MADE versus RAINY RIVER INVESTMENTS (PVT) LTD (375 of 2025) [2025] ZWHHC 375 (27 June 2025)

4 HH 375 - 25 HC 3319/24 BALAMANJA SEPISO MADE versus RAINY RIVER INVESTMENTS (PVT) LTD HIGH COURT OF ZIMBABWE **MAMBARA J** HARARE 16, 17 & 27 June 2025 _**Summons Commencing Action**_ _F. Mahere_ , for the plaintiff _M. Ndlovu_ , for the defendant MAMBARA J: This is a vindicatory action instituted by the plaintiff, the registered owner of an immovable property described as Plot 11 Oatlands Road, Merwede Snake Park, Harare (“the property”). The plaintiff seeks an order evicting the defendant and all those claiming occupation through it from the property, together with costs of suit on a higher scale. The claim is founded on the actio rei vindicatio, the common-law remedy by which an owner asserts their right to reclaim property from someone possessing it without consent. The plaintiff avers that he acquired title to the property in 1999 and has at no time given the defendant any right to occupy it. The defendant resists eviction on the basis of a Land Use Agreement (LUA) signed in October 2019 between the defendant and one Ambrose Made – the plaintiff’s now-deceased father – which the defendant claims grants it a perpetual right to occupy and use the land. The defendant contends that Ambrose acted as the plaintiff’s agent in concluding the LUA, or alternatively that the plaintiff is estopped from denying Ambrose’s authority. The defendant further invokes constitutional protection against arbitrary eviction under Section 74 of the Constitution of Zimbabwe, arguing that it cannot be removed except in compliance with that provision. The court is called upon to determine whether the defendant has any lawful basis to remain in occupation of the property. _**Background**_ It is common cause that the plaintiff is the registered owner of the property, having held title since 1999. It is also not in dispute that the defendant is in possession of the property and was in occupation at the commencement of these proceedings. These facts were formally admitted in the Joint Pre-Trial Conference Minute, meaning the plaintiff’s ownership and the defendant’s possession are accepted without need for further proof. Indeed, a formal admission in pleadings or a joint minute is conclusive of the fact admitted and relieves the party of the burden to adduce evidence on that point. Accordingly, the two requirements to establish a prima facie case for rei vindication, (1) that the plaintiff is the owner, and (2) that the defendant was in possession of the property when the action was instituted are satisfied. In his summons and declaration, the plaintiff averred that the defendant is in unlawful occupation of his land without consent or any lawful right. He pleaded that any purported agreement involving his late father was not authorized by him and cannot confer rights against him. The plaintiff further averred that he served notices in 2020 and 2021 demanding that the defendant vacate the property, but the defendant refused to comply. The relief sought is the eviction of the defendant and those claiming under it, to restore vacant possession to the plaintiff. In its plea, the defendant admitted the plaintiff’s ownership of the land and its own physical occupation thereof, but raised several defences in justification. The defendant’s principal defence is that it entered into a binding Land Use Agreement on 10 October 2019 with Ambrose Balamanja Made, the plaintiff’s father, in terms of which the defendant was granted the right to use the property for a joint business venture – namely, the pumping and sale of bulk water from the land. The LUA is said to “exist in perpetuity”, effectively giving the defendant an indefinite right of occupation. The defendant pleads that Ambrose Made acted with the plaintiff’s authority or consent when entering this agreement, or alternatively that the plaintiff later acquiesced in and benefited from the arrangement. In this regard, the defendant alleges that the plaintiff was fully aware of the joint venture from its inception and that his conduct amounted to at least implied consent to the agreement’s terms. The defendant also makes an estoppel argument. It contends that the plaintiff, by allowing his father to deal with the property and by not promptly objecting to the defendant’s activities, represented that the arrangement was authorized, and thus the plaintiff should be estopped from denying the validity of the LUA. Finally, the defendant invokes Section 74 of the Constitution, freedom from arbitrary eviction, arguing that even if the court were inclined to grant eviction, it must ensure that the removal is not arbitrary and is effected in accordance with the Constitution’s requirements that is, by order of court after considering all relevant circumstances. A Joint Pre-Trial Conference (PTC) was held and the issues were narrowed considerably. In the amended joint PTC minute, the parties agreed that the case turns on a single overarching question: “Whether or not the Defendant has any lawful basis for its possession of the plaintiff’s property”. Sub-issues flowing from this were identified as: (1) whether a principal-agent relationship existed between the plaintiff and his late father such as to entitle the defendant to rely on the father’s actions; (2) if so, whether the Land Use Agreement, purporting to be of perpetual duration, is legally valid and binding on the plaintiff and (3) in the absence of a lawful right, what relief should ensue. It was recorded that the onus to prove a right to occupy lies on the defendant, and accordingly the defendant