Mairos Lisimba v Lizzy Chipendo

On 16 March 2007, the applicant purchased stand number 9642 A Salisbury Township (also known as number 2 Umuguza Close, Wilmington Park, Cranborne, Harare) from Gatsikanayi Enock Nyamupanda. The applicant paid the purchase price and obtained title under deed of transfer number 2076/07 on 20 April 2007. The property had originally belonged to the late Ronnie T Chipendo. After his death, an executor dative (Muchivete Hungwe) obtained authority under section 120 of the Administration of Deceased Estates Act to sell the property with the Master's consent, and sold it to Nyamupanda who obtained title under deed of transfer number 896/03. The proceeds were distributed among the late Chipendo's children, excluding the respondent who was said to have divorced him in 1991. The applicant could not take occupation as the respondent's son, Killian Chipendo, was in occupation. The applicant obtained an eviction order against Killian Chipendo and all claiming through him (HC 2951/07) on 26 February 2008. The respondent was evicted on 26 August 2008 but re-occupied the property without a court order, claiming she was the surviving spouse of the late R T Chipendo and had never divorced him. She claimed she occupied in her own right, not through Killian Chipendo.

• Whether the applicant, as registered owner of the property, was entitled to an eviction order against the respondent
• Whether the respondent's claim as surviving spouse entitled her to occupy the property despite the valid transfer of ownership
• Whether the respondent's failure to challenge the executor's sale and subsequent transfers affected her right to occupy

The application was granted. The court ordered that: (1) The respondent, her guests, invitees and all those claiming through her shall within 48 hours of the granting of the order vacate the premises known as number 2 Umguza Close, Wilmington Park, Harare, failing which the Deputy Sheriff is empowered to evict them; (2) Any appeal against the order shall not have the effect of suspending execution; (3) No order as to costs.

The binding legal principle established is that the registered owner of land, having acquired title through a properly executed deed of transfer in terms of section 14(a) of the Deeds Registries Act, has an inherent right to exclusive possession of the property and may claim it from any person in occupation who cannot demonstrate a superior legal right. Ownership of land can only be conveyed by means of a registered deed of transfer, and once so conveyed, the owner's right to possession is enforceable against all persons, including those claiming rights as surviving spouses or family members of previous owners, where such claims have not been properly adjudicated or do not override the registered title.

The court made observations regarding the parallel contempt of court proceedings (HC 868/09), noting that it may not be necessary to proceed with that application since the present eviction order (HC 2220/09) clearly identified the respondent by her preferred name and there could be no doubt as to whom the order affects. The court observed that should the respondent defy the order in HC 2220/09, contempt proceedings could then be brought against her, and this time she would have no excuse that the court order was not in her name. The court also noted, without deciding, that the respondent had not challenged the executor dative's sale or the subsequent transfer, which implicitly affected the strength of her position, though this was not strictly necessary for the decision given the clear registered title of the applicant.

This case reinforces fundamental principles of property law in Zimbabwe (and South African law which shares the same common law roots), particularly the sacrosanct nature of registered title and the rights of ownership. It demonstrates that registered ownership under the Deeds Registries Act confers an indefeasible right to possession that cannot be defeated by unregistered claims, even from persons claiming rights as surviving spouses. The case also illustrates the proper administration of deceased estates and the binding effect of executor's sales conducted with proper authority under the Administration of Deceased Estates Act. It emphasizes that parties who fail to challenge estate administration processes timeously cannot later rely on such challenges to resist eviction by a bona fide purchaser with registered title.