BULGARGEOMIN LTD v GOVERNMENT OF THE REPUBLIC OF BULGARIA & ORS

HIGH COURT, HARARE

[Opposed Application HH 732-15]

July 8 and September 17, 2015

CHIGUMBA J

Property – Acquisitive prescription – Applicant must show that it exercised possession in a manner adverse to the rights of the owner.

The applicant, a Bulgarian company, sought a declarator to the effect that it was the owner of two immovable properties that it had possessed for 33 years. It also sought an order compelling transfer of the properties to it by the first respondent, the Government of the Republic of Bulgaria, which was the registered owner of the properties.

Held, that any person who acquires full juristic possession, without force and peaceably, so openly and patently to the owner or another or both, and without recognizing the title of the owner, becomes the true owner thereof after the passage of a period of thirty years.

Held, that a possessor seeking transfer on the basis of acquisitive prescription must show that its possession was adverse to the rights of the owner and that open possession was exercised without recognizing the title of the owner.

Cases cited:

Barker McCormac (Pvt) Ltd v Government of Kenya 1983 (1) ZLR 137 (H), referred to

Clan Transport Co (Pvt) Ltd v Government of the Republic of Mozambique 1993 (3) SA 795 (ZH), referred to

Divine Gates & Co v African Clothing Factory 1930 CPD 238, referred to

Ex parte Mor-Tal Construction Co (Pvt) Ltd 1962 (2) SA 664 (SR), applied

Fairdrop (Pvt) Ltd v Capital Bank Corporation Ltd & Ors HH 305-14 (unreported), referred to

International Committee of the Red Cross v Sibanda & Anor 2004 (1) ZLR 27 (S), applied

Kaffraria Property Co (Pty) Ltd v Government of the Republic of Zambia 1980 (2) SA 709 (E), applied

Monarch Steel (1991) (Pvt) Ltd v Fourway Haulage (Pty) Ltd 1997 (2) ZLR 342 (H), referred to

Morgenster 1711 (Pty) Ltd v De Kock NO and Others 2012 (3) SA 59 (WCC); [2012] 2 All SA 640 (WCC), applied

Msasa Lodge (Pvt) Ltd v Lightfoot 2000 (2) ZLR 1 (H), applied

Pratt v Lourens 1954 (4) SA 281 (N), applied

Shingadia Bros v Shingadia 1958 (1) SA 582 (FSC), referred to

Stewart Scott Kennedy v Mazongororo Syringes (Pvt) Ltd 1996 (2) ZLR 565 (S), referred to

Voicevale Ltd v Freightlink (Malawi) Ltd 1987 (2) ZLR 22 (S), referred to

Young v Van Rensburg 1991 (2) ZLR 149 (S), referred to

 

Legislation considered:

Constitution of Zimbabwe Amendment (No 20) Act, 2013, s 326

Crown Proceedings Act 1947 (c 44)

High Court Act [Chapter 7:06], s 15

Prescription Act [Chapter 8:11], s 4(b) and (d)

Privileges and Immunities Act [Chapter 3:02]

High Court Rules, 1971 (RGN 1047 of 1971), O 2A rr 7(b) , 8, O 13 r 87

High Court (Amendment) Rules, 1997 (SI 192 of 1997)

 

Books cited:

Dugard John International Law: A South African Perspective (3rd edn, Juta & Co Ltd, Cape Town, 2006) at p 82

Halsbury?s Laws of England: Crown and Royal Family, crown proceedings and crown practice, crown property, custom and usage, damages (Butterworths, London, 1998) Vol 12.1, para 54

Law, Jonathan Oxford Dictionary of Law (8th edn, Oxford Quick Reference, OUP, Oxford, 2015)

 

ET Matinenga, for applicant

T Zhuwarara, for first respondent

 

CHIGUMBA J:

This is an application in which a declaratory order is sought, that the applicant is the owner of two immovable properties situated in Highlands and in Avondale Harare, on the basis of adverse possession in terms of s 4(b) of the Prescription Act [Chapter 8:11]. The applicant seeks an order that the first respondent sign all the necessary transfer documents to transfer the two properties to it within fourteen days, or alternatively, that the Sheriff of Zimbabwe sign the transfer documents, and the Registrar of Deeds transfer the properties to the applicant. The applicant is a company which is duly incorporated in the Republic of Bulgaria. It seeks to compel the Government of the Republic of Bulgaria to transfer two properties to it, namely Lot 22 of Highlands Estate of Welmoed; and Lot 1 of Lot 38 Block D of Avondale (the properties).

The background to this claim is that in 1981 Bulgargeomin EAD, a company specializing in mining and geology, wholly owned by the state, entered into an agreement with the Government of the Republic of Bulgaria (“first respondent”) Economic, Scientific and Technological Corporation Commission. It is the applicant’s contention that, in terms of the agreement Bulgargeomin EAD would fund the purchase of two immovable properties in Zimbabwe, which would subsequently be transferred into the applicant’s name, but which would be solely for its private use and benefit. A translated copy of the resolution to this effect appears at record p 22. Pursuant to the resolution, the first respondent purchased the properties and transferred them into its name. It is common cause that the original title deeds of the properties, as well as physical possession, remained in the possession of Bulgargeomin EAD.

On 28 March 2014, the former ambassador of Bulgaria to Zimbabwe issued a declaration which appears at record p 36, in which he certified and confirmed that the properties were acquired in the name of the Bulgarian state, and managed on its behalf by staff at the Bulgarian embassy. He stated that the properties were acquired in the name of the Bulgarian state because of a Zimbabwean policy which banned the sale of immovable properties to foreign natural persons or legal entities. Bulgargeomin EAD, a single member joint stock company, had the properties at its disposal during the period when it had a representative in Harare. Paragraphs 7 and 8 of the declaration reads as follows:

This section of the article is only available for our subscribers. Please click here to subscribe to a subscription plan to view this part of the article.

Please click here to login