would lead evidence first at trial. Notably, the defendant had sought certain admissions from the plaintiff. For example, an admission that the plaintiff was aware of and even signed the agreement between Ambrose Made and the defendant, but the plaintiff did not concede these points, and they remained contested. _**Evidence**_ At trial, the plaintiff elected not to lead any evidence in chief, relying on the admissions and on the defendant’s inability to establish a lawful right. Given that the critical facts of ownership and possession were common cause, and that the only issue was the lawfulness of the defendant’s continued occupation, the plaintiff’s counsel took the position that the plaintiff had met his prima facie case through the admissions and could safely put the defendant to the proof of its defences. The court notes that this course, while unusual, is permissible where the onus is squarely on the defendant and the material facts are not in dispute. A plaintiff is entitled to rely on formal admissions which prevent the leading of any evidence to contradict them and are taken as established. However, the implications of the plaintiff’s decision are considered later in this judgment, particularly in relation to any unchallenged aspects of the defendant’s evidence. The defendant called one witness. Dr. Edward Gomba, an operations director of the defendant company, testified regarding the inception of the Land Use Agreement. He stated that in 2019 the defendant was seeking a site to conduct a bulk water supply venture. Ambrose Made, who was residing at or managing the property, represented to Dr. Gomba that he (Ambrose) could facilitate the defendant’s use of the land. Dr. Gomba testified that on 10 October 2019 the defendant and Ambrose Made signed a written Land Use Agreement (LUA). In terms of this agreement, the defendant was permitted to install and operate water pumping infrastructure on the plot and to sell water, with the understanding that the arrangement would be permanent or indefinite. The contract stated that it “exists in perpetuity”. Dr. Gomba produced a copy of the LUA in evidence. It named Ambrose Made as the person granting rights to the defendant, and it did not bear the plaintiff’s signature. Dr. Gomba conceded that he was not present at the signing. That he did not see the plaintiff signing as a witness to the LUA. Nonetheless, he asserted that Ambrose had assured him that “the family” or the owner was aware of and had consented to this venture. According to Dr. Gomba, the defendant performed its side of the bargain by investing in boreholes and water tanks, and Ambrose Made and his household benefited by receiving some money as part of their remuneration from the joint venture that was formed after the LUA came into effect. No rentals were paid (the LUA did not stipulate rent), but it was Dr. Gomba’s belief that the venture was a form of joint benefit to both sides. He testified that at no point during Ambrose Made’s lifetime did the plaintiff object to the defendant’s presence on the land. It was only after Ambrose’s death in or about 2021 that the plaintiff served notices demanding that the defendant vacate. By that time, the defendant had, according to Dr. Gomba, sunk significant capital into the water project. Dr. Gomba further testified about the defendant’s compliance with the agreement and the physical developments on the ground. He confirmed that the defendant’s team was introduced to the property and its operations by Ambrose Made, who appeared to be in charge of the premises. Dr. Gomba stated that he personally met the plaintiff for the first time only after Ambrose’s death, when the plaintiff visited the property and inquired about the ongoing water project. Dr. Gomba’s impression from that brief encounter was that the plaintiff seemed surprised or displeased about the defendant’s operations, an indication that the plaintiff might _not_ have been fully informed from the start. Under cross-examination, Dr. Gomba acknowledged that he never saw any written document such as a power of attorney or resolution appointing Ambrose Made to act on the plaintiff’s behalf, nor did he or the defendant undertake a deeds registry search to verify ownership before entering the agreement. The defendant simply “assumed everything was in order” based on Ambrose’s representations and the fact that Ambrose had long been in occupation of the land. It emerged from the defendant’s evidence that the LUA was not concluded with the plaintiff’s signature or explicit approval. The defendant’s witnesses admitted that no rent or formal compensation was ever paid to the plaintiff himself. Any benefits to the plaintiff were indirect or assumed. For instance, Ambrose Made might have shared some proceeds though no clear proof of profit-sharing with the plaintiff was presented. The defendant’s case thus rested heavily on the proposition that Ambrose had ostensible or apparent authority to contract on the plaintiff’s behalf, or that the plaintiff later acquiesced to the arrangement. Dr. Gomba maintained that the plaintiff “must have known” of the agreement because Ambrose was his father and the arrangement was openly carried on at the property for some time. However, he conceded that this was an inference on his part. He had no direct confirmation of the plaintiff’s knowledge prior to the dispute. After the defendant closed its case, the plaintiff through counsel indicated that he would still not lead evidence. The plaintiff’s previously filed summary of evidence had indicated that he would testify or call a witness, Fadzayi M. Made to state that