Deceased estate https://old.zimlii.org/taxonomy/term/9391/all en Chiangwa v Katerere And 5 Others (SC 61-21, Civil Appeal No. SC 433/19) [2021] ZWSC 61 (24 May 2021); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2021/61 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>Judgment No. SC 61/21</p> <p>Civil Appeal No. SC 433/19</p> <p><strong>DISTRIBUTABLE</strong><strong>  (58)</strong></p> <p> </p> <p><strong>COSMA     CHIANGWA</strong></p> <p><strong>v</strong></p> <ol> <li><strong>    DAVID     KATERERE     (2)     ROBERT     ADRIAN     CAMPBELL     LOGAN     (3)     ISRAEL     GUMUNYU</strong></li> </ol> <p><strong>(4)     REGISTRAR     OF     DEEDS     (5)     EDMOND     CHIVHINGE     (6)     MASTER     OF     THE     HIGH     COURT</strong></p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABAWE                                                               </strong></p> <p><strong>BHUNU JA, MATHONSI JA &amp; CHITAKUNYE AJA</strong></p> <p><strong>HARARE: 15 OCTOBER 2020 &amp; 24 MAY 2021.</strong></p> <p> </p> <p> </p> <p><em>F. Girach,</em> for the appellant</p> <p><em>A. Saunyama</em> with <em>M.</em> <em>Chipetiwa,</em> for the first respondent</p> <p>No appearance, for the second to sixth respondents</p> <p> </p> <p><strong>       CHITAKUNYE AJA</strong>:   This is an appeal against the whole judgment of the High Court (“the court <em>a quo</em>”) handed down on  15 June 2011 wherein the court <em>a quo</em> granted an application for a declaratur that the sale and transfer of Stand 382 Good Hope Township to the appellant was null and void.</p> <p> </p> <p> </p> <p><strong>FACTUAL BACKGROUND </strong></p> <p>       The matter before the court <em>a quo</em> was a court application for a declaration of the sale and registration of Stand 382 Good Hope Township of Subdivision B of Good Hope into the appellant’s name as being null and void.</p> <p> </p> <p>       In November 1999 the first respondent entered into an agreement of sale in terms of which he purchased an immovable property, namely Stand 382 Good Hope Township of subdivision B of Good Hope, from the estate of the late Johanna Maria Francisca Logan as represented by the executrix testamentary of the estate. The immovable property was transferred to the first respondent on 2 April 2007 by virtue of deed of transfer number 1597/2007.</p> <p> </p> <p>                   On 1 October 2006, one Tsungirai Musenha and the appellant, represented by third respondent, filed an application in the Magistrates’ Court in Case No. 12060/06 citing Robert Adrian Campbell-Logan, estate late Maria Johana Campbell-Logan and the Registrar of Deeds as respondents. They alleged therein that the second respondent had sold to them and they had purchased Stands Numbers 412 and 382 Good Hope Township of Subdivision B of Good Hope. On 5 October 2006 a rule <em>nisi</em> was granted by the Magistrates’ Court, interdicting the 3 respondents and all those acting through them  from disposing or transferring to anyone Stand Numbers 412 and 382 respectively being subdivisions of the remainder of subdivision B of Good Hope held under Deed Number 6180/95 pending the return date. The return date was, however, not stated in the order.</p> <p> </p> <p>                   On 29 November 2006 the sixth respondent issued Letters of Administration appointing the third respondent as executor <em>dative</em> to administer the estate of the late Maria Johanna Francisca Campbell-Logan, for the sole purpose of effecting transfer of Stand Number 382 into the name of Cosma Chiangwa, (the appellant herein). On 4 July 2007 Stand 382 was transferred into the name of the appellant by deed of transfer 4079/2007.</p> <p> </p> <p>                   This prompted the application in the court <em>a quo</em> wherein the first respondent sought an order that the sale, registration and transfer of the property in question to the appellant be declared null and void, that the appointment of the third respondent as executor<em> dative</em> of the estate of the late Maria Johanna Francisca Campbell-Logan be declared null and void and that the first respondent be declared the sole owner of the property in question. The first respondent averred that the appointment of the third respondent as the executor <em>dative</em> of the estate during the lifetime of the executrix testamentary and during a period when the executrix testamentary was still holding office and was not incapacitated was not valid in law. He also averred that when the second respondent sold Stand 382 to the appellant, he had no title to pass and that the sale was done in the second respondent’s personal capacity and without authority. He further averred that when the second respondent sold the property to the appellant he knew that it had already been sold to the first respondent as he had co-signed the agreement of sale between the first respondent and the executrix testamentary.</p> <p> </p> <p>                   Further, it was also alleged by the first respondent that the fourth respondent registered the property into the name of the appellant without checking his register. Furthermore, that the fifth respondent, who was the conveyancer of the property did not perform due diligence before drafting and lodging conveyancing papers with the Deeds Registry. Had he exercised due diligence and care he would have discovered that the immovable property belonged to the first respondent as it had already been registered into his name more than two months earlier. The first respondent further indicated that the position that was stated by the executrix testamentary in the letter of 1 September 2007 was the correct position at law. The letter had raised, with the sixth respondent, the invalidity of the appointment of the executor <em>dative</em> as it was done when the executrix testamentary had not been removed from office by a competent court or judge. It was thus averred that the sixth respondent acted without authority when he appointed the third respondent as executor <em>dative</em> and consequently all acts done by the executor <em>dative</em> in relation to the transfer of the property were of no force or effect.</p> <p> </p> <p>                   On the other hand, the appellant contended that the application ought not to succeed for the reason that the first respondent was alleging fraud on the part of the persons who prepared and authored the documents which are being challenged and that such persons would need to be cross examined in trial proceedings. Secondly, he contended that there were disputes of fact which could not be resolved on the papers, such disputes being in relation to how two agreements of sale could have been concluded for the same property; how the Master authorized third respondent to deal with the property and how the first respondent (applicant then) sought to register his property with the fourth respondent. These issues, he contended, could not be adequately addressed in affidavits. Thirdly, he contended that the first respondent did not challenge or cause the suspension of the ‘compellation order authorizing transfer of the property in issue emanating from Case No 1206/06 granted by the Magistrates Court in default on 8 November 2006. He further contended that the court therein decided that the property belonged to him and until that order is suspended, the court <em>a quo</em> could not hear the first respondent’s case.</p> <p>                   The appellant also contended that the first respondent had no real rights over the property in question and that the Registrar of Deeds had confirmed by letter that the property belongs to him. He contended that the first respondent’s supposed title deed is not a valid title deed and does not confer any rights on him hence the first respondent could not challenge the registration of a property which he does not own. As such he averred that there was no double registration of the immovable property in issue.</p> <p> </p> <p>                   The appellant further contended that the first respondent’s purported agreement of sale dated November 1999 with the executrix testamentary was invalid because the executrix testamentary did not then have authority from the sixth respondent to sell the property, such authority only having been granted by the sixth respondent on 27 February 2006. He further averred that the first respondent had sued the wrong party as he should have sued the estate from which his rights emanate in terms of the agreement of sale. The appellant thus moved the court to dismiss the application with costs on the higher scale.</p> <p> </p> <p>                   After considering submissions from the parties and papers filed of record, the court <em>a quo</em> found that the appellant’s deed was unlawful and therefore null and void as his registration as owner was subsequent to that of the first respondent over the same property. It was held that this was sufficient justification for the court to declare the registration of the appellant as owner to be null and void as deeds follow the sequence of their relative causes. It also found that at the time ownership was purportedly passed to the appellant, the property no longer belonged to the estate but to the first respondent thus it had no rights to transfer to the appellant. Pertaining to the executor, the court <em>a quo</em> found that the appointment of the third respondent was irregular in that he was appointed as executor <em>dative</em> whilst the executrix testamentary was still alive, holding office, not incapacitated and still sane, thus rendering any acts carried out by him in the name of the estate as of no legal consequence.</p> <p> </p> <p>                   The court <em>a quo</em> further found that the property was sold to the appellant by the second respondent who was an heir to the estate at a time when such property had not yet vested in him. It was on this basis that the court <em>a quo</em> held the purported sale to be fraught with illegality and therefore a nullity. It thus concluded that both the agreement of sale and the deed of transfer in favour of the appellant were in the circumstances null and void. Pertaining to the interdict, the court <em>a quo</em> found that the interim interdict granted had no return date and that it could not have been the intention of the Magistrates Court for it to be operative indefinitely as it could end up having the effect of a final interdict. It further found that the first respondent was not a party to the proceedings in that matter in which the interim interdict was granted hence the order could not bind him. On this basis, it found that the purported transfer to the appellant was invalid.</p> <p> </p> <p>                   Aggrieved by the decision of the court <em>a quo</em>, the appellant noted the appeal to this Court on the following grounds;</p> <p> </p> <ol> <li>The Learned Judge <em>a quo</em> erred in failing to appreciate and make a finding that there was a material dispute of fact regarding the validity of the agreements of sale between appellant and first respondent and consequently the deeds of transfer, which disputes could not be resolved on the papers.