Woman evicted after 17-year property battle as judge slams ‘wishy-washy’ ownership claim

THE High Court has ordered a Kwekwe woman to vacate a house she has occupied for more than 17 years, ruling that her claim to ownership was unsupported and condemned her conduct for dragging out the litigation while denying the lawful owner use of the property.

Justice Evangelistal Kabasa ordered Mercy Muzondiwa (née Mhaka) and everyone claiming occupation through her to leave House No. 2B Flamboyant Avenue, Msasa Park, Kwekwe, and directed her to pay legal costs on the punitive attorney-client scale.

The dispute, which was initiated in 2009 by Norris Trust, sought Muzondiwa’s eviction from the property and was only concluded this year after years of postponements.

“This matter took an unprecedented 17 years to be finalised,” Kabasa said.

“This unfortunate delay was occasioned by endless postponements occasioned at times by the change of legal representation by the defendant and the allocation of the matter to a different judge.”

The judge said the prolonged litigation had deprived the trust of the use of its property for nearly two decades.

“The defendant has deprived the plaintiff of the use of its property for a period of almost 17 years. The matter has taken long to be finalised due to the defendant’s conduct. She has put the plaintiff out of pocket unnecessarily. Her conduct is deserving of censure.”

Norris Trust argued that it lawfully purchased the property in 2008 from the estate of the late Irene Helen Gerterbach through the duly appointed executor, Byron Venturas, before obtaining a registered title deed.

The trust said it had never been able to occupy the property because Muzondiwa refused to vacate despite notices demanding that she leave.

Muzondiwa claimed she had bought the house in 2003 from the deceased’s son, Gary Craig Gerterbach, under what she described as a “special arrangement” involving payment of family expenses rather than money.

However, she conceded there had been no agreed purchase price, no written agreement and produced no documentary proof of payment.

Kabasa said her evidence failed to establish the existence of a valid sale.

“There can be no prevarication that surpasses what was demonstrated here.

“The long and short of it is that the defendant could not say what the purchase price was and what she paid for the purchase of the property.”

In one of the judgment’s strongest passages, the judge questioned how anyone could claim to have bought a house without knowing its price.

“Even one who buys an ice-cream knows what they paid for such ice-cream. How can one talk of purchasing a house and be wishy-washy on the terms of the agreement?”

The court also noted that Gary Gerterbach had no legal authority to sell the property because no executor had been appointed when the alleged transaction took place.

Kabasa rejected Muzondiwa’s argument that the trust’s title deed was forged, noting that her previous attempt to challenge the title had already failed.

“There is no court order speaking to the invalidity of the Title Deed. The plaintiff holds such Title Deed which bestows on it exclusive rights exercisable against the whole world.”

The judge held that the registered title remained valid and that the proceedings before the court were not an opportunity to relitigate issues that had already been decided.

The court further found that Muzondiwa had failed to prove any legal basis for remaining in occupation of the property.

“The defendant dismally failed to prove the existence of such contract.”

“The plaintiff therefore proved ownership, equally proved that the defendant’s occupation of the property is without consent, and the defendant did not prove any right of retention.”

Kabasa also criticised Muzondiwa’s conduct during the lengthy proceedings, saying she repeatedly sought postponements and attempted to delay the trial.

“Unlike the plaintiff’s witness, the defendant appeared bent on dragging out the trial and playing victim.”

The judge said punitive costs were justified to discourage litigants from abusing court processes.

“Litigants ought not to be allowed to drag cases for inordinate periods just so as to derive a benefit they are not entitled to and harassing the other party in the process.”

The court ordered Muzondiwa and all those occupying the property through her to vacate the house and directed her to pay Norris Trust’s legal costs on the attorney-client scale. _*NewZimbabwe*_