he never authorized his father to enter the LUA, that even if an agency were assumed it did not extend to a perpetual land grant, and that he issued multiple notices to vacate which were ignored. In the end, however, the plaintiff stood on his election to adduce no oral evidence, presumably relying on the efficacy of his cross-examination and the burden of proof resting on the defendant. The matter therefore proceeded to closing arguments on the evidence that had been placed before the court, which, in essence, consisted of the common cause facts and the defendant’s version. Before turning to the legal issues, it is worth observing that the plaintiff’s choice not to testify means that certain factual assertions by the defendant, for example, that the plaintiff “benefited” from the venture, or that he implicitly allowed it to continue for a time were not directly rebutted by sworn testimony. However, an absence of rebuttal evidence does not automatically translate into proof of the defendant’s claims. The onus remained on the defendant to prove its defence on a balance of probabilities, and the court must evaluate whether the defendant’s evidence, tested through cross-examination, is sufficient to discharge that onus. With that in mind, I proceed to analyze the key legal issues, applying the law to the facts as established. _**Requirements of the Rei Vindicatio and Onus**_ The _actio rei vindicatio_ is a remedy firmly entrenched in our law to protect ownership. Its principles are settled and largely common cause here. By this action, an owner is entitled to recover his or her property from any person who retains possession without the owner’s consent. As the Supreme Court stated in _Chetty_ v _Naidoo_ 1974 (3) SA 13 (A), which has been cited with approval in Zimbabwe, _“it is inherent in the nature of ownership that possession of the res 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.”_ Thus, once the owner proves ownership and that the defendant is in possession, the owner is prima facie entitled to an order for return of the property. The onus then shifts to the defendant to allege and establish some right to continue to hold the property as against the owner. Put differently, the possessor must raise a legally cognizable defence such as a contractual or statutory right, a lien, or estoppel or else the owner’s claim must succeed. In the present case, as already noted, the plaintiff’s ownership and the defendant’s possession at the commencement of the action were admitted. These admissions satisfy the two elements needed to invoke the _rei vindicatio_. According to our law, once those elements are established, “no other facts need be proved to entitle the owner to relief. The onus is on the possessor to prove any right to retain possession”. The Supreme Court in _January_ v _Maferefu_ SC 14/20 helpfully summarized the four main defences that a possessor might raise in response to a _rei vindicatio_ : (i) that the claimant is not truly the owner; (ii) that the property has been destroyed or cannot be identified and thus cannot be returned; (iii) that the defendant’s possession is lawful, for example, by virtue of a contract or right of retention; or (iv) that the defendant is no longer in possession having lost possession before the suit. In _casu,_ the defendant does not dispute the plaintiff’s title. Defence (i) is not available), nor is there any issue about the property’s existence or identity, and the defendant admits it is in possession. Defences (ii) and (iv) are inapplicable. The only potential defence is (iii) lawful possession, which is exactly the issue referred to trial. Does the defendant have any legal right to occupy the property? It follows that if the defendant fails to establish a right enforceable against the owner, the plaintiff as owner must prevail. The _rei vindicatio_ brooks no equitable excuses or sympathies once its requirements are met. As was emphatically stated in _Alspite Investments (Pvt) Ltd_ v _Westerhoff_ 2009 (2) ZLR 236 (H), _“there are no equities in the application of the rei vindicatio.”_ The court has no discretion to refuse an owner relief on the basis of hardship or compassion once it is clear the owner did not consent to the defendant’s possession. The remedy is deliberately robust, “heavily weighted in favour of property owners,” for the policy reason that an owner should not be deprived of his property against his will, save by operation of law. This principle was illustrated in _Alspite (supra)_ by the vivid analogy of a mother taking a lollipop from a child who does not own it to return it to the rightful owner-child. Tt “matters not” how pitiful the possessor’s plight, if the thing is not theirs, they cannot keep it. The court is mindful that this strict approach assumes no valid legal relationship justifying the possession. If the defendant can show a contractual or other right to be on the property, then the owner’s vindicatory claim would fail, not out of mercy, but because the law recognizes the countervailing right. In short, the decisive question is one of lawful entitlement. We turn, then, to examine the defendant’s asserted entitlements, agency (actual or apparent authority), contract, and estoppel. _**Agency: Actual and Apparent Authority of Ambrose Made**_ The first and central issue is whether Ambrose Made, the plaintiff’s late father had authority either actual or apparent to bind the plaintiff to the Land Use Agreement with the defendant. If Ambrose was acting as the plaintiff’s authorized agent, then the plaintiff would be bound by the agreement as if he had himself contracted with the