Acquisition of property by prescription — setting the record straight

Tichawana Nyahuma Correspondent

Recently, the High Court sitting at Bulawayo in the case of Ishmael Kusafunga Kaguru vs Humble Estate (Private) Limited and two others, (SUMM777/22), issued a court order granting Kaguru, the applicant, the piece of land known as Lot 2 Lavendon situated in Bubi District measuring 364.2110 hectares.

In his court papers, Kaguru had asserted that since sometime in 1986, he had freely and openly occupied and possessed the farm as if he were the true owner.

Before the issuance of the said court order, the farm had belonged to Humble Estate (Private) Limited,.

A reading of the relevant court papers in that case indicates that the land had, prior to its transfer to Humble, been owned by a certain Neil Stuart John Stone, who is said to have been in a business partnership with Kaguru at that time.

It is said that Stone removed and vacated from the farm sometime in 1989 leaving Kaguru in open possession and occupation of the land.

The nature of the relationship, if any, between Stone and Humble is not apparent from the court papers.

It seems from a further reading of the court papers that Kaguru lost all contact with Stone ever since his departure in 1989.

As a result, Kaguru has been in occupation of the land since that time.

It also appears that Kaguru was then legally advised, correctly so in my view, that he could himself acquire the property through what the law calls, “prescription”.

So it was that Kaguru beat the path to court which then issued the court order, the subject matter of this discussion.

In making his case, Kaguru told the court through an affidavit in the relevant part of which he said: “… and I have been responsible for the payment of the levies and taxes for the farm.”

He then attached a copy of a letter issued by the local authority being the Bubi Rural District Council confirming “that rates for Lot 2 Lavendon situated in Bubi District measuring 364,2110 hectares are up to date as of 2nd March 2023”.

It will be recalled that soon after the court order in that case was issued, formal and social media were awash with the story.

One online publication reported that the court had ruled that “a tenant can take ownership of a property in which one has been consistently paying rates and rentals for a period of 30 years.”

Regrettably and with the greatest respect, the publications got it all wrong on the point.

For starters, what was reported is not what the court ordered.

Secondly, what the court ordered is not what the publications portray it to mean at law.

For the sake of clarity and completeness, the court order in the relevant part reads;

“The plaintiff, (Kaguru), be declared the owner of a certain piece of land registered in the name of the first defendant, (Humble), measuring 364,2110 hectares held under Deed of Transfer number 1827/98 by virtue of prescription having openly possessed the property as if he were the owner since 1986 to present day”.

As can be noted, the word “tenant” nor “rent” does not appear anywhere in the court’s order in question.

That is where and how the publishers climbed the wrong tree.

Below, I attempt to set the record straight.

But then I digress.

When judges adjudicate over disputes that are placed there before them by litigants, the end product is either a judgement or just a court order.

A judgement is a full report of what would have transpired in court during the hearing of the matter.

It includes the facts of the case as well as the law applicable to those facts.

It will end with the judge’s decision and the reasons for that decision.

The decision is whether the claim would have been dismissed or granted.

That part of the judgement is also called the court’s order or the operative part of the judgement.

But then there is another form of a court order.

It is one that does not carry the background or the facts relative to the dispute or the law applicable to the matter or the reasons for the decision as would be the case with an actual judgement.

It is such as we have in the Kaguru case that is under discussion.

Expressed in another way, the judge in the Kaguru case did not write a judgement.

She simply issued the court order that was sought by Kaguru.

There is not an anomaly there. This occurs quite frequently in those cases where the defendant or the respondent would not have filed any papers opposing the order craved by an applicant or a plaintiff.

Sometimes even if opposing papers are filed but if a respondent does not file certain papers according to the rules of court, such a litigant may be barred and prevented from filing further papers.

This will usually result in the applicant or the plaintiff asking the court to issue a default order.

This is exactly what happened in the Kaguru case.

He had caused the papers to be served on Humble’s last known address but Humble had not filed any papers in opposition to the order sought.

This then prompted his lawyers to draw up court papers asking for a default order and it was duly issued.

As a consequence, it became unnecessary for the judge who presided to write a judgement in terms of which she would have explained her decision.

This, I think, is what caused our media houses to attach the incorrect meaning to the Kaguru court order in question.

In the wake of the misinterpretation of the order that then ensued, could the learned judge who issued the order have published a statement clarifying her order?

The answer is a big NO.

That is not how judges operate. Judges have no right of reply.

It is left to others who may be innocent bystanders possessed with some knowledge on the workings of the law and court procedure to set the record straight as is attempted in this discussion.

I now return to the Kaguru case proper.

I will try to be didactical.

Without a doubt, everything about the Kaguru court order is spot on.

It is true, and as already been indicated, that when Kaguru took up residence at the farm in 1986, it did not belong to him.

It seems the land belonged to Stone and then later on, to Humble.

Stone having exited the land in 1989 without ever returning or making any contact that he still had interests on the land, Kaguru was well within his rights to claim the land using the prescription route.

At law, prescription denotes the loss or acquisition of a thing by the passage of time.

In terms of the Prescription Act, a person who occupies another’s land for an uninterrupted period of 30 years or more can acquire such land.

However, he requires a court order before he can do that.

This is exactly what Kaguru did.

This is unlike when, or where, the possessor and occupier of the land has a lease agreement with the owner of the land.

In such a circumstance, prescription will not come into play.

The media reports alluded to made reference to “tenants” and “rentals” yet Kaguru was not a tenant.

He was not paying rentals to Stone or Humble or to anyone else.

What he was paying were rates and other obligations to the local authority.

The local authority was not the landlord and those payments were not rentals.

Rentals are only paid to a landlord pursuant to a lease agreement.

Had Kaguru been in a lease agreement with Stone or Humble, I am certain his learned lawyers would not have led him to a court of law to claim the farm on the basis of prescription.

This, in my view, is the correct position as it ought to be.

Tichawana Nyahuma is a lawyer. The views expressed in this article are his own. They are not to be taken as legal advice of any sort. He assumes no responsibility or liability for any errors or omissions in the content of this article.

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