</li> <li>The learned Judge <em>a quo</em> erred in her finding that the Regional, Town and Country Planning Act has no application in this matter yet it is the law that regulates agreements relating to the sale of land.</li> <li>The learned judge <em>a quo</em> erred at law in invalidating the appointed executor <em>dative</em> and setting aside his actions when such an appointment was a legal requirement for the purposes of transferring property into appellant’s name.</li> <li>The learned judge <em>a quo</em> erred at law in relying upon an agreement of sale which was never placed before the court for its scrutiny.</li> </ol> <p> </p> <p><strong>ISSUES FOR DETERMINATION</strong></p> <p>                   Three issues arise for determination being;</p> <ol> <li>Whether or not the court <em>a quo</em> correctly found that there were no material disputes of fact.</li> <li>Whether or not the court <em>a quo</em> correctly found that the Regional, Town and Country Planning Act did not apply in the present circumstances and,</li> <li>Whether or not the court <em>a quo</em> erred in invalidating the agreement of sale between appellant and second respondent, the appointment of the executor <em>dative</em> and subsequently the purported transfer of the property into the appellant’s name.</li> </ol> <p> </p> <p><strong>SUBMISSIONS BEFORE THIS COURT</strong></p> <p>                   In motivating the appeal, appellant’s counsel submitted that the order of the court<em> a quo</em> was incompetent as it conflicted with another order of the Magistrates Court in terms of which a <em>rule nisi</em> was issued prohibiting the second and third respondents from transferring or disposing of the property in dispute.  He submitted that the court <em>a quo</em> ought to have set aside that order, failure of which it remains extant and commands obedience until set aside. He further submitted that the first respondent’s agreement of sale with the executrix testamentary of November 1999 is a nullity because the executrix testamentary at the point of concluding the agreement did not have authority to sell the property which consent she only obtained on 27 February 2006. Counsel further submitted that the first respondent’s case is premised on an agreement of sale which is void <em>ab initio</em> for the reason that the sale was conditional upon the grant of a subdivision permit in terms of the Town and Country Planning Act, [<em>Chapter 29:12</em>]. It was submitted that the said Act specifically proscribes such agreements as <em>in casu</em>. He also argued that there were material disputes of fact which could not be resolved on the papers. In that light he moved that the appeal be allowed and that the matter be referred for trial.</p> <p> </p> <p>                   Conversely, counsel for the first respondent submitted that the <em>rule nisi</em> did not have a return date hence it lapsed on 31 of December 2006 as it could not have been the intention of the Magistrates Court that it should operate indefinitely. Counsel also submitted that the property in dispute was sold to the appellant by an heir who had no power to sell. She stated that the power to sell vested in the executrix testamentary hence the sale was invalid. She further submitted that the executor <em>dative</em> (third respondent) had solicited for his own appointment so as to transfer the property to the appellant which conduct she alleged was improper as he was an agent for the appellant. She moved that the appeal be dismissed.</p> <p> </p> <p><strong>DETERMINATION OF THE ISSUES </strong></p> <p> </p> <ol> <li><strong>Whether or not the court <em>a quo</em> correctly found that there were no material disputes of fact.</strong></li> </ol> <p> </p> <p>                   The appellant in his first ground of appeal averred that the court <em>a quo</em> erred in failing to appreciate and make a finding that there were material disputes of fact regarding the validity of the agreements of sale between appellant and first respondent and consequently the deeds of transfer, which disputes could not be resolved on the papers.</p> <p> </p> <p>                   A material dispute of fact arises where a party denies material allegations made by the other and produces positive evidence to the contrary. Generally in considering whether or not there is a material dispute of fact, the court is enjoined to adopt a robust common sense approach to such defenses when raised by litigants. In <em>Soffiantini v Mould</em> 1956 (4) SA 150 (E) the court made the following pertinent comments.</p> <p>“ If by a mere denial in general terms a respondent can defeat or delay an applicant who comes to court on [application], then [application] proceedings are worthless, for a respondent can always defeat or delay a petition by such a device. It is necessary to make a robust, common-sense approach to a dispute on [application] as otherwise the effective functioning of the court can be hamstrung and circumvented by the most simple and blatant stratagem. The court must not hesitate to decide an issue of fact on affidavit merely because it may be difficult to do so. Justice can be defeated or seriously impeded and delayed by an over-fastidious approach to dispute raised in affidavit<em>.”</em></p> <p> </p> <p> </p> <p>                   In <em>Muzanenhamo v Officer in Charge CID Law and Order and Others</em> 2013(2) ZLR 604(S) at 608A-F PATEL JA aptly stated, <em>inter alia</em>, that-</p> <p>“As a general rule in motion proceedings, the courts are enjoined to take a robust and common sense approach to disputes of fact and to resolve the issues at hand despite the apparent conflict.  The prime consideration is the possibility of deciding the matter on the papers without causing injustice to either party. ……………………</p> <p>The first enquiry is to ascertain whether or not there is a real dispute of fact. As was observed by MAKARAU JP (as she then was) in <em>Supa Plant Investments (Pvt) Ltd</em> v <em>Chidavaenzi</em> 2009 (2) ZLR 132 (H) at 136F-G:</p> <p>‘A material dispute of facts arises when material facts alleged by the applicant are disputed and traversed by the respondent in such a manner as to leave the court with no ready answer to the dispute between the parties in the absence of further evidence.’</p> <p>In this regard, the mere allegation of a possible dispute of fact is not conclusive of its existence. …………….</p> <p>The respondent’s defence must be set out in clear and cogent detail.  A bare denial of the applicant’s material averments does not suffice.  The opposing papers must show a <em>bona fide</em> dispute of fact incapable of resolution without <em>viva voce</em> evidence having been heard. See the <em>Room Hire Co.</em> case, <em>supra</em>, at 1165, cited with approval in <em>Vittareal Flats (Pvt) Ltd</em> v <em>Undenge &amp; Others</em> 2005 (2) ZLR 176 (H) at 180C-D; <em>van Niekerk</em> v <em>van Niekerk &amp; Others</em> 1999 (1) ZLR 421 (S) at 428F-G.” (underlining for emphasis)</p> <p> </p> <p>                   Where there is a material dispute of fact the court may dismiss the application, order oral evidence or refer the matter to trial with such orders as to pleadings as it sees fit.</p> <p>Upon a consideration of the alleged disputes of fact I am of the view that the court <em>a quo</em> did take cognizance of the fact that the issue of the validity of the agreements of sale could be resolved without resorting to trial. The appellant did not show that the issue was incapable of resolution on the papers. The first respondent’s papers were clear and concise. He entered an agreement of sale with the executrix testamentary in 1999. The executrix received her letters of administration in 1998 and obtained authority to sell in 2006 and thereafter in April 2007 transfer of the property was effected. That the first respondent’s transfer papers were lodged and signed for by the Registrar of Deeds in April 2007 is without doubt. The executrix as the lawful representative of the estate had the right to authorise transfer to first respondent when she did so.</p> <p> </p> <p> </p> <p>                   On the other hand, the appellant’s registration papers were only effected in July 2007. Section 10 of the Deeds Registries Act, [<em>Chapter 20:05</em>] provides that<strong>:</strong></p> <p><strong>“10 When registration takes place </strong></p> <p>(1) Deeds executed or attested by a registrar shall be deemed to be registered upon the affixing of the registrar’s signature thereto:</p> <p>Provided that no such deed which is one of a batch of interdependent deeds, intended for registration together, shall be deemed to be registered until all the deeds of the batch have been signed by the registrar.</p> <p>(2) If by inadvertence the registrar’s signature has not been affixed to a deed at the time at which the signature should have been affixed in the ordinary course, the registrar may affix his signature thereto when the omission is discovered, and the deed shall thereupon be deemed to have been registered at the time at which the signature should have been affixed. </p> <p>(3) All endorsements or entries made on title deeds or in registers in connexion with the registration of any deed executed or attested by a registrar shall be deemed to have been effected simultaneously with the registration of such deed, although in fact they may have been made subsequent thereto.” (Underlining for emphasis)</p> <p> </p> <p> </p> <p> </p> <p>                   By virtue of this section the first respondent’s title was deemed to have been registered on 2 April 2007 under transfer number 1597/2007 when the registrar affixed his signature.</p> <p> </p> <p>                   Section 11 of the Act further provides for deeds to follow sequence of their relative causes in these words:-</p> <p>“(1) Save as otherwise provided in this Act or as directed by the court—</p> <p>(<em>a</em>) transfers of land and cessions of real rights therein shall follow the sequence of the successive transactions in pursuance of which they are made, and if made in pursuance of testamentary disposition or intestate succession they shall follow the sequence in which the right to ownership or other real right in the land accrued to the persons successively becoming vested with such right;</p> <p>(<em>b</em>) it shall not be lawful to depart from any such sequence in recording in any deeds registry any change in the ownership in such land or of such real right unless the registrar is satisfied that the circumstances are exceptional and has consented to such departure:” (underlining for emphasis)</p> <p> </p> <p> </p> <p> </p> <p>                   From the foregoing it was clear that the first respondent’s registration of title preceded the appellant’s. There was nothing unclear about the first respondent’s case in this regard.