The ManicaPost
Trust Maanda
Post Correspondent
OWNERSHIP of property is a right that is protected by the law.
When the owner loses his or her property, to a third party without his or her consent, the law gives the person the right to repossess it and reclaim ownership.
The owner cannot be deprived of his or her property without their consent.
The law has always protected the right of an owner of property to vindicate his or her property.
That right can be exercised even against an innocent occupier or innocent purchaser.
The owner can bring an action called actio rei vindicatio against a third party.
This is an action by the owner to recover his or her property from any person who holds it without their consent.
In that action, the owner should allege and prove that he or she is the owner, that at the commencement of the action, the thing to be vindicated is still in existence and in the possession of the possessor, without the owner’s consent.
The onus then shifts to the possessor to allege and establish any right he or she has to continue to hold the property against the owner’s wish.
The owner is entitled to recover his or her property from anyone to whom it was sold by a third party, without the owner’s consent, even if the buyer is an innocent purchaser who was not aware that the seller was not the owner.
The court has no discretion and equities in rei vindicatio.
The rei vindicatio is available in respect of both movable and immovable property. If an occupier occupies a house without the owner’s consent, the owner can get an order of eviction against him or her and repossess the property.
The owner can recover his or her property from an innocent third party who may have been defrauded to buy it by a person who did not have the owner’s consent.
If the third party would have taken transfer in his or her favour, of an immovable property, the owner can seek and obtain a court order to reverse that registration and reinstatement of his or her title deed.
As long as the owner did not give transfer of the property, the third party should surrender possession to the owner.
This is based on the rules that one cannot give what he or she does not have and no one can transfer any right greater than they have.
Employers who seek to recover their property from former employees, after termination of their employment contracts, can institute the rei vindicatio.
An employee who occupied or possessed the employer’s property, as a benefit of employment, ceases to have the right to occupy or possess the property upon termination of employment or even pending resolution of his or her appeal against the termination.
Depending on the monetary value of the subject matter, the employer can bring this action in the Magistrate or High Court to regain possession or occupation of its property.
The right to vindicate the property does not emanate from the contract of employment.
It is based on the employer’s ownership of the disputed property. Where the possessor fails to prove a jus retentionis, that is, right of retention, he or she has no defence against the said matter.
Once the employer has shown that they own the property, which still exists, is clearly identifiable and is in the former employee’s possession, the onus is on the former employee to show the existence of a right to possession.
That right cannot exist where the contract has been terminated.
Once the employment contract is, by any means, terminated, any benefits accruing from that employment cease to exist. No right of retention of the employer’s property remains for the employee.
A possessor has a few defences available to him.
He can raise the defence that he holds the property with the owner’s consent, the property no longer exists or was not in his possession at the time of the action.
He can deny that the applicant is not the owner of the thing or that he has a limited or personal right against the owner, such as a lien or as a lessee.
A possessor can also raise a defence of estoppel if the owner culpably or intentionally created an impression that ownership has been transferred and that the possessor possessed the property with the owner’s consent.
The rei vindicatio is in accordance with Section 71 of the Constitution of Zimbabwe which protects the right to personal property.
Ownership can be deprived on exceptional grounds.
◆ Trust Maanda is a legal practitioner and a partner at Maunga, Maanda and Associates. He writes in his personal capacity. He can be contacted on +263 772432646
