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:
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"Since all properties in Harare were acquired in the name of the Bulgarian country and enjoy diplomatic status pursuant to the Vienna Convention on Diplomatic Relations, no local taxes and fees were paid for them.
Pursuant to the Vienna Convention on Diplomatic Relations, the commercial exploitation of these properties was prohibited, and for this reason these were used only by Bulgarian citizens working in Zimbabwe or transiting through the country".
It was averred in the applicant's founding affidavit that at all material times, its predecessor, Bulgargeomin EAD, was in possession of the properties and managed them. This amounted to both physical possession and actual control and use of the properties, as if the properties were owned by it. Possession was undisturbed, despite the first respondent being aware of it, since 1981. In 2013, Bulgargeomin EAD was sold to the applicant, in terms of a contract whose translated extract appears at record p 40. Paragraph 8 of this translated certificate reads as follows:
"Under this contract Bulgargeomin EAD... has transferred in favor of the buyer Bulgargeomin Ltd... its possession and lessor rights, respectively its rights resulting from the maintenance, operation and protection of the material base associated with the estates located in the Republic of Zimbabwe...".
Applicant now seeks to have the properties transferred to it on the basis of s 4 of the Prescription Act, which reads as follows:
"...a person shall by prescription become the owner of a thing which he has possessed openly and as if he were the owner thereof for –
(a) an uninterrupted period of thirty years; or
(b) a period which, together with any periods for which such thing was so possessed by his predecessors in title, constitutes an uninterrupted period of thirty years."
The applicant contends that it has been in uninterrupted possession of the properties since 1981, for a cumulative period of 33 years, by virtue of having assumed the rights of its predecessor on 16 May 2013 through cession, which is permissible in terms of s 4(b) of the Prescription Act. The applicant contends further, that it or its predecessor were responsible for the management and the maintenance of the properties, as if it owned the properties, during this 33 years period. The first respondent was alleged to have "acquiesced" to the open possession of the properties by the applicant. Finally, it was submitted on behalf of the applicant that the first respondent never used the properties in question or for state related activities, rendering the nature of the transaction commercial, and private, and giving our courts jurisdiction to determine this application.
On 29 September 2014, the first respondent filed a notice of opposition to this application, which was deposed to by the acting Minister of Foreign Affairs of the Republic of Bulgaria. Four preliminary points were raised, firstly that the applicant had sued the wrong party, the Government of the Republic of Bulgaria, which is not the state, and secondly that applicant had attempted to sue a peregrines without complying with s 15 of the High Court Act [Chapter 7:06]. The third point raised in limine, is that this Court has no jurisdiction to deal with this matter because the first respondent or the state enjoys immunity from suit and legal proceedings in terms of the Privileges and Immunities Act [Chapter 3:02] and s 326 of the Constitution of Zimbabwe Amendment (No 20) Act, 2013, which incorporates customary international law as part of the law of Zimbabwe. The acquisition, use, management and maintenance of the properties was a "governmental act of the state". Any attempt to determine the application before the court will involve an inquiry or challenge in respect of a sovereign act, or a public act (jure imperii). This would constitute interference with a sovereign function, or questioning of policies of the executive of a sovereign nation, questioning of the legislative, international transactions of a foreign state, which would be a threat to the dignity of the Republic of Bulgaria.
The fourth preliminary point raised is that there are material disputes of fact in this matter which cannot be resolved on the papers without doing an injustice to the other party. The point raised is that because the applicant averred that it had entered into an agreement with the Bulgarian State's Commission, it ought to have attached a copy of its agreement to the papers, because the first respondent disputes the existence of any such agreement. It was contended on behalf of the first respondent, that oral evidence would need to be led on the question of whether in fact any such agreement exists. There was need for oral evidence to be led on the question of the relationship between Bulgarian state enterprises and the state. The first respondent urged the court to dismiss this application if it upholds this point for the reason that the applicant ought to have realized that there were material disputes of fact which are incapable of resolution on the papers and which render the application procedure unsuitable.