</p> <p> </p> <p>                   It was the appellant’s case that left one with more questions than answers. He had purportedly bought the property from an heir who had no legal right to deal with the property and appellant’s agent was appointed executor <em>dative</em> upon his own solicitation when the executrix testamentary was still in office. He then had proceeded to effect transfer of the property three months after the first respondent had filed his transfer papers and the registrar had acknowledged their receipt by affixing his signature thereto thus complying with s 10. The fact that the appellant’s papers were inexplicably finalized first by the fourth respondent does not detract from the sequence of the lodging of the papers. In his papers the appellant had not proffered any reasonable explanation to that course of events. Unfortunately for appellant <em>s</em>s 10 and 11 protected the first respondent’s position as the registrar had affixed his signature on 2 April 2007.</p> <p> </p> <p>                   It was clear that with regard to the agreements of sale there was no real dispute as to their sequence and parties thereto. The agreements of sale had similar suspensive conditions acknowledging the state of the subdivision. The first respondent’s agreement of sale was entered into with the executrix testamentary as the legal representative of the deceased’s estate. The appellant’s agreement of sale, on the other hand, was entered into with an heir who had no authority to deal in the property to the exclusion of the executrix.</p> <p> </p> <p>                   In the circumstances the appellant’s request to have the matter referred to trial was only a delaying tactic hence it was not granted. In my view there were no real material disputes of fact. The real issues between the parties were capable of resolution on the papers without the calling of <em>viva voce</em> evidence or referring the matter to trial. There was thus no misdirection in this regard.</p> <p> </p> <ol> <li><strong>Whether or not the court <em>a quo</em> found that the Regional, Town and Country Planning Act did not apply</strong></li> </ol> <p> </p> <p> </p> <p>                   The appellant in his second ground of appeal averred that the court <em>a quo</em> erred in finding that the Regional, Town and Country Planning Act has no application in this matter yet it is the law that regulates agreements relating to the sale of land. The court <em>a quo</em> stated as follows with regards to this Act:-</p> <p>“None of the arguments raised by the first respondent as detailed earlier in this judgment can be of any avail to the first respondent in the face of the above stated and established facts. It would appear to me that the issue of whether or not the provisions of the Regional, Town and Country Planning Act are applicable and if so with what effect, cannot be of any avail to the respondents in the circumstances of this case. Neither can it be the basis for this court in these proceedings, to declare invalid the agreement of sale in favour of the applicant. That agreement has not been subjected to scrutiny by this court. The fact is that the applicant is currently registered as the owner of the property and there is no basis for this court, in these proceedings, to deny the relief sought by the applicant.”</p> <p> </p> <p> </p> <p>                   The above is what the court <em>a quo</em> said with regards to the Act in question. It did not make any findings that the Act did not apply but rather that it would not delve into whether or not it applied in view of its findings pertaining to the registration of the first respondent’s title that preceded that of the appellant which showed that he was the owner of the said property as of 2 April 2007. Such registration of title was done with the authority of the executrix. The facts of the case did not call for such a determination. A reading of the judgment of the court <em>a quo</em> shows that the court did not make any determination on whether or not the Act was applicable in this case hence the allegation by the appellant pertaining to this issue is misplaced and this ground of appeal lacks merit and so must fail.</p> <p> </p> <ol> <li><strong>Whether or not the court <em>a quo</em> erred in invalidating the agreement of sale between the second respondent and the appellant, and the appointment of third respondent as executor <em>dative</em> and nullifying his subsequent actions.</strong></li> </ol> <p> </p> <p> </p> <p>                   In the third ground of appeal the appellant alleged that the learned judge <em>a quo</em> erred at law in invalidating the appointment of the executor <em>dative</em> and setting aside his actions when such an appointment was a legal requirement for the purposes of transferring property into the appellant’s name. It is my view that the court <em>a quo</em>’s findings with regard to this aspect cannot be faulted. This is so because there was a duly appointed executrix testamentary in terms of the deceased’s will. Such appointment had not been nullified or set aside. The court <em>a quo</em> aptly made the following findings in this respect:-</p> <p> “Firstly, the applicant purchased the property in issue from the estate as represented by the executrix testamentary. The first respondent, on the other hand, purchased the same property purportedly from the same estate but in his case the estate was represented by the executor <em>dative</em>. It is an undisputed fact that the executor <em>dative</em> was appointed to the office while the executrix testamentary was still alive, holding office, not incapacitated and still sane. Neither had the executrix testamentary been removed from office. Secondly, the applicant’s agreement of sale preceded that of the first respondent. Thirdly, it is also clear from the papers that the property was registered into the applicant’s name on 2 April 2007 by deed of transfer 1597/2007 while the transfer to the first respondent was done 3(three) months later on 4 July 2007 by deed of transfer 4079/2007<em>”</em></p> <p> </p> <p> </p> <p>                   After discussing the applicable law including <em>ss</em> 10, 11 and 14 of the Deeds Registries Act,  the court <em>a quo</em> proceeded to aptly conclude that:-</p> <p>“…the third respondent having been appointed as executor dative whilst the executrix testamentary was still alive, holding office, not incapacitated and still sane, was improperly appointed. The deceased had left a will in which the executrix testamentary was appointed. The sixth respondent was thus not dealing with an intestate estate. The third respondent’s appointment as executor dative was in the circumstances irregular and any acts carried out by him in the name of the estate would thus be of no legal consequence.</p> <p>According to the affidavit placed before the magistrate in 12060/06, the second respondent who is the heir to the deceased estate, sold the property in issue to the first respondent. It thus appears that the second respondent purported to sell the property before the property had vested in him; hence arises the illegality and nullity of the purported sale to the second respondent (<em>sic</em>). Thus both the agreement of sale and the deed of transfer in favour of the first respondent are in the circumstances null and void.”</p> <p> </p> <p> </p> <p> </p> <p>       The court <em>a quo</em>’s findings in this regard cannot be faulted. It is trite that an executor/executrix is the recognized legal representative of a deceased estate. He/she is appointed to administer the estate and to ensure the estate is properly wound up with all assets and liabilities being accounted for.</p> <p> </p> <p>       In this regard <em>s</em> 23 of the Administration of Estates Act, [<em>Chapter 6:01</em>] (the Act) provides that:-</p> <p>“The estates of all persons dying either testate or intestate shall be administered and distributed according to law under letters of administration to be granted in the Form B in the second schedule by the Master….”</p> <p> </p> <p>       It follows that in a case involving estates of deceased persons there shall be appointed a representative who is empowered through letters of administration to act for and on behalf of the deceased’s estate. This is so because the deceased estate cannot represent itself. In terms of <em>s</em> 25 of the Act a deceased estate is represented by an executor or executrix duly appointed and issued with letters of administration by the Master.</p> <p> </p> <p>       In <em>Nyandoro &amp; Anor v Nyandoro &amp; Ors</em> 2008 (2) ZLR 219(H) at 222H-223C KUDYA J aptly restated the legal position as follows:-</p> <p>“In <em>Clarke v Barnacle NO &amp; Ors</em> 1958 R&amp;N 358 (SR) at 349B -350A MORTON J stated the legal position that still obtains to this day in Zimbabwe. It is that “whether testate or intestate, an executor, either testamentary or dative, must be appointed…..so that the executor and he alone is looked upon as the person to represent the estate of the deceased person.” He left no doubt that towards the rest of the world the executor occupies the position of legal representative of the deceased with all the rights and obligations attaching to that position and that because a deceased’s estate is vested in the executor, he is the only person who has <em>locus standi</em> to bring a vindicatory action relative to property alleged to form part of the estate.</p> <p>Arising from the nature of a deceased estate as described in <em>Clarke v Barnacle, supra,</em> and <em>Mhlanga v Ndlovu</em>, <em>supra</em>, it must follow that the citation of a deceased estate as a party to litigation is wrong. The correct party to cite in <em>lieu</em> of the deceased estate is the executor by name. The citation of the second plaintiff and second defendant <em>in casu</em> was therefore improper and incurable. It makes their presence before me a nullity.”</p> <p> </p> <p> </p> <p>       The executor/executrix of an estate has certain rights and powers in connection with the estate and certain duties to perform both at common law and in terms of the Act.</p> <p> </p> <p>                   In <em>The Law and Practice of Administration of</em> <em>Estates</em>, 5th ed by D Meyerowitz at p 123 the esteemed author states that:</p> <p>“An executor is not a mere procurator or agent for the heirs but is legally vested with the administration of the estate. A deceased estate is an aggregate of assets and liabilities and the totality of the rights, obligations and powers of dealing therewith, vests in the executor, so that he alone can deal with them.</p> <p> He has no principal and represents neither the heirs nor the creditors of the estate.”</p> <p> </p> <p> </p> <p>                   Further, at p 124 the author firmly states that:</p> <p> </p> <p>“No proceedings can be taken against the estate without making the executor a party to them. Similarly, no person can institute proceedings on behalf of the estate except the executor. The estate cannot sue or be sued until an executor has been appointed.”