Gwire Billy Kasese v Esther Ndingadini Mafutha (In her capacity as the executrix of the Estate late Walter Noah Mafutha) and Others

On 29 July 1982, the applicant and the late Walter Noah Mafutha entered into an agreement of sale for Stand No. 12 Motetsi Road, Beatrice Cottages, Mbare Township, Harare for $10,000.00 Zimbabwean dollars, payable in installments of $79.00 per month (split between City Council and the deceased's account), with a $2,000.00 deposit paid at signing. The applicant paid $2,262.34 to clear the deceased's arrears with the city authority on 24 August 1982. By January 1984, the applicant claimed to have finished paying for the house. On 26 March 1984, the deceased instituted proceedings claiming $3,537.00 as outstanding purchase price. In 1989, the applicant paid $7,321.01 to the deceased's legal practitioners in settlement. The deceased moved from his last known address and later died on 14 September 1995. The estate was registered in 1995 with the first respondent appointed executrix on 15 February 1996. The applicant only became aware of the death in October 2005 and instituted proceedings under HC 5272/05 seeking transfer. The Master rejected his claim in April 2011. The applicant has been in continuous occupation of the property since 1984.

• Whether the applicant's claim had prescribed under the Prescription Act
• Whether the applicant had paid the full purchase price for the property
• Whether the applicant acquired the property through acquisitive prescription under section 4 of the Prescription Act [Cap 8:11]
• Whether the applicant was entitled to transfer of the property into his name

1. The 3rd respondent (Registrar of Deeds) shall transfer to the applicant rights and interest in stand No. 12 Motetsi Road, Beatrice Cottages Mbare Township, Harare. 2. Costs follow the event (awarded against the respondent).

A person who has possessed property openly and as if he were the owner thereof for an uninterrupted period of thirty years shall by acquisitive prescription become the owner of that property, even where the original contractual claim for transfer may have prescribed. Payment of the full purchase price to a seller's legal practitioners in settlement of a claim for outstanding balance constitutes proper fulfillment of contractual obligations, and any failure of those funds to reach the intended recipient is a matter between the estate and its legal practitioners, not the purchaser.

The court noted that if the applicant had failed to locate the deceased before his death, he could have applied for substituted service. The court also observed that the previous court order under HC 5272/05 directing the applicant to file a claim with the Master appeared to have implicitly overruled the prescription defense raised in that application, though no written judgment existed. The court expressed sympathy that if the money paid to the deceased's legal practitioners did not reach the intended recipient, this was unfortunate, but indicated the respondent's recourse lay with those legal practitioners rather than with the applicant.

This case demonstrates the application of acquisitive prescription under Zimbabwean law (which shares similarities with South African law) as an alternative remedy where contractual claims may have prescribed. It illustrates that continuous, open, and uninterrupted possession of property for 30 years as if one were the owner can confer ownership rights even where the original contractual claim may be time-barred. The case also highlights the interaction between prescription defenses and claims against deceased estates, and the importance of timely enforcement of contractual rights to transfer of property.