With regards to the merits, the first respondent queried the authority of the deponent to the founding affidavit to represent the applicant, which is not a private limited company. The applicant is a partnership, under the Obligations and Agreement Acts of Bulgaria, and no resolution that all the partners had authorized this application to be filed was attached to the papers. The applicant has no capacity to sue unless all its partners are joined to the proceedings, rendering the application before the court fatally incompetent. The first respondent averred that the money which was used to purchase these properties belonged to the state, and that the properties are registered in the name of the Republic of Bulgaria, which is not cited as a party to these proceedings. Bulgargeomin EAD was allegedly not in existence in 1981, its predecessor Bulgargeomin, was a wholly owned state enterprise controlled by the Republic of Bulgaria. Bulgargeomin EAD was only registered in 2008 according to the Commercial register of Bulgaria. The first respondent denied that the applicant possessed the properties openly as if it were their owner and averred that the applicant's possession of the title deeds to the property was only to facilitate its role as manager of the properties, not acquiescence to its possession as if it were the owner, as alleged. Possession of state properties was exercise by the state through governmental organizations entrusted with the operation and management of such properties. Bulgargeomin, a state enterprise, was entrusted to manage these properties in 1981. Bulgargeomin EAD was never entrusted to manage the properties.
The applicant filed its answering affidavit on 18 November 2014. It denied the allegation that the first respondent had been incorrectly cited because the Government of the Republic of Bulgaria had been cited as opposed to the state of the Republic of Bulgaria. Its position is that the government is the designated organ of state machinery and it represents the interests of the state. The first respondent was charged with a misinterpretation of s 15 of the High Court Act, whose purpose was alleged to be the conferment of discretion on this Court to confirm jurisdiction by the issue of process rather than by arrest or attachment. The applicant averred that it had the onus to show that the peregrines is within the country, or that it has property capable of attachment. The applicant contended that the properties which are situate in Zimbabwe and registered here are the basis on which it founds jurisdiction. On the question of immunity from suit in terms of the Privileges and Immunities Act, the applicant contended that such immunity is not absolute, and that the court must consider the nature of the dispute. If the dispute is a commercial nature then there is restrictive, not absolute immunity. The applicant maintained that there are no material disputes of fact which are incapable of resolution on the papers.
The law
(a) Citation of first respondent
The first respondent took the point that it should have been cited as "The Peoples Republic of Bulgaria" rather than "the Government of the Republic of Bulgaria". The applicant contended that this point lacks merit and that nothing turns on the citation, and drew the attention of the court to the comments made by John Dugard International Law: A South African Perspective (3rd edn, Juta & Co Ltd, Cape Town, 2006) at p 82, an eminent work on international law, where the writer states that:
"Once an entity becomes a state it acquires international personality and participates in the affairs of the international community. This participation is conducted by the government of the state, which will inevitably change from time to time".
The point taken is that a state is incapable of performing any functions on its own accord it is the government that performs the function for and on behalf of the state. Order 13 r 87 of the High Court Rules, 1971 provides that:
"87 Misjoinder or nonjoinder of parties
(1) No cause or matter shall be defeated by reason of the misjoinder or nonjoinder of any party and the court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.
(2) At any stage of the proceedings in any cause or matter the court may on such terms as it thinks just and either of its own motion or on application –
(a) order any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party".
According to my interpretation of r 87(1) is this point taken by the first respondent is not dispositive of this matter. The matter cannot be defeated by reason of the alleged mis-citation of the first respondent as the government instead of the state. I am persuaded by the submissions made on behalf of the applicant that nothing turns on the alleged mis-citation, since it is accepted as a position of international law that state functions are facilitated by the government of the day. This Court can also at any stage of the proceedings, order that the state of Bulgaria be joined as a party to the proceedings, if it deems it fit, in terms of r 87(2)(a).