</p> <p> </p> <p> </p> <p> </p> <p>       If therefore the totality of the rights, obligations and powers of dealing with a deceased estate is vested in an executor/executrix it follows that the executor/executrix must invariably be cited by name in any suit against the estate.  Failure to cite the executor/executrix would be fatal to an action against the deceased’s estate.</p> <p> </p> <p>                   In <em>casu,</em> it is common cause that an executrix testamentary was still in office when the second respondent purported to sell the property in question to the appellant. The sale was without the consent or authority of the executrix. It is also not seriously disputed that the executrix was not cited as a party to the proceedings in the magistrates’ court that the appellant sought to rely on as authority for the third respondent’s actions. The appointment of the third respondent as executor <em>dative</em> was done without citing or involving the executrix. It would appear that the appellant and his agents chose to sidestep the executrix. Such conduct was unlawful and rendered their subsequent actions a nullity.</p> <p> </p> <p>                   A properly appointed executrix cannot simply be ignored or sidestepped when dealing with a deceased estate. If there are any challenges with the executrix the proper procedure is to first seek his removal from office.  An executrix cannot be removed from office or incapacitated from dealing with any asset of the estate by a purported appointment of an executor <em>dative</em>. It must be acknowledged that courts do not lightly remove an executor/executrix in the absence of evidence of serious misconduct or incapacitation that would prejudice the estate. In <em>The Master v Moyo NO &amp; Ors </em>2009 (1) ZLR 119(H) the court held, <em>inter alia</em>, that the removal of an executor should never be undertaken lightly. If the Master applies for the removal of an executor in terms of s 117(1) of the Administration of Estates Act [<em>Chapter 6:01</em>], the court must be satisfied that the executor had failed to perform satisfactorily any duty or requirement imposed on him by, or in terms of, the law. The court also alluded to the legal position that in an application for the removal of an executor, the executor should be cited in his personal capacity, not in his official capacity as executor. When an action is brought against an executor in his representative capacity, it is an action against the estate, rather than one against the individual.</p> <p> </p> <p>                   In <em>casu</em>, there is no evidence on record to show that the executrix testamentary appointed by virtue of the deceased’s will had been removed from office at the time the executor <em>dative</em> was appointed. The evidence, in fact, shows that the executrix was still in office and administering the estate. There was no evidence of any legal process or complaints for her removal from office.</p> <p> </p> <p>                   In light of this, the court <em>a quo’s</em> finding that the appointment of the executor <em>dative</em> was tainted with illegality cannot be faulted. As a consequence all the actions he did subsequent to that faulty appointment were a nullity. This ground of appeal therefore lacks merit. The court <em>a quo</em> could not have upheld an irregularity which <em>in casu</em> is the unlawful appointment of an executor <em>dative</em> to administer the estate in the face of an existing executrix testamentary.</p> <p> </p> <p><strong>DISPOSITION</strong></p> <p>                   It is evident from the above that all the grounds of appeal lacked merit. In the circumstances the appeal must fail.  On costs there is no reason why costs should not follow the cause. The appeal must be dismissed with costs.</p> <p> </p> <p>                   It is accordingly ordered that:-</p> <p> </p> <p>          “The appeal is hereby dismissed with costs.”</p> <p> </p> <p>           </p> <p><strong>                   BHUNU JA:</strong>                               I agree</p> <p> </p> <p> </p> <p><strong>       MATHONSI JA:                        </strong>I agree            </p> <p> </p> <p> </p> <p><em>Shava Law Chambers, </em>appellant’s legal practitioner</p> <p><em>Chigwanda Legal Practitioners</em>, 1st respondent’s legal practitioner</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/2021/61/2021-zwsc-61.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=48865">2021-zwsc-61.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/2021/61/2021-zwsc-61.pdf" type="application/pdf; length=586020">2021-zwsc-61.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/deceased-estate">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/claims-made-behalf-estate">claims made on behalf of estate</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/immovable-property">IMMOVABLE PROPERTY</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/personal-right-respect-immovable-property">Personal right in respect of immovable property</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/rights-and-immovable-property">Rights in and to immovable property</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/p">P</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/dispute-facts-practice-and-procedure">Dispute of facts (PRACTICE AND PROCEDURE)</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/2017/8">Deeds Registries Amendment Act, 2017</a></div><div class="field-item odd"><a href="/zw/legislation/act/1929/12">Administration of Estates Act [Chapter 6:01]</a></div></div></div> Wed, 09 Jun 2021 09:03:35 +0000 Sandra 10027 at https://old.zimlii.org Masomera N.O v Hwemende And 11 Others (SC 6-21, Civil Appeal Case No. SC 826/17) [2021] ZWSC 6 (23 March 2021); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2021/6 <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>Judgment No. SC 06/2021</strong></p> <p><strong>Civil Appeal Case No. SC 826/2017</strong></p> <p> </p> <p><strong>REPORTABLE                    (6)</strong></p> <p> </p> <p> </p> <p> </p> <p><strong>OLIVER     MASOMERA</strong></p> <p><strong>(In     his     capacity     as     Executor     Dative     of     Estate     late     Bryan     James     Rhodes)</strong></p> <p><strong>v</strong></p> <p><strong>(1)     GIDEON     HWEMENDE     (2)     HONEY     &amp;     BLACKENBERG     (3)     LOURENCE     ERASMUS     VERMAAK     (4)     TERRENCE     COBDEN     RHODES     (5)     VALENTINE     MUSHORE     (6)     ALFRED     CHADEMANA     (7)     JOEL     TENDERERE     (8)     OLIVER     CHIBAGE     (9)     FARAI     MUTIZWA     (10)     CALISTO     VENGESAI     (11)     REGISTRAR     OF     COMPANIES     (12)     MASTER   OF     THE     HIGH     COURT</strong></p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>PATEL JA, BHUNU JA &amp; BERE JA</strong></p> <p><strong>HARARE, 19 SEPTEMBER 2019 &amp; MARCH 23, 2021</strong></p> <p> </p> <p> </p> <p><em>T. Zhuwarara</em>, for the appellant</p> <p><em>D. Tivadar</em>, for the fourth respondent</p> <p>No appearance for the first, second, third, fifth, sixth, seventh, eighth, ninth, tenth, eleventh and twelfth respondents</p> <p>        </p> <p> </p> <p><strong>PATEL JA:</strong>        This is an appeal against the judgment of the High Court dismissing an application for the rescission of an earlier judgment granted in favour of the fourth respondent in Case No. HC 1589/13. The application was dismissed with costs to be borne by the estate of the late Brian James Rhodes, of which estate the applicant (the appellant herein) is the executor dative.</p> <p> </p> <p>Background</p> <p>Prior to his demise on 29 July 2006, the deceased, B.J. Rhodes, had established two companies, namely, Beverly East Properties (Pvt) Ltd and Karoi Properties (Pvt) Ltd. The appellant, as I have said, is the executor dative of the deceased estate. He was not a party to the proceedings in Case No. HC 1589/13 wherein the court granted a declaratory order in favour of the fourth respondent. In his application before the court <em>a quo</em>, the appellant sought the rescission of that order on the ground that it had been obtained through fraud and, alternatively, that it had been granted in error.</p> <p> </p> <p>In Case No. HC 1589/13, the court dismissed the claims over the two companies by the first respondent, who had purported to appoint the fifth to the tenth respondents as directors in the companies in order to protect his own interests. The court ruled that the lawful shareholder of the two companies was the Phoenix Trust, the assets of which included corporate stock in the two companies. It found that the fourth respondent was a trustee of the Trust and a Director in both companies owned by the Trust. The court also found that the fourth respondent as trustee had legal title to the trust property and that any benefits accruing to the companies, including accumulated rentals in the sum of US$70,000.00, in turn accrued to the Trust as the shareholder of the companies. In granting its order, the court imposed the condition that the fourth respondent should furnish evidence that the Trust legally owned the companies before the Registrar could release to the Trust the sum of US$70,000.00 that was deposited with him.</p> <p> </p> <p>In the application <em>a quo</em>, the appellant adduced the supporting affidavit of the deceased’s widow (Elizabeth Anne Rhodes). The admission of this affidavit was challenged by the fourth respondent on the ground that it did not comply with the provisions of the High Court (Authentication of Documents) Rules 1971. The court <em>a quo</em> agreed and held that the affidavit was not admissible as it had not been properly authenticated.</p> <p> </p> <p>More importantly, the fourth respondent also took the point <em>in limine</em> that the applicant did not have <em>locus standi </em>to bring the application because he was only the <em>curator bonis</em> of the deceased estate. The appellant had initially deposed in his founding affidavit that he was acting in his capacity as the executor dative of the estate. However, he had attached the letters of his confirmation as <em>curator bonis</em> rather than his letters of administration in respect of the estate. Subsequently, through his answering affidavit, he then attached the letters of administration appointing him as the executor dative of the estate. The letters of confirmation were issued on 1 November 2013, while the letters of administration were issued on 26 February 2014.</p> <p> </p> <p>High Court judgment</p> <p>As regards the appellant’s <em>locus standi</em>, the court <em>a quo</em> found that, as at 20 November 2013, the appellant could not have engaged in Case No. HC 1589/13 in terms of s 22(2) of the Administration of Estates Act [<em>Chapter 6:01</em>]. He would therefore not have had <em>locus standi</em> to seek the rescission of the order granted in that matter. That rendered his actions <em>in casu</em> nugatory as the absence of a cause of action could not be cured through the substitution of his capacity in his answering affidavit. He could not properly cure the defect in the founding affidavit pertaining to <em>locus standi</em> through the production of an authorising document in his answering affidavit. The court accordingly held that his case must fail due to lack of legal standing.