defendant. Conversely, if Ambrose lacked authority, the contract he signed cannot in law create obligations or rights for the plaintiff. _**Actual Authority**_ Actual authority, sometimes called real or express authority, is a legal relationship between principal and agent created by consensual agreement between them. It may be conferred expressly, for example, by a power of attorney or clear mandate or impliedly by the principal’s conduct. In this case, there is no evidence that the plaintiff gave Ambrose Made any express mandate to contract on his behalf regarding the property. The plaintiff did not execute a power of attorney or any other document authorizing his father to administer or encumber the land. There is also no suggestion that the father held any ownership stake in the property that might independently empower him to grant rights over it. The title was solely in the plaintiff’s name. The defendant did not produce any written agency agreement or resolution. Thus, no actual authority in fact existed, unless it arose tacitly. Could Ambrose have had implied actual authority? An implied authority might exist if, for instance, the plaintiff had allowed his father to manage the property and enter into ordinary agreements on his behalf such as short-term leases or caretaking arrangements in the past. However, the evidence does not establish any such prior arrangement. The plaintiff’s unchallenged stance through pleadings and cross-examination of defendant’s witness is that he never authorized or delegated power to his father to contract on his behalf. Ambrose’s involvement appears to have been self-initiated. Indeed, the defendant’s witness admitted he never dealt directly with the plaintiff until after the LUA was signed. On the facts, therefore, Ambrose Made had no actual authority, express or implied from the plaintiff to conclude the Land Use Agreement. _**Apparent (Ostensible) Authority**_ The defendant’s fall-back position is that, even if Ambrose lacked actual authority, the circumstances gave rise to ostensible or apparent authority. Apparent authority is a doctrine that protects third parties who reasonably rely on a principal’s representation that someone is his agent, even if no actual authority was granted. The classic exposition of this doctrine is found in the English case _Freeman & Lockyer (A Firm) _v _Buckhurst Park Properties (Mangal) Ltd_ [1964] 2 QB 480 (CA). In that case, Lord Diplock explained that apparent authority is a legal relationship between the principal and the contractor (third party) created by a representation made by the principal to the contractor, intended to be acted upon and in fact relied upon by the contractor, that the agent has authority to act on behalf of the principal within a certain scope. When those elements are present, the principal is estopped from denying the agent’s authority, even if, strictly, no actual authority was given. The representation can be made by words or by conduct including placing the agent in a position that indicates authority, or by silent acquiescence if a reasonable duty to correct a mistaken belief arose. Diplock LJ set out four conditions to be satisfied for apparent authority to bind a principal in contract: 1. A representation that the agent had authority to conclude the kind of contract in question was made to the third party. 2. The representation was made by someone who had actual authority to permit or authorize the agent’s acts, for a company, typically the board or someone with managing authority. For an individual, it would be the principal themselves or an agent authorized to make such representations. 3. The third party was induced to enter into the contract by the representation, i.e. they relied on it believing the agent had authority. 4. The principal had the legal capacity to enter that contract and to delegate authority for it. This condition is generally relevant to companies ensuring the act was not ultra vires the company. Applying these requirements to the present case: The defendant contends that the plaintiff, by his conduct, represented that Ambrose had authority to allow the defendant to occupy the land. What conduct is relied on? Primarily, the fact that Ambrose was in apparent control of the property and dealt with the defendant openly, without any interference by the plaintiff until later. The defendant essentially argues that the plaintiff’s inaction, not intervening while the defendant set up its water project amounted to holding out Ambrose as an authorized agent. This argument faces a significant hurdle at the outset. Condition (2) above requires that the representation must stem from the principal or an actual agent of the principal. In our context, that means the plaintiff himself must have, by words or deeds, given the defendant reason to believe his father spoke for him. Ambrose’s own assertions of authority for example, if he told the defendant “I have my son’s blessing” do not suffice. The law is that an agent cannot clothe himself with authority. It must be conferred by the principal’s manifestations. Here, the defendant did not point to any direct communication from the plaintiff to the defendant prior to the dispute. The plaintiff had no contact with the defendant during 2019-2020 when the LUA was executed and performed initially. There was no evidence of the plaintiff holding out his father as his representative, such as by sending a letter, signing any document, or introducing Ambrose to the defendant in an official capacity. What about representation by conduct? It is true that an agent’s apparent authority can arise implicitly, for