Citation of applicant
The first respondent submitted that the applicant admitted to being a partnership in clause 9.1 of its answering affidavit despite having held itself out to be a private limited company in para 2 of its founding affidavit. The contention is that at common law a partnership does not have a separate juristic personality, and is not a legal entity capable of owning property or of incurring obligations. See Divine Gates & Co v African Clothing Factory 1930 CPD 238 at 240. Counsel for the first respondent, Mr T Zhuwarara went on to refer the court to the case of Stewart Scott Kennedy v Mazongororo Syringes Pvt Ltd 1996 (2) ZLR 565 (S), as authority for the proposition that when an action is sought to be instituted by or against a partnership, the partners, that is, the persons as constituting the firm, must sue or be sued. With all due respect to counsel for the first respondent, a more careful reading of the dicta in that case would have shown him that this point might well have been valid in 1996 when that case was decided, but the High Court Rules, 1971 have since been amended. In Stewart Scott Kennedy (supra) this is the full text of what the court said:
"At common law a partnership does not have a separate juristic personality of its own. It is not a legal entity, capable of owning property or of incurring obligations. See Divine Gates & Co v African Clothing Factory 1930 CPD 238 at 240. Nor do the Rules of the High Court (unlike r 14(2) of the South African Uniform Rules) contain any special provisions governing proceedings instituted by or against partnerships." (my emphasis)
Order 2A r 7(b) of the High Court Rules, 1971 provides that an association is a partnership, a syndicate, a club or any other association of persons which is not a body corporate. Order 2A r 8 then provides that:
"8 Proceedings by or against associations
Subject to this Order, associates may sue and be sued in the name of their association".
I am unable to accede to the submission made on behalf of the first respondent that O 2A rr 7 and 8 are only procedural, they are not meant to change the substantive law. Firstly it is not clear which substantive law is being referred to and secondly, the Supreme Court in Stewart Scott Kennedy (supra) clearly alluded to a difference in our rules in 1996 and the South African uniform rules. The rules of this Court were subsequently amended and now contain special provisions governing proceedings instituted by or against partnerships, in O 2A. For these reasons, I find that the preliminary point raised about the alleged incorrect citation of the applicant in these proceedings is entirely devoid of merit. There is nothing fatally defective about the citation of the applicant in my view.
Again the case of Shingadia Bros v Shingadia 1958 (1) SA 582 (FSC), is in my view not instructive on the issue of whether when a partnership sues it must only do so when all the partners agree and become plaintiffs with an allegation that they are in partnership. Having being decided in 1958, this case has no application to the circumstances of the case which is before the court, in light of the provisions of O 2A which were inserted into the rules of this Court by the High Court (Amendment) Rules, 1997 (SI 192 of 1997). That case is also distinguishable on the basis that it involved three partners suing one other partner and it was held that the three plaintiffs could not in the name of the firm maintain the action against one of themselves. It was held further, that when the defendant is one of those partners there is difficulty, for the same person is both plaintiff and defendant. Such is not the case here. Sadly, none of the two cases cited in para 22 of the first respondent's heads of argument, at record p 156, provided any assistance to the court in its consideration of this preliminary point since both cases pertained to private limited companies, not partnerships.