</p> <p> </p> <p>Having found that the application should be dismissed for want of <em>locus standi</em>, the court nevertheless proceeded to address the merits of the matter. As regards the alleged fraud, the court observed that this was not a ground for setting aside the earlier judgment under r 449(1) (a) of the High Court Rules 1971. The court found that there was clearly no error committed as envisaged in the Rules, as the earlier judgment had directed that the fourth respondent was to furnish proof that the deceased had transferred the shares in the two companies to the Trust.</p> <p> </p> <p>With reference to the allegation that the fourth respondent had fraudulently claimed that the deceased had transferred the shares, the court found that the appellant did not produce any authentic documents to counter the alleged fraudulent documents. No documentary evidence was adduced to prove what the appellant alleged to be the correct shareholding in the two companies. The appellant simply attacked the authenticity of the official documents produced by the fourth respondent, which showed that the Trust owned the entire shareholding in the companies, without any proof to controvert the fourth respondent’s evidence. Consequently, the earlier judgment must stand because it had not been shown that the court had relied on fraudulent evidence in assessing the facts before it. In the event, the court <em>a quo</em> held that the relief of rescission sought by the appellant must be refused and accordingly dismissed the application on the merits.</p> <p> </p> <p>Grounds of appeal and relief sought</p> <p>There are three grounds of appeal in this matter. The first is that the court <em>a quo</em> erred in holding that the appellant had no authority to institute the application <em>a quo</em> but nevertheless proceeding to dismiss the matter on the merits. The second impugns the court <em>a quo</em> for holding that the appellant had no authority to institute proceedings, despite the presence of letters of appointment evincing such authority, and for refusing to accord the appellant an opportunity to furnish further evidence and proof of authority. The third ground is that the court erred in holding that no basis had been established for seeking rescission on the ground of fraud, despite the absence of proof of the donation or transfer of the shares in the company to the Trust.</p> <p> </p> <p>The relief sought by the appellant is that the appeal be allowed and that the order of the court <em>a quo</em> be set aside and substituted with an order dismissing the point <em>in limine</em> relating to authority and granting the application for rescission with costs or, alternatively, striking the matter off the roll for want of proof of authority.</p> <p> </p> <p>Issues for determination</p> <p>In the course of argument, Mr <em>Zhuwarara</em>, for the appellant, submitted that the court <em>a quo</em> erroneously conflated issues relating to cause of action and <em>locus standi</em> by disregarding the correct letters of administration annexed to the appellant’s answering affidavit. In any event, even though the widow’s supporting affidavit was defective, the facts therein were made available to the appellant as the administrator of the estate and he was therefore entitled to make averments relating to the status of the estate. The averments contained in the founding affidavit were stated to be within his personal knowledge, without reference to the contents of the supporting affidavit. Mr <em>Zhuwarara</em> also argued that there was an error within the contemplation of r 449(1) of the High Court Rules relating to the details of the Trust deed. Had all the material facts been presented to the High Court in the earlier matter, it would not have granted the order that it did. Furthermore, the appellant had a direct interest in safeguarding the assets of the estate and should therefore have been cited as a party in the first case.</p> <p> </p> <p>In reply, Mr <em>Tivadar</em>, for the fourth respondent, submitted that the first ground of appeal was irrelevant. There was no impropriety or harm occasioned by the court <em>a quo</em> declining <em>locus standi</em> and still dealing with the merits of the matter. As regards the second ground of appeal, Mr <em>Tivadar</em> initially took the position that the court was correct in finding that the appellant had no <em>locus standi</em>. However, at the close of his submissions, he was prepared to concede this ground of appeal. With reference to the alternative argument premised on supposed error in the earlier proceedings, Mr <em>Tivadar</em> quite correctly submitted that the third ground of appeal only related to the alleged fraud. There was no appeal founded on error within the scope of r 449(1) of the High Court Rules.</p> <p> </p> <p>In his response, <em>Zhuwarara</em> agreed that the first ground of appeal was irrelevant. He also conceded that the third ground of appeal was confined to the allegations of fraud and that sub-ground (c) of the third ground was meaningless and was therefore to be abandoned. In light of these concessions by both counsel on what are essentially technical issues, which concessions were properly made so as to obviate the trappings of formalism, the Court remains seized with the critical and substantive nub of this appeal. And that is whether or not the appellant had established an adequate basis for seeking the rescission of the earlier judgment on the ground that it had been obtained by fraud.</p> <p> </p> <p>Rescission on the ground of fraud</p> <p>It is trite that he who alleges any positive fact carries the burden of proving that fact. Put differently, a party who makes a positive allegation bears the onus of proving such allegation. See <em>Astra Industries Ltd</em> v <em>Chamburuka</em> SC 258/11; <em>ZUPCO Ltd</em> v <em>Pakhorse Services (Pvt) Ltd</em> SC 13/17. In the particular context of an application for the rescission of a judgment at common law, it is settled that the party seeking rescission must demonstrate sufficient cause for the relief sought to be granted. A judgment can only be rescinded under the common law on one of the grounds upon which <em>restitutio in integrum</em> would be granted, such as fraud or some other just cause, including <em>justus error</em>. See <em>Mudzingwa</em> v <em>Mudzingwa</em> 1991 (4) SA 17 (ZS).</p> <p> </p> <p>It is also well established that an appellate court will not readily interfere with findings of fact made by a lower court. See <em>Beckford</em> v <em>Beckford</em> 2009 (1) ZLR 271 (S). The appellate court will only interfere with such findings in very limited circumstances, for instance, where the lower court has misdirected itself by failing to appreciate the facts at all or by making findings of fact that are contrary to the evidence presented. See <em>Reserve Bank of Zimbabwe</em> v <em>Corrine Granger</em> SC 34/2001.</p> <p> </p> <p>Mr <em>Zhuwarara</em> refers to the condition imposed by the High Court in the earlier judgment requiring the fourth respondent to lodge the Trust deed in question. What this deed shows is that the properties concerned were never transferred to the Trust by the deceased. This, so he submits, is where there was fraudulent misrepresentation by the fourth respondent.</p> <p> </p> <p>Mr <em>Tivadar</em> refers to the relevant share certificates and register of share allotments and transfers. He argues that the first two shares were probably issued in anticipation of the Trust being created two months later. The remaining bulk of the shares were issued to the Trust a year later. This is the reason why the list of Trust assets only includes the assets of the Trust when it was created and does not cover the assets acquired by the Trust thereafter. Mr <em>Tivadar</em> further submits that the appellant never produced any evidence, including the forensic audit that he allegedly carried out, to prove that the Trust was a sham. The onus was on the appellant to make out his case and he did not produce any document or affidavit to prove that there was any fraud.</p> <p> </p> <p>Mr <em>Zhuwarara</em> retorts that not all the relevant share certificates have been produced by the fourth respondent. The duty of the appellant, as executor dative of the estate, is to ensure that all the relevant documents and assets are accounted for. The facts placed before the court in the first case were not correct. There was clear misrepresentation and the court in that case would not have granted the order in favour of the fourth respondent had it been made aware of all the relevant facts.</p> <p> </p> <p>It is pertinent, at this juncture, to capture the two critical components of the order granted by the court in the first case. Firstly, it was declared that the fourth respondent “as claimant in his capacity as Trustee of Phoenix Trust in whom [<em>sic</em>] the companies are held is the lawful shareholder of the two companies”. Secondly, it was ordered that the fourth respondent “upon lodging with this court a valid Trust document effected by the deceased during his life time transferring the properties to the Trust” would become entitled to the sum of US$70,000.00 deposited with the Registrar.</p> <p> </p> <p>The crucial instrument in<em> casu</em> is the notarial deed of donation and trust, executed by its signatories on 13 April 1988. It was signed by the deceased, B. J. Rhodes, as the donor and as trustee and also as a beneficiary of the trust. The deceased appointed himself and two others, namely, N. J. MacDonald and N. C. Ralston, as trustees. The beneficiaries, apart from the deceased himself, were his children and their lawful issue. In the event of the deceased ceasing to be a trustee for any reason, T. C. Rhodes, the fourth respondent, was to succeed him as a trustee.</p> <p> </p> <p>In terms of clause 4 of the Trust deed, the settlement and donation took effect on the date of execution of the deed. By virtue of clauses 3 and 5, the Trust fund was constituted by the assets set forth in the Schedule, as well as any further assets or shares or income accrued or received by the fund from time to time, including any further assets donated by the deceased before his demise. As at 13 April 1988, the Schedule of Assets listed two items, <em>i.e.</em> a loan account of $110,720.93 in Brian Rhodes (Pvt) Ltd and a loan account of $41,052.93 in Karoi Properties (Pvt) Ltd. The company known as Beverly East Properties (Pvt) Ltd was not mentioned in the Schedule.</p> <p> </p> <p>Turning to the relevant share certificates, the record shows two certificates executed on 1 February 1988. The first certificate (No. 3) states that Phoenix Trust is the registered proprietor of one fully paid share (No. 1). The second certificate (No. 4) states that B. J. Rhodes, as nominee for the Trust, is the registered proprietor of another fully paid share (No. 2). Both certificates relate to the shareholding in Beverly East Properties (Pvt) Ltd. The third certificate (No. 5), also relating to the shareholding in the same company, states that Phoenix Trust is the registered proprietor of 499,998 shares (Nos. 3 to 500,000 inclusive). It is common cause that the first two certificates were executed before the Trust was created, on 13 April 1988, while the third certificate was executed thereafter, on 20 July 1989.