example, if a landowner leaves another person in charge of the property with broad powers, third parties might reasonably assume that person can grant rights of use. In _Freeman & Lockyer_, Diplock LJ noted that the commonest form of representation by a principal is by permitting the agent to act in the conduct of the principal’s business with others, thereby indicating the agent’s authority for such acts. In this case, however, the plaintiff did not “place” Ambrose in a managerial position. Ambrose’s involvement with the land pre-dated and was independent of the plaintiff’s actions. The evidence shows Ambrose Made was an elderly man who had lived on the property, but there is no evidence that the plaintiff ever presented Ambrose to third parties as his proxy or property manager. The defendant assumed Ambrose had authority chiefly because Ambrose was physically on the land and was a close relation of the owner. In law, however, a family relation does not automatically equal agency. A son does not by silence make his father his agent or vice versa absent some additional representation. Crucially, the defendant did not conduct basic due diligence that might have prompted contacting the plaintiff. The defendant’s witness admitted that no title deed search was done at the time of contracting. Had they done so, they would have discovered the owner’s name and could have sought confirmation from him. Instead, the defendant relied solely on Ambrose’s word. While Ambrose’s long occupancy might suggest to an observer that he had some authority, that alone is a risky basis for assumption. The law expects a third party seeking to hold a principal liable to have been reasonably misled by the principal’s conduct. Here, any misrepresentation was at best indirect. The plaintiff’s lack of immediate objection to the defendant’s initial entry could arguably be seen as tacit approval if the plaintiff knew what was happening. But was the plaintiff aware? Dr. Gomba conceded he never notified or met the plaintiff in 2019. The plaintiff’s unrefuted position is that he learned of the defendant’s operations later likely after Ambrose’s passing and then promptly objected by issuing notices to vacate. If that is so, there was no prolonged acquiescence once the plaintiff became aware. It is difficult to infer a representation by silence when the principal did not know of the need to speak. On the evidence, I find that the defendant has not proven any affirmative representation by the plaintiff that could establish ostensible authority. There is no indication that the plaintiff held out Ambrose as having authority to contract on his behalf for use of the land. At most, Ambrose was permitted to reside on the land as a father would in a family property, but that does not equate to authority to contract with commercial third parties. The scenario here is akin to an unauthorized person contracting in the owner’s absence. The owner’s later discovery and objection defeats any notion that the contract was ever authorized. Accordingly, Ambrose Made had neither actual nor apparent authority to bind the plaintiff. The Land Use Agreement signed by Ambrose and the defendant is, vis-à-vis the plaintiff, a legal nullity, _res inter alios acta_. It created rights and obligations between the defendant and Ambrose Made personally or his estate, but not against the plaintiff, who was a stranger to it. The defendant’s remedy, if any, would lie against Ambrose’s estate for misrepresentation or breach, but that is beyond our scope here. For completeness, the court was also asked to consider if, _arguendo_ , an agency relationship had existed, whether the perpetual duration of the Land Use Agreement would affect its validity or enforceability. The agreement purports to grant the defendant use of the land “in perpetuity.” In our law, an agent’s authority, even if proven would seldom extend to alienating or burdening the principal’s property indefinitely without the principal’s specific consent. An agreement in perpetuity raises public policy and certainty concerns. Effectively it is an open-ended servitude or lease. Without needing to decide the point, I note that there is a serious question whether a contract granting occupation rights forever, entered into by an agent without explicit sanction, would be valid. Many legal systems imply a reasonable termination clause into contracts of indefinite duration, or treat truly perpetual agreements with suspicion unless clearly intended by the real owner. Here, the plaintiff’s position, in his pleadings was that even if his father had been his agent, he had no power to conclude a perpetual agreement, and that such an agreement would be invalid or voidable. Given my finding that no agency existed, I do not rest the decision on this aspect. But the perpetuity of the LUA certainly underscores how far beyond any ordinary mandate Ambrose’s actions strayed. _**Estoppel**_ Closely related to apparent authority is the defendant’s alternative shield of estoppel. Estoppel by representation prevents a person from denying the truth of a representation they intentionally or negligently caused another to believe, if the latter acted on it to their detriment. In the context of _rei vindicatio_ , an innocent possessor’s only real defence against the owner’s claim is often estoppel. Our law, following Roman-Dutch principles, generally favours the owner over even a bona fide possessor. As a matter of policy, the law protects the right of an owner to vindicate his property, and favours him as against an innocent purchaser. However, if the owner’s own conduct misled the