(b) Jurisdiction
The applicant submitted that according to the case of Fairdrop Pvt Ltd v Capital Bank Corporation Ltd and Others HH 305-14 (unreported), where a peregrine is being sued, even if it has property in Zimbabwe, the plaintiff or the applicant must first seek and obtain an attachment order to found or confirm jurisdiction. It was submitted further, that even if the court were to act in terms of s 15 of the High Court Act [Chapter 7:06] which allows it to direct service of process without an attachment order, it can only do so if satisfied that the person or his property is within Zimbabwe and is capable of attachment or arrest. Was the applicant in this case obliged to seek attachment to confirm jurisdiction? In Monarch Steel (1991) Pvt Ltd v Fourway Haulage (Pty) Ltd 1997 (2) ZLR 342 (H) at 345C-346A the court stated that "...although s 15 altered the common law to the extent that it gave the court a discretion not to order attachment of the
property belonging to a peregrine defendant or to order his arrest, but to elect in lieu thereof to found or confirm jurisdiction over the peregrines by the issue of process, it did not discharge from the plaintiff the burden of having to satisfy the court, before the issue of process, that the peregrines was present within the country for arrest or had property within the country capable of attachment", the discretion given to the court by s 15 was described as "an election", or in my view, a choice of three options; to order attachment of property; to order arrest; or to order issue of process in order to found jurisdiction. See also Clan Transport Co (Pvt) Ltd v Government of the Republic of Mozambique 1993 (3) SA 795 (ZH) at 797. Section 15 reads as follows:
"15 Exercise of jurisdiction founded on or confirmed by arrest or attachment
In any case in which the High Court may exercise jurisdiction founded on or confirmed by the arrest of any person or the attachment of any property, the High Court may permit or direct the issue of process, within such period as the court may specify, for service either in or outside Zimbabwe without ordering such arrest or attachment, if the High Court is satisfied that the person or property concerned is within Zimbabwe and is capable of being arrested or attached, and the jurisdiction of the High Court in the matter shall be founded or confirmed, as the case may be, by the issue of such process". (my emphasis)
The first thing to note, is that s 15 is couched in permissive language, which denotes wide discretion. In my view the court is at large, depending on the circumstances of the case before it. I am not persuaded by dicta which appears in any case whose circumstances are vastly different from those before me, to interpret s 15 restrictively or to read it as if it is couched in the imperative. The court can elect between three courses of action. See Monarch Steel (supra) Judicial discretion has been described as "the power of a court to take some step, grant a remedy, or admit evidence or not, as it thinks fit". See Jonathan Law Oxford Dictionary of Law (8th edn, Oxford Quick Reference, OUP, Oxford, 2015): "many rules of procedure and evidence are in discretionary form or provide for some element of discretion". This Court must decide on any of the three options which may found jurisdiction, to elect "as it thinks fit". The second thing to note that it is now well settled law that this Court has jurisdiction in any case where the subject matter is situated within its territorial jurisdiction, by virtue of being forum rei sitae. This is so, whether the action is in rem or in personae. See Voicevale Ltd v Freightlink (Malawi) Ltd 1987 (2) ZLR 22 (S).
It is common cause that leave for substituted service has already been granted. In my view this is an indication that the court has already exercised its jurisdiction in favor of founding jurisdiction by the issue of process. Barring cogent evidence that the applicant does not have property which is capable of attachment in Zimbabwe, this preliminary point must fail. Jurisdiction is merely the power of the court to hear and decide a case or to make a certain order. This power is usually based on monetary value in civil cases, or territorial limits, or the ability to grant the relief sought. When regard is had to the purpose behind s 15 of the High Court Act, which is to ensure that the applicant is "present" as in physically present but also "financially" present so as to ensure the enforceability of the order of the court, I have no doubt in my mind that in the circumstances before the court, jurisdiction has been founded by the authorization of substituted service, and the subsequent issue of process. As authority for this proposition, see the case of Ex parte Mor-Tal Construction Co (Pvt) Ltd 1962 (2) SA 664 (SR).
(c) Sovereign Immunity
It was contended on behalf of the first respondent that it is a foreign state or government which historically enjoyed sovereign immunity in terms of international law, which is absolute unless the sovereign is sued in its own courts. It is now accepted law that the sovereign may claim immunity only in respect of governmental activity or property, but not in respect of purely commercial transactions. Before dealing with the merits of the first respondent's contention, I will digress and consider the history of the doctrine of sovereign immunity. This is what the American Civic Organization Immunity Watch has to say about Sovereign Immunity:
"It is clear to most citizens that all persons should be equal under the law. However, for many years our leaders have told us that we have no right to equal treatment, because of Sovereign Immunity. Supreme Court Justice Antonin Scalia in his paper 'The History of Sovereign Immunity' reveals that the fountain head of American Constitutional law was precisely a suit, against a federal official...at the time of Marbury v Madison there was no doctrine of domestic sovereign Immunity...there is no right without a remedy...of the ancient laws, none are more dear than those that granted a citizen his 'day in court' or his 'day before a jury of his peers'".
