THE High Court of Harare has ordered a divorced Chegutu man to stay at the matrimonial home with his estranged wife after he tried to evict her from the family house.
High Court judge Catherine Bhachi-Muzawazi granted Sarah Madzura the relief after she approached the court appealing against a decision by the magistrates’ court to evict her from the family home.
Madzura had their customary law union with Onias Gotora dissolved through traditional rites two years prior to the eviction suit.
The marital union had lasted for 27 years, from 1996 to 2022 and they had seven children together.
The two had accepted that due to irreconcilable differences and discordance over parental issues, among others, it had led to their relationship’s end.
The customary law property sharing settlement of the properties acquired during the subsistence of the marital union had also been completed.
Madzura acceded to having been awarded a new house specifically constructed for
her at her biological rural home and she confirmed being given a farm house for her exclusive use.
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The urban house, in Hintonville, Chegutu, considered as a family home and central to this dispute, was donated to a trust created for the benefit of their three minor children.
She, however, continued to reside at the property.
The property in contention has no title deeds, but is under council cession bearing only Gotora’s name.
Both parties are not beneficiaries to the trust while Gotora was the sole founder and trustee.
Madzura did not dispute that Gotora owned the disputed property.
She, however, argued of a belated lifetime usufruct over the property as the custodian of the minor beneficiaries of the trust.
After a lengthy trial, the magistrates’ court ruled in favour of Gotora.
It found that Madzura had not established her right of retention, adding that Gotora was entitled at law as an owner of immovable property, who has indefeasible rights to evict any one in occupation thereof without his approval.
In her appeal, Madzura argued that the lower court erred in fact and in law in granting Gotora’s claim for eviction when he lacked to sue for the eviction from the property registered as a trust.
She submitted that the court erred in allowing her eviction from the matrimonial property where she held shares based on joint contribution and unjust enrichment and without an order for the sharing of the property.
Madzura added that the trust was created by Gotora to defraud and deprive her claim for an equitable share through the accrual system.
Justice Bhachi-Muzawazi said it was never disputed that the property in question had been donated to a trust and that the spirit behind the creation of the trust was more of estate planning and safeguarding the interests of the minor beneficiaries.
“As such, the arguments suggesting an alter ego or a sham are misplaced as they are not supported by the evidence that was before the trial court and on record.
“What that entails is that the property was trust property and protected by the laws governing trusts and the rights of beneficiaries,” the judge ruled.
She said while the court was correct in finding that the property had been donated to a trust, it erred in granting the eviction on the basis of Gotora’s name on the property which it believes signalled ownership.
“The decision of the trial court which is mainly based on individual ownership rights but acknowledging the existence of the trust is erroneous only to the extent that indeed the respondent (Gotora) had no ownership rights entitling him to evict the appellant (Madzura) in his individual capacity,” Justice Bhachi-Muzawazi said.
“It is the trust that had those rights and it is the trust that had the right to sue. Discernibly, the court was heavily influenced by the appearance of the respondent’s name on the property documents which on the face of it satisfied what a litigant seeking ejectment of intruders on his property is required to establish.
“This was an error on the part of the court. Hence, it erred in so evicting the appellant on that basis. This appeal is disposable on the first ground since the second ground is in the alternative.”
