Claim against deceased estate https://old.zimlii.org/taxonomy/term/9390/all en E. Pfugari Properties (Pvt) Ltd And 2 Others v The Master of the High Court And 3 Others (HH 260-21, HC 6168/20) [2021] ZWHHC 260 (26 May 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/260 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>HH 260-21</p> <p>HC 6168/20</p> <p>E. PFUGARI PROPERTIES (PRIVATE) LIMITED</p> <p>and</p> <p>EDDIES PFUGARI (PRIVATE) LIMITED</p> <p>and</p> <p>ROCKNEY INVESTMENTS (PRIVATE) LIMITED</p> <p>versus</p> <p>THE MASTER OF THE HIGH COURT</p> <p>and</p> <p>CLEVER MANDIZVIDZA N.O</p> <p>and</p> <p>STERN MUFARA N.O</p> <p>and</p> <p>REGISTRAR OF COMPANIES</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>TAGU J</p> <p>HARARE, 18 and 26 May 2021</p> <p> </p> <p> </p> <p><strong>Opposed application </strong></p> <p> </p> <p><em>T. Mpofu</em> with <em>T. Kachara</em>, for applicants</p> <p><em>N. Musviba</em>, for 2nd respondent</p> <p> </p> <p>           TAGU J: This is an application for setting aside the interim liquidation and distribution accounts pertaining to the Applicants which were lodged by the second respondent in the estate late Edward Nyanyiwa, DR471/19. The accounts were confirmed by the 1st Respondent.</p> <p>The facts are that the late Edward Nyanyiwa who died on the 10th of February 2019 held shares in several companies which include Applicants. The Applicants are companies engaged in the business of property development.  The 2nd Respondent was appointed as the Executor Dative. The 1st Applicant owns immovable properties at Whitecliff in Harare as well as at Brockdale Farm in Bindura. The total cost of servicing both the residential and commercial stands at Whitecliff and Brockdale Farm is estimated at over US$8 071 731.00. These liabilities were not taken into account when the deceased’s shares in the 1st Applicant were valued by the 2nd Respondent and confirmed by the 1st Respondent.</p> <p>The 2nd Applicant developed the sprawling suburb of Knowe in Norton and at Alphaerton in Mutare. Again the costs of servicing the Knowe suburb and Alphaerton were not taken into account by the 2nd Respondent when determining the value of the deceased’s shares in the 2nd Applicant when the 1st Respondent confirmed the shares.</p> <p>The 3rd Applicant is undertaking a housing development in Gweru. The intrinsic liabilities, costs and endowment fees due to the Gweru Municipality were also not taken into account by the 2nd Respondent when the 1st Respondent confirmed the deceased’s shares.</p> <p>On 2 September 2020 the Applicants objected to the interim liquidation and distribution accounts. The objection was dismissed by the 1st Respondent on the 12th of October 2020. The Applicants now pray that the decision of the 1st Respondent be set aside on the basis that it is grossly irregular as it overstated the value of the shares held by the deceased in the Applicants’ companies. They now seek the following order-</p> <p>         “IT IS ORDERED THAT</p> <ol> <li>The first respondent’s decision to confirm the second respondent’s interim liquidation and distribution accounts pertaining to the applicants in the estate late Edward Nyanyiwa is hereby set aside.</li> <li>The interim liquidation and distribution accounts filed by the second respondent in the estate late Edward Nyanyiwa pertaining to the applicants are hereby set aside.</li> <li>The first respondent shall appoint an impartial person to determine the value of the shares held by the late Edward Nyanyiwa in the applicant companies, within ten days of being served with this order.</li> <li>The costs of suit shall be borne by the estate late Edward Nyanyiwa.”</li> </ol> <p>Only the 2nd Respondent Clever Mandizvidza N.O, the Executor Dative of the estate late Edward Nyanyiwa (senior) filed a Notice of Opposition to the application. The 1st Respondent who is the Master of the High Court filed a Master’s Report in terms of Order 32 Rule 248 of the High Court Rules 1971 as amended.</p> <p>The counsel for the 2nd Respondent raised two points <em>in limine</em>. The first one being that there is no founding affidavit and she prayed that this application be dismissed. The second point <em>in limine</em> being that this application has been pre-maturely filed and must be dismissed. Both points <em>in limine</em> were opposed by the counsels for the Applicants. It is necessary that I dispose of the points <em>in limine</em> first before dealing with the merits of the application.</p> <ol> <li><strong>THERE IS NO FOUNDING AFFIDAVIT</strong></li> </ol> <p>The counsel for the 2nd Respondent submitted that there is no application before the court because there is no founding affidavit. She said the 2nd Respondent was appointed by all Applicants who have brought the matter to court. She further submitted that the one who purports to be the deponent was also present. She made reference to <strong>annexure 1</strong> which shows that it is a resolution and she challenged that.</p> <p>Counsels for the Applicants disputed the averments by counsel for the 2nd Respondent and referred the court to page 3 of the record where they pointed out that there was a founding affidavit. They further referred the court to pages 11 to 13 where there are extracts of meetings of Board of Directors of Applicants where they resolved to litigate. They therefore prayed that this point <em>in limine</em> be dismissed.</p> <p>The court indeed looked at page 3 of the record. On that page is a founding affidavit deposed to by one Edward Nyanyiwa (junior), employed as a director in the three Applicant companies. He referred to the resolutions authorizing him to depose to the affidavit attached as annexures “A1” to “A3”. At pages 11 to page 13 are extracts of minutes of meetings of the Board of Directors of E. Pfugari Properties (Pvt) Ltd, Eddies Pfugari (Pvt) Ltd and Rockney Investments (Pvt) Ltd respectively, held at Bentley House, 56 Robson Manyika, Harare on the 9th of April 2019. For avoidance of doubt the three resolutions read as follows-</p> <p>            “<strong>IT IS RESOLVED THAT:</strong></p> <p>EDWARD NYANYIWA (JNR) is hereby authorized to sign all necessary documents on behalf of the company and to represent the company in all court proceedings and instruct the company’s legal practitioners. He shall sign all necessary affidavits and documents in connection with the institution or defending of any court proceedings by or against the company.</p> <p>Certified as a true copy of the original resolution.</p> <p>Dated at Harare this 9th day of April 2019.</p> <p><strong>SIGNED J MUZWA</strong></p> <p><strong>SECRETARY”</strong></p> <p>A look at page 119 of the record is <strong>annexure 1</strong> referred to by the counsel for the 2nd Respondent. It is not a resolution authorizing the 2nd Respondent to represent the companies in litigation. The annexure 1 reads as follows-</p> <p>“<strong>EXTRACT FROM THE MINUTES OF A MEETING OF THE SHAREHOLDERS OF COMPANIES CONTROLLED BY THE LATE EDWARD NYANYIWA WHO DIED AT HARARE ON THE 10TH FEBRUARY 2019 AND WHOSE ESTATE IS BEING ADMINISTRERED UNDER MASTER’S RECORD DR471/19 HELD AT HARARE ON THE 9TH OF APRIL 2019</strong>.</p> <p>Whereas the Shareholders and Beneficiaries of the Estate Late Edward Nyanyiwa considers that it is in the best interests of all parties and in compliance with the Companies Act (Chapter 24:03) to appoint replacement Directors to companies which were controlled by the late Edward Nyanyiwa most of which were left with one surviving director Edward Nyanyiwa (Jnr) after the demise of Edward Nyanyiwa (Snr)</p> <p><strong>IT IS RESOLVED</strong> that:</p> <ol> <li>For administrative purposes and for purposes of convening meetings, all companies controlled by the late Edward Nyanyiwa be dealt with as single economic unit.</li> <li>Mr. Clever Mandizvidza (ID 80- 052938-M-800 be appointed Director of all companies which were controlled by the late Edward Nyanyiwa(snr).</li> <li>Mr. Stern Mufara (ID 22-124604-G-04) be appointed Director of Eddies Pfugari Properties Ltd.</li> </ol> <p><strong>Dated at Harare this 23 Day of April 2019</strong></p> <p><strong>CERTIFIED THAT THE FOREGOING IS A TRUE AND CORRECT EXTRACT FROM THE MINUTES AFORESAID:</strong></p> <p> </p> <p>Signed           …………………………………………….</p> <p><strong>                       (DIRECTOR)/(SECRETARY)”</strong></p> <p>It cannot be said by any stretch of imagination that <strong>annexure 1</strong> was a resolution to litigate but was meant for purposes of appointing Directors. What is clear is that there is a founding affidavit to the application and resolutions authorizing the deponent to represent the companies in this application. The first point <em>in limine</em> therefore lacks merit and is dismissed.</p> <ol> <li><strong>APPLICATION PRE-MATURELY FILED</strong></li> </ol> <p>The contention by the counsel for the 2nd Respondent was that this application has been pre-maturely filed. She said the liabilities were not taken into account because the account has not been confirmed by the Master of the High Court. She said in terms of s28 of the Estate Duty Act [<em>Chapter 23.03</em>] the Applicants were supposed to object to the Master first or appeal in terms of s 29 of the Estate Duty Act first before bringing this matter to court. She argued that valuations were done as they stand without taking into account the liabilities. According to her no loss or prejudice will be incurred by the Applicants.</p> <p>In opposition to the second point <em>in limine</em> the counsels for the Applicants submitted that the application before the court is not premature. According to them the Master of the High Court has already approved the accounts and there was an objection lodged with the Master which the Master dismissed. So s 28 of the Estate Duty Act is not applicable.</p> <p>A reading of the file shows that the counsel for the 2nd Respondent got the facts of this matter all wrong. She did not notice that the Master confirmed the accounts without taking into account the liabilities of the companies. Pursuant to that the legal practitioners representing the Companies wrote a letter objecting to the confirmation of the accounts dated 2 September 2020 which is on page 90 of the record. The Master in a letter dated 12th October 2020 which is on page 94 of the record dealt with the objection and dismissed it. This caused the Applicants to then approach this Honourable Court. As the facts stand s 28 of the Estate Duty Act is not applicable and the application is properly before the court. The application was not pre-maturely made. The second point <em>in limine</em> is dismissed.</p> <p><strong>AD MERITS. </strong></p> <p>In this application for review, the main issue for determination is whether the 1st Respondent’s decision to confirm the interim liquidation accounts containing certain valuations of the Late Edward Nyanyiwa’s shareholding in the Applicants must be reviewed, and consequently set aside. The secondary issue for determination is whether the 1st Respondent should be ordered to appoint an independent person to determine the value of shares held by the estate of the late Edward Nyanyiwa in the Applicant companies. The second issue falls to be resolved on the basis of the main issue in that if the Applicants succeed on the first issue, it would follow as a matter of course that a new valuation must be carried out.</p> <p>What is critical in this application is that the decision of the 1st Respondent is being impugned in these proceedings as being grossly irregular and manifestly unreasonably and should not stand.</p> <p>The brief facts are that the 1st to 3rd Applicants own certain real estate. They subdivided, serviced, developed and sold the subdivided properties (stands). The late Edward Nyanyiwa (Snr) held 50% of the shareholding in the three companies. Those shares have now been transmitted to the 2nd Respondent who is the executor of his estate. In the course of the administration of the estate of the late Nyanyiwa it became important that interim liquidation and distribution accounts be prepared, taking into account the value of the deceased’s shareholding in the three Applicants. The 2nd Respondent chose the party tasked with preparing the valuation. He chose Real Estate Agents whose valuation he made use of in preparing the interim liquidation and distribution accounts. The valuation appears at pages 82-89 of the record. It is apparent that this is a valuation of immovable properties and not shares. Further, it is apparent that the valuation is of the subdivided stands and not of the parent properties as they appear on the title deeds. No liabilities are taken into account by the Real Estate Agents in arriving at the assigned values. The Applicants objected to such valuations supposedly in terms of s 52 (8) of the Administration of Estates Act [Chapter 06.01] but the 1st Respondent confirmed the same as reflected in the prepared interim liquidation and distribution accounts in terms of s 40 of the Administration of Estates Act and said he was now <em>functus officio</em>. Hence the present application for review.</p> <p>The arguments submitted by the Applicants is that the false valuation would lead to the liquidation of the Applicants and would involve them in various breaches in respect of purchasers of stands who justifiably expected completion of the servicing thereof.</p> <p>The Applicants sued the Master of the High Court as a substantive respondent. He is cited in this application as the 1st respondent. The Master of the High Court opted not to file any Notice of Opposition. He in fact filed a report. The counsels for the Applicants submitted that the Master of High Court should have filed a Notice of Opposition because it is his decision which is in issue. They submitted that the report must be struck off the record because Rules of this Honourable Court do not allow that. For that contention they relied on the case of <em>Harare Motorways (Private) Limited and African Banking Corporation of Zimbabwe Limited t/a BANC ABC</em> v <em>The Sheriff for Zimbabwe N.O and Doves Funeral Assurance Company Limited and Bluestar Logistics (Private) Limited and The Registrar of Deeds N.O HH 769/19</em>. In that case The Sheriff for Zimbabwe was cited as a substantive respondent and the decision that was under review was that of the Sheriff. The Sheriff did not file a Notice of Opposition but instead filed a report. Dube J in dealing with the same issue had this to say at pages 8-9 of the cyclostyled judgment -</p> <p>“As regards the Sheriff’s report, my view is that this is a matter best left to be dealt with elsewhere, however I could not resist making the following observations. The Sheriff is an officer of this court. A judicial sale is a court managed sale. When the Sheriff conducts a judicial sale, he does so on behalf of the court. Where the Sheriff is sued over the manner in which he conducts a sale in execution, he may choose to either defend proceedings or elect to abide by the decision of the court, in which case he is not required to file a notice of opposition and opposing affidavits. The rules do not make provision for the filling of a report by the Sheriff to to the court. The Sheriff did not oppose these proceedings choosing instead to compile a report which he filed with the court. The report was not prepared in terms of the rules. Of note however, is that the report simply captures the events that led to the Sheriff confirming the sale and does not deal with the merits of the matter. As I have already noted, the report was not filed in terms of the rules of court. Perhaps it is time our rules made provisions for the filling of a Sheriff’s report where he has conducted a sale and does not wish to oppose legal proceedings challenging a sale he conducted. The purpose of the report would clearly be to give insight to the court regarding the conduct of the sale and would be of great assistance to the court. Nothing stops the court from requesting a report from the Sheriff in a matter such as this.”</p> <p>Having clearly stated that the report was not filed in terms of the rules, the learned judge did not spell out clearly whether the report should be struck out or not. In casu the Master’s report is submitted in terms of Order 32 Rule 248 of the High Court Rules 1971 as amended. My assumption is that in the case dealt with by Dube J the report did not specify under which rule it was being filed. Be that as it may. In the present case the Rule under which the Master of the High Court compiled the report reads as follows-</p> <p>       <strong>“248. Application involving Deceased Estates, Liquidators or Trustees.</strong></p> <ol> <li>In the case of any application in connection with -</li> </ol> <ol> <li>the estate of a deceased person, or</li> <li>the appointment or substitution of a provisional trustee in insolvency or a provisional liquidator of a company or of a trustee of other trust funds;</li> </ol> <p>a copy of the application shall be served on the Master not less than ten days before the date of set down for his consideration, and for report by him if he considers it necessary or the court requires such a report.</p> <p>(2). In any application referred to in subrule (1), where the name of any person is to be suggested to the court as curator of property, such name shall be referred to in the application or otherwise submitted to the Master for his approval.”</p> <p>While the report captures the events leading to how the Master confirmed the accounts, I do no find the relevancy of the Rule under which the report was made and whether it should be struck out or not hence it is an issue that will be determined on another time. What is clear is that the Master did not file a notice of Opposition. He left the other parties who prepared the valuations to explain what they did and he denied that his conduct was unreasonable as he acted on what was placed before him.</p> <p>Of the four respondents only the 2nd Respondent (Executor Dative of the estate of Late Edward Nyanyiwa) filed a Notice of Opposition in this case. In his Notice of Opposition as amplified in his heads of argument the 2nd Respondent among other things said that the three Applicant companies are not beneficiaries to the estate of the late Nyanyiwa. He said the only beneficiaries of the estate are those mentioned in the interim distribution accounts at pages 76 to 77 of the application. He reiterated that the Applicants have no locus standi in this matter since the Applicants are all companies in which the late Nyanyiwa held shares. His argument being that the companies are not beneficiaries of the estate of the late Nyanyiwa. According to him the point of law that arises is whether the Applicant companies have interest in the estate of their shareholder, where they do not hold any claim against the deceased shareholder’s estate.</p> <p>Coming to the 1st Applicant he argued that the costs for servicing Whitecliff cannot be characterized as a liability where the identity of the creditor owed such obligations/performance is not identified. Further, he said there is no evidence of such alleged liabilities having existed as a matter of both fact and law as at February 10, 2019. To him the amount sought to be included is an estimate. He therefore denied that Annexure “C” is evidence of any specific liability by any of the 1st Applicant towards Zvimba council. As to the 2nd Applicant he said no specific amount is given as to what is needed for the development of Knowe, Norton. To him Annexure “D1” is evidence of obligations owed in terms of a judgment that has superannuated by lapse of time. Lastly he said there are no meaningful documents submitted in respect of 3rd Applicant. The allegation that the 3rd Applicant is undertaking a housing development in Gweru is inadequate for purposes of proving ignored liabilities. Finally he denied the allegation by the Applicants that the decision by the 1st Respondent is grossly unreasonable and that failure to take into account liabilities inflated values of the shares. He therefore prayed that the application for review be dismissed.</p> <p><strong>ANALYSIS OF THE SUBMISSIONS</strong></p> <p>The decision at issue in these proceedings was taken by the 1st Respondent. That decision can be challenged in terms of the law. The 1st Respondent has been substantively cited. The 1st Respondent has not substantially opposed the application by which the vacation of his decision is sought by filing a Notice of Opposition. While the 2nd Respondent undoubtedly has an interest in this matter, he can only raise issues under circumstances where the substantive respondent has opposed the matter. This application assails the exercise of a public and not private power. The 2nd Respondent has already prepared his accounts. He has defended those accounts before the 1st Respondent. What now needs to be defended is the 1st Respondent’s decision in this review application. 1st Respondent’s decision appears difficult to uphold in his absence on the basis of the position taken by the 2nd Respondent of not filing a notice of opposition.</p> <p><strong>FACTS I FOUND TO BE COMMON CAUSE</strong></p> <p>It is common cause that Whitecliff, the property owned by the 1st Applicant has created a number of residential and commercial stands which are in the process of being serviced. It is these stands that were valued by the Real Estate Agents. Brockdale is also owned by the 1st Applicant and has been subdivided into various stands. The endorsement fees and servicing costs of these stands have not been taken into account. In my view the fact that endorsement fees are due means the original property no longer exits. It is common cause that 3rd Applicant has a property in Gweru. The property has been subdivided and endorsement fees are due. The same applies to properties held by the 2nd Applicant. What these facts show is that the liabilities are current, some were paid and were in existence as at the date of death of the late Edward Nyanyiwa. The valuations show that only stands were valued yet there cannot be stands without corresponding financial liabilities. It is common cause the valuation report shows that Real Estate Agents predominantly used the market approach in arriving at the value of the land. That approach related to the subdivisions only yet all the subdivisions had intrinsic liabilities attached to them. There was therefore no valuation of the shares.</p> <p>What the late Edward Nyanyiwa owned were shares and not only the stands. What the 2nd Respondent had the right to deal with are shares and not the stands. There was no valuation of the shares. See <em>Salomon </em>v <em>Salomon &amp; Co. Ltd </em>[1897] AC 22(HL) and <em>Dadoo Ltd &amp; Others</em> v <em>Krugersdorp Municipal Council</em> 1920 AD 530 at 550.</p> <p>It is also not in dispute that the valuation was not done in terms of statute. Section 128 of the Administration of Estates Act provides as follows-</p> <p>“(1) The Master may call upon such and so many persons as to him seem fit to value any assets and property, the valuation of which becomes necessary for the purposes of this Act.</p> <ol> <li>Every such person shall, in respect of every valuation made by him, be entitled to demand and receive a reasonable compensation to be assessed and taxed by the Master.”