</p> <p> </p> <p>A further relevant document is a special resolution of the company, passed on 14 April 1988 and confirmed on 21 April 1988, increasing the nominal share capital of the company from $32,000.00 to $500,000.00 by the addition of 468,000 shares, to rank <em>pari passu</em> with the existing shares. The resolution was passed by B. J. Rhodes (the deceased) and N. J. MacDonald and signed by the former as Chairman of the company. The Form CR 14 signed by the Secretary of the company on 29 March 1988, shows that the abovenamed two individuals were Directors of the company, appointed to those positions on 1 February 1988. The Form CR 2, <em>i.e.</em> return of allotments, filed on 20 July 1989, shows that there were 2 shares previously allotted and 499,998 shares freshly allotted to Phoenix Trust. This is confirmed by the minutes of a Directors meeting, held on 20 July 1989 and attended by the same two directors, B. J. Rhodes and N. J. MacDonald, where it was resolved to allot 499,998 shares to Phoenix Trust. The above status of directorships and total shareholding in the company is further confirmed by various company returns filed between 14 July 1989 and 17 April 1997.</p> <p> </p> <p>Lastly, there is the company’s register of allotments and transfers. This shows that two individuals, N. C. Ralston and C. A. Mollatt, the original holders of the first two shares (Nos. 1 and 2), held those shares by virtue of the founding share certificates (Nos. 1 and 2) executed on 25 January 1988. These two shares were then transferred to Phoenix Trust and B. J. Rhodes, as nominee for the Trust, under new share certificates (Nos. 3 and 4) executed on 1 February 1988. The register also reflects the allotment of 499,998 shares (Nos. 3 to 500,000 inclusive) to Phoenix Trust under the last share certificate (No. 5) executed on 20 July 1989, resulting in the Trust holding the total of 500,000 shares in the company.</p> <p> </p> <p>As is evident from the appellant’s letters of confirmation and administration, B. J. Rhodes died on 29 July 2006. The foregoing analysis of the documents furnished by the fourth respondent demonstrates that, during the deceased’s lifetime, Phoenix Trust became the sole shareholder of all 500,000 shares in Beverly East Properties (Pvt) Ltd. In this regard, the appellant’s assertion that the relevant share certificates and company resolutions are fraudulent and/or fabricated is difficult to comprehend. The special resolution of the company confirmed on 21 April 1988 was signed by the deceased himself, while the share certificates executed on 1 February 1988 and 20 July 1989 were signed by N. J. MacDonald. The latter also signed the minutes of the Directors meeting held on 20 July 1989, whereat it was resolved to allot 499,998 shares to Phoenix Trust. It is not in dispute that he was a Director of the company at the relevant time as well as being a trustee of Phoenix Trust.</p> <p> </p> <p>While it is clear that the Trust was, at the relevant time, the sole shareholder of Beverly East Properties (Pvt) Ltd, there is nothing in the documents filed of record to demonstrate the shareholding of the Trust in the second company, Karoi Properties (Pvt) Ltd. This is obviously a critical issue in satisfying the condition imposed by the High Court in the earlier Case No. HC 1589/13. As I have already indicated, the order granted in that case requires the fourth respondent to lodge with the court “a valid Trust document effected by the deceased during his life time transferring the properties to the Trust”. What the court presumably intended was for the fourth respondent to furnish proof that the shareholding in both companies had been transferred to the Trust. Although this is strictly not an issue for consideration in the present appeal, it may well arise for determination in any future litigation between the parties, insofar as concerns ownership of the properties held by the two companies and entitlement to the rentals accrued from those properties.</p> <p> </p> <p>Be that as it may, what is clear for present purposes is that the appellant has failed to substantiate his allegation of fraudulent misrepresentation by the fourth respondent as the basis for seeking the rescission of the earlier judgment on the ground of fraud. In short, the appellant has made the allegation of fraud but failed to discharge the onus of proving that allegation. Consequently, it cannot be said that the court <em>a quo</em> misdirected itself, whether grossly or otherwise, by failing to appreciate the facts at all or by making findings of fact contrary to the evidence presented, in dismissing the application for rescission on the ground of fraud. It follows that the third ground of appeal lacks merit and must therefore be dismissed.</p> <p> </p> <p>Disposition</p> <p>As I have stated earlier, the first ground of appeal was found to be irrelevant, while the second ground was conceded. The third ground has been dismissed. In the event, I think it just and equitable that each party should bear its own costs.</p> <p> </p> <p>It is accordingly ordered that:</p> <ol> <li>The appeal is allowed in respect of the second ground of appeal, relating to the appellant’s <em>locus standi</em> in the proceedings <em>a quo</em>, and       dismissed in respect of the first and third grounds of appeal.</li> <li>Each party shall bear its own costs.</li> </ol> <p>  </p> <p>            <strong>BHUNU JA               :</strong>                       I agree</p> <p> </p> <p>            <strong>BERE JA                   :</strong>                       (No longer in office)</p> <p><em>C. Nhemwa &amp; Associates</em>, appellant’s legal practitioners</p> <p><em>Bherebhende Law Chambers</em>, 1st respondent’s legal practitioners</p> <p><em>Honey &amp; Blanckenberg</em>, 2nd respondent’s legal practitioners</p> <p><em>Kevin Arnott</em>, 3rd and 4th respondents’ legal practitioner</p> <p><em>Tavenhave &amp; Machingauta</em>, 5th, 6th, 7th, 8th, 9th and 10th 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/2021/6/2021-zwsc-6.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=34824">2021-zwsc-6.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/2021/6/2021-zwsc-6.pdf" type="application/pdf; length=176009">2021-zwsc-6.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/deceased-estate">Deceased estate</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/p">P</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-0">Locus standi</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/rescission-judgment">Rescission of judgment</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-rescission-judgment">application for rescission of judgment</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/principles-rescission-judgment">principles (Rescission of judgment)</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/2017/13">ZUPCO Ltd. v Pakhorse Services (Pvt) Ltd. (SC 13/2017 Civil Appeal No. SC 216/13) [2017] ZWSC 13 (23 February 2017);</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> Thu, 03 Jun 2021 08:45:41 +0000 Sandra 10014 at https://old.zimlii.org Chimbari N.O v Madzima & 4 Ors (HH 325-13, HC 418/10) [2013] ZWHHC 325 (03 October 2013); https://old.zimlii.org/zw/judgment/harare-high-court/2013/325 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>1</p> <p> <br />  </p> <p> HH 325-13</p> <p> HC 418/10</p> <p> FREDDY CHIMB ARI NO</p> <p> versus</p> <p> S1MBARASHE GODWIN MADZIMA</p> <p> and</p> <p> NIGEL MASIMBA MADZIMA</p> <p> and</p> <p> KENIAS MUTYASIRA</p> <p> and</p> <p> REGISTRAR OF DEEDS N. O</p> <p> and</p> <p> MASTER OF THE HIGH COURT N O</p> <p> <br />  </p> <p> HIGH COURT OF ZIMBABWE</p> <p> UCHENA J</p> <p> HARARE, 13, 14 May 29 July and 3 October2013</p> <p> <br />  </p> <p> <strong>Civil Trial</strong></p> <p> <em>T.I Gumbo,</em> for the plaintiff</p> <p> <em>A Muchandiona,</em> for the 1st and 2llddefendants</p> <p> UCHENA J: The plaintiff is the Executor dative of the estate late Charles Muzanya, which was before his appointment being administered by his predecessor Kenias Mutyasira the third defendant. The third defendant had during his administration of the estate sold Stand 79 Brackenhurst Township of Christmas Gift Extension Gweru to the first and second defendants. The fourth defendant is the registrar of Deeds who is being sued in his official capacity. He has transferred the property in dispute to the first and second defendants. The fifth defendant is the Master of the High Court who is also being sued in his official capacity. He initially appointed the third defendant executor of the late Charles Muzanya’s estate, and authorised him to sale the property in dispute in terms of the late Charles Muzanya’s will which he had accepted. He later instructed the third defendant to stop the sale. The sale was not stopped leading to the transfer of the property to the first and second defendants.</p> <p> Many things went wrong in this case. The deceased left a will in which he disinherited his wife Jessy Muzanya who was staying in the property in dispute. She applied to this court for the setting aside of her late husband’s will. Her application was granted by HUNGWE J on 21 June 2006, who ordered that</p> <p> </p> <p> </p> <p> 2</p> <p> HH 325-13</p> <p> HC 418/10</p> <p> <br />  </p> <ol> <li><a name="bookmark0" id="bookmark0"></a>“The will of the late Charles Muzanya be and is hereby declared invalid and is set aside.</li> <li><a name="bookmark1" id="bookmark1"></a>The first respondent be and is hereby ordered to stop administering and distribution of the late Charles Muzanya’s estate in terms of the will.</li> <li><a name="bookmark2" id="bookmark2"></a>The second respondent be and is hereby ordered to convene an edict meeting within 14 days from the date of this order to facilitate the appointment of an executor in terms of the Administration of Estates Act <em>[Cap 6.01]."</em></li> </ol> <p> The Master granted the third defendant authority to sale the house, though he belatedly withdrew the authority. The agreement was concluded on the basis of the master’s authority. The third defendant gave his authority for the property to be transferred to the first and second defendants. The Master in his letter dated 3 May 2006 said he advised the third defendant of the withdrawal of his consent in August 2005. Transfer took place on 11 November 2006, when HUNGWE J’s order was already in existence.</p> <p> The facts, of this case establishes the following;</p> <ol> <li><a name="bookmark3" id="bookmark3"></a>That the deceased’s will was <em>void ab initio</em> as it contravened s 5 (3) of the Wills Act <em>[Cap 6:06]</em></li> <li><a name="bookmark4" id="bookmark4"></a>That the deceased’s Will has been set aside by order of this Court.