Online Reporter
Zvamaida Murwira-Senior Reporter
ATTEMPTS by about 46 stand owners in Msasa Park, Chadcombe, to claim rights over their properties under the shield of Zanu PF failed when the High Court ordered their eviction after ruling that there was no legal basis for their continued stay.
High Court Judge Justice Regis Dembure upheld an eviction application filed by Msasa Park, Chadcombe, holders of title deeds of subdivision for stand number 560, who argued that the 46 had no legitimate basis to continue residing at the property.
The Court dismissed their attempt to name drop Zanu PF Harare Province after the revolutionary party distanced itself from their stay at the property.
The 46 stand owners had opposed the application, arguing that directors of Msasa Park had donated the land to Zanu PF for them as Zanu Mukuvisi Tashinga District in 2012.
They had also argued that Mr Thomas Ritchie, who had deposed an affidavit for their eviction on behalf of Msasa Park, was not a duly designated director, given that he had been specified in 2012 and he was under investigation. In upholding the application by Msasa Park, Justice Dembure said the applicant had established a solid case against the 46 after it produced title deeds in its name.
He said claims by the 46 that they had the land donated to them by Zanu PF Harare province had no merit because there was no agreement to that effect and Harare provincial Chairman, Cde Godwills Masimirembwa had written an affidavit distancing the revolutionary party from the dispute.
Justice Dembure said he stood by an earlier ruling made last year by another High Court judge, Justice Emilia Muchawa, who ruled that attempts to claim legitimacy under the guise of Zanu PF were futile. In dismissing the suit brought by about 800 stand owners last year, Justice Muchawa said the applicants lacked the right to bring the litigation since they were not the beneficiaries of the said donation and did not specify the actual stands in which they had a direct and substantial interest.
“They have not detailed which piece of land each of them got from Msasa Park. Their individual claims are buried within the alleged donation to ZANU PF, which is not before the court,” said Justice Muchawa last year.
“In any event, the provincial chairman of ZANU PF, the alleged donee, on pages 90 to 91 of the record dissociated the party from legal proceedings that had been instituted in its name based on the alleged donation of 2012.
“He confirms that the party is a juristic person capable of suing and being sued.”
In the present case, whose judgement was delivered last Friday, Justice Dembure noted that all the papers relied up on by the 46 and placed before him were equally placed before Justice Muchawa and made a factual finding that there was no merit.
It was noted that the bulk of the respondents were litigants in the case that was heard by Justice Muchawa.
He said they sought a declaratory order and consequential relief, including an order compelling Msasa Park to effect the transfer of the stands to each of them.
“The court further found that their claims to assert any rights to title based on the alleged 2012 donation had pre-scribed as well. It is common cause that the said respondents’ attempts to overturn this judgement were unsuccessful in the Supreme Court. In its findings, the court not only upheld the points in limine (preliminary points) but also found them to be in illegal occupation of the applicant’s land,” said Justice Dembure.
“That was a bold and damning position taken by the court, striking at the heart of these respondents’ claim to any right or interest in the land in question.
“There cannot be any arguable defence in the circumstances, nor any triable issues for the court to reconsider.
“The same issue of the respondents’ rights or interests in the land in question was clearly determined, and that decision is final.”
He said their claim to assert any rights or title in this property was dismissed last year by the High Court.
“They cannot wake up and seek to reclaim the same rights to possess the land or allege that their possession is lawful,” he said.
“In my view, the court’s findings in that case would equally affect even those of the respondents who were not parties, as they related to the status of the property in question.
“The court considered the same documents relied up on by the other respondents, who were not parties, and made findings of fact on the futility of any claim to rights or title in the property based on the alleged donation.
“The same documents cannot now turn to create any valid rights for them before me. While in the previous matter the respondents before the court then argued that there was a donation of the property, leading to their being allocated the land, in the present case, they have performed a volte-face.