</li> </ol> <p>Again s 6 of the Estate Duty Act (Chapter 23.03) provides that-</p> <p>                   “(1) The value of any property included in the estate of any person shall be-</p> <p>(a)…………..;</p> <p>(g) in the case of shares in any company not quoted in the official list of a securities exchange registered under the Securities Exchange Act (Chapter 24.25) or on any securities exchange outside Zimbabwe, the value of such shares in the hands of the deceased at the date of his death as determined, subject to section nine, by sworn valuation by some impartial person appointed by the Master, subject to the following provisions, that is to say….”</p> <p>What the above provisions mean is that a valuation of shares must be done by a person appointed by the Master. <em>In casu</em> the valuation was done by a person appointed 2nd Respondent and is invalid on that score. Secondly, what is valued are shares. The Master cannot appoint someone to value the property owned by a company. He has no jurisdiction to do so. What requires to be valued in this case are shares.</p> <p>With respect, it was irregular and unreasonable in the extreme for the 1st Respondent to accept anything other than a valuation of shares. To make it into an interim liquidation and distribution account, a valuation must relate to the asset owned by the deceased. However, before this court, the 1st Respondent does not explain even in his report if it were to be accepted, why he accepted a valuation of immovable properties and not shares, other than that he merely took into account what was presented to him by those who did the valuations. The 1st Respondent also did not explain why statute was not complied with. What is clear however, is that if there has been a failure to comply with statute, invalidity ensued. <em>York Timbers Ltd</em> v <em>Minister of Water Affairs &amp; Forestry &amp; Anor</em> 2003 (4) SA 477 (T). <em>Hamilton –Browning</em> v <em>Denis Baker Trust</em> 2001 (4) SA 1131 (N) at 1135, <em>Schierhout</em> v <em>Minister of Justice</em> 1926 AD 99, at 109 where the court held that-</p> <p>“It is a fundamental principle of our law that a thing done contrary to the direct prohibition of the law is void and of no force or effect…And the disregard of a peremptory provision in a statute is fatal to the validity of the proceedings affected.”</p> <p>See also <em>Metro Western Cape (Pty) Ltd</em> v <em>Ross</em> 1986 (3) SA 181 (AD) at 188-189.</p> <p>On the basis that there has been no valuation of shares the review must succeed. The court has no equitable discretion to dispense with strict compliance with statute. The 2nd Respondent may argue that the shares or liabilities were not quoted and known. But the law is however, clear on how unquoted shares are valued. In <em>Administration of Estates and Drafting of Wills</em>, 4th Ed, Juta, LA Kerrnick at p 113 paragraph 106 says-</p> <p>“Note, however, that shares in an unquoted company are for estate duty purposes always valued at the author’s valuation.”</p> <p><strong>CONCLUSION</strong></p> <p>Having made the above analysis it can safely be concluded that the liabilities for servicing the Whitecliff area arising from the subdivision permit were not taken into account when the deceased’s shares in the first Applicant were valued by the 2nd Respondent. 2nd Respondent did not take into account the costs of servicing residential and commercial stands at Brockdale Farm in Bindura. The costs of servicing the Knowe suburb in Norton were not taken into account when determining the value of the deceased’s shares in the 2nd Applicant. The expenses for servicing and developing at Alphaerton in Mutare were not taken into account. Neither were the intrinsic liabilities, serving cost and endearment cost due to Gweru Municipality were taken into account. The liabilities ought to have been taken into account when determining the fair value of the shares held by the deceased. I believe that in valuing the shares the 2nd Respondent ought to have taken into account the liabilities because these are directly tied to the net value of the lands in question and ultimately the value of the deceased’s shares. In this case the value of the shares was overstated because the liabilities were downplayed. The effect of the inflated value of the deceased’s shares is that the estate is saddled with inflated bills for the Master’s fees and executor’s fees. The net effect would be that the Applicants would risk being rendered insolvent if the 2nd Respondent’s accounts are not rectified, and this will have a negative bearing on the beneficiaries of the estate of the late Edward Nyanyiwa (Snr) hence the relief sought ought to be granted.</p> <p>IT IS ORDERED THAT</p> <ol> <li>The 1st  Respondent’s decision to confirm the 2nd Respondent’s interim liquidation and distribution accounts pertaining to the Applicants in the estate late Edward Nyanyiwa is hereby set aside.</li> <li>The interim liquidation and distribution accounts filed by the 2nd Respondent in the estate late Edward Nyanyiwa pertaining to the Applicants are hereby set aside.</li> <li>The 1st Respondent shall appoint an impartial person to determine the value of the shares held by the late Edward Nyanyiwa in the Applicant companies, within ten days of being served with this order.</li> <li>The costs of suit shall be borne by the estate late Edward Nyanyiwa.</li> </ol> <p> </p> <p> </p> <p><em>Scanlen and Holderness</em>, applicants’ legal practitioners</p> <p><em>DNM Attorneys</em>, 2nd respondent’s legal practitioners.                                                                           </p> <p>        </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/260/2021-zwhhc-260.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=32638">2021-zwhhc-260.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/260/2021-zwhhc-260.pdf" type="application/pdf; length=562796">2021-zwhhc-260.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/administration-estates">ADMINISTRATION OF ESTATES</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/accounts">Accounts</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/claim-against-deceased-estate">Claim against deceased estate</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/master-high-court">Master of the High Court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/company">COMPANY</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/director">Director</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/legal-action-behalf-company">legal action on behalf of company</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/liability-companys-debts">liability for companys debts</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/liquidation">Liquidation</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/shares">Shares</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1952/471951">Companies Act [Chapter 24:03]</a></div></div></div> Thu, 10 Jun 2021 08:40:51 +0000 Sandra 10044 at https://old.zimlii.org Masawi And 4 Others v Master of the High Court And 3 Others (HH 273-21, HC 2920/19) [2021] ZWHHC 273 (17 November 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/273 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>HH 273-21</p> <p>HC 2920/19</p> <p>TAFADZWA MASAWI</p> <p>and</p> <p>MICHAEL MASAWI</p> <p>and</p> <p>NYEMBESI MASAWI</p> <p>and</p> <p>LETWIN MASAWI</p> <p>and</p> <p>ROSE MUZENGEZA (NEE MASAWI)</p> <p>versus</p> <p>MASTER OF HIGH COURT</p> <p>and</p> <p>ESTATE LATE ABEL MASAWI</p> <p>and</p> <p>ABIGAIL CHIPURU</p> <p>and</p> <p>MUNYARADZI KAZINGIZI</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>ZHOU  J</p> <p>HARARE,17 November 2020</p> <p> </p> <p><strong>Opposed Application</strong></p> <p> </p> <p>1st Applicant in person</p> <p>No appearance for 2nd to 5th applicants</p> <p>No appearance for 1st and 2nd respondents</p> <p><em>T.D. Mutsikadowo, </em>for the 3rd respondent</p> <p> </p> <p> </p> <p>            ZHOU J: This is a court application for review. What is being sought to be set aside according to the founding affidavit and draft order, is the alleged revocation by the Master of the High Court of letters of administration which the applicants allege were issued to the first applicant in respect of the Estate of the late Abel Masawi. Applicants also seek the setting aside of the sale by the Executor of the immovable property of the estate of the Late Abel Masawi by the second respondent, the Executor. The first relief is being sought on the grounds that the alleged revocation of the letters of administration was done without affording the first applicant the right to be heard and in the absence of an order of court. The second relief seeks to impeach the sale of the property on the grounds that it was done without affording the beneficiaries of the estate an opportunity to make representations and without the consent of the beneficiaries. It is further alleged that the sale was not advertised and also, that the decision to sell the property was grossly unreasonable.</p> <p>            The application is opposed by the second and third respondents. The second respondent is the Executor, the third respondent is the one who purchased the immovable property in question.</p> <p>            The facts, which are material to the determination of this matter are as follows. All the applicants are children of the deceased Abel Masawi and therefore potential beneficiaries of his estate. The fourth respondent, Munyaradzi Kazingizi, is a widow of Anthony Masawi who is a son of the late Abel Masawi. The late Abel Masawi owned an immovable property, Stand 8094 Glen View Township, Harare, measuring 200 square metres on which was a seven roomed house. After the death of Abel Masawi an edict meeting was called at which the first applicant was nominated to be appointed Executor of the Estate of the Late Abel Masawi. The Master did not issue him with letters of administration. His explanation is that after considering the small size of the estate he did not consider it necessary to go through the process of appointing the applicant as Executor by issuing letters of administration. A dispute ensued pitting the fourth respondent against the applicants over her occupation of the immovable property. The fourth respondent who had children with Anthony Masawi demanded her husband’s share of the Estate.</p> <p>            Owing to the dispute the Master called another meeting at which it was resolved to appoint a neutral Executor dative. This decision is clearly justifiable given that the first applicant had become a party to a dispute over the estate. He was also a potential beneficiary of the estate. Following that resolution, the Master appointed the second respondent as the Executor Dative. Second respondent was duly issued with the letters of administration.</p> <p>            By letter dated 14 October 2016 the second respondent invited the beneficiaries of the estate to contribute towards the expenses of the estate in order to avert the sale of assets of the estate. The letter is addressed to the first applicant. The beneficiaries failed to contribute the money required to cover the expense. Meanwhile the fourth respondent had written to the Executor demanding her husband’s share in the Estate. On 17 October 2016, the second respondent sought the consent of the Master to sell the immovable property in order to be able to pay the expenses of the estate and also pay the fourth respondent and the other beneficiaries their shares. The authority to sell the property was granted by the Master on 8 November 2016. After receiving the authority to sell the property the second respondent advised the applicants by letter dated 16 November 2016 to which he attached a copy of the authority to sell. In that letter he informed the applicants that he would proceed to dispose of the immovable property unless they came up with money to cover the administration expenses and to pay out Anthony Masawi’s share. It is common cause that none of the applicants raised the money or even made an offer to pay it. The second respondent proceeded to sell the property to the third respondent on 6 December 2016.</p> <p>            The first relief sought by the applicants is clearly misplaced, because first applicant was never issued with letters of administration. The relief is founded upon the false claim that he had been issued with letters of administration. In his submissions before the court the first applicant stated that the Master had appointed him Executor without issuing letters of administration. But this is not the cause of action pleaded. No relief based on that assertion is sought in the draft order. In any event, the meeting which the applicant relies upon merely nominated him. The nomination was not constitutive of appointment as Executor in the absence of a letter from the Master.</p> <p>            In respect of the complaint pertaining to the sale of the immovable property, the Executor gave the applicants an opportunity to contribute towards the administration expenses in order to obviate the sale of the immovable property. They failed. Even after obtaining the Master’s authority to sell the property the Executor invited the applicants again to pay the required money to avoid the sale of the property. They failed. The claim that the beneficiaries were not informed of the sale is therefore false. The consent of the beneficiaries to a disposal of the asset of the estate is not a prerequisite to the validity of the sale. An Executor is not an agent of the beneficiaries. There is nothing to show that the alleged failure to advertise the property prejudiced the estate. On the facts which are common ground the allegation that the conduct of the first and second respondents was grossly unreasonable is not supported.</p> <p>            In the result, the application is dismissed with costs.</p> <p><em>Maposa and Ndomene</em>, applicants’ legal practitioners</p> <p><em>Chatsanga Legal practitioners</em>, 2nd respondent’s legal practitioners</p> <p><em>Mugomeza and Mazhindu</em>, 3rd respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/273/2021-zwhhc-273.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=18232">2021-zwhhc-273.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/273/2021-zwhhc-273.pdf" type="application/pdf; length=314743">2021-zwhhc-273.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/administration-estates">ADMINISTRATION OF ESTATES</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/claim-against-deceased-estate">Claim against deceased estate</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/executoradministrator-deceaseds-estate">Executor/Administrator of deceased&#039;s estate</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appointment">appointment</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/duties">duties of</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/removal">removal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/inheritance">Inheritance</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/intestate-succession">Intestate succession</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/probate-and-administration">Probate and Administration</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/r">R</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/review-0">REVIEW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-review-0">Application for review</a></li></ul></span> Wed, 09 Jun 2021 11:18:55 +0000 Sandra 10032 at https://old.zimlii.org Mutema v Muzunze N.O & 3 Ors (HMA 15-20, HC 222/18) [2020] ZWMSVHC 15 (13 May 2020); https://old.zimlii.org/zw/judgment/masvingo-high-court/2020/15 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p> </p> <p> </p> <p>SARAH MUTEMA</p> <p>versus</p> <p>DENIES MUZUNZE</p> <p>(In his capacity as Executor Dative for Estate late Ephraim Tachiona Muzunze</p> <p>and</p> <p>THE MASTER OF THE HIGH COURT, MASVINGO N.O.</p> <p>and</p> <p>THE PROVINCIAL MINING DIRECTOR, MASVINGO N.O.</p> <p>and</p> <p>ROBERT KANGANDI</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>WAMAMBO J</p> <p>MASVINGO, 9 March 2020 and 13 May 2020</p> <p> </p> <p> </p> <p> </p> <p><strong>Opposed application</strong></p> <p> </p> <p> </p> <p> </p> <p><em>F.R.T. Chakabuda</em> for the applicant</p> <p><em>R.C. Chakauya</em> for the 1st respondent</p> <p>No appearance for the 2nd and 3rd respondents</p> <p>4th respondent in person</p> <p> </p> <p> </p> <p>WAMAMBO J:   The applicant seeks the following order:-</p> <p>“<em>IT IS ORDERED THAT</em></p> <ol> <li><em>The agreement of sale between the applicant and the 4th respondent made and entered into on 30 June 3018 be and is hereby declared lawful and legally binding.</em></li> </ol> <p> </p> <ol> <li><em>The applicant be and is hereby declared to be the lawful holder of fifty percent (50%) shares in Enfield Syndicate the registered holder of seven (7) hectares of Gold Dump Claims in the mining location known as Coronation 2.</em></li> </ol> <p> </p> <p> </p> <ol> <li><em>The 3rd respondent be and is hereby ordered to immediately transfer the fifty percent (50%) shares in Enfield Syndicate from the 4th respondent into the applicant’s name.</em></li> </ol> <p> </p> <ol> <li><em>The 1st respondent to pay costs of suit</em>.”</li> </ol> <p> </p> <p> </p> <p>The matter concerns shares in Enfield Syndicate the registered holder of Coronation 2, a mining location.</p> <p>The applicant claims to have bought 50% shares in Enfield Mining Syndicate from the 4th respondent, with her husband Petros Mutema acting as her Manager. The first respondent is the executor dative in the estate of the late Ephraim Tachiona Muzunze. The 2nd respondent is the Master of the High Court cited as the responsible authority for registration and administration of deceased estates.</p> <p>The 3rd respondent is the Provincial Mining Director, Masvingo cited in his capacity as having dominion in searching for mining and disposing of all minerals, mineral oils and mineral gases within the Masvingo Mining Districts.</p> <p>The 4th respondent is Robert Kangandi the alleged previous holder of 50% of rights, title and interest in Enfield Syndicate.</p> <p>The first and third respondents filed notices of opposition while the second respondent did not.</p> <p>The fourth respondent filed a notice of consent to judgment which reads on the pertinent portion as follows:-</p> <p>“<em>AND FURTHER TAKE NOTICE THAT 4th respondent is not opposed to the relief sought by the applicant.</em></p> <p> </p> <p><em>TAKE FURTHER NOTICE THAT 4th respondent hereby consents to the applicant’s court application for a declaratory order and ancillary relief.”</em></p> <p> </p> <p>At the commencement of the proceedings <em>Mr Chakabuda</em> counsel for the applicant initially moved that only the applicant was properly before the court. He averred that 2nd and 3rd respondents are barred for non-filing of heads of argument. Further that 1st respondent although he filed heads of argument he filed them late if regard is had to the High Court Rules.</p> <p><em>Mr Chakabuda</em> further applied that judgment be entered against 2nd and 3rd respondents. The point is unmeritorious for the 2nd and 3rd respondents are cited on their official and administrative capacities to effect the proposed orders.</p> <p>Upon further reflection <em>Mr Chakabuda</em> consented to the removal of the bar against 1st respondent. The matter proceeded to be heard on the merits.</p> <p>The applicant averred as follows:-</p> <p>Around 30 June 2017 she entered into a Memorandum of Agreement of Sale with 4th respondent for the purchase of 50% shares.  The said shares were held by 4th respondent for a mining syndicate, the registered owner of mining block called Coronation 2. She attaches Annexure ‘A1’, ‘A2’ and ‘A3’.</p> <p>Annexure ‘A1’ is a certificate of registration issued under the Mines and Minerals Act [<em>Chapter 21;05</em>] and reflects that Enfield Syndicate is the registered holder of 7 hectares of gold dump claims named Coronation 2 situated partly on Bruceham Farm and partly on Victoria Park Farm.</p> <p>Annexure ‘A2’ is a duplicate certificate of registration for Coronation 2 Mine – Annexure 3 is an invoice for payment of $150 towards the duplicate registration certificate for Coronation 2 Mine.</p> <p>Applicant further avers that she paid for the 50% shares as aforementioned in full and final settlement as reflected in 4th respondent’s affidavit Annexure “B”.</p> <p>It would appear that this affidavit is an important piece of the jigsaw puzzle.</p> <p>To that end it is incumbent to regurgitate its contents. It reads in full as follows:-</p> <p>“<em>I Robert Kagandi I.D. …………………..residing at …………………………………. do hereby solemnly declare the following:</em></p> <p> </p> <p><em>That I have sold my mine named Coronation 2 registration number 5244 on the following considerations- </em></p> <p> </p> <ol> <li><em>The purchaser Mrs Sarah Mutema I.D. No…………………. of Mayfield Farm, Box 1633, Masvingo paid me in the form of a Ford Ranger pick-up truck registration number ADL 9497, chassis number WFOLMFE40XW119787 engine number WL130535 and a tractor a case 4 X 4 Runner </em></li> </ol> <p> </p> <ol> <li><em>The purchaser has agreed to release the said vehicle upon signature of this agreement.</em></li> </ol> <p> </p> <ol> <li><em>The vehicles have been paid to me by the purchaser on a vootstoots state </em></li> </ol> <p> </p> <ol> <li><em>We have already signed transfer of mine forms to be lodged to the Mining Commissioner, Masvingo</em></li> </ol> <p> </p> <ol> <li><em>I as the seller will make sure the transfer is executed and all the paper work required is lodged to the Mining Commissioner, Masvingo as soon as possible</em></li> </ol> <p> </p> <ol> <li><em>I have entered into this agreement willingly and the purchaser has acquired (sic) willingly.”</em></li> </ol> <p> </p> <p>Annexure ‘B’ above was signed before a Commissioner of Oaths on 30 June 2017.</p> <p> </p> <p>The applicant refers to Annexure ‘C1’ and ‘C2’ which are Certificates of Transferee and Certificate of Transferor respectively.</p> <p>‘C1’ reflects that applicant filled in the form and signed it while ‘C2’ reflects that 4th respondent filled in the form and signed it.</p> <p>The applicant avers that her husband Petros Mutema was appointed as her Manager and Agent as per Annexures ‘D1’ and ‘D2’.</p> <p>Annexure ‘D1’ reflects that Petros Mutema is the applicant’s Agent accepting transfer from 4th respondent.</p> <p>Annexure ‘D2’ reflects that 4th respondent agrees there was an alienation agreed upon on 30 June 2017 and that there is no written agreement relating to the transfer other than that dated 30 June 2017 and attached hereto.</p> <p>On 9 August 2017, 3rd respondent was formally notified of applicant’s newly acquired rights, title and interest in the mining rights held by Enfield Syndicate. This is encapsulated in Annexure E.</p> <p>Annexure ‘E’ is an affidavit by 4th respondent which was signed on 8 August, 2017 which reads as follows:-</p> <p>“<em>That I have sold my whole interests on Coronation 2 Mine, registration number 5244 named under Enfield Syndicate located in Bruceham and Victoria Park Farm to Sarah Mutema. May the Provincial Mining Director effect transfer of the abovenamed claim Coronation 2 to Sarah Mutema upon lodging of transfer forms</em>?”</p> <p> </p> <p>I note here that Annexures ‘B’, ‘C1’, ‘C2’, ‘D1’ and ‘D2’ were all signed on 30 June, 2017.</p> <p>On 11 August 2018 so applicant contents 3rd respondent accepted and confirmed the existence of the sale and purchase agreement as per Annexure ‘F’.