FANTAISIE FARM (PVT) LTD & ORS v MANYERUKE & ORS 2008 (2) ZLR 132 (S)

Flynote

Property and real rights — immovable property — bona fide possessor — entitlement to fruits or produce as long as he remains a bona fide possessor

Headnote

The appellants were all owners of farms on which they cultivated and produced sugar cane in the Hippo Valley and Triangle areas. The farms were acquired by the State in terms of s 8(1) of the Land Acquisition Act [Chapter 20:10] and allocated to the first group of respondents who settled thereon. The settlers reaped the sugar cane which had been planted there and sold it to sugar mills in the area. The acquisition orders were subsequently set aside as being invalid. The appellants argued that because the acquisition orders were subsequently set aside, the Minister's actions were invalid right from the beginning and therefore the settlers had no lawful right to the proceeds of the sugar cane that they delivered to the millers during the period of the acquisition.

Held, that there was nothing to suggest that the settlers knew, or were aware, that in settling them on the sugar cane farms the Minister was not acting in accordance with the provisions of the relevant law. It was not for them to question the legality of the Minister's actions. They were therefore bona fide occupants of land regarding its fruits or produce. Under the common law, a bona fide possessor acquires all the fruits gathered by him before the litis contestatio in an action regarding the possession or ownership of the ground, whether they have been consumed or are still in existence; but he is bound to restore to the owner of the property all fruits actually gathered by him after litis contestatio because, by litis contestatio, a bona fide possessor becomes converted into a mala fide possessor. A bona fide possessor is not answerable to the person actually entitled for acts done by him in accordance with his supposed title, nor for the loss or deterioration of the thing possessed which occurred before he became aware of the other's right.

Held, further, that the fact that the production of sugar cane by the settlers was in contravention of the Sugar Production Control Act [Chapter 18:09] did not mean that they should be deprived of the sugar cane, or that the sugar cane could then become the property of someone who did not produce it.