According to Wikipedia, Sovereign Immunity or Crowne Immunity is a legal doctrine by which a sovereign state cannot commit a legal wrong.
The Legal Information Institute, run by Cornell University in the United States, defines Sovereign Immunity as:
"The legal protection that prevents a sovereign state from being sued without consent, as governed by the Foreign Sovereign Immunities Act (FSIA) of 1976, Codified Title 28, 1330, 1332, 1391(f), 1441(d) 1602-1611 US Code 'These days, the application of Sovereign Immunity is much less clear cut, as different governments have waived liability in different degrees under differing circumstances'".
A look at sovereign immunity and how it has been dealt with by the English Court may be instructive. Historically, the general rule in the United Kingdom has been that the Crown has never been able to be prosecuted or proceeded against in either criminal or civil proceedings. (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).
The position was drastically altered by the Crown Proceedings Act, 1947 which made the Crown (when acting as the government) liable as of right in proceedings where it was only previously liable by virtue of a grant of a fiat. With limited exceptions, this had the effect of allowing proceedings for tort and contract to be brought against the Crown. "Until the 20th Century, mutual respect for the independence, legal equality, and dignity of all nations was thought to entitle each nation to a broad immunity from the judicial processes of another state. This immunity was extended to heads of states, in both their personal and their official capacities and to foreign property."
In Zimbabwe, the leading case on Sovereign Immunity is Barker McCormac (Pvt) Ltd v Government of Kenya 1983 (1) ZLR 137 (H). It was held, in this case that it would have been wrong for the court to have adopted the supine attitude that it should not mero motu raise the question of sovereign immunity. A proposal to sue a sovereign state in the municipal courts of another state is a very serious action, justifying action mero motu by the court. It was held, further, that the acts of a domestic government in the matter of foreign affairs are acts of state which cannot be challenged in its municipal courts. The recognition of premises as the embassy of another state is such an act of state. On the facts it was clear that the purchase of the premises by the Kenyan Government was an act jure imperil, the motive for the purchase being the setting up of its High Commission. The matter of the company?s occupation was incidental to this purpose; there was no desire to enter into commercial dealings with the company. The court in Barker McCormack (supra) said at 141E-G that:
"In Kaffraria Property Co (Pty) Ltd v Government of the Republic of Zambia 1980 (2) SA 709 (E) at 711E, EKSTEEN J is reported as saying:
'There was therefore no appearance for the respondent, but Mr. Kroon, who appeared on behalf of the applicant, very properly dealt with the possible objection that the respondent may enjoy sovereign immunity against any process in our Courts. He submitted, however, that the application related to a purely commercial transaction and that, by virtue of the restricted view international law took of the doctrine of sovereign immunity today, respondent would not be entitled to claim any such immunity in the circumstances of this case'." (my emphasis)
In the case of International Committee of the Red Cross v Sibanda & Anor 2004 (1) ZLR 27 (S), the applicable principles were captured in the headnote as follows:
"...This is to the effect that a foreign sovereign would enjoy immunity from suit and legal process where the relevant act which forms the basis of the claim is 'jure imperii', i.e. a sovereign or a public act. On the other hand, he would not enjoy such immunity if the act which forms the basis of the claim is 'jure gestionis', i.e. an act of a private law character such as a private citizen might have entered into. It cannot have been the intention of the legislature to grant absolute immunity from suit and legal process to such an organization where a foreign sovereign did not enjoy such immunity".