</p> <p>Annexure ‘F’ is a letter written by the Acting Mining Director for Masvingo Province dated 11 August 2017 which reads as follows:-</p> <p>“<em>This serves to confirm that Sarah Mutema ID No …………………. has bought into Enfield Syndicate. She now wholly represents interests of Robert Kangandi. Transfer of mining title to include Sarah Mutema will be done after the conclusion of the estate of the now deceased Ephraim Tachiona who was the other member of Enfield Syndicate ……….”</em></p> <p> </p> <p>The applicant contends further that she deployed her employees to Coronation 2 to commence mining operations. In April 2018 first respondent started to disturb her mining operations by harassing and making efforts to remover her employees and agents from Coronation 2. The harassment and victimisation still persists.</p> <p>The applicant contends that 1st respondent registered Coronation 2 as part of his father’s estate and wholly owned by his father. He sturdily disputes that 1st respondent’s father held 100% shares in Enfield Syndicate.</p> <p>Effectively that 1st respondent misrepresented to 2nd respondent that Estate Late Ephraim Tachiona is the sole and lawful holder of 100% of shares in Enfield Syndicate.</p> <p>Applicant contends that the fact that Estate Late Ephraim Tachiona Muzunze has not been finalised is not a bar to her benefitting from her acquired share in Enfield Mine.</p> <p>Further that 3rd respondent has no lawful right to refuse transfer of her shares as same does not dispute that the 50% shares were lawfully acquired. That there is no prejudice to the respondents if the application is granted as per the draft order.</p> <p>The first respondent opposes the application.</p> <p>He contends as follows:-</p> <p>He is the executor dative in the Estate Late Tachiona Ephraim Muzunze. From the outset he contends that 4th respondent never held 50% rights, title or interest in Enfield Syndicate.</p> <p>Applicant could not have bought shares from 4th respondent as he could not sell shares he never held. The Enfield Syndicate has always been under the sole control of Late Tachiona Ephraim Muzunze and by operation of law squarely falls within the deceased’s estate. Had 4th respondent been a member of Enfield Syndicate applicant should have produced a certificate of registration after transfer reflecting that mining rights were transferred to him.</p> <p>1st respondent contends that the mining certificates and payments Annexure ‘A1 – A3’ (referred to in 1st respondent’s opposing affidavit apparently erroneously as 1A – C) do not prove nor do they mention the composition of shares in Enfield Syndicate.</p> <p>Annexure ‘B’ is void <em>ab initio</em> as 4th respondent never owned part of Enfield Syndicate. The documents produced by applicant were not endorsed by Ministry of Mines officials and are not completed in full.</p> <p>‘C1’ and ‘C2’ lists the number of claims on Coronation 2 as 7 and interests to be transferred as whole yet applicant alleges there was an agreement of sale for 50% of interest in Enfield Syndicate which is the holder of Coronation 2.</p> <p>The stance that the documents produced by applicant were incomplete and apparently not lodged with the relevant authorities was repeated in oral submissions.</p> <p>Although <em>Mr Chakabuda</em> was of the view that this was a novel point being brought for the first time during oral argument, this was clearly not correct as seen above.</p> <p>1st respondent further contends that Annexure ‘E’ describes rights and interests which are not part of the agreement of sale between 4th respondent and applicant. Applicant also attacks Annexure ‘F’ on the same grounds as above.</p> <p>1st respondent attacks the agreement of sale as being void at law. In a nutshell 1st respondent contends that the merx should be definite and ascertainable that there should be a price and a meeting of the minds. There is no such agreement as appears in paragraph A of the draft order, 1st respondent contends.</p> <p>Second respondent filed a Master’s report in terms of Rule 248 of the High Court Rules 1971. Second respondent confirms the registration of the estate late Ephraim Tachiona Muzunze with her office. She further avers that a preliminary inventory was filed upon registration of the estate reflecting that Coronation 2, Registration No. 5244 is listed among other assets. The Master’s Report also states as follows:-</p> <p>“<em>The executor Mr Devies Muzunze is yet to file an Executor’s Inventory which will specify the percentage of gold claim owned by the estate and file proof thereof. The estate is yet to be distributed and finalised. I have no further submissions to make and I will abide by the court’s decision</em>”.</p> <p> </p> <p>It becomes clear that all the parties have in one way or another placed input to assist the court in reaching a decision</p> <p>In the light of the fact among other things that there is a document ‘Annexure F’ emanating from 3rd respondent Annexure ‘F’ their opinion was very important in the resolution of this matter.</p> <p>The contribution by 3rd respondent was very crucial whereby they were supposed to narrate events behind surrounding and leading to the issuance of ‘Annexure F’.</p> <p>The 3rd respondent would have narrated what documents were brought to their attention for them to bring applicant into Enfield Syndicate. They would have interrogated what documents or evidence convinced them as an office to contend that Enfield Syndicate had two members, namely Robert Kagandi and the applicant.</p> <p>As it turns out 3rd respondent not only filed a notice of opposition, but they also filed an opposing affidavit. In that affidavit 3rd respondent is of the view that his office has never refused to transfer the tile from 4th respondent to applicant.</p> <p>Applicant’s heads of argument were served upon the first to third respondents according to Rule 238 of the High Court Rules 1971 on 4 April, 16 April and 2 April 2019. It should be noted here that 4th respondent had already filed a notice of consent to judgment on 27 July 2018.</p> <p>In spite of being served with applicant’s heads of argument 3rd respondent failed to adhere to Rule 238(2)(9) wherein he should have filed heads of argument not less than 10 days after receipt of applicant’s heads of argument or at least five days before the hearing.</p> <p>I am entitled by Rule 238 (2b) to deal with the matter on the merits or direct that it be set down for hearing on the opposed roll. I will proceed to deal with the matter on the merits.</p> <p>The intriguing part of this application is that the Syndicate agreement is nowhere on record.</p> <p>The applicant who claims he arguably held 50% of shares in the Syndicate should have introduced the Syndicate agreement. He who alleges must prove.</p> <p>It is up to applicant to prove her case on a balance of probabilities. It was not for other parties to produce the said Syndicate agreement.</p> <p>What the applicants did is to place an affidavit by 4th respondent reflecting that he sold his 50% shares in Enfield Syndicate without first proving that he initially owned the 50% shares in the first place.</p> <p>The next set of documents proffered by applicant do not assist her to prove her case. The documents continue from the defective position of relying on an affidavit by 4th respondent.</p> <p>The Annexures pointedly Annexures ‘A1’ to ‘A3’ do not assist to prove that application owns 50% shares in Enfield.</p> <p>The 1st respondent is correct to aver that the documents ‘C1’, ‘C2’, ‘D2’ and ‘E’ do not prove that they were received by the 3rd respondent. There are no official stamps on these documents, neither is there any other indication that the same were lodged and accepted by the 3rd respondent.</p> <p>The same documents contain blanks and on face value appear to have been written by the same person.</p> <p>A close examination of Annexure ‘C1’ reflects that the portion on the form demanding an enumeration of the consideration of the “interests in the mining location” is left blank. Further down on the same Annexure ‘C1’there is a terse statement that “<em>there is not any agreement condition or understanding between me and the said ……………</em>.” The sentence is not complete.</p> <p>There is reference on Annexure ‘C1’of a written agreement dated 30 June 2017. The number of claims is given as 7 and interests to be transferred are given as “whole”. Basically the same gaps are contained in Annexure ‘C2’. There are clearly blanks in Annexures ‘D1’and ‘D2’clearly rendering the documents unreliable, misleading and incomplete.</p> <p>A close examination of Annexure “F” reflects that it is titled “Affidavit”.</p> <p>However instead of being signed before a Commissioner of Oaths what appears is a Commissioner of Oaths stamp but certifying the same as a true copy of the original. In fact there are two Commissioner of Oaths stamps with the same date of 8 August 2017. One stamp appears around the middle of the document while the other appears on the portion reserved for the Commissioner of Oaths. The document appears doctored. The bottom line however is that the document claims the interests in Coronation 2 from nowhere. The basis has not been established why 4th respondent should swear that he was the legal holder of interests in Coronation 2 Mine.</p> <p>Annexure ‘B’ itself is hardly what is called an agreement. It is a one sided document wherein 4th respondent declares that he has sold his mine, Coronation 2. There appears to be a stark contradiction between selling a mine and selling 50% of shares in a mine.  Suffice to say Annexures ‘A1’ – ‘A3’, ‘B’, ‘C1’- ‘C2, ‘D1’- ‘D2’, ‘E’ and ‘F’ do not prove the applicant’s case.</p> <p>Annexure ‘F’ has been dealt with earlier. From a consideration of the circumstances 3rd respondent appears to have been duped into issuing Annexure ‘F’ in light of the incomplete and suspect documents in the form of the other Annexures adverted to.</p> <p>It is important to note that Annexure ‘F’ goes on to indicate when transfer may take place after conclusion of the estate of the late Ephraim Tachiona Mazunze. I have not been informed why the 3rd application came to this conclusion.</p> <p>Clearly the 3rd and 4th respondents appear to be on applicant’s side. The 4th respondent may be a crony of applicant who is assisting him to gain interest in Enfield Syndicate. If he indeed is a member of Enfield Syndicate he has not proven it and that is to the applicant’s disadvantage. As for 3rd respondent the fact that he states without more that applicant now represents 4th respondent’s interests does not help applicant’s case.</p> <p>It is unknown what inspired the legal conclusion he reaches it in the absence of proof reflecting 4th respondent as holding 50% shares in Enfield Syndicate.</p> <p>The draft order refers to an agreement of sale entered into between applicant and 4th respondent.</p> <p>Effectively the implication is that there was a contract entered between the parties for a sale.</p> <p>TREDGOLD CJ in <em>Lewis</em> v <em>Banket Holding (Pvt) Ltd</em> 1956 R &amp; N 98 (FS) 104 – 5 stated as follows:-</p> <p>“<em>In considering whether a contract is concluded between two parties, a court is not interested in the state of mind of the parties considered in the abstract. It must decide the issue on the state of mind of the parties as manifested by word or deed. It is idle for a party to avow mental reservations or unspoken qualifications if these are inconsistent with what is said or done</em>”.</p> <p> </p> <p>            R.H. CHRISTIE in Business Law in Zimbabwe at page 50 emphasises the need for both parties to sign a written contract …………….</p> <p>“<em>What brings the normal written contract into existence is its signature by both parties (Hadington v Carruthers 1991 SR 33, 38, Patrikios v African Commercial Co. Ltd 1940 SR 45, 56 - ) no particular form or words being necessary to precede the signatures, and initials or any mark applied by a party which identifies the contract as being sufficient</em>”.</p> <p> </p> <p>In the instant case the requirements as stated above are lacking.</p> <p>There is effectively no agreement of sale to talk about in this case. Paragraphs 2 and 3 of the draft order are predated upon the agreement between applicant and 4th respondent being held lawful and legally binding. I have already found that there is no such agreement. There is thus no merit in granting the application for applicant has failed to prove on a balance of probabilities that she deserves the relief she seeks in the draft order.</p> <p>To that end I make the following order:-</p> <p>The application is dismissed with costs.</p> <p> </p> <p><em>Chakabuda Foroma Law Chambers,</em> applicant’s legal practitioners</p> <p><em>Muzenda and Chitsama Attorneys,</em> 1st respondent’s legal practitioners</p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2020/15/2020-zwmsvhc-15.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=28152">2020-zwmsvhc-15.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2020/15/2020-zwmsvhc-15.pdf" type="application/pdf; length=462030">2020-zwmsvhc-15.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/administration-estates">ADMINISTRATION OF ESTATES</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/claim-against-deceased-estate">Claim against deceased estate</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/company">COMPANY</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/shares">Shares</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/contract">CONTRACT</a></li></ul></span> Fri, 26 Jun 2020 08:14:47 +0000 Sandra 9712 at https://old.zimlii.org Ndige v Matsvange & 2 Ors (HMA 18-20, HC 267/189) [2020] ZWMSVHC 18 (18 June 2020); https://old.zimlii.org/zw/judgment/masvingo-high-court/2020/18 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p> </p> <p> </p> <p>FAITH NDIGE</p> <p>versus</p> <p>MARGARET MATSVANGE</p> <p>and</p> <p>JABULANI MZINYATHI (in his capacity as Executor Dative of Estate late CORNELIO EVANS NDIGE)</p> <p>and</p> <p>THE MASTER OF THE HIGH COURT N.O MASVINGO</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>WAMAMBO J</p> <p>MASVINGO, 4 OCTOBER 2019, 18 May 2020</p> <p> </p> <p> </p> <p> </p> <p><strong>Opposed application</strong></p> <p> </p> <p> </p> <p> </p> <p><em>J. Mpoperi</em> for the applicant</p> <p><em>S. Moffat </em>for the 1st respondent</p> <p>No appearance for the 2nd and 3rd respondents</p> <p> </p> <p> </p> <p> </p> <p>WAMAMBO J:   This matter concerns an immovable property namely House No. 48, McGhie Avenue Rhodene, Masvingo (hereinafter called the house) which forms part of the estate of the, late Cornelio Evans Ndige who died on 25 March 2012 and whose estate is registered under WE34/13</p> <p>In an edict meeting concerning the above mentioned estate held on 11 May 2018 the Master of the High Court made the following resolutions:</p> <p><em>“1.       …………………………………………………………………………………..</em></p> <ol> <li><em>Parties were advised that the Rhodene house is not a matrimonial home.</em></li> <li><em>The Master made a ruling that Margret Matsvange is the deceased’s second wife according to submissions made in this meeting.  If there is anyone who is aggrieved by this decision is free to take it for review.  Therefore the deceased is survived by two wives   Faith Ndige with a registered customary marriage and Margret Matsvange with an unregistered customary marriage″.</em></li> </ol> <p>The applicant is proceeding under Section 52(a) of the Administration of Estates Act [<em>Chapter 6:01</em>]</p> <p>It reads as follows:</p> <ol> <li><em>The Master shall consider such account, together with any objections that may have been duly lodged and shall give such directions as he may deem fit</em></li> </ol> <p> </p> <p><em>Provided that</em></p> <p> </p> <ol> <li><em>Any person aggrieved by any such direction of the Master may, within thirty days after the date of the Master’s direction, and after giving notice to the executor and to any person affected by the direction apply by motion to the High Court for an order to set aside the direction and the High Court may make such order as it may think fit.</em></li> </ol> <p>(ii) …………………………………………………………………………………</p> <p>In this application at the start of the hearing, applicant’s counsel quickly sprang into action and applied for amendments to the draft order and heads of argument which were unopposed by counsel for the first respondent and also made some concessions.  The amendments relate to paragraphs 2.2, 2.4 and 2.6 of applicant’s heads of argument. The said paragraphs relate to the inheritance of a matrimonial home for a person who dies interstate and refer to section 3A of the Deceased Estates Succession Act <em>[Chapter 6:02].</em>  The application was for the deletion of this reference to section 3A of the Deceased Estates and in its place the substitution of section 68 (F) (2) (c) of the Administration of Estates Act <em>[Chapter 6:01]</em></p> <p>            Section 68 (F) 2 (c) reads as follows:</p> <p>            (c         <em>where the deceased person was a man and is survived by two or more wives </em></p> <p><em>whether   or not there are any surviving children, the wives should receive the following property, in addition to anything they are entitled to under paragraph (b)</em></p> <p> </p> <ol> <li><em>where they live in separate houses, each wife should get ownership of or if that is impracticable, a usufruct over the house she lived in at the time of the deceased person’s death, together with all the household goods in that house.</em></li> </ol> <p> </p> <ol> <li><em>Where the two wives live together in one house at the time of the deceased person’s death, they should get joint ownership of or, if that is impracticable a joint usufruct over the house and the household goods in that house.</em></li> </ol> <p> </p> <p>Applicant’s counsel was initially challenging the two resolutions by the Master of High Court referred to earlier in this judgment. He now abandoned the resolution to the effect that deceased was customarily married to the deceased. The amendments to the draft order flow directly from this concession.</p> <p>Effectively applicant’s prayer is summarily that House No.48 McGhie Avenue, Rhodene, Masvingo (the house) be declared a matrimonial home to which applicant shall be vested with all rights and benefits of inheritance as the sole surviving spouse. Further that the first and final distribution account of the deceased’s estate should give effect to the declaration above.</p> <p>The background to the matter between the parties is to a large extent, after the concession by applicant’s counsel largely common cause. The following appears to be common cause</p> <ul> <li>Deceased died intestate on 25 March 2012</li> <li>Deceased married applicant under the African Marriages Act [<em>Chapter 105</em>] on 15 November, 1977</li> <li>Applicant left Zimbabwe for the United Kingdom and at the time deceased died she was resident in the United Kingdom. The first respondent never contributed to the purchase of House No. 48 Mcghie Avenue, Rhodene, Masvingo. Deceased also left behind a farm he obtained under the Land Reform Programme which farm is situated in Mvuma.</li> </ul> <p>In advancing his case <em>Mr Mpoperi</em> for the applicant submitted as follows: -</p> <p>This matter can be resolved through the interpretation of section 68(f)(2)(c) of the Administration of Estates Act [<em>Chapter 6:01</em>].</p> <p>Technically applicant was residing at the house when deceased died although she was based in the United Kingdom. Applicant left for the United Kingdom in 2002 to seek medical treatment after she and deceased had purchased and moved into the house in 1981. She and deceased considered the house as their matrimonial property and permanently resided there since 1981. When applicant left for the United Kingdom in 2002 she subsequently got employed there and continued to reside there since then. Deceased and some of her children continued residing at the house with some of the children sometimes residing at Mvuma where deceased worked and where he had obtained a farm as alluded to earlier. Some of the deceased and applicants children continued to permanently reside at the house from 2002 when applicant left up to 2012 when deceased died. Thereafter part of the house was leased to relatives with the main bedroom and cottage being reserved as their furniture had been lodged there. Applicant’s position is that since 2012 to date she has been responsible for the upkeep of the house including renovations and painting of the house. 1st applicant never resided at the house. 1st respondent never contributed to the acquisition of the property.</p> <p><em>Mr Mpoperi</em> was of the view that a literal interpretation of section 68(f)(2)(c) of the Administration of Estates Act [<em>Chapter 6:01</em>] will not achieve the intention of the legislature. He argued that section 68(f)(2)(c) (above) was a response and a protection mechanism to widows and minors from deceased’s relatives who were intent on plundering matrimonial property. His view is that the Administration of Estates Act is spouse centred. Further that the house was acquired in 1981 before 1st respondent was married by deceased. He submitted that a robust, liberal and purposive interpretation should be given to section 68(f)(2)(c) of the Administration of Estates Act [<em>Chapter 6:01</em>].</p> <p>A reference was also made to 26(d) of the Constitution which reads as follows:-</p> <p>“<em>26.     Marriage</em></p> <p><em>            The State must take appropriate measures to ensure that:-</em></p> <ol> <li><em>------------------------------------------------</em></li> <li><em>------------------------------------------------</em></li> <li><em>------------------------------------------------</em></li> <li><em>In the event of dissolution of a marriage, whether through death or divorce, provision is made for the necessary protection of any children and spouses</em>”</li> </ol> <p> </p> <p>Applicant’s counsel referred to a number of cases namely <em>Chimhowa &amp; Ors</em> v <em>Chimhowa</em> <em>&amp; Ors</em> 2011 (2) ZLR 471 (H), <em>Tendai Dzomonda &amp; Others</em> v <em>Kirison Chipanda &amp; Others</em> HH 535/14, <em>Margaret Chirowodza </em>v <em>Freddy Chimbari &amp; Others</em> HH 725/16 and <em>Nathan Hosho</em> v <em>Lilian Hosho</em> HH 491/15.</p> <p><em>Mr Mpoperi</em> also made submissions to distinguish the case law cited by 1st respondent’s counsel from the instant case. He paid particular attention to the cases of <em>Jessie Chinzou</em> versus <em>Oliver Masomera &amp; Others</em> HH 593/15 and <em>Linah Ndoro v Evidence Ndoro</em> <em>and Another</em> HH 198/12.</p> <p>Counsel for the first respondent was resolutely opposed to the applicant. She made the following submissions :-</p> <p>Part III of the Deceased Estates Succession Act [<em>Chapter 6:02</em>] was amended to protect among others surviving spouses “married” under unregistered customary law, especially as second wives such as in the instant case. It was submitted that applicant left for the United Kingdom in 1999 and not in 2002 as submitted by the applicant.</p> <p>It was submitted that since 1999 or even if placed as 2002, 10 years at least passed without applicant returning to the house which she now calls her matrimonial home. It was averred that applicant had abandoned the marriage and did not even attend the funeral of deceased and that in the intervening years since her departure to the United Kingdom she never returned to the house or to Zimbabwe for that matter. Counsel cited a number of cases <em>inter alia Jeke</em> v <em>Zembe</em> HH 237/18, <em>Hosho</em> v <em>Hasisi</em> HH 491/15 and the other 2 cases cited earlier which <em>Mr Mpoperi</em> sought to distinguish from this case.