Sarah Annabelle Lucy Carter v Kathleen Norah Macintosh (Represented by Edward Mark Warhurst the Executor of the Estate Late Kathleen Norah McIntosh) and Parks and Wildlife Management Authority

The first respondent and her late husband established Bally Vaughan Bird and Game Sanctuary in 1990 for the care of birds and animals. On 1 June 2010, the first respondent (lessor) entered into a written lease agreement with the appellant (tenant) for a period of 3 years expiring on 31 May 2013. The lease included the sanctuary premises, equipment, and all birds and animals resident at the sanctuary as of 1 October 2005. Following disagreements, the first respondent lawfully evicted the appellant from the sanctuary in November 2013 on grounds of breach of contract. Upon eviction, the appellant sought to relocate various domestic and wild animals to another sanctuary, claiming ownership of animals that had come to the sanctuary after 1 October 2005 through donations made to her personally. The first respondent objected, claiming ownership of all animals at the sanctuary, and obtained a temporary interdict preventing removal of the animals pending determination of ownership. The High Court found in favor of the first respondent, and the appellant appealed to the Supreme Court.

• Whether the court a quo erred in restricting itself to the question of ownership
• Whether the appellant established ownership of the disputed animals that arrived at the sanctuary after 1 October 2005
• Whether the appellant had the right to possess the disputed animals despite not being the owner
• Whether animals donated to the sanctuary after the lease commencement date belonged to the appellant personally or to the sanctuary

The appeal was dismissed with costs.

The binding legal principles established are: (1) It is inherent in the nature of ownership that possession should normally be with the owner, and no other person may withdraw it from the owner unless vested with some right enforceable against the owner; (2) Only the owner can vindicate property; a person who fails to prove ownership cannot vindicate; (3) The owner of land is presumed to own all property on his/her land until the contrary is proved; (4) A person claiming the right to possess property without proving ownership must establish some lawful residual right to possess the property, such as contractual or retention rights; (5) Upon termination of a lease agreement, the lessee cannot continue to hold onto the lessor's property on the basis of an expired contract.

The Court noted that donors could not have donated animals to the appellant for safe keeping in her personal capacity when she had nowhere to keep them in her personal capacity, suggesting the natural inference was that donations were made to the sanctuary as an institution rather than to the appellant personally. The Court also observed that the appellant's claim was somewhat internally contradictory - she claimed the lease agreement only applied to animals resident at the sanctuary on 1 October 2005 (which were not in dispute), while the disputed animals that arrived after that date were outside the scope of the lease and allegedly her personal property, yet she had no independent legal basis to keep personal animals on the leased premises.

This case is significant in Zimbabwean property law for affirming the fundamental principle that ownership carries with it the presumptive right to possession. It clarifies that a person claiming property from the owner must either prove ownership themselves or demonstrate some lawful right to possess (such as contractual or retention rights) that can be enforced against the owner. The case also demonstrates that where property is located on leased premises, there is a rebuttable presumption that donations or additions to that property belong to the owner of the premises rather than the lessee, particularly where the lease agreement makes no provision for the lessee to acquire personal ownership of such property. It reinforces that upon termination of a lease, any rights derived from that lease cannot be used to continue holding the lessor's property.