Nyaradzai Mazorodze v Netty Dana and Evelyn Dana

The applicant purchased Stand No. 459 Ardbennie Township from Rosina Tunhidzai Maunga on 4 August 2006 and obtained transfer via Deed of Transfer No. 5325/2007 dated 17 October 2007. Rosina had purchased the property from the deceased estate of Boniface Matienga Dana and obtained transfer via Deed of Transfer No. 708/2004 dated 31 March 2004, with the Master's authority granted on 27 July 1999 under s 116 of the Administration of Estates Act. The two respondents were beneficiaries of the deceased estate together with six others. The sale to the applicant was a resale done with the involvement of the executor and beneficiaries, who had expressed dissatisfaction with the original selling price to Rosina. After obtaining transfer on 17 October 2007, the applicant failed to take occupation due to the respondents' refusal to vacate the premises. The applicant sought an eviction order.

• Whether the applicant's use of court application procedure (rather than summons) was proper for an eviction matter
• Whether there were material disputes of fact precluding determination by application
• Whether the applicant, holding a registered Deed of Transfer, had a real right entitling her to evict the respondents
• Whether the sale to Rosina and subsequent resale to the applicant were valid
• Whether the respondents had consented to the resale of the property
• Whether the applicant was entitled to holding over damages and costs on an attorney and client scale

1. The respondents and all those claiming through them were ordered to vacate House No. 459 Kennard Road, Houghton Park, Harare within five (5) days from the date of service, failing which the Deputy Sheriff, Harare was authorized to eject them. 2. The respondents were ordered to pay holding over damages of $3,898,200,000.00 plus interest at the prescribed rate from 6 August 2006 to the date of payment. 3. The respondents were ordered to pay costs on an attorney and client scale, the one paying the other to be absolved.

A Deed of Transfer is prima facie evidence of ownership in immovable property and conveys real rights upon the registered owner. In terms of the Deeds Registry Act [Cap 20:05], a real right becomes effective upon registration. The owner of immovable property holding registered title has the right to seek eviction of persons occupying the property without valid title. Where a prior registered owner's title is not challenged or set aside, that owner can pass valid title to a subsequent purchaser. In the absence of fraud, registered title is not easily dislodged. Parties opposing eviction applications must outline material disputes of fact with concrete evidence, not rely on bald assertions.

The court observed that while the applicant sought a 48-hour eviction period, this could be modified in the interests of justice to ensure adequate time for compliance - in this case, 5 days was deemed sufficient. The court also noted that costs on a higher scale are not lightly given unless the circumstances warrant it, and that such circumstances exist where respondents had no valid defense and ought to have realized from their own pleadings in this and another case that they had no case at all.

This case reinforces the principle that registration of immovable property under the Deeds Registry Act conveys real rights upon the registered owner, which are not easily dislodged in the absence of fraud. The case emphasizes that a Deed of Transfer is prima facie evidence of ownership and that the holder has the right to evict persons without valid title. It also demonstrates that parties opposing eviction applications must substantiate allegations of material disputes of fact with concrete evidence rather than bald assertions. The judgment provides guidance on when costs on a higher scale are appropriate - where a party has no valid defense and unnecessarily puts the other party to expense when they ought to have realized from their own pleadings that they had no case.