</p> <p>In <em>Chimhowa &amp; Ors</em> v <em>Chimhowa &amp; Ors</em> 2011(2) ZLR 471 (H) at pages 475 – 476 CHIWESHE JP said as follows:-</p> <p>“<em>In reading the legislation governing deceased estates in so far as the rights of surviving spouses are concerned, it is important to bear in mind the intention of the legislature, bearing in mind that this branch of law has in the last decade been the subject of much debate and controversy. A number of amendments have been brought to bear to this branch of the law. The chief driver of this process has been the desire by the legislature to protect widows and minor children against the growing practice by relatives of deceased persons of plundering the matrimonial property acquired by the spouse during the subsistence of the marriage. Under this practise which had become rampant, many widows were deprived of houses and family property by marauding relatives, thus exposing the widows and their minor children to the vagaries of destitution. In many cases the culprit relatives would not have contributed anything in the acquisition of such immovable and movable properties, often</em> <em>the result of years of toil on the part of the deceased and the surviving spouse. This is the mischief that the legislature sought to suppress in introducing provisions such as section 3A of the Deceased Estates Succession Act and s 68F of the Administration of Deceased Estates Act and the Deceased Persons Family Maintenance Act [Chapter 6:03]”</em></p> <p> </p> <p>In <em>Margaret Chirowodza</em> versus <em>Freddy Chimbari &amp; Others</em> HH 725/16 CHITAKUNYE J was dealing with a matter sought to be resolved through an interpretation of the phrase “the house she lived in at the time of the deceased’s death” as contained in section 68 F(2)(c). The learned Judge at page 6 said the following:-</p> <p>“<em>The interpretation given must be such that the surviving spouse and children are not made destitute or homeless when they had a home during the deceased’s lifetime. It in this light that the law guarantees them of the shelter they lived in before deceased’s demise.</em></p> <p> </p> <p><em>In instances.where a couple has been living apart for sometime it is important to ascertain the nature of such separation before determining whether such separation would disentitle a spouse to the protection envisaged in the aforementioned pieces of legislation.”</em></p> <p> </p> <p>At page 7 CHITAKUNYE J continues as follows:-</p> <p> </p> <p>“<em>Thus the term “live in” or “lived in” in s 68 F must be interpretation in such a way as to maintain the protection of a spouse who has temporarily gone away on employment or other activities in search of the needs of the family</em>.”</p> <p> </p> <p>In the instant case it is clear that applicant and the deceased acquired the house in 1981. 1st respondent did not contribute to the purchase of the house. She avers in paragraph 13 of her opposing affidavit as follows:-</p> <p>“<em>13.     As already alluded to above, I never worked for applicant. Over and above that I never alleged contributing to the purchase of the house situate at No. 48 McGhie Rhodene, Masvingo as applicant seems to suggest</em>.”</p> <p> </p> <p>It is interesting that in her founding affidavit in paragraph 8 applicant avers as follows:-</p> <p> </p> <p>“<em>In 1981 I and my late husband purchased and moved into House No</em>. 48 <em>McGhie Avenue, Rhodene, Masvingo. The property was transferred into my late husband’s home in 1983. I attach a copy of the Deed of Transfer as Annexure “C”</em></p> <p> </p> <p>In 1st respondent’s opposing affidavit there is no response to paragraph 8 of the founding affidavit at all. This suggests that 1st respondent deliberately avoided meeting headlong the averments by applicant in paragraph 8. It is also clear that 1st respondent in her opposing affidavit responds to every paragraph in applicants founding affidavit except the mentioned paragraph 8. I find here that applicant has proven that she and deceased jointly acquired the house in 1981.</p> <p>It is not lost to me that 1st respondent attempts, albeit late in the day to allege that first respondent played a role in the acquisition of the property. What role she played is not clear. The allegation should clearly have been ventilated in the opposing affidavit and not the heads of argument. I thus consider it as an ill-conceived red herring and find that the 1st respondent’s response contained in her opposing affidavit outlining her position is indeed the truth.</p> <p>1st respondent agrees that applicant resided at the house and considered it her matrimonial home since 1981. That some of deceased and applicant’s children continued to reside at the house after applicant left for the United Kingdom is not objected to by the 1st respondent. The 1st respondent does not directly deal with the applicant’s assertion in paragraph 17 of the founding affidavit that she has placed her furniture in the bedroom and cottage of the house. Further that she has been solely responsible for the upkeep of the house including renovations and painting of the house since deceased’s death. I take it that the assertions by applicant are correct.</p> <p>Although there is controversy on when applicant left for the United Kingdom and whether or not she returned.to the house, thereafter it is however clear that 1st respondent accepts that applicant initially left for medical treatment and later subsequently obtained employment.  Whether she left in 1999 or 2002 does not change the circumstances as there is a difference of only 3 years.</p> <p>It is by no means an abandonment of a marriage or of a matrimonial home that one seeks medical attention and later obtains employment. One only has to consider the economic circumstances that could cause applicant to seek employment in the United Kingdom.</p> <p>In placing a robust and purposive interest I find that applicant was residing at the house immediately before the deceased’s death for the reasons given above as summarised below.</p> <p>Applicant was not on separation to deceased when he died. Applicant bought the house together with deceased as far back as 1981.</p> <p>Applicant only left for the United Kingdom at most 13 years before deceased’s demise. Applicant’s property remained lodged in the main bedroom and cottage of the house. Applicant’s children continued to reside with deceased t the house after her departure to the United Kingdom up to 2012.</p> <p>1st respondent never resided nor contributed to the acquisition of the house. Applicant continued the upkeep of the house after deceased died. I agree with the decisions of the Judge President in <em>Chimhowa &amp; Ors</em> vs <em>Chimhowa and Ors</em> <em>supra</em> and that of CHITAKUNYE J in <em>Margaret Chirowodza</em> v <em>Freddy Chimbari &amp; Others</em> (<em>supra</em>).</p> <p>I have found that the case of <em>Linah Ndoro</em> v <em>Evidence Ndoro</em> (<em>supra</em>) is distinguishable from this case on a number of grounds particularly that the deceased in that case had instituted divorce proceedings against the applicant and that the two were on separation. Applicant was also residing within the borders of Zimbabwe which means she could easily and more frequently access and reside at the matrimonial home more that a person based in the United Kingdom.</p> <p>In the matter of <em>Jessie Chinzou</em> v <em>Oliver Masomera &amp; Ors</em> (supra) the clear distinction between that matter and the instant case is the period of 37 years when the applicant had last resided in the matrimonial home. CHITAKUNYE J in that case said at page 6:-</p> <p>“<em>I thus conclude that even applying the purposive approach it cannot be said applicant lived in the house immediately before deceased’s death. She had last been there 37 years ago. Her absence was not because she had gone for employment or for such other activities as would still entitle her to come back upon completion</em>.”</p> <p> </p> <p>I have to mention that <em>Mr Mpoperi</em> sought to distinguish the case of <em>Linah Ndoro</em> v <em>Evidence Ndoro (supra</em>) on the basis that it was decided before the 2013 Constitution. In the same breath he relied on the <em>Chimhowa &amp; Ors</em> v <em>Chimhowa &amp; Ors (supra). </em></p> <p>The argument was however misplaced for a number of reasons not least of all that <em>Linah Ndoro</em> v <em>Evidence Ndoro</em> was decided on 3 May 2012 while that of <em>Chimhowa &amp; Ors</em> v <em>Chimhowa &amp; Ors (supra)</em> was decided on 23 November 2011, both before the 2013 Constitution was operative.</p> <p>In the circumstances I find that applicant has proven her case.</p> <p>On costs in oral argument applicant’s counsel was of the view that neither partly should be penalised by the court.</p> <p>To that end I deem the following order fit in the circumstances:-</p> <ol> <li>That the only immovable property of the estate, namely House No 48 McGhie Avenue, Rhodene, Masvingo be and is hereby declared as a matrimonial home to which the applicant shall be vested with all rights and benefits of inheritance as the sole surviving spouse.</li> <li>That the 2nd respondent shall prepare and lodge with the 3rd respondent the First and Final Administration and Distribution Account in the estate of the Late Cornelio Evans Ndige, Case No. WE 34/13 giving effect to Clause 1 of this order and lodge the said account within thirty (30) days of the date of this order.</li> <li>That there be no order as to costs.</li> </ol> <p> </p> <p><em>Saratoga Makausi Law Chambers</em>, applicant’s legal practitioners</p> <p><em>Legal Resources Foundation</em>, first respondent’s legal practitioners</p> <p> </p> <p> </p> <p>           </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2020/18/2020-zwmsvhc-18.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=32352">2020-zwmsvhc-18.docx</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/administration-estates">ADMINISTRATION OF ESTATES</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/claim-against-deceased-estate">Claim against deceased estate</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/deceased-estate">Deceased estate</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/immovable-property">IMMOVABLE PROPERTY</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/house-forming-part-matrimonial-estate-registered-sole-name-husband">House forming part of matrimonial estate but registered in sole name of husband</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2011/183">Chimhowa and Others v Chimhowa and Others (HC 2110/10) [2011] ZWHHC 183 (22 November 2011);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2016/725">Chirowodza v Chimbari &amp; Others (HH 725-16 , HC 10791/14) [2016] ZWHHC 725 (24 November 2016);</a></div><div class="field-item even"><a href="/zw/judgment/harare-high-court/2018/237">Jeke v Zembe (HH 237-18, HC 11663/17) [2018] ZWHHC 237 (05 May 2018);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2015/491">Hosho v Hasisi (HC 427/11) [2015] ZWHHC 491 (01 June 2015);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1929/12">Administration of Estates Act [Chapter 6:01]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1873/2">Deceased Estates Succession Act [Chapter 6:02]</a></div><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Thu, 25 Jun 2020 13:19:14 +0000 Sandra 9709 at https://old.zimlii.org Shuro v Chiuraise & Another (SC 20/19, Civil Appeal No. SC 625/15) [2019] ZWSC 20 (22 February 2019); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2019/20 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>REPORTABLE</strong><strong>        (20)</strong></p> <p> </p> <p> </p> <p> </p> <p><strong>GRACE     SHURO </strong></p> <p><strong>v</strong></p> <ol> <li> </li> </ol> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GARWE JA, HLATSHWAYO JA &amp; BHUNU JA </strong></p> <p><strong>HARARE, SEPTEMBER 29, 2017 &amp; FEBRUARY 22, 2019  </strong></p> <p> </p> <p> </p> <p> </p> <p><em>S. Banda </em>for the appellant</p> <p><em>T. Bhatasara</em>, for the respondent</p> <p> </p> <p> </p> <p><strong>GARWE JA</strong></p> <p>[1]        After a full trial, the High Court made an order for the eviction of the appellant, and</p> <p>all claiming through her, from premises known as 8916 Hwiramiti Street,</p> <p>Chesvingo Suburb, Masvingo and for payment of arrear rentals in the sum of</p> <p>$14 000 as well as holding over damages in the sum of $6,67 per day.  The court</p> <p>further ordered payment of interest at the prescribed rate together with costs of suit. </p> <p>This appeal is against that order.</p> <p> </p> <p><em>FACTUAL BACKGROUND</em></p> <p>[2]        The first respondent, Molly Chiuraise, got married to one Walter Style Matumba</p> <p>(“Matumba”) at Masvingo on 6 August 1993.  Having been on the housing waiting</p> <p>list of the second respondent since 1996, Matumba and the Ministry of Local</p> <p>Government and National Housing entered into an agreement of sale in respect of</p> <p>Stand Number 8916, Chesvingo Township, Masvingo (“the property”).  In terms of</p> <p>the agreement, payment of the balance of the purchase price was to be effected in</p> <p>monthly instalments and the purchaser was to take occupation of the property from</p> <p>1 June 1999.  It was also a condition of the agreement that until such time as title</p> <p>to the property was transferred to the purchaser, he was not, without the prior</p> <p>written consent of the Minister, to let the property to any other person, or part with</p> <p>possession or otherwise cede or hypothecate any rights thereunder.</p> <p> </p> <p>[3]        Between 2001 and 2002, the appellant and her husband Simbarashe Shuro</p> <p>(“Shuro”) took occupation of the property.  The basis of such occupation was</p> <p>bitterly disputed between the parties in the court <em>a quo</em>.  The appellant alleged that</p> <p>her husband, Shuro had purchased the property from Matumba in December 2001</p> <p>and that, as a consequence, her family had taken occupation in March 2002.  The</p> <p>first respondent’s version, on the other hand, was that the appellant and her family</p> <p>were paying rentals in respect of their occupation of the property.</p> <p> </p> <p>[4]        As fate would have it, Matumba became ill and passed on in January 2005 at his</p> <p>rural home in Bikita.  As surviving spouse, the first respondent registered the estate</p> <p>of her late husband and was given authority to administer the estate in January 2006. </p> <p>She proceeded to administer the estate and, as executrix, caused notices to be</p> <p>flighted in the Herald and other major papers calling upon all creditors and other</p> <p>interested persons to lodge any claims with her.  There having been no claims</p> <p>lodged, she proceeded to wind up the estate and, in particular, awarded the property</p> <p>in question to herself as surviving spouse.  The final distribution account was</p> <p>subsequently accepted by the Master of the High Court in November 2006.  On</p> <p>8 December 2006, pursuant to the winding up of the estate, the second respondent</p> <p>formerly ceded the property in question to her, which cession she duly accepted.</p> <p> </p> <p>[5]        Thereafter the first respondent’s legal practitioners wrote a letter to the appellant’s</p> <p>husband, Shuro, demanding that he vacates the property.  In turn, Shuro approached</p> <p>the Masvingo Legal Projects Centre who wrote a letter to the Master of the High</p> <p>Court on 12 April 2007 submitting a claim against the estate.  The response by the</p> <p>Master was that the distribution had since been completed and that Shuro was free</p> <p>to approach the courts for relief.  Nothing of significance occurred until</p> <p>31 May 2009, when Shuro also passed on.</p> <p> </p> <p><em>PROCEEDINGS BEFORE THE HIGH COURT </em></p> <p>[6]        In December 2014 the first respondent instituted an action in the High Court for the</p> <p>eviction of the appellant and all who claimed title through her.  She also sought an</p> <p>order for the payment of arrear rentals, holding over damages and interest at the</p> <p>prescribed rate on the amounts claimed.  The basis of her claim was that upon the</p> <p>rights, title and interest in the property being ceded to her by the second respondent,</p> <p>she had become the owner thereof.  Since the appellant had stopped paying rentals</p> <p>and owing to the fact that she now wanted to use the premises for her own purposes,</p> <p>she now demanded the eviction of the appellant as well as the payment of arrear</p> <p>rentals and holding over damages.</p> <p> </p> <p>[7]        The appellant, as defendant, entered an appearance to defend.  She averred that her</p> <p>late husband, Shuro, had purchased the property from the first respondent’s husband, Matumba.  The purchase price of $600 000 had been paid in full after</p> <p>which Shuro and his family had consequently been allowed to take occupation of the property in question.  She attached a copy of what she alleged was the written agreement of sale between the two.  She averred that, following the demise of her</p> <p>husband, she had become the owner of the property.  She accordingly prayed for</p> <p>an order dismissing the claim and in her counterclaim prayed for an order compelling the first and second respondents to facilitate the cession of the property into her name and for the first respondent to pay her costs.  </p> <p> </p> <p>[8]        During the trial proceedings, the first respondent and her niece gave evidence whilst</p> <p>the appellant and one Jakata, who described himself as an unregistered property</p> <p>consultant, gave evidence for the defence.  It was Jakata’s evidence that he was</p> <p>present when the appellant’s husband, Shuro, paid the deposit of $550,000 by bank</p> <p>cheque and the balance in cash.</p> <p> </p> <p>[9]        During submissions before the court <em>a quo</em> various issues were raised and, in</p> <p>particular, whether the remedy of the <em>actio rei vindicatio</em> was available to the first</p> <p>respondent.  The real issue that fell for determination, in my view, was whether the</p> <p>property in question was correctly included as part of the deceased estate of the late</p> <p>Matumba.  In order for the court <em>a quo</em> to answer this question, the need arose to</p> <p>determine the claim by the appellant that the property in question had been</p> <p>purchased by her late husband and that therefore it ought not to have formed part</p> <p>of the estate of the late Matumba but rather that of her late husband.</p> <p> </p> <p>[10]      In its analysis of the evidence adduced before it, the court <em>a quo</em> came to the</p> <p>conclusion that the version given by the first respondent was the more probable.  It</p> <p>found that the appellant’s version was riddled by inconsistencies and that the</p> <p>authenticity of the written agreement allegedly entered into between Matumba and</p> <p>Shuro was questionable.  The court further found that the appellant had not been</p> <p>able to substantiate how the deposit of $550,000 had been paid and had not</p> <p>produced any proof in regard thereto.  Further, having seen water bills in respect of</p> <p>the property in the name of the first respondent, the appellant and her late husband</p> <p>had done nothing to regularise the situation.  The court was also of the view that,</p> <p>not having been appointed as executrix dative or heir to the estate of the late Shuro,</p> <p>her <em>locus standi</em> to defend this action was doubtful.</p> <p> </p> <p>[11]     As regards the evidence of Jakata, the court found that his evidence was unreliable</p> <p>and that he had been discredited.  Jakata had been unable to explain how the appellant and her husband had approached him at his office when it was common</p> <p>cause that the property had been advertised by Messrs Mugabe and Partners, Legal</p> <p>Practitioners.  He had admitted he had no mandate from anyone to sell the property. </p> <p>He could not remember giving the late Shuro a receipt for the cash he paid to him</p> <p>for onward transmission to Mugabe and Partners.  He did not himself get a receipt</p> <p>for the money he had transmitted to Mugabe and Partners.  He further claimed, contrary to a clause in the agreement which recorded that a cash deposit had been</p> <p>paid on signature, that the deposit had been paid by bank cheque.  The appellant’s</p> <p>version during the trial was that it was a bank transfer.  The court found Jakata to</p> <p>be evasive and expressed the view that he gave the unfortunate impression that he</p> <p>was a hired witness. He could not say who had paid him for all his troubles or how</p> <p>much he had been paid.  All the evidence considered, the court preferred the</p> <p>evidence of the first respondent and rejected that of the appellant.</p> <p> </p> <p>[12]      On the probabilities, the court found it highly improbable that, in the written</p> <p>agreement of sale he allegedly entered into with Matumba, Shuro would have</p> <p>used the address of the property in question as his own when he was still to buy the</p> <p>same.  It found that since the late Matumba’s bank statements were being delivered</p> <p>at the property in question, it was not surprising that the appellant and her husband</p> <p>had been able to have access to them and had thereafter fraudulently incorporated</p> <p>some of Matumba’s personal details into the agreement in question.</p> <p> </p> <p>[13]      The court also found that in any event, Matumba’s estate had been wound up in</p> <p>terms of the law and the property properly ceded to the first respondent who had</p> <p>then legally acquired the property.  The appellant could not have relied on the</p> <p>agreement allegedly signed by her late husband as she had not been appointed</p> <p>executrix dative.  Nor could she, for the same reason, seek an order directing that</p> <p>the property be transferred to her by the second respondent.</p> <p> </p> <p>[14]      After considering all the above-mentioned features, the court <em>a quo</em> made a finding</p> <p>in favour of the first respondent and, consequently, issued an order for the eviction</p> <p>of the appellant and for her to pay arrear rentals as well as holding over damages. </p> <p>Hence the present appeal.</p> <p> </p> <p><em>PROCEEDINGS BEFORE THIS COURT </em></p> <p>[15]      In her notice of appeal, the appellant listed nine grounds upon which she sought to</p> <p>attack the decision of the court <em>a quo</em>.  Shortly thereafter, she filed an additional</p> <p>three grounds of appeal.  At the hearing of this matter, she however abandoned</p> <p>some of the grounds, in particular grounds 7,8 and 9.</p> <p> </p> <p>[16]      Perusal of the grounds of appeal shows that what is impugned is the finding by the</p> <p>court <em>a quo</em> that no sale agreement had been concluded between the first respondent’s late husband and the appellant’s husband and that, consequently, the</p> <p>appellant and her late husband had taken occupation of the property as tenants</p> <p>and not as purchasers.  What is also impugned by the appellant was the decision of</p> <p>the court <em>a quo</em> awarding arrear rentals and holding over damages in a situation where, so the appellant contended, the first respondent had not proved the quantum of such arrear rentals or holding over damages.