Mufudzi Wakanaka Anglican Church v Shailet Muperi and Obert Matambo and City of Harare

The applicant church entered into a 30-year lease agreement with the City of Harare (third respondent) on 11 August 2017 for stand number 4080, Crowborough Township, Harare, terminating on 31 July 2047, with exclusive rights to occupy and develop the property. The first and second respondents unlawfully occupied the property and erected structures thereon. The first respondent claimed she was allocated a portion of stand 3425 (200 square meters) by Space Housing Cooperative in 2016 and moved in August 2017, awaiting regularisation by Council. The second respondent claimed he was allocated stand 3425 (also 200 square meters) by the same cooperative in December 2016 and constructed his house in March 2017. Both respondents admitted they were seeking regularisation from the City of Harare and that they had been duped by a fraudster housing cooperative. The applicant commenced construction of a durawall with approved plans, but the respondents' illegal structures interfered with the applicant's intended use. The third respondent did not oppose the application.

• Whether the applicant as a registered lessee with exclusive rights has locus standi to evict illegal occupiers from the leased property
• Whether the first and second respondents had any lawful right to occupy the property in question
• Whether the respondents' occupation of the property was lawful or illegal
• Whether the court can protect the occupation rights of persons who are in unlawful occupation pending regularisation
• Whether the applicant was entitled to an eviction order

The court ordered that: (1) The first and second respondents and all those claiming occupation through them shall vacate stand number 4080, Crowborough Township, Harare; (2) The first and second respondents shall demolish their illegal structures within three days of service of the order, failing which the Sheriff or his deputy, with the assistance of the Zimbabwe Republic Police, are authorised to demolish the structures; (3) The first and second respondents shall pay costs of suit jointly and severally, the one paying, the other to be absolved.

A registered lessee with exclusive rights to occupy and develop property granted by the legal owner has locus standi to seek eviction of illegal occupiers without the owner's participation. Persons who occupy land without lawful allocation from the registered owner and who are merely seeking regularisation of their unlawful occupation are illegal occupiers with no enforceable rights that a court can protect. An admission by occupiers that they are seeking regularisation under statute constitutes an admission of unlawful occupation. Courts will not lend themselves to protect illegality or assist illegal occupiers in maintaining unlawful occupation. A party raising a special defence bears the onus of proving that defence, and bald, unsubstantiated allegations without documentary support do not discharge this onus.

The court made observations about the deplorable nature of persons who take the law into their own hands by unlawfully occupying property. DEMBURE J noted that there can be no regularisation process genuinely ongoing from 2016 to 2025, suggesting such claims were implausible. The court also observed that any purported regularisation would be inconsistent with the prior allocation already made to the applicant for 30 years. The judge commented that the respondents were "standing on sinking sand" with no legal rights enforceable at law, and their "brazen, unlawful conduct is deplorable." The court also noted in passing the proper test for establishing material disputes of fact requiring oral evidence, citing Supa Plant Investments v Chidavaenzi 2009 (2) ZLR 132, emphasizing that it is not the vehemence or frequency of denials that creates disputes of fact, but rather material facts traversed in such manner as to leave the court with no ready answer absent further evidence.

This Zimbabwean High Court case reinforces important principles applicable in South African jurisprudence regarding property rights and eviction: (1) It affirms that lessees with exclusive occupation rights have standing to evict illegal occupiers without requiring the registered owner to act; (2) It establishes that persons awaiting regularisation of their occupation have no enforceable rights and are illegal occupiers; (3) It confirms that courts will not protect or legitimise unlawful occupation, regardless of pending administrative processes; (4) It reiterates the principle that positive defences must be substantiated with documentary evidence, not mere bald assertions; (5) It demonstrates the application of the onus of proof on parties raising special defences; (6) The case provides useful guidance on illegal land invasions facilitated by fraudulent housing cooperatives, a problem common in both Zimbabwe and South Africa.