possessor into believing they had a right, the owner can be estopped from asserting his title against the possessor. The requirements for estoppel by representation mirror those for apparent authority discussed above. There must be a representation of an existing fact by the owner, reliance by the defendant, and detriment suffered as a result of that reliance. In a _rei vindicatio_ scenario, the typical representation would be something like the owner, by act or omission, leading the possessor to believe the possessor’s occupation is lawful or will not be challenged. In _Mashave_ v _Standard Bank of SA Ltd_ 1998 (1) ZLR 436 (SC) at 438C, McNally JA explained the doctrine in terms of property law. The owner’s right to vindicate is fundamental, but if the owner by representation express or tacit induced the possessor to act to his prejudice, the owner may be estopped from asserting his rights. The onus of proof for estoppel lies on the party raising it and here it’s the defendant. The defendant must show on a balance of probabilities that: 1. the plaintiff made a misrepresentation, or behaved in such a way as to create a reasonable belief, that Ambrose or the defendant had the right to occupy; 2. the defendant honestly relied on that belief; and, 3. the defendant will suffer prejudice if the plaintiff is allowed to go back on the representation. Analysing the facts against these elements, I find the defence of estoppel has not been established. As already concluded, there was no clear representation by the plaintiff that could have misled the defendant. The plaintiff did nothing to actively encourage the defendant’s belief in the father’s authority. Could the plaintiff’s silence or inaction amount to a misrepresentation? Possibly, if the plaintiff knew of the defendant’s presence and stood by without objection for a considerable period, a tacit representation might be inferred that he did not object or that he had authorized it. But the evidence does not show that scenario. The more credible inference is that the plaintiff was initially unaware of the arrangement and, once he became aware, he promptly asserted his rights. The defendant, unfortunately, dealt with an unauthorized person and assumed the risk that the true owner might later disagree. Even if one were to say the plaintiff _ought_ to have known earlier for instance, if large-scale water operations were hard to miss, the law does not generally impose a duty on an owner constantly to police their property for unauthorized activity especially not to the extent of estopping them from vindicating, unless the owner’s conduct was truly blameworthy. In _Mashave_ supra, the court cited with approval Corbett JA’s remarks in _Aris Enterprises (Pty) Ltd_ v _Protea Assurance Co Ltd_ 1981 (3) SA 274 (A) that a representation can be tacit and even by silence if a duty to speak arises. In _casu,_ once the plaintiff learned of the defendant’s occupation after his father’s death, he _did_ speak by written notices and ultimately this lawsuit. There was no extended period of acquiescence that would make it unjust for the plaintiff to enforce his title. Furthermore, the defendant’s reliance, to the extent it occurred, was primarily on Ambrose’s words and the assumption that Ambrose represented the owner. It was not so much induced by the plaintiff’s conduct. Estoppel is meant to prevent injustice when someone has been misled by _another’s_ conduct Here the misleading, if any, was by Ambrose Made, not by the plaintiff. The defendant’s predicament is that it trusted the wrong person. While one may sympathize if the defendant truly acted in good faith, estoppel cannot be used to create an agency where none existed. Our law requires the representor to be the person sought to be estopped. Since Ambrose lacked authority, he was not the plaintiff’s alter ego, and his false assurances cannot estop the true owner unless the owner somehow endorsed or allowed them. There is no proof of such endorsement. Finally, on prejudice, the defendant undoubtedly would suffer a form of prejudice if evicted, losing whatever investment it made in the project. But that alone is not enough. Prejudice only matters if it was suffered in reliance on the owner’s representation. Here, any prejudice flows from the defendant’s own risky bargain with an unauthorised party. In _Chetty v Naidoo supra,_ it was noted that a bona fide purchaser of property from someone who wasn’t the true owner has no claim to keep it even if he paid in good faith. His remedy lies elsewhere, not in clinging to the property. Similarly, the defendant’s remedy for its expenditure would lie, perhaps, against Ambrose’s estate assuming he misrepresented his authority, not by hanging on to the plaintiff’s land. In sum, the estoppel defence fails. The defendant has not shown that the plaintiff made any representation, or acted culpably, in a manner that justifies restricting his property rights. Instead, this is a case of _error in persona_. The defendant dealt with the wrong person and cannot now, by invoking estoppel, convert that person’s promises into an obligation on the innocent owner. _**Constitutional Considerations – Section 74 of the Constitution**_ The defendant urged the court to consider Section 74 of the Constitution of Zimbabwe 2013, which guarantees freedom from arbitrary eviction. Section 74 provides in full: _“No person may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances”_. This fundamental right echo similar provisions in other jurisdictions for example, Section 26(3) of the South African Constitution and is aimed at preventing forcible or lawless