</p> <p> </p> <p>[17]      The various grounds of appeal are repetitious.  The same issues are regurgitated</p> <p>through the use of different terminology. This is not acceptable.  Various decisions</p> <p>of this Court have stressed the need for grounds of appeal to be formulated with</p> <p>clarity and precision.  The same decisions have stressed the need to avoid</p> <p>unnecessary repetition and prolixity.  In my view grounds 2,3,4 and 5 correctly</p> <p>reflect the basis upon which the judgment of the court <em>a quo</em> is being attacked. </p> <p>These grounds are valid.  Consequently the remaining grounds stand to be struck</p> <p>off. It is so ordered.</p> <p> </p> <p>[18]      A further issue that has arisen is the propriety of the Prayer. Ms <em>Banda, </em>for the</p> <p>appellant<em>, </em>moved for the amendment of the prayer to include an order for the</p> <p>dismissal, in the court <em>a quo,</em> of the plaintiff’s claim and for the grant of the</p> <p>defendant’s counterclaim.  Although the request to amend was opposed, this Court</p> <p>was satisfied that the prayer was not fatally defective and consequently granted the</p> <p>amendment.</p> <p> </p> <p><em>APPELLANT’S SUBMISSIONS ON APPEAL </em></p> <p>[19]      The appellant’s submissions before this Court are as follows.  The first respondent</p> <p>is neither the owner nor lessor of the property.  Consequently the <em>actio rei vindicatio</em></p> <p>is not available to her.  She cannot, therefore, seek the eviction of the appellant.</p> <p>Secondly, that although the <em>quantum</em> of rentals had been put in issue, the court <em>a </em></p> <p><em>quo</em> had failed to make a determination on the matter.  In the absence of evidence</p> <p>proving the monthly rentals payable in respect of the property, the court <em>a quo</em> erred</p> <p>in awarding arrear rentals and holding over damages based on a monthly rental of</p> <p>$200.  The court therefore wrongly exercised its discretion and its decision should</p> <p>therefore be set aside.  Lastly she submitted that the court <em>a quo</em> erred in finding</p> <p>that the appellant was a tenant of the first respondent in the absence of any evidence</p> <p>pointing towards the existence of a lease agreement between the parties and in the</p> <p>face of the written agreement of sale which confirmed the sale of the property in</p> <p>question to the late Shuro.</p> <p> </p> <p><em>THE FIRST RESPONDENT’S SUBMISSIONS ON APPEAL </em></p> <p>[20]      In her submissions, the first respondent argues that she acquired real rights in the</p> <p>property and is therefore entitled to vindicate the property.  The property, initially</p> <p>ceded to her late husband, had subsequently been ceded to her.  She further</p> <p>submitted that the many findings of fact made by the court <em>a quo,</em> in particular,</p> <p>that no sale agreement had been concluded, were made after a careful analysis of</p> <p>all the evidence.  She further submitted that rental in the sum of $200 per month</p> <p>had been proved.</p> <p> </p> <p>ISSUES FOR DETERMINATION</p> <p>[21]      It seems to me, on a consideration of the submissions made by the parties to this</p> <p>appeal, that the real issue between the parties is whether the court <em>a quo</em> correctly</p> <p>found that no agreement of sale had been concluded between the late Matumba and</p> <p>the late Shuro.  The disposition of this issue would in turn dispose of the question</p> <p>whether the appellant and her late husband were tenants, in which event they would</p> <p>have been obliged to pay rentals, or whether they had validly purchased the</p> <p>property, in which event the prayer for her eviction and payment of rentals would</p> <p>fall away.  In the event that this Court finds in favour of the appellant, two other</p> <p>issues would arise, namely whether the agreement of sale would have been, in any</p> <p>event, valid and whether the appellant, who is not executrix dative, is entitled to</p> <p>sue for specific performance.</p> <p> </p> <p>WHETHER THE PROPERTY WAS PURCHASED BY THE LATE SHURO</p> <p>[22]      It is clear, on a perusal of the agreement of sale entered into by and between the</p> <p>Minister of Local Government and National Housing and the late Matumba, that</p> <p>the first respondent was not, in fact, a co-purchaser of the property in question.  Her</p> <p>name and particulars appear on the agreement merely on account of her having been</p> <p>a spouse.  She did not sign the agreement as a co-purchaser but as a witness.</p> <p> </p> <p>[23]      In these circumstances, the late Matumba could have, with the consent of the seller,</p> <p>namely the Minister of Local Government and National Housing, or thereafter the</p> <p>second respondent, validly sold the property to a third party without the need for</p> <p>the consent of the first respondent.  This position is now well established in our</p> <p>law.</p> <p>23.1     1n <em>Muzanenhamo and Anor v Katanga and Others</em> 1991 (1) ZLR 182, 186</p> <p>E (SC) McNALLY JA stated as follows:</p> <p>“So as a matter of broad principle, I am of the opinion that the rights of the</p> <p>husband and wife must be regarded as purely personal <em>inter se </em>and that</p> <p>these rights do not affect the rights of third parties…”</p> <p> </p> <p>23.2     In <em>Maponga v Maponga and Others </em>2004 (1) ZLR 63, 68 D – E MAKARAU J (as she then was) also remarked: -</p> <p>“It would appear to me in summary that the status of a wife does not grant</p> <p>her much in terms of rights to the immovable property that belongs to her</p> <p>husband.  She only has limited rights to the matrimonial home that she and</p> <p>her husband set up.  Those rights are personal against the husband and can</p> <p>be defeated by the husband providing her with alternative suitable</p> <p>accommodation or the means to acquire one.  The husband can literally sell</p> <p>the roof from above her head if he does so to a third party who has no notice</p> <p>of the wife’s claims ...”</p> <p> </p> <p>23.3     Attention is also drawn to the remarks of BHUNU J in <em>Joseph </em></p> <p><em>Mhuruyengwe v Margaret Vhiriri</em> HH 10/2005.</p> <p> </p> <p>[24]     As already indicated, the main bone of contention between the parties was whether the property in question was the subject of an agreement of sale between the late Matumba and the late Shuro.  The court <em>a quo</em> found the appellant and her witnesses not worthy of being believed.  It found the evidence of Jakata, the so-called property consultant, to have been utterly discredited.  It concluded that the probabilities did not support a finding that there had been a valid written agreement and that the written agreement produced during the trial must have been fraudulently prepared.</p> <p> </p> <p>[25]      It is an established tenet of our law that an appellate court should be slow in interfering with the factual findings made by a lower court and that this should happen only where it is clear that the decision of the lower court is irrational, in the sense that no sensible court, seized with the same facts, could have reached such a conclusion.  More particularly on the issue of credibility, a trial court enjoys an advantage that an appellate court would never have.  In short, an appellate court can only interfere with the findings of a lower tribunal where it is convinced that the findings by the lower court are not supported by the evidence or are otherwise irrational – see <em>Hama v National Railways of Zimbabwe</em> 1996 (1) ZLR 664(S).</p> <p> </p> <p>[26]      In this case, the authenticity of the written agreement allegedly entered into by the parties’ late husbands was in issue.  No handwriting expert was called.  The <em>onus</em> was on the appellant, as defendant, to prove that the agreement was genuine.  She did not discharge that onus.  The court <em>a quo </em>had no choice but to make its own observations based on some of the characteristics in the letters.  Based on its observations, it found that the authenticity of the agreement was in doubt.</p> <p> </p> <p>[27]      The court <em>a quo</em> did not end there.  It also looked at the probabilities and found that they did not favour the appellant.  The appellant did not have a single document to show how the purchase price had been paid.  Initially she claimed that the deposit had been paid by bank cheque.  The copy of that bank cheque was not produced.  She then changed her story and stated it was in fact a bank transfer.  She was not able to produce proof of that either.  The court also noted a number of unsatisfactory features in her evidence.  Having allegedly purchased the house in December 2001, no effort was made either by her or her late husband to enforce the agreement.  It is common cause that her husband only died on 21 May 2009 – eight years later.  She and her husband had admitted seeing water bills for the property in the name of the first respondent.  Faced with such a situation, they did nothing.  In December 2006, a letter written by Mpame &amp; Associates, demanding the eviction of the appellant and her late husband was served on them.  The appellant and her late husband approached the Masvingo Legal Projects Centre who wrote to the Master indicating that the appellant intended to lodge a claim against the deceased estate of the late Matumba.  They did nothing further.  Moreover, the written agreement curiously reflected the late Shuro’s address as that of the property in question.</p> <p> </p> <p>[28]      The court found the evidence of Jakata to be highly improbable.  Jakata had no written mandate from anyone to sell the house.  How he handled the money that he says was given to him by the appellant and her late husband raised more questions than answers.  Jakata did not provide a receipt for the money he says he received from the appellant nor was he provided with one when he eventually passed on the money to Messrs Mugabe and Partners, the purchaser’s legal practitioners.  He could not remember who paid him for the role he played in facilitating the sale or how much he was paid.  The court <em>a quo</em> found him to be evasive and described him as a “hired” witness.</p> <p> </p> <p>[29]     The above observations by the court <em>a quo</em> were supported by the evidence.  Consequently there is no basis upon which this court can possibly interfere with those findings.  The probabilities also do not favour the appellant’s version of the events.</p> <p> </p> <p> </p> <p><em>WHETHER THE FIRST RESPONDENT HAD LOCUS STANDI TO SUE FOR </em></p> <p><em>EVICTION </em></p> <p>[30]      Whether the first respondent had the <em>locus standi</em> to sue for the eviction of the appellant remains a live issue between the parties.  It is common cause that the late Matumba had entered into an agreement of sale with the Minister in respect of the property in question.  The purchase price was the sum of $98401, payable by a deposit of $17700 and the balance of $80341 by monthly instalments of $1043, payable on the first day of each month.  In terms of the agreement, Matumba was to get title upon payment of the principal amount and any other charges payable in terms of the agreement.  It is also common cause that Matumba and the first respondent took occupation on 1st June 1993.  After the death of Matumba, his rights and interest in the property were then ceded to the first respondent by the City Council, the second respondent.   </p> <p> </p> <p>[31]      In my view, the late Matumba and, subsequently, the first respondent, had the standing to evict the appellant and all those claiming through her.  Whilst it is clear that they did not have title to the property, they were the registered purchasers of the property.  They surely had the right to seek the eviction of the appellant.</p> <p> </p> <p>[32]      In <em>Pedzisa v Chikonyora</em> 1992 (2) ZLR 445 (S), the respondent had entered into an agreement to purchase a property on a lease to buy basis from the owner/lessor of the property.  In terms of the agreement, title to the property would only pass on fulfilment of certain conditions, one of which was that the lesee-to buy was not to sub-let or assign the property without the written consent of the owner-lessor.  The purchaser, who was living elsewhere, did not move into the house but instead sublet the property to the appellant and further assigned the property to him by selling his right of occupation and eventual right to take title.  The consent of the owner was not sought before the respondent entered into a sublease with the appellant.  At a later stage, the respondent sought the eviction of the respondent from the premises.  The main issue on appeal was whether the respondent, as lessee-to-buy, had <em>locus standi</em> to sue for the eviction of the appellant without having obtained a cession of action from the owner-lessor.</p> <p> </p> <p>[33]      This Court held that although the terms of a lease-to-buy agreement were such that the respondent initially acquired only a personal right exercisable against the owner-lessor and not against third parties without recourse to the owner-lessor, such a personal right entitled him to delivery of vacant possession of the property. But once he had been given vacant possession of the property and had assumed physical control over it, he then acquired a real right, entitling him to evict anyone who wrongfully occupied the property such as a trespasser.  Although the respondent had not actually moved into the house, he had acquired control over the unoccupied property, and thus acquired a real right over the property.  Accordingly the respondent had <em>locus standi</em> to sue for the eviction of the appellant, even though he had not obtained a cession of action from the registered owner.  The court further held that the fact that the respondent had entered into a sublease in breach of a clause in the lease-to-buy agreement requiring the prior consent of the owner before any sublease or assignment was effected did not preclude the respondent from suing for the eviction of the respondent.</p> <p> </p> <p>[34]      The facts in the above case are not materially different from those in the present case.  The agreement that Matumba entered into was akin to a lease to buy agreement.  Title was only to pass to Matumba after certain conditions were met, including the condition that there was to be no sub-lease and that title would only pass upon full payment of the purchase price and other charges in terms of the agreement.  I am satisfied, on the basis of the above authority, that the late Matumba and thereafter the first respondent, to whom the property was subsequently ceded, had the requisite standing to sue for the eviction of the first respondent.</p> <p> </p> <p><em>IN ANY EVENT, AGREEMENT BETWEEN MATUMBA AND SHURO, IF PROVED,</em></p> <p><em>WOULD HAVE BEEN INVALID</em></p> <p>[35]      Having concluded that the finding of the court <em>a quo</em> that there was no sale agreement between the late Matumba and the late Shuro was a correct one, this should really be the end of the matter.  However, for the sake of completeness, I also consider whether the alleged agreement would, in any event, have been valid.  I have no doubt in my mind that the agreement would have been <em>null</em> and <em>void</em>.</p> <p> </p> <p>[36]      In <em>Chenga v Chikadaya and Others</em> SC 7/13, this Court was called upon to deal with the validity of an agreement similar to the one that formed the subject of the dispute in this matter.  At page 8-9 of the judgment, this Court stated:</p> <p>                        “The agreement of sale between the appellant and the second respondent</p> <p>was <em>null</em> and <em>void</em> for lack of authority.  The second respondent was not</p> <p>authorised by the owner of the property to dispose of it on his behalf.  He</p> <p>purported to dispose of rights in the property which rights he did not have.”</p> <p> </p> <p>[37]      Clearly, therefore, in the absence of the consent of the second respondent, the late Shuro could not have been entitled to demand cession of the property into his name.  The same consideration applies to the appellant, his surviving spouse.</p> <p> </p> <p><em>FURTHER, AND IN ANY EVENT, THE APPELLANT HAD NO LOCUS STANDI</em></p> <p><em>TO DEMAND THE CESSION OF THE PROPERTY INTO HER NAME</em></p> <p>[38]      I am aware that, in terms of section 3A of the Deceased Estates Succession Act, Chapter 6:02, a surviving spouse is entitled to receive, from the free residue of the estate, the house in which the spouses lived immediately before the death and such house formed part of the deceased’s person’s estate.  In this case however, the estate of the late Shuro was never registered.  There appears to have been an attempt to register it but the process of registration and appointment of an executor was not completed.  In these circumstances, therefore, the appellant cannot seek, as she does in her prayer, an order compelling the first respondent and the Masvingo City Council to cede the property into her name.</p> <p> </p> <p>ARREAR RENTALS AND HOLDING OVER DAMAGES</p> <p> [39]     In her declaration, the first respondent prayed for judgment in the sum of $14,000 representing arrear rentals and $6,67 in holding over damages until the date of the eviction of the appellant.  The two claims were predicated on a monthly rent for the property in the sum of $200,00.  It is clear that the sum of $200 is what the first respondent considered appropriate rental after the adoption of the multiple currency in 2009. At a pre-trial conference, the parties agreed that one of the issues to be determined at the trial was the <em>quantum</em> of the arrear rentals and holding over damages.  During the trial, no evidence on what would have constituted fair rental was given by either party.  All that the first respondent said was that she had taken into account inflation.  At the end of the trial therefore the evidence did not establish that fair rental for the property would have been $200 per month.  How the rentals paid in Zimbabwe dollars were converted to US$200 per month after 2009 remains unknown.</p> <p> </p> <p>[40]      I agree with the appellant that arrear rentals and holding over damages were not proved.  Whilst the first respondent may have been entitled to some rental, such figure was not proved.  The appellant is therefore entitled to absolution from the instance in respect of these two claims.</p> <p> </p> <p><em>COSTS</em></p> <p>[41]      I am of the view that since the first respondent has largely been successful, a costs order in her favour should ensue.</p> <p> </p> <p>DISPOSITION</p> <p>[42]      In the result, the following order is made:</p> <p>            [1]        The appeal succeeds to the extent that paragraphs 2,3 and 4 of the order of</p> <p>the court <em>a quo</em> are set aside and in their place the following substituted:</p> <p>            “In respect of the claim for arrear rentals and holding over damages,</p> <p>absolution from the instance is entered.”</p> <p>            [2]        The appellant is to pay the costs of the appeal.</p> <p>           </p> <p> </p> <p>                        <strong>HLATSHWAYO, JA</strong>            I agree</p> <p> </p> <p>                        <strong>BHUNU, JA</strong>                           I agree</p> <p> </p> <p><em>J. Mambara &amp; Partners</em> – appellant’s legal practitioners</p> <p><em>Mupanga, Bhatasara &amp; Partners</em> – respondents’ legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2019/20/2019-zwsc-20.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=55397">2019-zwsc-20.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2019/20/2019-zwsc-20.pdf" type="application/pdf; length=250023">2019-zwsc-20.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/administration-estates">ADMINISTRATION OF ESTATES</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/claim-against-deceased-estate">Claim against deceased estate</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/locus-standi">Locus standi</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/property-and-real-rights">PROPERTY AND REAL RIGHTS</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/ownership">Ownership</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/actio-rei-vindication">actio rei vindication</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2013/7">Chenga v Chikadaya &amp; Others (232/10) [2013] ZWSC 7 (24 February 2013);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1873/2">Deceased Estates Succession Act [Chapter 6:02]</a></div></div></div> Wed, 12 Jun 2019 07:35:11 +0000 admin 9316 at https://old.zimlii.org Vimbai Nyemba N.O. v Richard Garikai Chakabva N.O. & 5 Others (HH 224-18, HC 7601/15) [2018] ZWHHC 224 (02 April 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/224 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>VIMBAI NYEMBA N.O.</p> <p>versus</p> <p>RICHARD GARIKAI CHAKABVA N.O.</p> <p>and</p> <p>MIRIAN MARAIRE</p> <p>and</p> <p>ROTHWELL CHAKABVA</p> <p>and</p> <p>ROY CHAKABVA</p> <p>and</p> <p>MEMORY CHAKABVA</p> <p>and</p> <p>MASTER OF THE HIGH COURT</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>TAGU J</p> <p>HARARE 2, 7, March and 2 April 2018</p> <p><strong>Civil Trial</strong></p> <p>T Chivake, for plaintiff</p> <p>S Mpofu, for defendant</p> <p>            TAGU J: The plaintiff in her capacity as the Executrix Dative in the Estate of the late Nayison Mashavave DR 419/14 who died on the 24th February 2009 at Harare issued summons against the defendants claiming for orders declaring that Stand 8519 Glen View 8, Harare, belongs to the estate of the late Nayison Mashavave, that Stand 8519 Glen View 8 Harare be removed from the Distribution Account of the Estate of the late Richard Garikayi Chakabva, that within seven (7) days of service of this order, the defendants sign all necessary documents to transfer the Stand 8519 Glen View 8 Harare into the estate of the late Nayison Mashavave and / or its beneficiaries , that in the event that the defendants’ refuse to comply the Sheriff or his deputy be and are hereby authorized to sign all relevant documents to pass transfer of Stand 8519 Glen View 8, Harare from first to fifth defendants’ names to the estate of the late Nayison Mashavave and/ or its beneficiaries and that the defendants pay costs of suit.</p> <p>            Three issues came up for determination in this case. The first issue is whether or not Richard Garikai Chakabva sold Stand 8519 Glen View Township to the late Nayison Mashavave. The second issue is whether or not there were any improvements on the property, and if they were improvements on the property, what were the improvements and who developed the property? The last issue is whether the Estate of the late Nayison Mashavave waived its right to claim of the immovable property against the Estate of the late Richard Garikai Chakabva.</p> <p>            The facts as confirmed by the oral and documentary evidence produced in court are that the late Richard Garikayi Chakabva and the late Nayison Mashavave were uncle and nephew respectively. In or about the year 1980 the late Richard Garikayi Chakabva was the registered owner of Stand 8519, 108 Crescent Glen View 8, Harare. This is confirmed by an agreement of sale entered into by and between The Municipality of Salisbury and the late Richard Garikayi Chakabva signed on the 3rd and 4th of December 1979 by the buyer and seller respectively. The same fact is confirmed by various cards produced as evidence by the parties which show that the house in question was and is still registered in the names of Richard Garikai Chakabva to this day.