</li> <li><a name="bookmark5" id="bookmark5"></a>That the third respondent was removed from being the executor of the deceased’s estate and was replaced by the plaintiff.</li> <li><a name="bookmark6" id="bookmark6"></a>That transfer of the property took place on the authorisation of an executor who at the time of transfer had been removed from office.</li> </ol> <ol> <li><a name="bookmark7" id="bookmark7"></a>am now called upon to decide whether the sale between the deceased’s estate and the first and second defendants is valid. The answer is obviously a no as nothing can stand on nothing. The deceased’s Will was a nullity as s 5 (3) of the Wills Act <em>[Cap 6:06]</em> prohibits a spouse from disinheriting his or her spouse through a will. It provides as follows;</li> </ol> <p> “(3) No provision, disposition or direction made by a testator in his will shall operate so as to vary or prejudice the rights of—</p> <p> (a) any person to whom the deceased was married to a share in the deceased’s estate or in the spouses’ joint estate in terms of any law governing the property rights of married persons; or</p> <p> (Z&gt;) any person to receive any property, maintenance or benefit from the testator’s estate in terms of any law or any award or order of court;</p> <p> except in so far as such variation or prejudice is brought about with the consent of the person or creditor concerned or through the exercise by him of a right of election.”</p> <p> </p> <p> </p> <p> 3</p> <p> HH 325-13</p> <p> HC 418/10</p> <p> <br />  </p> <p> Section 5 (3) of The Wills Act prohibits a testator from making provisions which prejudices the rights of a spouse to whom he is married to a share in the deceased’s estate in terms of any law, or any person from receiving any property or benefit from the testator’s estate. In terms of s 3A of the Deceased Estates Succession Act <em>[Cap 6:02)</em> and s 68 F (2) (d) (i) of the Administration of Estates Act <em>[Cap 6:01),</em> the deceased’s spouse is entitled to inherit from his estate.</p> <p> Whether or not Jessy Mazanya is entitled to ownership of the property or a usufruct over it, it should not have been disposed of by the late Charles Muzanya in his will.</p> <p> The deceased’s will, has been deciaredin valid. The estate should therefore be wound up as an interstate estate. Therefore Jessy Muzanya is entitled to the house she was living in or a life usufruct over it. The house in dispute should therefore not have been disposed of in the deceased’s will. The deceased’s’ attempt to do so, was legally incompetent and therefore a legal nullity. The sale inspite of what appears to have been some form of official authorisation suffers the same fate of being a nullity. The deceased could not dispose of it to avoid his spouse Jessey’s rights to it on his death. It follows that selling it on the basis of the deceased’s will does not make it legal. What is prohibited is simply prohibited.</p> <p> I am aware of the prejudice the first and second defendants may suffer as they paid value for the property. They can sue the estate and those, who assistedit to sale what could not be sold for what they lost in buying the property in dispute.</p> <p> This is a case whose result does not, follow the plaintiffs or the first and second defendant’s fault. They are all victims of official errors. They should therefore not be ordered to pay each other’s costs.</p> <p> In the result it is ordered that;</p> <ol> <li><a name="bookmark8" id="bookmark8"></a>The agreement of sale entered into by and between the first and second defendant and third defendant in respect of Stand 79 Brackenhurst Township of Christmas Gift Extension Gweru is null and void and of no legal effect.</li> <li><a name="bookmark9" id="bookmark9"></a>The transfer, and registration of the property in the names of first and second defendants by the fourth defendant is declared to be null and void and of no legal effect.</li> <li><a name="bookmark10" id="bookmark10"></a>The fourth defendant is ordered to cancel the transfer to the first and second defendants, and reinstate title of the property to the estate late Charles Muzanya.</li> <li><a name="bookmark11" id="bookmark11"></a>Each party shall bear his or its own costs.</li> </ol> <p> </p> <p> </p> <p> 4</p> <p> HH 325-13</p> <p> HC 418/10</p> <p> </p> <p> </p> <p> <em>Atherstone &amp; Cook,</em> plaintiff’s legal practitioners</p> <p> <em>Danzinger &amp; Partners,</em> 1st and 2nddefendant’s 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/rtf" src="/modules/file/icons/application-octet-stream.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2013/325/2013-zwhhc-325.rtf" type="application/rtf; length=82916">2013-zwhhc-325.rtf</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/2013/325/2013-zwhhc-325.pdf" type="application/pdf; length=170970">2013-zwhhc-325.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/deceased-estate">Deceased estate</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/execution-will">Execution of a will</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/w">W</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/will">WILL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/beneficiary-will">Beneficiary of will</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/revocation-will">Revocation of will</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/validity-will">Validity of will</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/1987/13">Wills Act [Chapter 6:06] </a></div><div class="field-item even"><a href="/zw/legislation/act/1873/2">Deceased Estates Succession Act [Chapter 6:02]</a></div></div></div> Mon, 25 Jan 2021 08:01:21 +0000 Sandra 9966 at https://old.zimlii.org Estate Late Dominic Muchenje Mandaza v The Trustees Time Being of the Seventh Day Adventist Association of Southern AFrica (HH 690-20, HC 1081/18 MASTER'S REF DR 1529/93) [2020] ZWHHC 690 (11 November 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/690 <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>ESTATE LATE DOMINIC MUCHENJE MANDAZA</p> <p>Represented by its Executrix Dative Molly Mandaza</p> <p>versus</p> <p>THE TRUSTEES FOR THE TIME BEING OF THE SEVENTH DAY ADVENTIST </p> <p>ASSOCIATION SOUTHERN AFRICA</p> <p>and</p> <p>REGISTRAR OF DEEDS N.O</p> <p>and</p> <p>MASTER OF THE HIGH COURT N.O</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>TAGU J</p> <p>HARARE, 4 November 2020 &amp; 11 November 2020</p> <p> </p> <p> </p> <p><strong>Civil Trial</strong></p> <p> </p> <p><em>N.P. Zhangazha</em>, for the applicant</p> <p><em>Advocate Ochieng</em>, for the 1stdefendant</p> <p> </p> <p> </p> <p>TAGU J: This matter was filed as a Court Application to-</p> <ol> <li>Reinstate the Title Deed in the name of the applicant, which Title Deed is number 7572/90 in terms of section 8 of the Deeds Registries Act,</li> <li>Declare any purported transfer of Title from applicant as unlawful, invalid and of no force and effect and for such transfer to be cancelled and set aside;</li> <li>Order the 2ndrespondent to cancel and set aside the transfer and Title Deed Number 10381/04 purportedly transferred from applicant and registered in the name of the Trustees for the time being of the Seventh Day Adventist Church, the 1strespondent herein.</li> </ol> <p>The facts of the matter can be summarized as follows. The late Dominic Muchenje Mandaza purchased Stand 280 Helensvale Township of Lot 39A Helensvale measuring 1,5183 hectares and transfer was effected into his name on the 10thOctober 1990. The property is an undeveloped Stand. One MOLLY MEMORY MANDAZA, the executrix dative still has the original Title Deed and the Diagram Deed of the Stand. She is the surviving spouse to the Late Dominic Muchenje Mandaza who passed on the 26thMay 1993. She has been managing the Stand since the demise of her husband and continued to do so as executrix dative appointed in terms of letters of administration DR Number 1529/93.</p> <p>On Friday the 5thof January 2018 as she intended to pay the rates and property tax of the said property she was informed by the City of Harare that the property was registered under the name of the 1strespondent. Her legal practitioners discovered that the transfer had been done in 2004 on 1stDecember 2004 under Deed of Transfer No. 10381/2004. She reported the fraud to the police under number RRB 340511. The conveyancer was none other than PRISCILLA SEKAI MADZONGA who was empowered by a Power Attorney executed by one Dominic Munyaradzi Mandaza who was purportedly acting by virtue of yet another General Power of Attorney granted to him by a “Dominic Muchemje Mandaza” on the 9thof November 2004.</p> <p>The conveyancers for the transfer then availed copies of the documents which were used in the execution of the General Power of Attorney. These were a forged Zimbabwe Drivers Licence purported to be that of the late Dominic Muchenje Mandaza with a photo of an unknown person, an Identity card number different from the late Dominic Muchenje Mandaza, an affidavit used by the individual in which he states that he was the owner of the property in question and was leaving for Canada and empowering his son Dominic Munyaradzi Mandaza to act on his behalf in the sale of the property. There was also an Agreement of Sale dated the 6thof August 2004 between Dominic Munyaradzi Mandaza who was paid.</p> <p>The applicant now applied to this Honourable Court to have the transfer which was made on behalf of the 1strespondent to be set aside and declared null and void as it was a result of fraud and to have Deed of Transfer Number 10381/2004 cancelled.   </p> <p>This court application was placed before KWENDA Jon the 18thday of 2018. By consent of the parties the Court Application was referred to trial. The Rules of the High Court automatically applied.</p> <p>A round- table meeting was held and parties failed to reach agreement and agreed to refer the matter to trial on the following issues captured on the parties’ Joint Pre-Trial Conference Minute-</p> <p>“2.1. Whether the General Power of Attorney in favour of Dominic Munyaradzi Mandaza dated 9 November 2004 is valid given that Dominic Muchenje Mandaza passed away on the 26thof May 1993;</p> <p>2.2. Whether or not the Agreement of Sale dated 6thAugust 2004 is valid given that Dominic Muchenje Mandaza passed away on the 26thof May 1993.</p> <p>2.3. Whether or not the immovable property in question was lawfully transferred from Dominic Muchenje Mandaza to the 1stDefendant under Deed of Transfer No. 10381/2004; </p> <p>2.4. Whether, therefore, Deed of Transfer No. 10381/2004 should be cancelled and set aside in terms of Section 8 (2) (b) of the Deeds Registries Act (Chapter 20.05);                       </p> <p>2.5. Whether, therefore, Deed of Transfer No. 7572/1990 dated 10 October 1990 and registered in the name of Dominic Muchenje Mandaza in respect of Stand 280 Helensvale Township of Lot 39A Helensvale situate in the district of Salisbury and measuring 1.5183 hectares should be revived in terms of Section 8 (2) (a) of the Deeds Registries Act [<em>Chapter 20.0</em>5] in favour of the plaintiff.