I am persuaded, after a reflection of the historical policy and reasons behind the doctrine of sovereign immunity, that the first respondent does not enjoy absolute immunity in the circumstances before the court. This transaction was commercial in nature, which leaves the first respondent with restrictive immunity. I am fortified in this view by a consideration of the declaration at record p 36, annexure "E" to the founding affidavit which states that the properties were acquired in the name of the Bulgarian state because the Zimbabwean Government had banned the sale of immovable properties to foreign natural persons or legal entities.
(d) Ad Merits
The question for determination is whether the applicant is entitled to the relief that it seeks in terms of s 4 of the Prescription Act. Has the applicant provided proof, on a balance of probabilities, that it became the owner of the properties which it has possessed openly as if it were the owner of for a period which, together with any periods for which such thing was so possessed by its predecessor in title, constitutes an uninterrupted period of 33 years? It is common cause that neither the applicant nor its predecessor ever had title to the properties. Title to the properties has, since 1981 been vested in the state of Bulgaria, to date. What applicant "acquired" from its predecessor was "cession of possessory rights in the properties". This is expressly stated in the agreement between the parties. The court must determine whether such cession, is a right capable of conferring ownership through adverse possession as if it were the owner, as provided in terms of s 4(b) of the Prescription Act.
The applicant contends that it has occupied the properties for its own benefit for a period in excess of 30 years. It behaved as an owner would, and did not pay rent. The first respondent did not assert any of its rights over the property because the properties were registered in its name purely for convenience and for administrative purposes. The court was referred to the case of Young v Van Rensburg 1991 (2) ZLR 149 (S), as an example of a case whose facts are similar to those before the court. I am persuaded by the dicta in the case of Msasa Lodge (Pvt) Ltd v Lightfoot 2000 (2) ZLR 1 (H) that, in addition to the need to prove uninterrupted possession for 30 years, the party claiming acquisitive prescription has to go further and prove that such possession, by both the party and its predecessors in title, was open and adverse to the rights of the owner. The court in that case relied on the common law proposition which it stated to be as follows:
"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. The Latin expression is nec vi, nec clam, necprecario, (see Welgemoed v Kotzer 1946 TPD 701 at p 710)."
While it is correct that applicant did indeed acquire full juristic possession of the properties when Bulgargeomin EAD purported to cede its rights of possession to it, it is my view that neither the applicant nor its predecessor possessed the properties "without recognizing the title of the owner". The papers filed of record are replete with admissions that the properties have always been registered in the name of the Republic of Bulgaria. We have accepted that all state acts are performed on its behalf by the government of the day, the first respondent. The applicant fails to prove that its possession was adverse to the rights of the state of Bulgaria, even though its possession was open. In the absence of proof that possession was in dispute of the title of the owner, (my emphasis) the essential elements of adverse possession are simply not established. I am fortified in this view by the dicta in the case of Pratt v Lourens 1954 (4) SA 281 (N) at 282E that: "If the possessor acknowledges the rights of the owner, his ownership ipso facto ceases to be adverse to him...If therefore there has been any acknowledgement, the plaintiff's case must fail..."
Annexure "E" to the applicant's founding papers states that:
"...the properties were used for the needs of the embassy and managed by representatives of state Bulgarian foreign trade enterprise (Bulgargeomin). During the period when applicant or its predecessors had a representative in Harare, the properties were at its disposal; since the properties were acquired by the Bulgarian state, they did not pay local taxes and fees pursuant to the Vienna Convention...".
By no stretch of the imagination can it be said that the applicant or its predecessor's possession of the properties, which is common cause, was adverse possession in the sense of being possession which does not recognize the title of the owner, the Republic of Bulgaria.
The applicant has failed to discharge the onus on it to prove all the requirements of acquisitive prescription, on the papers filed of record. See Morgenster 1711 (Pty) Ltd v De Kock NO and Others 2012 (3) SA 59 (WCC). The matter ends there.
Accordingly, the application before the court be and is hereby dismissed, with costs.
Messrs Kantor & Immerman, applicant's legal practitioners
Messrs Mupanga, Bhatasara Attorneys, first respondent's legal practitioners
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