</p> <p>            The undisputed facts also show that the late Naison Mashavave on or about the year 1980 was resident or was owner of house 20888 Glen Norah Harare. However, the late Naison Mashavave at that time had four wives with nine children. The eldest child was Happison Mashavave aged about 18 years who testified in this case.</p> <p>            As fate would have it, Richard Garikayi Chakabva passed on first on the 19th September 1994 while his family was staying at house 20888 Glen Norah Harare. On the other hand Nayison Mashavave passed on second on the 24th February 2009 while his family stayed at Stand 8519, Glen View 8 Harare. Happison Mashavave in his evidence told the court how their parents exchanged houses. He told court that his late father bought Stand 8519 Glen View 8 Harare from the late Richard Garikai Chakabva in 1980 when he was still doing his O’levels. They then moved into this stand as a family and his father then ordered Richard Garikayi Chakabva to go and stay in their Glen Norah House. However, he based his story on what he said was told by his late father because when the transactions were taking place he was not there because his father was on separation with his mother. He further told the court that his father developed the stand. He produced a document he claimed showed that his father bought the stand. I will deal with the document shortly. Other than that document he did not produce any agreement of sale.</p> <p>            Mirian Maraire the wife to the late Richard Garikai Chakabva told the court of how her late husband bought the stand in question from the then Municipality of Salisbury. Her evidence was that they went and put up a temporary structure at Stand 8519 Glen View 8 where they stayed and his late husband proceeded to build a four roomed house. According to her evidence the late Nayison Mashavave later approached his husband and explained that he was having problems with his wives and asked them to go and stay at his house in Glen Norah while he was sorting out his problems. They then agreed and exchanged residences to disguise Nayison’s wives. Later Nayison sold the house they were staying in Glen Norah and they asked him to vacate their house in Glen View but he resisted. Unfortunately her husband was then very ill and passed on. After he passed on she registered the Glen View House as part of her husband’s Estate, and after all the necessary formalities were done the house was registered by the Master of the High Court as party of the Estate of her late husband. However, the children of the late Nayison Mashavave are refusing to vacate the house.</p> <p>WHETHER THERE WAS A SALE</p> <p>            No evidence was presented to suggest the existence of a sale agreement. The sole evidence of Happyson Mashavave was wholly hearsay as he was not staying with his father at the time. The document relied by Happyson Mashavave reads as follows-</p> <p><em>        “15/2/88</em></p> <p><em>            Dear Uncle</em></p> <p><em>            I am Richard. Uncle the issue that is troubling me concerns the house. Word has reached   me and I have made certain observations on this issue. We need to meet. I do not know if you had changed the card. Please uncle lets meet.</em></p> <p><em>            R.G.Chakabva”</em></p> <p>            With the greatest of respect this piece of document presents problems. Firstly it cannot be said to be an agreement of sale. Secondly, it does not say to whom it is addressed but only to uncle. Thirdly, it is not signed with the same signature which signed exhibit 3. It is <em>prima facie</em> difficult to find that the document was done by the late R G Chakabva. Even if it may be assumed it was written by the late Richard Garikai Chakabva, the tone of the note is to the effect that the writer was being concerned about the rumours he/she had heard about the house and was worried if the receiver had changed the card to the house. He/ she wanted a meeting over the issue. The card was being used for the sole purpose of paying rates to the Municipality. The plaintiff who is an Executrix dative failed to prove that there was an agreement of sale other than to rely on what she heard from the beneficiaries.</p> <p>WHETHER THERE WERE IMPROVEMENTS ON THE STAND</p> <p>            From the evidence of Marian Maraire her late husband had constructed a four roomed house at the time they moved out. Currently according to Happison Mashavave the house is now seven roomed. There is therefore proof that some improvements were done over the years. These improvements may have been done by Nayison or her children.  Be that as it may, this did not pass ownership of the house to the beneficiaries of Nayison Mashavave.  It is trite that personal rights die with the holder, ie Richard Garikayi Chakabva. See Matsinde <em>v</em> Nyamukapa HH-102-06.</p> <p>WAS THERE WAIVER OF RIGHTS?</p> <p>            At the end of the trial no evidence had been presented to support a request for the alteration of registration of rights, title and interests in the names of the defendants. The plaintiff’s case did not demonstrate any objections to the public declaration by the Executor in the Estate of the late Richard Garikai Chakabva. As properly submitted by the counsel for the defendants the failure to act as against registration of title into the defendants amounted to waiver of rights in the immovable property. The law on waiver is stated in Chidziva and Ors <em>v</em> Zimbabwe &amp; Steel Co. Ltd 1997 (2) ZLR 368 (SC), when quoting Mutual Life Ins Co. of New York <em>v</em> Ingle 1910 TPD 1910 TPD 540 the court held that :</p> <p>          “when a person entitled to a right knows that it is being infringed, and by his acquiescence  leads  the person infringing it to think that he has abandoned it, then he would under certain     circumstances be debarred from asserting it”</p> <p>            Dumbutshena CJ in Barclays Bank of Zimbabwe LTD <em>v</em> Binga Products (PVT) LTD 1985 (3) SA 1041 (ZS) at 1049 B-E says-</p> <p>         “I seek, however, to highlight the principle of waiver set out by Lord DENNING MR at 140a-c where he said:</p> <p>            “The principle of waiver is simply this, if one party, by his conduct, leads another to believe that the strict rights arising under the contract will not be insisted on, intending that the other should act on that belief, and he does act on it. Then the first party will not afterwards be allowed to insist on the strict legal rights when it would be inequitable for him to do so; see Plasticmoda Societa Per Azioni v Davidsons (Manchester) Ltd [1952] I Lloyds Rep 527. There may be no consideration moving from him who benefits by the waiver. There may be no detriment to him by acting on it. There may be nothing in    writing. Nevertheless, the one who waives his strict rights cannot afterwards insist on them. His strict rights are at any rate suspended so long as the waiver lasts. He may on   occasion be allowed to revert to his strict legal rights for the future by giving reasonable notice in that behalf, or otherwise making it plain by his conduct that he will thereafter insist on them; see Tool Metal Manufacturing Co Ltd v Tungsten Electric Co Ltd [1955] 2 ALL ER 6587. But there are cases where no withdrawal is possible. It may be too late   to withdraw; or it cannot be done without injustice to the other party. In that event he is  bound by his waiver. He will not be allowed to revert to his strict legal rights. He can only enforce them subject to the waiver he has made.”</p> <p><em>            In casu</em> the two deceased persons are related and had been visiting each other quite often. It baffles one’s mind why for such a long time transfer was not done if at all there was an agreement of sale and rights over the Stand had exchanged hands. The beneficiaries even waived their rights in failing to claim against the Estate of the late R.G Chakabva before transfer. As for the plaintiff she said she was not aware of the transfer because by then she had not been appointed Executrix dative. In my view, given the fact that the registration of the title into the defendants name was properly and procedurally done, it ought not to be interfered with.</p> <p>            The case brought by the plaintiff is speculative and of no substance. It fails on the legal principles and is devoid of merit it is my view that the reliefs sought ought to be dismissed with costs on a higher scale.</p> <p>            IT IS ORDERED THAT</p> <ol> <li>The reliefs sought by the plaintiff are dismissed.</li> <li>The plaintiff to pay costs on a higher scale.</li> </ol> <p>V Nyemba &amp; Associates, plaintiff’s legal practitioners</p> <p>Munangati &amp; Associates, 1st – 5th defendants’ legal practitioners                     <em>         </em></p> <p>              </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/224/2018-zwhhc-224.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=24027">2018-zwhhc-224.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/224/2018-zwhhc-224.pdf" type="application/pdf; length=311020">2018-zwhhc-224.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/administration-estates">ADMINISTRATION OF ESTATES</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/claim-against-deceased-estate">Claim against deceased estate</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/deceased-estate">Deceased estate</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/immovable-property">IMMOVABLE PROPERTY</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/personal-right-respect-immovable-property">Personal right in respect of immovable property</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/waiver">Waiver</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/waiver-rights-party">Waiver of rights by a party</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/what-constitutes-waiver">What constitutes Waiver</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/when-waiver-may-be-inferred">When Waiver may be inferred</a></li></ul></span> Wed, 23 May 2018 12:05:46 +0000 admin 8860 at https://old.zimlii.org Rodwell Chitiyo N. O. v Chiguba & 2 Others (HH 92-18, HC 3856/17) [2018] ZWHHC 93 (19 February 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/92 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>RODWELL CHITIYO N.O.</p> <p>versus</p> <p>EMMANUEL MANDIPA CHIGUBA</p> <p>and</p> <p>DAVID KADZERE</p> <p>and</p> <p>DOREEN KADZERE</p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHIWESHE JP</p> <p>HARARE, 14 November 2017 and 19 February 2018</p> <p><strong>Opposed Matter</strong></p> <p>Adv <em>T</em>.<em> Zhuwarara</em>, for the applicant</p> <p>Prof<em>. L Madhuku</em>, for the respondents</p> <p>            CHIWESHE JP:  This is an application for rescission of judgment in terms of r 449 of the High Court rules.</p> <p>            Rule 449 (1) (a) reads as follows:</p> <p>“(1) The court or a judge may, in addition to any other power it or he may have, <em>mero motu </em>or</p> <p>        upon the application of any party affected, correct, rescind, or vary any judgment or order—</p> <ul> <li>that was erroneously sought or erroneously granted in the absence of any party affected thereby; or”</li> </ul> <p>The applicant is the Executor Dative of the estate of the late Edmore Tererai Chitiyo having been appointed as such in terms of Letters of Administration DR H 184/17 issued by the Master of this honourable court at Harare on 4 April 2017.  During his life time the said Edmore Tererai Chitiyo had acquired, through an agreement of sale entered into between him as the buyer and the 2nd and 3rd respondents as the sellers, the immovable property described as 182 Midlands Township 2 of Upper Waterfalls Estate.  The agreement of sale is filed of record.  Para 2 thereof acknowledges that the purchase price had been paid in full at the time of signature of the agreement.  The agreement is dated 24 March 2004.  Clearly this piece of land must be regarded as part of the Estate under the applicant’s administration.</p> <p>Unbeknown to the applicant this stand had subsequently been acquired by the 1st respondent through a judicial sale pursuant to a default judgment entered against the 2nd and 3rd respondents under case number HC 11049/16 dated 22 March 2017.  Apparently 2nd and 3rd respondents had also sold this stand to the 1st respondent who acquired title.  This was a clear case of a double sale.  Having acquired title the 1st respondent sought and was granted a default judgment to evict 2nd and 3rd respondents who were no longer in occupation.</p> <p>Instead, it was the applicant and two other dependents of the estate who were in occupation of the stand.  The applicant sought and was granted an order staying execution of the eviction order.  In the present application the applicant contends that the eviction order was erroneously granted because the court had not been informed that the Estate was in occupation of the stand and that in addition it claimed ownership.  It is further contended that the 1st respondent had been aware of that fact well before he took transfer of the stand.  Indeed, the 1st respondent had been served with a chamber application to do with the applicant’s rights as far back as 13 September 2016.  Copy of the chamber application is filed of record.</p> <p>The applicant’s unassailable position is that the Estate was not cited in the application for eviction filed by the 1st respondent despite knowledge on the part of the 1st respondent that the applicant had a substantial interest in the matter.  The eviction order was thus sought and granted in the absence of the applicant.</p> <p>Had the court been aware that it was the applicant and the two dependents who were in occupation and not the 2nd and 3rd respondents, it would have either declined to grant the order sought or ordered the joinder of the applicant.  For that reason, the judgment was sought and granted in error.  I am in entire agreement with these averments.  The default judgment cannot be allowed to stand.</p> <p>The 1st respondent’s defence is devoid of merit.  He avers that he is the lawful owner of the stand and for that reason he is beyond reproach.  The fact that is lost to him is that his title is being challenged on the ground that it is defective as it was derived under circumstances where the applicant had obtained prior rights to the property.  Clearly the applicant deserved the right to be heard.  If the court had been aware of the true set of circumstances it would have declined to entertain the matter in the absence of the applicant who was not only in occupation but in addition claimed ownership of the stand.  The 1st respondent admits that he was aware that the property he purchased was also being claimed by the applicant!  Paragraph 5 of his opposing affidavit reads:</p> <p>“The averments in these paragraphs are denied.  While I was aware that the property I purchased was also being claimed by one Admore Tererai Chitiyo, I chose the route of the law.  The property in question was lawfully offered for sale notwithstanding the said claims of the late Chitiyo.  I bought it lawfully.  I subsequently obtained ownership in accordance with the law.</p> <p>It is not admitted that the late Edmore Tererai Chitiyo had any substantial interest in my property.”</p> <p>Why then did he not cite the applicant?  The bulk of the averments in the opposing affidavit hinge on the fact that the 1st respondent has title and the matter ends there.  There is thus a failure by the 1st respondent to appreciate the import of the present application, which is that there is a <em>prima facie</em> case upon which that title is being challenged, that the eviction order was granted in error because he failed to disclose to the court the existence of the applicant who on his own admission had a substantial interest in the matter.  Clearly the 1st respondent is not an innocent purchaser.  In applications of this nature, in order to succeed, the applicant needs not show that he has a bona fide defence – it is sufficient if he establishes that the order sought to be rescinded was erroneously sought and granted in the absence of a party who had a substantial interest in the matter.</p> <p>            I agree with Adv <em>Zhuwarara</em> that in light of the foregoing, the 1st respondent should not have opposed this application, moreso in view of the findings of this court in <em>Chitiyo NO v Chiguba &amp; 3 Ors</em> HH 292-17.  I have no doubt that the applicant satisfies all the requirements for the grant of rescission under r 449 (1) (a).  The import and purposes of r 449 (1) (a) are well traversed in a plethora of cases.  (See <em>Kaiser Eng (Pvt) Ltd v Makeh Enterprises (Pvt) Ltd</em> HB 6-12, <em>Nyingwa v Moolman NO</em> 1993 (2) SA 508, <em>Mushoro v Mudimu</em> HH 443-13).</p> <p>            The applicant’s right to be heard derives from the rules of natural justice embodied in the <em>audi alteram partem</em> rule.  These rules require that “a person be given reasonable notice to make representations where another takes action which adversely affects his/her interests or rights”- per CHATUKUTA J in <em>Matizira v Epworth Local Board</em> HH 37-2011.  See also <em>Mashike &amp; Ross NO v Swenwesbel Limited and Anor</em> 2013 (3) All SA 20 (SCA).</p> <p>            For these reasons the application must succeed.</p> <p>It is accordingly ordered as follows:</p> <ol> <li>The default judgment granted against the applicant in favour of the 1st respondent in case HC 11049/16 be and is hereby rescinded.</li> <li>The applicant be joined as the 3rd defendant in that case and is accordingly ordered to file his plea within seven days of his receipt of this order.</li> <li>The 1st respondent shall pay the costs of suit.</li> </ol> <p><em>Takawira Law Chambers</em>, applicant’s legal practitioners</p> <p><em>Mundia &amp; Mudhara</em>, 1st respondent’s legal practitioners</p> <p><em>Messrs Chambati Mataka &amp; Makonese</em>, 2nd &amp; 3rd respondents’ legal practitioners  </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/92/2018-zwhhc-93.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=22193">2018-zwhhc-93.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/92/2018-zwhhc-93.pdf" type="application/pdf; length=142734">2018-zwhhc-93.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/administration-estates">ADMINISTRATION OF ESTATES</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/claim-against-deceased-estate">Claim against deceased estate</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/deceased-estate">Deceased estate</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/administrative-law">ADMINISTRATIVE LAW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/audi-alteram-partem-rule">Audi alteram partem rule</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/fair-administrative-justice">Fair administrative justice</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/fair-hearing">Fair hearing</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/natural-justice">Natural justice</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/rules">rules of</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/rescission-judgment">Rescission of judgment</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-rescission-judgment">application for rescission of judgment</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/principles-rescission-judgment">principles (Rescission of judgment)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/property-and-real-rights">PROPERTY AND REAL RIGHTS</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/immovable-property-see-immovable-property">Immovable property See IMMOVABLE PROPERTY</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/acquisition-ownership">acquisition of ownership</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/transfer-real-property">transfer of real property</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2017/292">Chitiyo N.O. v Chiguba &amp; Others (HH 292-17 HC 3371/17 Ref HC 11049/16) [2017] ZWHHC 292 (27 April 2017);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2011/37">Mtizira v Epworth Local Board and Others (HC 1837/09) [2011] ZWHHC 37 (08 February 2011);</a></div></div></div> Mon, 21 May 2018 14:16:42 +0000 admin 8843 at https://old.zimlii.org In Re Estate Late Bellinah Mhlanga (HH816-17, HC 4168/17 Ref DR 143/13) [2017] ZWHHC 816 (29 November 2017); https://old.zimlii.org/zw/judgment/harare-high-court/2017/816 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>IN RE ESTATE LATE BELLINAH MHLANGA</p> <p>HIGH COURT OF ZIMBABWE</p> <p>MWAYERA J</p> <p>HARARE, 26 May 2017; 14 &amp; 15 June 2017, and 29 November 2017</p> <p>The Master of High Court N.O</p> <p>The Executor Dative Ms Chirawu N.O</p> <p><strong>Chamber Application</strong></p> <p>            <strong>In Re Estate Late Bellinah Mhlanga Dr 143/13 Chamber application in terms of s 113 of the Administration of Estate Act [<em>Chapter 6:01</em>] request for a determination by a judge in chambers on a point of law arising from a difference of opinion between the executor and the Master on a question of law:</strong></p> <p>            MWAYERA J: This matter was placed before me as a stated case for the court’s opinion on the meaning and application of the <em>per stirpes</em> principle. The issues for determination as discerned from the stated case are firstly whether or not the <em>per stirpes</em> principle applies under general law in intestate succession in Zimbabwe and under common law in the absence of a specific legal provision in statutory law. Secondly, what is the legal interpretation of the <em>per stirpes</em> principle both under general law and as set out under customary law in the Administration of Estates Act Section 68F.</p> <p>            The factors informing the stated case are as follows: Bellinah Mhlanga, a widow (herein after called the deceased) passed away intestate on 28th day of January 2010, in Harare as per the death certificate. On 30 January 2013, the estate was registered by Cynthia Mhlanga a daughter of the deceased, through completion of a death notice. The death notice indicated that the deceased was married to the late Amon Mhlanga and she had six children in all, namely, Busisiwe, Lovemore, Dakarayi, Cynthia, Luwis and Erick. The deceased was married to her late husband under the Marriages Act [<em>Chapter 5:11</em>] hence general law applied to the administration of the estate. The deceased was the registered owner of property called 3513 – 13th road, Glen View, Harare. On the 8th February 2015 Slyvia Chirawu was appointed executrix of the estate of the deceased as per the letters of administration. The executrix duly completed form M.H.C 12 showing that one of the children of the deceased namely Tapuwa Caroline Mhlanga predeceased the deceased but she was survived by three children namely Tafadzwa, Nyasha and Tatenda Chidyiwa. The executrix of the estate amended the account accordingly to award the share of Tapuwa Caroline Mhlanga on the basis of the <em>per stirpes</em> principle.