Civil Appeal No 150/03
LAZARUS JAMES (2) CHISONI JAMES (3) ESNATI JAMES
v (1) WILLIAM SIKARIYOTI (2) MUNICIPALITY
HARARE (3) TONDERAYI MALVERN KATSIGA
SUPREME COURT OF
ZIYAMBI JA & MALABA JA
HARARE MAY 23 &
SEPTEMBER 6, 2005
F. Katsande, for
No appearance for the
first and second respondents
for the third respondent
CHIDYAUSIKU CJ: The appellants in this case filed an urgent
application in the High Court seeking an order restraining the
respondent (hereinafter referred to as Sikariyoti) from ceding
his rights, title and interests in Stand No 4076 New
(hereinafter referred to as the stand) to any person and
declaring any such sale that may have been entered
into null and
The third respondent,
(hereinafter referred to as Katsiga) was not originally cited
in the proceedings. He applied to be
joined in the proceedings and
his application was granted. He opposed the application.
The first appellant (hereinafter referred to as James) is the
eldest son of the late William James (hereinafter referred to
deceased) who died in 1983. The deceased became the registered
tenant of the stand in 1970. After the death of the
estate was registered and Sikariyoti was declared to be the heir.
He became the registered tenant of the stand.
James contends that,
he is the eldest son of the deceased, and as such, should have been
appointed heir of the deceased. He contended
that Sikariyoti had
assured the appellants and their mother that on no account would he
dispose of the stand as that was the family
In August 2002 the mother died. Because the mothers
restraining influence was no longer there he continued to monitor
did. He discovered that Sikariyoti had entered into
an agreement with Katsiga in terms of which he sold to Katsiga his
title and interests in the stand. That resulted in the
appellants filing the urgent application in the High Court.
Katsiga opposed the
application and contended that on 12 March 2003 he entered into an
agreement with Sikariyoti to buy his rights,
title and interests in
the stand for $2.6 million. On the same day the two of them went to
the offices of the second respondent
(hereinafter referred to as the
Council) at Tafara to complete the formalities for the rights in
the stand to be ceded to him.
The officials confirmed that the
stand belonged to Sikariyoti and approved the cession. He and
Sikariyoti then went to the Council
offices in Remembrance Drive
where the cession was also approved. He subsequently became aware
that the appellants had filed an
application to stop the sale.
Katsiga had paid Sikariyoti $2.6 million for the rights in the stand
and at the time of the sale
Sikariyoti advised him that he was going
back to Malawi to live there because that was his home country.
James, in an
answering affidavit, claimed that Sikariyoti had obtained the
certificate of heirship fraudulently and that he, himself,
being the eldest son of the deceased, had never received notice of
the edict meeting to appoint an heir to the estate.
He had not
challenged the appointment of Sikariyoti as heir because he had
deferred to his mothers counsel not to cause friction
family. He had never relinquished his status as the eldest son of
the deceased. That was a birth right from which
he could not
appointed heir to the deceased on 13 May 1986. Thereafter, he was
registered as the lawful tenant of the stand.
The records of the
Council reflect that he was the owner of the rights in the stand.
That meant that he could sell those rights
to any person, subject to
the approval of the Council. James, who is the eldest son of the
deceased, claims that he was entitled
to be appointed heir and should
have been so appointed. However, he has done nothing to rectify the
position since 1986. Likewise,
he and the other appellants were
well aware that Sikariyoti was registered as the owner of the rights
in the stand and yet they did
nothing to have the stand registered in
James name or to have some caveat registered to prevent
Sikariyoti from selling his rights in the stand without first
obtaining their approval.
According to Katsiga
he had visited the stand to satisfy himself that the stand was worth
$2.6 million. He was satisfied that
it was and he checked with the
Council officials to ensure that Sikariyoti was, indeed, the owner of
the rights in the stand and
they confirmed that he was. It was only
then that he proceeded with the sale.
On these facts the
learned judge in the court a quo dismissed the application on
the basis that James and the rest of the appellants had done nothing
over a period of time to protect
their rights. In this regard he
placed reliance on the case of Morkels Transport (Pty) Ltd v
Melrose Foods (Pty) Ltd 1972 (2) SA 464(W) at p 477-478 where it
was held that:-
It is the idle and slovenly owner, and not one who is alert but
incapable of acting, who may lose his property by prescription.
The learned judge also relied on Ex parte Puppli 1975(3) SA
461(D) at 463 where it was stated that:-
The rationale of our law of acquisitive prescription is that an
owner who negligently fails to protect his interests against a
stranger in possession of his property should forfeit the property to
The learned judge concluded that the principles set out in the
above cases applied to the case before him and, accordingly,
The appellants were
dissatisfied with the outcome and appealed to this Court. In this
Court Mr Katsande, for the appellants, argued that at
customary law, it was James who was entitled to inherit the stand and
his rights should not have
been treated as if they had been
prescribed. He further argued that the Malawi customary law which,
in his submissions, applies
to the succession in this matter was the
same as the Shona and Ndebele customary law. He asked us to take
judicial notice that
Malawi customary law was the same as Shona and
Ndebele customary law.
In my view it is not
possible for this Court to take judicial notice of customary laws of
a foreign country without any authority
or evidence being placed
before it. But even assuming that counsel was correct in this
regard I am unable to find fault with the
reasoning of the learned
judge in the court a quo.
The appellants in this matter were fully aware that the stand was
registered in the name of Sikariyoti since 1986. They did nothing
about it and it was only when Sikariyoti had sold his rights in the
stand that they sought to assert their rights.
In my view the learned
judge was correct in dismissing the application.
It is for these reasons
that the appeal is dismissed with costs.
ZIYAMBI JA: I
MALABA JA: I
F M Katsande & Partners, appellants legal practitioners
Associates, third respondent's legal practitioners