Sibusisiwe Msimanga v Sibongile Sibanda

The applicant and respondent are related (aunt and niece). The applicant's mother (now deceased) entered into an agreement of sale with one Jacob Phosa for stand number 259 Nketa 6, Bulawayo. The property was transferred and registered in the applicant's name in accordance with Bulawayo City Council's requirements. The applicant's mother passed away in 2002. The respondent had been staying in the property since it was purchased and continued to occupy it after the mother's death. The respondent confiscated both of the applicant's parents' death certificates and refused to return them. The respondent also refused to vacate the property despite it being registered in the applicant's name. The respondent's name appeared on the agreement of sale as a witness only.

• Whether the applicant, as registered owner of the property, had the right to evict the respondent
• Whether the respondent had any legal basis to continue occupying the property
• Whether the respondent's claim of an arrangement with the applicant's mother (that both their names would appear on the property) had any merit

1. Respondent and all those claiming occupation through her are ordered to vacate stand number 259 Nketa 6, Bulawayo within 24 hours after service of the court order. 2. Upon failure to comply, the Deputy Sheriff is authorized to evict whoever is in occupation with the assistance of the Zimbabwe Republic Police. 3. Respondent to pay the Deputy Sheriff fees.

A person registered as the owner of property has a real right over it and is entitled to evict occupiers who cannot establish a legal basis for their occupation. Mere assertions of an arrangement regarding property ownership, unsupported by documentary or other credible evidence, are insufficient to resist an eviction claim brought by a registered owner. Where a party's name appears only as a witness on an agreement of sale and not as a co-purchaser, and there is no evidence of any co-ownership arrangement, that party cannot claim rights of ownership or occupation against the registered owner.

The court made strong observations regarding professional conduct by legal practitioners. The court noted that it was disturbing and worrying that the respondent's legal practitioner had previously advised opposing counsel that the respondent was opposing the application merely to buy time to build her own house, yet still persisted in arguing that the respondent had a bona fide defence. The court characterized this conduct as misleading and bordering on abuse of court process, stating that legal practitioners are supposed to desist from conduct which is unbecoming and unworthy. The court issued a strong warning to Mr Munjanja to desist from such conduct in future, emphasizing that courts cannot tolerate such abuse of process.

This case reinforces the principle that registered ownership confers real rights over property that can be enforced against occupiers who lack legal basis for their occupation. It also illustrates the court's intolerance of abuse of court process, particularly where legal practitioners engage in conduct aimed at merely delaying proceedings without bona fide defence. The case emphasizes that mere assertions without supporting evidence will not establish a defence to eviction proceedings, and that the evidentiary burden lies on the party challenging registered ownership to prove their claimed rights.