evictions that would render people homeless without judicial oversight and fairness. In the present case, Section 74 is undoubtedly implicated by the relief sought – an eviction order. However, the manner in which it applies requires careful analysis. The Constitution does not forbid eviction. It forbids _arbitrary_ eviction, meaning an eviction carried out without due process of law or without consideration of fairness and justice. The section expressly permits eviction pursuant to a court order granted after weighing relevant circumstances. Thus, one cannot use Section 74 as _a carte blanche_ to resist any lawful eviction. Rather, it ensures that the court, when deciding whether to evict, balances the rights of the owner with the personal circumstances of the occupants to avoid unjust results. Two immediate observations arise. First, the defendant is a corporate entity, a private limited company. The constitutional protection in Section 74 refers to a person not being evicted from “their home.” A company, as a juristic person, does not have a “home” in the sense of a dwelling place that a human would have. Companies may be shielded by other property rights, but Section 74’s language is clearly directed at human beings in their shelter. It is doubtful that a company can directly invoke Section 74 to claim that an industrial or commercial occupation is its “home.” Even if one stretches “person” to include juristic persons, the notion of a “home” suggests a residence. Typically what is at stake are the housing rights of natural persons. Here, the property is not alleged to contain any residences that are the homes of individuals whom the defendant represents. There was no evidence that, for instance, the defendant’s directors or employees live on the property as their home apart from the late Ambrose, who was the plaintiff’s father, not the defendant’s agent in law. The defendant’s use of the land is for a business venture, not for habitation. Second, even if Section 74 is considered, the constitutional requirement has effectively been met. The plaintiff did not resort to self-help to evict the defendant. He brought this matter to court, exactly as Section 74 envisages. The court has indeed “considered all the relevant circumstances,” the nature of the defendant’s occupation, the duration of that occupation (since 2019), the reasons the defendant claims to be there, the investments made by defendant, the relationship between the parties, and so on in arriving at this judgment. The process followed has been a full trial on the merits, which is the antithesis of an arbitrary eviction. The defendant cannot complain of lack of due process or that its side of the story was not heard. It has enjoyed the full opportunity to present evidence and legal argument. It is true that Section 74 and parallel provisions in other countries impose on courts a duty to ensure that evictions, especially of vulnerable people from their homes, are handled with fairness, potentially including giving the occupants time to relocate or considering alternative accommodations. Our courts, in appropriate cases for example, mass evictions or evictions affecting socially or economically disadvantaged persons, would be obligated to take into account the hardship an eviction may cause and could, for instance, postpone an eviction or make ancillary orders to prevent homelessness. The “relevant circumstances” in a constitutional sense might include whether the occupier has anywhere else to go, whether they were duped, whether children or the elderly are involved, etc. In the case at bar, however, the equities, even if we were to consider them despite the _rei vindicatio_ having no room for pure equities between private parties do not reveal a vulnerable individual being thrown onto the streets. The defendant is a commercial enterprise that entered a flawed agreement. There is no suggestion of any public law issue, such as a state eviction or a large-scale eviction implicating housing rights of a community. The defendant knowingly took the risk of occupying someone else’s property for profit. Section 74 cannot be used to sanctify an unlawful occupation simply because the occupier wishes to remain. As the South African Constitutional Court observed in _Residents of Joe Slovo Community_ v _Thubelisha Homes_ 2010 (3) SA 454 (CC), the spirit of such constitutional provisions is to ensure justice and fairness in eviction proceedings, not to expropriate owners or create perpetual squatters’ rights in the absence of a legitimate claim. Ultimately, if an occupant has no lawful entitlement, a court will grant eviction but may control the conditions of that eviction. In this matter, the defendant has had many months’ notice of the plaintiff’s desire to regain his property since at least the first notice to vacate, followed by summons in mid-2024. It is not caught by surprise. If it needs to remove any equipment, it can do so. There is no evidence that an immediate eviction would occasion some humanitarian crisis. Nonetheless, out of an abundance of caution and respect for Section 74, the court will ensure the eviction order is to be carried out by the Sheriff lawfully, and the defendant will be given a short grace period to vacate voluntarily before forcible removal, to avoid any argument of arbitrariness. In conclusion, the court is satisfied that granting an eviction in this case does not violate Section 74 of the Constitution. The eviction is not arbitrary. It is the result of a considered judicial process where the defendant’s defences were heard and found wanting. The Constitution protects against