</p> <p>            On the 9th of December 2016, the Master through a letter addressed to the executor directed that Tapuwa Caroline was not supposed to inherit on the basis that she predeceased the mother, the deceased whose estate fell for consideration. It is common cause the Master and executor have different opinions on the issue of the <em>per stirpes</em> principle and its applicability or otherwise in the estate under consideration.</p> <p>            The executrix maintained that the late Caroline Mhlanga’s children ought to inherit from their grandmother’s estate, the late Bellinah Mhlanga. The Master on the other hand insisted that the late Tapuwa Caroline Mhlanga’s children were not supposed to benefit under the estate of their grandmother Bellinah Mhlanga because the grand children’s mother predeceased her mother Bellinah Mhlanga, whose estate is under consideration. The resolution of the matter hinges on the nature of law applicable in the deceased estate in question. Further the interpretation of the <em>per stirpes</em> principle is central to the determination of the matter. The late Bellinah Mhlanga was married in terms of the Civil Marriages under [<em>Chapter 5:11</em>]. General Law would then be the applicable law. The late Bellinah Mhlanga did not leave a will as such her estate falls under intestate succession. It is important to mention that the constitution is the supreme law of the country. The Constitution of Zimbabwe Amendment (No 20) Act 2013 hereafter referred to as the Constitution clearly outlines the supremacy. In s 2 it states;</p> <ol> <li>This constitution is the supreme law of the Zimbabwe, and any law, practice, custom, or conduct inconsistent with it is invalid to the extent of the inconsistency.</li> <li>The obligations imposed by this Constitution are binding on every person, natural or juristic, including the state and all executive legislative and judicial institutions and agencies of government on every level and must be fulfilled by them.”</li> </ol> <p>It follows therefore that the administration of estate should be in line with the constitution to the extent that an entitled beneficiary ought to be recognised and not discriminated against. There is need to emphasise on equality before the law especially where the entitlement is anchored on law.</p> <p>            Common law is still applicable and the statutory provisions which have been made do not oust common law but complement each other. A close look at the Deceased Estate’s Succession Act [<em>Chapter 6:02</em>] reveals how estates in situations where a deceased who dies intestate and leaves no spouse are disposed. In circumstances were such a deceased with no surviving spouse has children, descendant parents sister and brother then resort has to be made to common law. In this case the late Bellinah Mhlanga was married in terms of the Marriages Act [<em>Chapter 5:11</em>] giving automatic application of general law to the estate. She did not live a spouse but it is common cause she is survived by children and descendants and hence common law in conjunction with general law has to be resorted to in the administration of her intestate estate.</p> <p>            In discussing the position of common law in Zimbabwe it was held in the case of <em>Nzara and others</em> v <em>Kashumba NO and Others</em> HH 151-16 that by virtue of s 192 of the new constitution Roman Dutch law is also the common law of Zimbabwe.</p> <p>            The law applicable provides for the <em>per stirpes</em> principle under general law intestate succession based on common law, and also testate succession. The <em>per stirpes</em> principle is clearly set out under the general law and customary law. It is important to understand what the principle entails under customary law. The principle is well captured in the Administration of Estates Act [<em>Chapter 6:01</em>] part 111A. The part clearly spells out inheritance pattern in estates governed by customary law. Children and descendants inherit shares <em>per stirpes</em> as well defined and recognised in the event of the passing on of the benefactor. See section 68 F</p> <p>            “68F(2) (b) (ii) where the deceased person was a man and is survived by two or more wives and had one or more children, the remainder of his net estate devolves upon his child or children in equal shares as the case may be and any of their descendants <em>per stirpes</em>.</p> <p>            (2) (e) (ii) where the deceased person was a woman whose husband at the time of her death had more than one wife and she is survived by her husband and had one or more children, the    remainder of her net estate should devolve upon her child or children in equal shares as the case maybe and any of their descendants <em>per stirpes</em>.</p> <p>            (2) (h) (ii)Where the deceased person is not survived by a spouse and had one or more     children, the net estate should devolve upon that child or those children as the case may be, and any of their descendants <em>per stirpes</em>.”</p> <p>            The same principle is applicable in other none customary law estates, be it testate or intestate. The common law of Zimbabwe gives the meaning of the principle. The general meaning of the <em>per stripes</em> principle is not distorted by the estate falling under the customary or general law regime. What is pivotal is the meaning of the “<em>per stirpes</em>” principle. According to the <em>Advanced Oxford learners dictionary</em> it means the acquisition of inheritance by a deceased person’s descendants in equal share.</p> <p>            In the case of <em>Rotmanskey and Another</em> v <em>Heiss</em> 89 Md 633 MD, the court of appeal 1898 at p 634 described the terms stirpes and per stirpes as follows:</p> <p>             “stirpes is root of inheritance, it designates the ancestor from whom the heir derives title and       it necessarily presupposes the death of the ancestor. When issue are said to take per stripes, it   is meant that the descendants of a deceased person take the property to which he was entitled,        or would have been entitled if living.”</p> <p> </p> <p>            <em>Per stirpes</em> principle encupsules inheritance by representation by the deceased person’s descendants. It is crucial for one to look at what descendants means so as to fully appreciate the inheritance by representation principle of per stirpes.</p> <p>            In their book DeWaal and Schoem in <em>Malon in the</em> <em>Law of Succession</em> reprinted edition of 2013 (Juta and Company Limited) on p 16 state that a person’s blood relations can be divided into three categories- a person’s descendants are those who descend directly from him for example, his children, grandchildren and great grandchildren”</p> <p>            In<em> Dera</em> v <em>Chimari</em> HH 177-13 in dealing with the principle of vesting the court made it clear heirs are determined once and for all at death. It follows therefore, that in inheritance <em>per stirpes</em> the right of representation is determined by what was prevailing at the date of death of the deceased. The principle of vesting is relevant in so far as it determines who predeceased the deceased and whether they left any descendants who can inherit by representation. Once descendants are determined and qualified then if the deceased who died intestate is not survived by a spouse but only descendants, children and grandchildren then division of the estate among the descendants takes place <em>per stirpes</em> and representation is permissible. By predeceasing her mother Tapuwa Caroline Mhlanga did not alienate the descendants rights of her children who qualify as beneficiaries and or descendants to their grandmother Bellinah Mhlanga’s estate.</p> <p>            Administratively, the current prevailing situation in Zimbabwe is that the Master’s office requires the executor to fill form M.H.C 12 before the Master authorises distribution of an Estate. It is crucial in determination of this matter for the form to fall under scrutiny in so far as its import and purpose is concerned. It is evident the following details are required in completion of the form</p> <ol> <li>Relatives are to be accounted for</li> <li>Names of relatives and degree or nature of relationship.</li> <li>Address of each surviving relative and date of death of each deceased relative.</li> <li>Surviving spouse-date and place of marriage.</li> <li>Children of the deceased and dates of birth giving names of those who may be dead, dates of their deaths and names of their children. If the predecessor’s children had no issue, this fact must be stated</li> <li>Father and mother of the deceased (need not be answered if the deceased left children)</li> <li>Brothers and sisters of the deceased stating whether full or half blood and their address and date of birth in case of half brothers and half sisters name of step parent should be stated only those brothers and sisters whether of full or half blood who survived the deceased are to be given in this answer. (Need not be answered if both parents survived the deceased or if the deceased left children.</li> <li>Names of brother or sister, stating whether full or half blood who may be dead giving their dates of death and names, addresses and dated of birth of their children. If predeceased  brothers and sisters had no issue, this fact must be stated. (need not be answered if both parents survived the deceased or if the deceased left children.) [underlining my emphasis]</li> </ol> <p> </p> <p>As a way of illustration it would be illogical to ask for the name of a child who predeceased the deceased parent and further ask if there are issues and their names and details if the grandchildren are not eligible to inherit by virtue of their parent having predeceased the grandparent.</p> <p>In fact the questions and answers to form MHC 12 which are in line with the common law as imported from the Cape of Good Hope confirm the applicability of the <em>per stirpes</em> principle in intestate inheritance. The late Bellinah Mhlanga was predeceased by one of her children who were a descendant and child entitled to inherit from the mother’s estate as there was no spouse to talk of since the father and or spouse of Bellinah Mhlanga predeceased the latter. The fact that Tapiwa Caroline Mhlanga predeceased her mother does not disqualify her children the grand children of Bellinah Mhlanga, who are rightfully descendants to inherit <em>per stirpes</em> principle.</p> <p>My view is fortified by the general definition of <em>per stirpes</em> and descendants. To further buttress my view is the interesting definition and illustration given by Jamneck (ed) Rautenbach (ed) Paleker (et al) in <em>The Law of Succession in South Africa </em>(second edition, Oxford pres, Southern Africa 2012) on p 13, they define <em>stirpes</em> as a line of descendants of common ancestry. A <em>stirpes</em> (plural: number of <em>stirpes</em> includes every descendant of the deceased who survives the deceased or a predeceased descendant of the deceased who leaves living descendants [underlining my emphasis]. In other words, a <em>stirpes</em> is a surviving child of the deceased and the descendants of a predeceased child. It follows therefore in this case that the fact that Tapuwa Caroline Mhlanga predeceased her mother does not take away the rights of her surviving children the grandchildren, of the late Bellinah Mhlanga, to inherit under the <em>per stirpes</em> principle. I must hasten to say it would be an absurd situation to have grandchildren who naturally would have been benefiting from their grandmother after the death of their natural mother stripped off the right to descendantship and inheritance from their ancestor because their mother died earlier than the grandmother. What is peculiar in this case is also the fact that the interests of minor children are at stake. The court has a duty to protect the best interests of minor children. Moreso in circumstances were the rights and interests, are clearly sanctioned by the law. Section 81 of the Constitution of Zimbabwe is instructive.</p> <p>The definition of <em>per stirpes</em> certainly includes surviving children and descendants of predeceased children. It is succession by representation which in simple terms entails inheritance on the basis of blood relationship with a predeceased heir of the deceased, whose place the descendant fills. What occurs in per stirpes principle is that a descendant of the predeceased heir moves up into the place of the predeceased heir. The grandchildren are entitled to inherit by representation as they move into their parent’s place. In the case of <em>Herold </em>v <em>Vissen and Ors </em>1937 LPD 67 at 74 the court affirmed the principle set out in <em>Human </em>v <em>Human Executors</em> 1893 SC 172 wherein it was stated that only grandchildren from children who predeceased the testator must be included on the grandchildren to benefit under the estate. It was further made clear that grandchildren whose parent predeceased the grandparent were entitled to inherit and succeed by representation (success by representation) which is an acknowledgement of the <em>per stirpes</em> principle. Although the Human and Herold cases supra referred to testate succession the principle of <em>per stirpes</em> inheritance is equally applicable in an intestate estate. In the present case Bellinah Mhlanga did not leave a will. It is common cause that there is no surviving spouse, further it is not in dispute she is survived by children and grandchildren. From the foregoing discussion it has been established that the <em>per stirpes</em> principle is part of the common law of Zimbabwe and is applicable under general law. It is also applicable under customary law with equal force. There is no legal bar to the application of the <em>per stirpes</em> principle in the current estate of Bellinah Mhlanga. It is evident that the definition of the <em>per stirpes</em> principle qualifies the child or descendant of a predeceased child to inherit.</p> <p>            According to the <em>per stirpes</em> principle the grandchild whose parent predeceased the deceased has a right to inherit by representation. He or she inherits what their deceased parent would have inherited had they been alive. In this case the grandchildren of the late Bellinah Mhlanga have a right to step into their deceased mother’s place and inherit from their grandmother under the <em>per stirpes</em> principle. The death of their mother does not take away their blood line and descendant rights to inherit. As clearly discussed <em>per stirpes</em> principle is not anchored by predeceasing the deceased but rather blood relationship of children and descendants. Even if there is no Will and last Testament the right to inherit by representation is based on the blood relationship line.</p> <p>            In the circumstances I make a finding that Tapuwa Caroline Mhlanga’s children are legally entitled to inherit <em>per stirpes</em> from the Estate of late Bellinah Mhlanga their grandmother. </p> <p>            Accordingly it is ordered that:-</p> <ol> <li>The <em>per stirpes</em> principle is applicable in all estates regardless of being governed by customary law or general law and or common law.</li> <li>Tapuwa Caroline Mhlanga’s children are legally entitled to inherit <em>per stirpes</em> from the estate of late Bellinah Mhlanga their grandmother.</li> </ol> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2017/816/2017-zwhhc-816.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=28754">2017-zwhhc-816.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2017/816/2017-zwhhc-816.pdf" type="application/pdf; length=140436">2017-zwhhc-816.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/administration-estates">ADMINISTRATION OF ESTATES</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/claim-against-deceased-estate">Claim against deceased estate</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/deceased-estate">Deceased estate</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/intestate-succession">Intestate succession</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/master-high-court">Master of the High Court</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1929/12">Administration of Estates Act [Chapter 6:01]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1964/81">Marriage Act [Chapter 5:11]</a></div><div class="field-item even"><a href="/zw/legislation/act/1873/2">Deceased Estates Succession Act [Chapter 6:02]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Mon, 21 May 2018 07:58:11 +0000 admin 8836 at https://old.zimlii.org Hamandishe v Frederick Manyangarirwa N. O. & 3 Others (HH115-18, HC 2802/16) [2018] ZWHHC 115 (08 March 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/115 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>RUMBIDZAI HAMANDISHE</p> <p>versus</p> <p>FREDERICK MANYANGARIRWA N. O.</p> <p>and</p> <p>MR. KUNAKA</p> <p>and</p> <p>MRS KUNAKA</p> <p>and</p> <p>MASTER OF THE HIGH COURT</p> <p>and</p> <p>REGISTRAR OF DEEDS</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHITAKUNYE J</p> <p>HARARE, 6 June 2017 and 8 March 2018</p> <p><strong>Opposed application</strong></p> <p><em>F. Siyakurima,</em> for applicant</p> <p><em>T. Ngova,</em> for 1st respondent</p> <p><em>J. Mutonono,</em> for 2nd and 3rd respondents</p> <p>CHITAKUNYE J: This is a court application in which the applicant sought an order that:</p> <ol> <li>The sale of a certain piece of land situate in the district of Salisbury called Stand 5603 Budiriro Township of stand 3068 Budiriro Township (herein after referred to as the property) from Estate late Maruta Jawona to 2nd and 3rd Respondents be set aside.</li> <li>Applicant be and is hereby given 60 days to pay to 1st Respondent payment in the sum of US40 000.00 for stand 5603 Budiriro Township of stand 3068 Budiriro Township referred to in paragraph 1 above failing which the property shall be sold on the open market for its open market value.</li> <li> </li> </ol> <p>The basic facts leading to this application were that:</p> <p>The applicant is one of two surviving spouses of the late Maruta Jawona who died intestate at Harare on 17 February 2013.</p> <p>The first respondent was appointed Executor Dative of the estate late Maruta Jawona on 13 October 2013.</p> <p>The late Maruta Jawona owned a number of properties. The applicant lodged a claim for a 50% share in one of such properties namely Stand 5603 Budiriro Township of Stand 3068 Budiriro Township (hereinafter referred to as the property) with the first respondent. The first respondent accepted applicant’s claim as lodged in terms of s 47 of the Administration of Estates Act [<em>Chapter 6:01</em>].</p> <p>During the administration of the estate it was agreed that the property be sold in order to raise funds to meet some of the estate’s liabilities. The first respondent duly obtained the Master’s consent to sell the property.</p> <p>            The applicant offered to buy out the estate’s other 50% share in the property and the offer was duly accepted. In terms of a valuation report dated 13 October 2013, the property was valued at $160 000.00. The applicant was therefore required to pay half that value being a sum of $80 000.00.</p> <p>An agreement of sale was duly executed between the first respondent as executor dative and the applicant on 18 February 2014. In terms of the agreement of sale the applicant was required to raise a bank guarantee for payment of the purchase price within 30 days of the date of signature of the agreement.  She, however, failed to do so despite an extension of time within which to raise the purchase price. She was also given the option to pay in monthly instalments but she still failed to raise the instalments. The applicant was thus in breach of the agreement by failing to pay the purchase price. As a consequence on 11 July 2014, the first respondent sent a letter to the applicant requiring her to rectify the breach within seven days in terms of clause 6 of the agreement of sale failing which the property would be sold to the general public.</p> <p>When the applicant failed to rectify the breach, on 15 September 2014 the first respondent, through his legal practitioners, advised the applicant’s legal practitioners that due to applicant’s breach the agreement of sale was terminated and that the property would be sold to the general public.</p> <p>After the termination of the agreement of sale to the applicant, the property was subsequently sold to the second and third respondents on about the 10th June 2015 for the sum of $80 000.00.</p> <p>The sale was apparently done without the involvement of the applicant though she was aware that upon her failure to pay the purchase price the property would be offered for sale to the general public.</p> <p>When the applicant learnt that the property had been sold she, through her legal practitioners, requested for her 50% share with no success. She was not favoured with any response in that regard; she was not even told the price at which the property had been sold at. It was in this scenario that when she eventually got to know that the property had been sold for $80 000.00 she was livid as, to her knowledge, the property had been valued at $160 000.00 on 25 October 2013 when it was initially offered to her and she could not understand how a property valued at such a value could be sold for $80 000.00 in June 2015.</p> <p>The applicant thus regarded the price at which the property was sold at as grossly unfair and unjust to the estate and to herself as a holder of a 50% claim in the property.</p> <p>It is as a result of the dissatisfaction with the selling price that applicant launched this application. She deemed that the sale was fraudulent and so it must be set aside.</p> <p>In this regard the reasons she outlined for seeking the setting aside of the sale included that:-</p> <p>“a.        The immovable property was sold for half the amount it had been offered to her;</p> <p>b.         she was not given an opportunity to excise her right of first refusal at the reduced price of US$ 80 000.00. In essence she was only obliged to raise US$40 000.00 because her claim for the other 50% share had already been accepted by 1st respondent.</p> <p>c.         1st respondent must have extended the right of 1st refusal to her on the reduced amount of US$ 40 000.00 and he did not do so.</p> <p>d.         1st respondent without just cause acted unlawfully to her prejudice by completely disregarding her pre-emptive right and sold the immovable property in question to 2nd and 3rd respondents for an unreasonably low price.”</p> <p>She thus concluded that the first respondent abdicated his fiduciary duty towards the estate and herself in breach of his duties and responsibilities as executor.  Consequently the sale must be set aside.</p> <p>The first respondent on the other hand contended that the sale to the second and third respondents was done above board and not fraudulent. He contended that when the property was initially offered to the applicant in February 2014 it had been valued at US$ 160 000.00 as per valuation report dated 25 October 2013 tendered. However when the property was sold to the second and third respondents its value had gone down due to dilapidation. The first respondent  further contended that the applicant had retained occupation of the property and had run down the property such that when a second valuation was done on 26 March 2015 it was valued at  US$ 75 000.00 as the open market price with a forced sale price of  US$50 000.00. He also attached the valuation report.