Rutendo Latoya Mundandi and Others v Rosemary Joshua and Another

The parties were close relatives. The first two applicants were born out of wedlock to David Mundandi and the late Deborah Sithole. The third applicant, Robin Takunda Goremucheche, was Deborah's son by a different father. On 10 January 2001, Mundandi and Deborah purchased property at 94 Hopefountain Road, Waterford, Bulawayo, which was registered in the names of the three minor children. Deborah passed away on 9 August 2001. During her illness and after her death, the respondents (Deborah's sister and mother) moved into the property and refused to leave. Mundandi obtained a provisional order on 28 August 2001 ordering the respondents to vacate. Robin turned 18 on 27 August 2001, attained majority, disassociated himself from Mundandi and his half-siblings, and aligned himself with the respondents. Robin invited the respondents to remain at the property and obtained a provisional order permitting them to occupy the property through him. The respondents defied the initial eviction order. Mundandi and the two minor girls had to move out due to problems caused by the respondents.

• Whether the respondents had a legal right to occupy the property registered in the names of the three children
• Whether Robin, as a co-owner upon attaining majority, could invite the respondents to live at the property in a manner that violated the rights of his co-owners
• Whether Mundandi, as guardian of the two minor girls, had the right to occupy the property
• What consequences should follow from the respondents' defiance of a court order

The provisional order in matter HC 2537/01 issued on 28 August 2001 was confirmed with costs on an attorney and client scale. The provisional order in matter HC 2727/01 issued on 14 September 2001 was discharged with costs.

A co-owner of property cannot exercise their right to invite persons to reside at the property in a manner that violates the rights of other co-owners, even where those co-owners are minors. The rights of majority shareholders (co-owners) must be respected. A legal guardian of minor children who co-own property is entitled to occupy that property for purposes of caring for and looking after those children. Persons who defy court orders will be visited with punitive costs on an attorney and client scale.

The court made observations that defying court orders was becoming prevalent and that courts should always visit culprits with punitive costs as a sign of displeasure at such practice. The court also noted that if Robin could not do without his troublesome relatives, he should go and join them wherever they would be, as the other co-owners needed to live at the property without disturbance.

This case is significant for establishing principles regarding: (1) the rights and responsibilities of co-owners of property, particularly where minors are involved; (2) the recognition of guardianship rights in relation to occupation of property belonging to minor children; (3) the principle that a co-owner cannot exercise rights in a manner that violates the rights of other co-owners, even where they are the minority shareholders; and (4) the court's approach to defiance of court orders, including the imposition of punitive costs on an attorney and client scale as a deterrent.