deprive them of property rights based on gender, failure to bear children, or other discriminatory grounds are void to the extent of such infringement as per section 80(3) of the Constitution. A person seeking to evict another must establish absolute rights lawfully acquired and have locus standi based on ownership or title to the property.

The court made strong observations about the incompetence and possible corruption of the Lands Officer, Nevson Jemwa, who changed ownership records in the register based on a magistrate's court extract without proper verification, reading the judgment, or obtaining a death certificate. The court suggested that an investigation into his conduct would be appropriate. The court also observed that land is a basic necessity for both humans and animals, as it provides food, water, and shelter. The court noted that the Magistrates Court's earlier dismissal did not constitute res judicata as it did not fully delve into the substantive issues of ownership, leaving those questions unresolved. The court commented on the improper attempts to use alleged customary divorce to strip the defendant of her rights, describing it as a 'clear twisting of custom.'

This case is significant in Zimbabwean law for its application of constitutional principles of gender equality and non-discrimination to land rights and property ownership. It affirms that women in customary marriages have equal rights to matrimonial property and cannot be discriminated against based on gender, marital status, or failure to bear children. The judgment demonstrates the supremacy of constitutional rights over discriminatory customary practices in land matters. It also establishes important principles regarding the procedural requirements for valid cession of land acquired through government resettlement schemes, emphasizing that proper involvement of allocating authorities is essential. The case reinforces the rights of surviving spouses in customary marriages to retain matrimonial property, particularly land acquired during the subsistence of the marriage.