lawless evictions, not against the enforcement of lawful property rights after due process. _**Effect of Plaintiff’s Election Not to Testify**_ Finally, a brief comment on the burden of proof and the plaintiff’s decision not to lead evidence, as this was canvassed during argument. In civil cases, the general rule is _semper necessitas probandi incumbit ei qui agit_ – the burden of proof lies on the claimant (plaintiff) to prove their cause of action. However, once the plaintiff in a _rei vindicatio_ proves ownership and possession or these are admitted, the onus shifts to the defendant to prove a right to retain the property. That is exactly what happened here by agreement at the pre-trial conference. The defendant bore the onus and hence began. The plaintiff’s prima facie case was made by admissions, and those admissions stand as conclusive proof of the facts admitted. A formal admission, as our courts have noted, prevents the leading of any evidence to contradict the admitted fact and relieves the other party of the need to prove it. Thus, the plaintiff was entitled to close his case without calling witnesses, since all elements he needed to prove were either admitted or not in issue. The defendant argued that the plaintiff’s failure to testify should count against him, suggesting perhaps that an adverse inference be drawn for example, that the plaintiff feared cross-examination about his knowledge of the LUA. I do not think such an inference is appropriate here. This is not a case where the plaintiff withheld evidence on a contested factual issue on which he bore the burden. Rather, the only contested issues related to the defendant’s affirmative defence (agency/authority/consent), on which the defendant carried the burden. The plaintiff’s position was clearly put in cross-examination, that he neither authorized nor knew of the agreement at the time. The defendant’s witness was challenged on all material points, and the plaintiff’s counsel elicited helpful concessions such as the lack of any direct communication with the plaintiff and the absence of written authority. In these circumstances, there was simply no necessity for the plaintiff to take the stand. His deed of transfer spoke to his ownership. The joint pre-trial minute spoke to the defendant’s possession, and his denial of agency was already pleaded and inherently supported by the defendant’s inability to produce any proof to the contrary. It is a well-established principle that he who alleges must prove. Here, the agency and estoppel were allegations by the defendant. It was up to the defendant to prove them, not for the plaintiff to disprove them. The plaintiff’s choice not to testify did not relieve the defendant of its onus. I am satisfied that the outcome of this case turns on the defendant’s failure to establish its claims of authority or right, rather than any gap in the evidence from the plaintiff’s side. There is thus no adverse inference to draw. The strategy of relying on admissions and the weaknesses in the defence was a lawful and in this instance successful one. _**Disposition**_ Having found that the defendant has no lawful basis to remain on the property, the plaintiff’s _rei vindicatio_ must succeed. The plaintiff has established his ownership and that the defendant’s possession is without his consent and without any valid contractual or other legal right. The defendant’s defences of agency, estoppel, and constitutional protection have all been rejected for the reasons given. In the result, the plaintiff is entitled to recover possession of his property. Regarding relief, the plaintiff sought an order of eviction and costs on the higher scale. An eviction order will be granted. The court will allow the defendant a brief period to vacate voluntarily, failing which the Sheriff is authorized to evict. This is to ensure compliance with Section 74 by affording a reasonable opportunity to comply with the order. On costs, ordinarily costs follow the result on the ordinary scale. The plaintiff has prevailed. The question is whether the defendant’s conduct justifies a punitive cost order as prayed. The defendant persisted in occupying the property and forcing a trial on a tenuous basis. While I have found the defence to be without merit, I would not characterize it as vexatious or frivolous to the degree warranting punitive costs. There was a real though mistaken belief by the defendant that it had a right through the late Ambrose. The matter involved arguable points of law on agency and constitutional application. In my view, costs on the ordinary scale are appropriate here. The plaintiff’s counsel did not demonstrate any special circumstances of malice or abuse of court process by the defendant that would require censure via punitive costs. Therefore, costs will be awarded on the usual party-and-party scale. It is accordingly ordered as follows: 1. The defendant and all persons claiming occupation through it shall vacate Plot 11 Oatlands Road, Merwede Snake Park, Harare within 30 days of the date of this order. 2. In the event that the defendant or anyone claiming under it fails to vacate within the stipulated period, the Sheriff of the High Court with the assistance of the Zimbabwe Republic Police, if necessary, is authorized and directed to evict the defendant and all such persons from the property and to give vacant possession of the property to the plaintiff. 3. The defendant shall bear the costs of suit on the ordinary scale. **Mambara J** : …………………………………………….. _Shava Law Chambers_ , plaintiff’s legal practitioners _Nyangani Law Chambers_ , defendant’s legal practitioners