</p> <p>The first respondent maintained that the market forces coupled with the dilapidated state of the building led to a lower value being realised. He thus contended that in the face of the second valuation, the price of US$ 80 000.00 was a fair market price for the property at the time it was sold to the second and third respondents.</p> <p>He also alluded to the fact that the property has in fact already been transferred to the second and third respondents.</p> <p>Regarding the issue of right of first refusal the first respondent contended that he never granted applicant any right of first refusal.</p> <p>The second and third respondents on their part denied any wrong doing. They denied being part to any fraudulent activity <em>vis- a- vis</em> the sale of the property in question.</p> <p>The second respondent contended that they are innocent purchasers who bought the property for its fair value at the time of purchase. He alluded to the fact that he has since taken transfer.</p> <p>            As regards the manner of purchase the second respondent stated that the property was advertised in a local newspaper as a result of which he responded and bought the property. There was therefore no collusion between the purchasers and the first respondent to defraud or prejudice the applicant as the purchasers were not even aware of the alleged prior agreement of sale between the first respondent and the applicant.</p> <p>He maintained that in the circumstances the balance of convenience favoured that the purchasers retain the property and if applicant has any financial claim she can always lay that against the estate.</p> <p>The fourth respondent‘s response to the application was to the effect that the applicant was given the first option to buy the property and upon her failure to do so the property was sold to the second and third respondents and there was nothing amiss in that.</p> <p>From the papers filed of record and submissions made the main issues may be stated as follows:</p> <p> 1.        Whether the applicant had a right of first refusal</p> <p>2.         Whether the first respondent’s sale of the property to second and third respondent was fraudulent and</p> <p>3.         Whether the sale to second and third respondents should be cancelled.</p> <p>The issues will be dealt with in seriatim.</p> <p>1.         Whether the applicant had a right of first refusal.</p> <p> The applicant averred that she had a right of first refusal.  The applicant’s argument is premised on the failure by the first respondent to offer her another opportunity to buy the property at the reduced price of US$80 00.00.</p> <p>That right is apparently derived from the fact that the first respondent had accepted her claim of a 50% share in the property in question and had also accepted her offer to buy the estate’s other half share in the property. It is that option given to her when she made her offer that she apparently viewed as a right of first refusal. She thus opined that when the price was reduced she ought to have been given another opportunity to buy the property at the reduced price of $ 80 000.00 as this would have required her to raise only $40 000.00.</p> <p>It is pertinent to appreciate a right of pre-emption or first refusal and how it arises.</p> <p>In <em>Business Law in Zimbabwe</em> 2nd Ed, Juta &amp; Co. by R H Christie at p 146 the learned author stated that:-           </p> <p>“A right of pre-emption or first refusal differs from an option by giving the holder the right to buy in priority to other prospective buyers if and when the seller decides to sell.”  </p> <p> </p> <p>In <em>Central African Processed Exports (Pvt) Ltd &amp; Ors</em> v <em>Macdonald &amp; Ors</em> 2002 (1) ZLR 399 (S) at 403 C – H, Malaba JA (as he then was) quoted with approval Nicholas JA in <em>Soteriou</em> v <em>Retco Poyntons (Pty) Ltd</em> 1985 (2) SA 922 (A) at 932 B – G, where the learned judge stated that:</p> <p>“A right of first refusal is well known in our law.  In the context of sale, it is usually called a right of pre-emption.  The grantor of such a right cannot be compelled to sell the property concerned.  But if he does sell, he is obliged to give the grantee the preference of purchasing and consequently he is prevented from selling to a third person without giving the first refusal------. So, a right of pre-emption involves a negative contract not to sell the property to a third party without giving the grantee the first refusal; and the grantee has the correlative legal right against the grantor that he should not sell.  This is a right which is enforceable by appropriate remedies ------. “</p> <p>See also <em>Nerger Properties (Pvt) Ltd</em> v <em>R. Chitrin &amp; Ors (Pvt) Ltd</em> 2006 (2) ZLR 287 (S).</p> <p>In Eastview<em> Gardens Residents Association</em> v <em>Zimbabwe Reinsurance Corporation (Ltd)</em> <em>&amp; Ors </em>2002 (2) ZLR 543 (S) at 548 G – H, Malaba JA (as he then was) explained a right of first refusal in these terms:</p> <p>“A right of first refusal or pre-emption is created when, in an agreement, one party(the grantor) undertakes that when he decides to sell his property he will give the other party(the grantee) the opportunity of refusing or buying of the property at a price equal to that offered by another person. The grantor is then said to be under an obligation to do, at the time he sells the property, what he voluntarily bound himself to do, that is, offer the property to the grantee first at a price equal to that offered by a third party or which he is prepared to accept from any other would be buyer. The grantee is said to have acquired the correlative right to have the property offered to him first so that he can match the price offered by the third party or refuse the offer.”</p> <p>After citing a number of case authorities on the subject the learned Judge proceeded to state at p 549B-C that:-</p> <p>“It is clear from all these decided cases that a right of pre-emption can only be created by contract or agreement between the grantor and the grantee. Where breach of the right is alleged as a cause of action and its existence is denied, the onus is on the plaintiff to show that there was an agreement between the parties in terms of which the defendant undertook to offer to him the property at a price equal to that offered by another.”</p> <p>            It is axiomatic that for a right of first refusal to exist there must be a contract or agreement between the grantor and the grantee.  In <em>casu</em>, it is common cause that the agreement of sale between the applicant and the first respondent did not contain any right of first refusal. In any case that agreement was duly terminated and had no residue right of first refusal. As at the time the property was sold to the second and third respondents there was no subsisting contract or agreement between applicant and the first respondent, let alone one from which a right of first refusal could be deduced.</p> <p>It may in fact be noted that in most of her founding affidavit the applicant did not allude to any agreement on a right of first refusal. For instance, in the founding affidavit after narrating how her claim for a 50% share was accepted and the fact that she had then offered to buy the property which agreement of sale fell through as she could not raise the purchase price, the applicant proceeded to explain her misgivings about how that property had been sold to the second and third respondents at half the price the property had been offered to her. It is apparent from the affidavit that her claim for a right of first refusal is based on her assertion that when first respondent decided to sell at a lower price he ought to have made her that offer first. This claim is not based on an agreement of first refusal. Nowhere in paragraphs 1 to 19 of her founding affidavit did applicant allude to any agreement she entered into with the first respondent granting her a right of first refusal.</p> <p>It is only in paragraph 20 that the mention of a right of first refusal is made for the first time wherein she states, <em>inter alia</em>, that:</p> <p>“I was not given an opportunity to exercise my right of first refusal at the reduced price of US$ 80 000.00. In essence I was only obliged to raise US$ 40 000.00 because my claim for the other fifty percent share had already been accepted by 1st respondent.</p> <p>The first respondent must have extended the right of first refusal to me on the reduced amount of US$ 40 000.00. He did not do so.</p> <p>The first respondent, without just cause acted unlawfully to my prejudice by completely disregarding my pre-emptive right and sold the immovable property in question to the second and third respondents for an unreasonably low price.”</p> <p>The applicant did not state how that right of first refusal referred to in paragraph 20 arose.</p> <p>In her answering affidavit the applicant did not refute the first respondent’s contention that there was in fact no agreement granting her a right of first refusal. The agreement of sale which she had entered into did not offer her a right of first refusal should the property be offered to anyone else at a lower price. It is clear from the answering affidavit that her grievance from which she believed that she ought to have been given a right of first refusal pertained to the price at which the property was sold. It had nothing to do with a standing contract or agreement between the parties granting her such right. The only agreement that the parties had entered into had been lawfully terminated and, as already alluded to above; it had no clause on right of first refusal.</p> <p> The plaintiff also sought to argue that the right of pre-emption or first refusal arose from having been allowed to buy the estates’ other 50% share in the property in question. I am of the firm view that the acceptance of a creditors’ claim under the Administration of Estates Act [<em>Chapter 6:01</em>] does not translate to a grant of a right of first refusal.</p> <p>In <em>casu,</em> the acceptance of applicant’s claim to a 50% claim to the property and the acceptance of her offer to buy the other 50% share did not create a right of first refusal. The applicant had in fact been informed that as she had failed to buy the property the property would be offered to the general public.</p> <p>The applicant’s Counsel whilst raising questions of lack of probity on the part of the first respondent was still not able to point at any agreement wherein applicant was granted a right of first refusal. He in fact conceded that there was no such written or even unwritten agreement of first refusal. Counsel, however, argued that such agreement is implied from the fact that applicant as one of the surviving spouses had her 50% claim accepted by the first respondent, so she ought to have been given the opportunity to buy the property at the reduced price. Her initial failure to purchase the property was due to its price hence when its price was now reduced to half its original price applicant should have been offered the property. That, in my view, would still not be an agreement on a right of first refusal. Applicant had simply been given an opportunity to buy the property as she had offered to do so at the price that had been set by the first valuation.</p> <p>Further, the question of lack of probity raised over the first respondent’s conduct was disputed. The first respondent clearly contended that there was never any agreement granting applicant a right of first refusal. In any case when the agreement to sale the property to applicant was cancelled the applicant was advised that the property would now be offered to the general public and so the applicant was all along aware that the property was being offered for sale to third parties.</p> <p>I am of the firm view that the applicant lamentably failed to establish that there was any agreement granting her a right of first refusal.</p> <p>2.         Whether or not the first respondent fraudulently sold the property to the second and third respondents</p> <p>The applicant’s allegations in this regard were to the effect that the whole transaction whereby the first respondent sold the property at half its original value, without giving her the right of first refusal and without informing her of the reduced value, smacked of dishonesty of the highest order and was outright fraudulent. She also alleged that the second valuation report was not properly done and that the first respondent was not a qualified estate agent for him to have sold the property. The tone of the applicant’s stance showed clearly her displeasure at the manner in which the first respondent handled the sale to the second and third respondents. It was from that displeasure that she opined that the transaction was fraudulent.</p> <p>For instance, in paragraph 17 of her answering affidavit, applicant made this clear when she stated that:-</p> <p>“2nd and 3rd Respondents are not putting this honourable Court into their confidence. They did not state who actually advertised this property and where did they find the advert. It is not in dispute that the property was being sold and that the 4th respondent’s consent had been obtained. What is fraudulent is the manner and the price at which the property was sold to 2nd and 3rd Respondents. It was sold for a song, which is prejudicial to the estate and to myself. The property cannot have deteriorated from its value of US$ 160 000.00 to US$ 80 000.00 within such a short period of time.”</p> <p>The ‘short space of time’ referred to is the period of October 2013 when the 1st valuation was done and March 2015 when the second valuation was done; a period of at least 16 months.</p> <p>It is however pertinent to note that applicant did not clearly outline the role, if any, played by the second and third respondents other than that they bought the property at a low price.</p> <p> The first respondent on his part denied acting in any fraudulent manner. Regarding what led to the second valuation and reduction in value he stated in paragraph 11.3 of his opposing affidavit that:</p> <p>“The reasons for the reduction in purchase price were that during the material time relevant hereto, and whilst Applicant was in occupation of the building, the same was run down by her by failing to maintain it from the time of the initial valuation in the following manner:</p> <p>11.3.1 The ceiling had fallen down in some parts of the shop.</p> <p>11.3.2. The toilets were no longer functional in that waste pipes had broken down.</p> <p>11.3.3 The entrance doors are now broken and safety locks removed and or burglarized.</p> <p>11.3.4 The gate leading to the backyard was also broken.</p> <p>11.3.5. Shop counters, shop trolleys and baskets were also broken.</p> <p>11.3.6. In the Butchery, the Coldroom was no longer functional together with the Scale and other weighing appliances.”</p> <p>These were some of the aspects that he said necessitated a second valuation as prospective buyers were complaining about the price he was asking for. The second valuation valued the property at US$ 75 000.00 as market price and US$50 000.00 as forced sale price.</p> <p>Though the applicant in her answer to the above denied that she had run down the property, it was not disputed that she had remained in occupation and use of the property during the period in question. In the circumstances, whatever depreciation in value to the property would be blamed on her.</p> <p>What emerged from the above is a dispute of fact on the state of the property at the time of the sale. Though applicant seemed to challenge the second valuation as not having been certified and so should not be considered, I did not hear her to deny that the evaluator, Stephen Taurayi, is a registered evaluator with the Estates Council of Zimbabwe and that he is on the Master’s list of valuators. In fact applicant did not expressly allege any collusion between applicant and the evaluator. No specific allegations of malpractice were made against the evaluator serve for the lack of certification alleged.</p> <p>It is my view that if applicant intended to seriously challenge the value of the property as at the time of the sale to the second and third respondents she could easily have sought her own evaluator to value the property as the onus was on her to show that the property had not lost value to that extent. This she did not do.</p> <p>As regards allegations of fraudulent intent against the second and third respondents, the second respondent categorically denied any collusion or fraudulent intent when in paragraph 8 of his opposing affidavit he stated that:</p> <p>“I specifically deny that I fraudulently purchased the property in question. The property was advertised in a local daily newspaper and I responded to same. I also made sure that the requisite consent from 4th respondent was availed. Apart from paying the purchase price, I paid all statutory obligations in this matter. I did not at any time collude with the 1st respondent or with anyone for that matter in this transaction. Applicant should thus not make insinuations of fraud against me.”</p> <p>            The onus was on the applicant to prove that the respondents were guilty of fraudulent intent, in that they were aware of her claim at the time of purchase of the property and intended to defeat her rights therein. See <em>Violet Tewe </em>v<em> Anderson Hanoki and Ors</em> SC 55/03, <em>Muzanenhamo &amp;</em> <em>Anor </em>v<em> Katanga &amp; Ors</em> 1991(1) ZLR 182 and <em>Chenga </em>v <em>Chikadaya &amp; Ors</em> SC 7/13.</p> <p>In this case, the applicant did not establish that the second and third respondents were aware of her interests in the property and that despite such awareness colluded with the first respondent to act fraudulently to her detriment.</p> <p> It was common cause that the second and third respondents were not privy to the earlier agreement of sale between applicant and the first respondent. They were also not aware that applicant had lodged a claim that had been accepted. In a nutshell, the second and third respondents were not privy to the goings on between applicant and the first respondent. It is in this light that they contended that they were innocent purchases who bought the property for its fair value. They, in fact, bought it at a price slightly above what had been given as its open market price. It was thus upon the applicant to show that they were not innocent purchasers but that they had colluded with first respondent to prejudice her. This she could not do from the affidavits filed of record.</p> <p>The mere allegation that the property was sold for an unreasonably low price was not adequate on its own to prove collusion or fraudulent intent.  The applicant did not provide evidence of what could have been a reasonable price at the time of the sale to the respondents. This is an aspect that required her to place before court evidence of what would have been a reasonable price at the time of the sale to the second and third respondents and not just at the time she offered to buy the property which was a time lapse of over 16 months.</p> <p>It was upon the applicant to rebut the contention that the property had in fact dilapidated. This, in my view, could only be done by placing credible evidence before court of a contrary value as at the time the property was sold. As the applicant was content with her founding affidavit and answering affidavit, these were insufficient for purposes of proving her case in view of the contentious factual issues.</p> <p>I thus conclude that the second and third respondents were innocent purchasers for value of the property in question.</p> <p>In the circumstances I am of the view that applicant has failed to prove fraudulent intent on the part of the respondents.</p> <ol> <li>Whether the sale to the second and third respondents should be cancelled.</li> </ol> <p>In the light of my findings regarding issues (1) and (2) above, it corollary follows that there is no valid basis for the cancellation of the sale of the property to the second and third respondents. The applicant lamentably failed to prove that she had a right of pre-emption or first refusal. She also failed to prove that the respondents had fraudulently connived to defeat her rights in the property.</p> <p>Accordingly, the second and third respondents being innocent purchasers should retain the property. If the applicant has any complaint pertaining to her claim that was accepted by the firs respondent, she should look to the estates late Maruta Jawona for the realisation of her claim as the first respondent administers the estate.</p> <p>Costs</p> <p>The applicant asked for costs <em>de bonis propiis</em> against the first respondent in the event of the application succeeding whilst the first respondent asked for costs on the higher scale in the event that the application is dismissed. The second and third respondents asked for costs on the general scale. Upon considering the arguments on costs and taking into account the nature of the dispute I am of the view that though applicant has not been successful, the justice of the case would better be served by an order that each party should bear their own costs,</p> <p>            Accordingly, the application is hereby dismissed with each party to bear their own costs.</p> <p><em>Sawyer and Mkushi</em>, applicant’s legal practitioners</p> <p><em>M S Musemburi Legal Practice</em>, 1st respondent’s legal practitioners</p> <p><em>Chadyiwa &amp; Associates</em>, 2nd and 3rd respondents’ legal practitioners</p> <p> </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/115/2018-zwhhc-115.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=36617">2018-zwhhc-115.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/115/2018-zwhhc-115.pdf" type="application/pdf; length=169259">2018-zwhhc-115.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/administration-estates">ADMINISTRATION OF ESTATES</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/claim-against-deceased-estate">Claim against deceased estate</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/contract">CONTRACT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/breach">Breach</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/cancellation">Cancellation</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/breach-one-party-obligations">breach by one party of obligations</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/breach-contract">breach of contract</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/right-first-refusal-or-pre-emption-see-sale-option">Right of first refusal or pre-emption See SALE (Option)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/sale">SALE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/option-sale">Option (SALE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/right-first-refusal-pre-emption-sale">right of first refusal (pre-emption) (SALE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/succession">Succession</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/spouse-succession">Spouse (SUCCESSION)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2013/7">Chenga v Chikadaya &amp; Others (232/10) [2013] ZWSC 7 (24 February 2013);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1929/12">Administration of Estates Act [Chapter 6:01]</a></div></div></div> Tue, 15 May 2018 14:05:52 +0000 admin 8796 at https://old.zimlii.org