The Sunday Mail
Legal Matters with Arthur Marara
Let us look at a principle that is at the heart of property law, the rei vindicatio. The relief of rei vindicatio is available to the registered owner of property, who is at law, entitled to be in physical possession of his property, the res. An owner of property is at liberty to repossess his property at any time that he desires, because it is the nature of ownership that possession of the property should repose in its owner at all times.
In Graham v Ridley 1931 TPD 476, the principle was set out as follows:
“ . . . It is inherent in the nature of ownership that possession should normally be with the owner and it follows that no other person may withhold it from the owner unless he is vested with some right enforceable against the owner.”
Where the action before the court is vindicatory in nature, two requirements must be pleaded and established viz:
- Ownership of the property-Goudini Chrome (pty) Ltd v MCC Contracts (Pty) Ltd 1993 (1) SA 77 (A) at 82, and Unimark Distributors Pty) Ltd v Erf 94 Silvertondale (Pty) Ltd 1999 (2) SA 986 (T),
- Possession of the property by the defendant at the time of the institution of the action- Graham v Ridley 1931 TPD 476, Chetty v Naidoo 1971 (3) SA 13 (A), Jeena v Minister of Lands 1955 92) SA 380.
Once possession is established, the unlawfulness of same is presumed. This is because possession of another’s property is prima facie unlawful and must be justified-Krugersdorp Town Council v Fortuin 1965 2 SA 335 (T), Chetty v Naidoo 1974 3 SA 13 (A) and Shimuadi v Shirungu 1990 3 SA 344 (SWA. See also Amler’s Precedents of Pleadings 4th Edition at page 322. Possession must be justified with reference to a known legal norm. Once possession is proven, the onus to justify it accordingly shifts to the possessor.
In Stanbic Finance Zimbabwe LTD v Chivhungwa 1999 (1) ZLR 262 (HC) Malaba J (as he then was), applied the principle behind the rei vindicatio to the case of a motor vehicle owned by the plaintiff and leased to a buyer under a suspensive agreement of sale. In that matter, he referred to his decision a year earlier in Jolly v A Shannon & Anor 1998 (1) ZLR 78 (HC) where he had this to say at p 88:
“The principle on which the actio rei vindicatio is based is that an owner cannot be deprived of his property against his will and that he is entitled to recover it from any person who retains possession of it without his consent. The plaintiff in such a case must allege and prove that he is the owner of a clearly identifiable movable or immovable asset and that the defendant was in possession of it at the commencement of the action. Once ownership has been proved its continuation is presumed. The onus is on the defendant to prove a right of retention: Chetty v Naidoo 1974 (3) SA 13 (A) at 20A-C; Makumborenga v Marini S-130-95 p 2. It follows that the action is based on the factual situation that prevailed at the time of the commencement of the legal proceedings.”
In Alspite Investments v Westerhoff 2009 (2) ZLR 302 (H) it as held;
“The rei vindicatio is an action that is founded in property law. It is aimed at protecting ownership. It is based on the principle that an owner shall not be deprived of his property without his consent. So exclusive is the right of an owner to possess his or her property that at law, he or she is entitled to recover it from wherever found and from whomsoever is holding it without alleging anything further than that he or she is the owner and that the defendant is in possession of the property. Thus it is an action in rem, enforceable against the world at large.
This is settled law in this jurisdiction which hardly requires authority. (See Sibanda v The Church of Christ 1994 (1) ZLR 74 (SC); Musanhi v Mt Darwin Rushinga Cooperative Union 1997 (1) ZLR 120 (SC); Mashave v Standard Bank of South Africa Ltd 1998 (1) ZLR 436 (S) Jolly v Shannon & Anor 1998 (1) ZLR 78 (HC) and Stanbic Finance Zimbabwe Ltd v Chivungwa 1999 (1) ZLR 262 (HC).)”
Once it is demonstrated that a person owns the property, they are entitled to vindicate it from whoever has it. There are also instances when an innocent person buys a property from a person who has no rights the property. It is settled that there are no equities in a rei vindicatio- Alspite Investments (Pvt) Ltd v Westerhoff 2009 (2) ZLR 236. In the Westerhoff case the Court held that,
“There are no equities in the application of the rei vindicatio. Thus, in applying the principle, the court may not accept and grant pleas of mercy or for extension of possession of the property by the defendant against an owner for the convenience or comfort of the possessor once it is accepted that the plaintiff is the owner of the property and does not consent to the defendant holding it. It is a rule or principle of law that admits no discretion on the part of the court. It is a legal principle heavily weighted in favour of property owners against the world at large and is used to ruthlessly protect ownership.”
The position of the law is that the question of his innocence does not come into it. Once it is found that a person took title from a party who had no title and could pass no greater rights to him, that is the end of the matter.
In Zavazava & Anor v Tendere & Ors HH-740-15 the High Court dealt with an innocent third party who had bought immovable estate from a scoundrel. It said;
“Counsel for the applicant has drawn my attention to the remarks of Holmes JA, which are apposite, in the case of Oakland Nominees Ltd v Gelria Mining & Investment Co Ltd 1976 (1) SA 441 (A) 452A where the learned judge of appeal made emphasis that our law jealously protects the right of ownership and the correlative right of the owner over his property. He further stated:
“The legal principle enunciated above is solidly noble because since time immemorial, at every stage of human evolution, societies have suffered the inevitable unfortunate phenomenon of having in their midst, an array of thieves, fraudsters, robbers, cutthroats, the throwbacks in evolution etc with no qualms whatsoever in employing force or chicanery to dispossess fellow humans of ownership of their property. If the law did not jealously guard and protect the right of ownership and the correlative right of the ownership to his/ her property, then ownership would be meaningless and the jungle law would prevail to the detriment of legality and good order.”
Later it said;
“The position of the law in that regard is aptly stated by the leaned author R.H. Christie, Business Law in Zimbabwe, 2nd Ed, Juta & Co Ltd at p 149-150:
“An owner whose property has been sold and delivered without his consent remains the owner, as the seller cannot pass ownership that was not his. The true owner can bring a vindicatory action to recover his property from anyone, including a bona fide buyer, in whose hands he finds it. The general rule that the seller can give no better title than he has operates in favour of the true owner, unless the purchaser proves that the true owner is estopped from denying the seller’s authority to sell.”
Mc Nally JA developed that point further in Mashave v Standard Bank of South Africa Ltd 1998 (1) ZLR 436 (S) 438 C when he pronounced:
“The Roman-Dutch law protects the right of an owner to vindicate his property, and as a matter of policy favours him against an innocent purchaser. See for instance Chetty v Naidoo 1974 (3) SA 13 (A) at 20 A-C. The innocent purchaser’s only defence is estoppel.”
The nemo dat quod non habet and nemo plus iuris ad alium transferre potest quam ipse habit, that is, no one can give what he does not have and no one can transfer any right greater than he himself possesses are firmly rooted in our legal science. Therefore, where a person who is not the owner and possesses no mandate to do so purports to transfer property, such transfer is a nullity. See Silberberg and Schoeman; The Law of Property, 2nd ed, p 72.
It is my hope that you gleaned one or two things from the principle or rei vindicatio, and that it will help you to protect your future against anyone who has no rights to it.
LEGAL DISCLAIMER: The material contained in this post is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the article/post. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.
Arthur Marara is a corporate law attorney practicing law in Harare, Zimbabwe. He is also a notary public and conveyancer. He is also passionate about labour law, commercial, and family law and promoting legal awareness and access to justice. He writes in his personal capacity. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email [email protected]
