Hilary Muza 
“Ownership” is a common word that is uttered in many conversations but it turns out that not much is known in terms of the legal rights associated with it.
Many of us exercise ownership rights over a wide array of things, be they movable or immovable, but as is always the case with certain obscure aspects of law, the general reading public remains ignorant of what legal ownership is all about.
Hence, it becomes necessary to discuss crucial aspects of this important area of law for the better understanding of those who may be exercising ownership or may exercise ownership of certain assets in future.
Ownership is the most extensive private right that a person can have with regard to property. In principle, ownership entitles the owner to deal with his or her property as he or she pleases within the confines set by law.
The right of ownership embraces not only the power to use, to enjoy the fruits and to consume property, but also the power to possess, to dispose of and to reclaim property from anyone who may unlawfully withhold it.
This power also extends to the right to resist any unlawful invasion or deprivation of property. Ownership may be exercised over movable or immovable assets as well as fungible.
Movable assets are the usual household goods and effects, tools of trade, machinery, motor vehicles, bovine, and crop harvest. On the other hand, easy illustration of an immovable assets are a house, building, piece of land, and a mining claim.
Fungible assets are those that one cannot touch or see but that are easily exchangeable or transferable as property and examples that should come to mind are shares in a company and electronic money.
However, it must be noted that it is not everything that is capable of being owned, either individually or as an association. Some natural objects like the sun, clouds and natural wind cannot have one claim legitimate ownership of them.
Rights of ownership are not necessarily absolute as there are certain limitations to one’s exercise of such rights and these limitations are prescribed by the Constitution and various other statutes. Section 71 (2) of the Constitution provides that, “every person has the right in any part of Zimbabwe to acquire, occupy, use, transfer, hypothecate, lease, or dispose of all forms of property either individually or in association with others”.
Compulsory deprivation of one’s property may only occur where certain conditions are satisfied and these conditions relate to, where the deprivation is in terms of a law of general application, where the deprivation is necessary in the interests of defense, public safety, public order, public morality, public health or town and country planning or where the property is required for a purpose beneficial to the community.
To guard against impunity and vengeful acquisition, the law provides that an acquiring authority must give notice and adequate compensation must be given to the property owner within a reasonable time after the acquisition.
The right of ownership particularly of dwellings or buildings must be exercised with the sensitivity and responsibility to neighbors. Wrongful impairment of a neighbor’s use and enjoyment of property may be redressed through the remedy of an interdict.
Examples are where one has a troop of dogs that bark endlessly through the whole night, or where a neighbor may rear chickens or pigs resulting in an intolerable stench contaminating the neighbor’s atmosphere.
Others hold church services or traditional rites singing on top of their voices, beating drums or playing guitars, stomping their feet as well as indulging in frenzied gyrating accompanied by loud ululating, all to the serious irritation of neighbors.
The long and short of this is that, a property owner has a duty not to disturb the peace of fellow neighbors. Interference occurs where an encroachment intrudes into an owner’s property. Several disputes around the issue of encroachments end up spilling into courts and examples are where due to poor survey work, one ends up having his structure intruding into the neighbor’s property.
Another classic example is where one has gone onto build a structure on a wrong stand belonging to another.
This type of serious interference can only be resolved through a court order if parties fail to settle out of court.
A land owner must ensure that over-hanging branches, falling leaves or intruding roots of trees planted on or near the boundary, do not interfere with a neighbor’s property. A plant encroachment may be accepted by a neighbor and all fruits from such over-hanging branches will belong to the neighbor.
Where a neighbor does not accept the encroachment and proceeds to remove the branches, the cost of such is removal. There are various legal ways through which property may be acquired and a discussion of these would require a whole column and hence, I will reserve the discussion for another day.
There is however, one interesting method of acquiring land known as ‘acquisitive prescription’. This form of acquisition is provided for in Section 4 of the Prescription Act [Chapter 8:11].
Where one exercises possession of a piece of land or building for an uninterrupted period of 30 years, then ownership automatically accrues to the occupier.
n Muza is a Harare-based legal practitioner. He writes in his personal capacity.