</p> <p>2.6. Whether or not the 1stDefendant should pay costs of suit on a legal practitioner and client scale;</p> <p>2.7. Whether or not the sale of the property to 1stDefendant was fraudulent and if so, </p> <p>2.7. 1. Who committed the fraud?</p> <p>2.7.2. Was the Executrix negligent in her duties?</p> <p>2.7.3. Could she have been aware of the fraud if she had not been so negligent?</p> <p>2.8.  When did Plaintiff become aware that the property had been sold and how?</p> <p>2.9. Where should the loss lie?”</p> <p>Two witnesses testified in this case. One for the plaintiff and one for the defendant. At the close of the defendant’s case the parties’ legal practitioners undertook to file written closing submissions by the agreed date. None of the legal practitioners have done so for over a year now. The court was forced to write this judgment without any input from the parties’ legal practitioners. </p> <p>In an endeavor to resolve the issues listed above the plaintiff gave evidence through Mrs. Molly Memory Mandaza. Her evidence among other things was to the effect that the property in question was allegedly said to have been transferred to the first defendant by Dominic Muchenje Mandaza yet her husband on the 1stof December 2004 under Deed of Transfer Number 10381/2004 yet her husband had passed on in 1993. He could not have been able to sign a power of attorney on the 9thof November 2004. She maintained that all people mentioned in the documents that was facilitated to transfer the property from her late husband’s property are all fake persons. She said the son mentioned in the affidavit is a fictitious person as she does not know that person by the name Dominic Munyaradzi Mandaza. She gave further evidence that shows that some identification numbers used by the fraudsters were different from those of her late husband and she produced all these documents as exhibits. For example, she produced a letter from the Central Vehicle Registry dated the 24thof January 2019 where it is stated among other things that-</p> <p>        <strong>“RE: CONFIRMATION LETTER FOR MANDFAZA DOMINIC MUCHENJE</strong>:</p> <p>This is to certify that MANDAZA DOMINIC MUCHENJE, Identity Card Number 63-048235 S 68 is a holder of a <strong>FAKE</strong>Zimbabwean Drivers Licence.</p> <p>Licence number 33358H belongs to MAROZVA LLOYD ID number 63-965479 T 47.</p> <p>We do not have cases of duplicated licence numbers…”</p> <p>She denied being negligent in the administration of the property in question and said she periodically visited the site and her children would also periodically visit the site and find it vacant. Shen denied she should have known of the sale of the property through advertisements as she was not buying Newspapers and she was not selling the said Stand. According to her the fraud was committed by Dominic Munyaradzi Muchenje together with the first defendant which should have verified the correctness of the transactions before going into the Agreement of sale.</p> <p>In its defence the first defendant led evidence through STEPHEN MURAMBIWA MANGOMA who is part of the leadership in the church and part of the committee in the transactions. He said he is the one who signed the agreement of sale on behalf the first defendant. His evidence was that the church came to know of the sale of the property in question through an advertisement that was published in The Herald. The advertisement had been placed by TONY WEST REAL ESTATE AGENCY. As a church they just trusted Tony West Real Estate Agency and entered into the Agreement of sale. Under cross examination he confirmed that most of the documents produced by the plaintiff’s witness were fake. He confirmed that indeed a fraud was committed leading to the transfer of the property into their names. When asked by the counsel for the plaintiff whether the church would insist on the agreement once it is proven to be illegal, his response was as follows-</p> <p>“As a church we have a human face, we believed it was legal, if the court finds its illegal we have to sit with owners and come to some agreement.”</p> <p>Further, he could not challenge the death certificate that proved beyond doubt that all the transactions were done after the owner had log passed own. He further confirmed Tony West Real estate confirmed a person that does not exist. He was asked the following pertinent questions and he gave revealing answers-</p> <p>            “Q- So Tony West facilitated a fraud?</p> <ul> <li>Yes, given the documents before me. </li> </ul> <p>Q- So the fraud was not hidden at all, Tony West, Conveyancers and Church would have seen the fraud if they cared to look? (that is at documents)</p> <p>A – Church relied on Tony West and Costa, so it was not hidden.</p> <p>Q- 1stdefendant said all this happened because plaintiff was not diligent, careful, what is your comment given the evidence adduced?</p> <p>A – Church has human face, when such things happen, people must sit and map a way forward. Given the time lapse the opinion is correct.”</p> <p>The first defendant’s witness further said he could not bring the various documents used in the transactions to court as evidence. His answers were that he merely relied on Tony West Real Estate Agency.</p> <p><strong>ANALYSIS</strong></p> <p>Having carefully considered all the evidence adduced before me the Court came to the following conclusions. The position of the plaintiff is very clear. It has the original Title Deed and the Diagram Deed to the said property in the possession of the executrix dative. In situations like this a <em>bona fide</em>owner receives the previous Title Deed to the property when transfer has been effected into another unlawfully. In <em>casu</em>the sale of the property to 1stdefendant was fraudulent. The fraud was facilitated by a Dominic Munyaradzi Mandaza assisisted by Tony West Real Estate Agency and Coster or the conveyancer. The applicant did not at any time lose its right of ownership notwithstanding the purported transfers. She was not negligent in any manner. She was not aware of the fraud up until the time she went to pay the rates for the said property when she was told that the account has since been changed unto the 1stdefendant’s name by official from City of Harare. It is entitled to vindicate its property from whoever has possession of it. The loss must therefore lie on the 1stdefendant. I say so because- </p> <ol> <li>The General Power of Attorney of Dominic Munyaradzi Mandaza dated 9 November 2004 is invalid given that Dominic Muchenje Mandaza passed away on the 26th of May 1993.</li> <li>Consequently, the Agreement of Sale dated 6thAugust 2004 is invalid.</li> <li>The immovable property in question was unlawfully and fraudulently transferred from Dominic Muchenje Mandaza to the first defendant under Deed of Transfer No. 10381/2004.</li> <li>Therefore, Deed of Transfer No. 10381/2004 should be cancelled and set aside in terms of Section 8 (2) (b) of the Deeds Registries Act [<em>Chapter 20.05</em>].</li> <li>Also Deed of Transfer No. 7572/1990 dated 10 October 1990 and registered in the name of Dominic Muchenje Mandaza in respect of Stand 280 Helensvale Township of Lot 39A Helensvale situate in the district of Salisbury and measuring 1.5183 hectares should be revived in terms of Section 8 (2) (a) of the Deeds Registries Act [<em>Chapter 20.05</em>] in favour of the plaintiff.</li> <li>Since plaintiff own its case the 1stdefendant must pay the costs of suit on a legal practitioner and client scale as it was negligent in the manner it entered into the Agreement of sale.</li> </ol> <p>IT IS ORDERED THAT</p> <ol> <li>Deed of Transfer No. 7572/90 dated 10thOctober 1990 and registered in the name of Dominic Muchenje Mandaza, the Applicant, in respect of Stand 280 Helensvale Township of Lot 39A Helensvale and measuring One Thousand Five and Eighteen three (1.5183) hectares be and is hereby revived in terms of section 8 (2) (a) of the Deeds Registries Act [<em>Chapter 20.05</em>].</li> <li>The Registrar of Deeds, 2ndrespondent herein, be and is hereby ordered and authorized to cancel and set aside the following Title Deed and to make the appropriate endorsements on the relevant Deeds and entries in the registers in terms of section 8(2) (b) of the Deeds Registries Act [<em>Chapter 20.05</em>]:</li> </ol> <ol> <li>Deed of Transfer No. 10381/2004 dated 11thNovember 2004 in respect of the property, purportedly transferred from Dominic Muchenje Mandaza and registered into the name of The Trustees for the time being of the Seventh Day Adventist Association of Southern Africa.</li> <li>     1strespondent be and is hereby ordered to pay costs on a higher scale.</li> </ol> <p> </p> <p> </p> <p> </p> <p><em>Chinz Law Chambers</em>, plaintiff’s legal practitioners</p> <p><em>Coghlan, Welsh &amp; Guest</em>, 1stdefendant’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/harare-high-court/2020/690/2020-zwhhc-690.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=24640">2020-zwhhc-690.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/2020/690/2020-zwhhc-690.pdf" type="application/pdf; length=126973">2020-zwhhc-690.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/deceased-estate">Deceased estate</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/fraud">Fraud</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/2017/8">Deeds Registries Amendment Act, 2017</a></div></div></div> Tue, 24 Nov 2020 08:15:30 +0000 Sandra 9941 at https://old.zimlii.org Moyo v NPA (HMA 16-20, HC 301/19) [2020] ZWMSVHC 16 (20 May 2020); https://old.zimlii.org/zw/judgment/masvingo-high-court/2020/16 <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>ADRIAN MOYO</p> <p>versus</p> <p>NATIONAL PROSECUTING AUTHORITY</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>ZISENGWE J</p> <p>MASVINGO 17 MARCH 2020 &amp; 20 MAY 2020</p> <p> </p> <p> </p> <p> </p> <p><strong>Opposed Application</strong></p> <p> </p> <p> </p> <p>Applicant in person</p> <p><em>Mr T. Chikwati</em> for the respondent</p> <p> </p> <p> </p> <p> </p> <p><strong>ZISENGWE J:</strong> This is an application wherein an order is sought compelling the respondent to institute review proceedings against the decision of a magistrate to discharge one Irene Moyo at the close of the state case. The latter was on trial on stock theft charges.</p> <p><strong>BACKGROUND</strong></p> <p>The matter has its origins in the estate of the late Stephen Moyo who lost his life in a motor vehicle accident on 27 July 2004. He died intestate. He was survived by his wife Irene Moyo and a number of children, among them the applicant (Irene Moyo is applicant’s step mother). His estate was fairly sizeable and consisted of both movable and immovable assets. It was duly registered with the Master of the High Court under DR 2120/04.  The assets in that estate consisted, <em>inter alia, </em>of a farm and on it, a herd of cattle. It is common cause that some two months after his death, his widow Irene Moyo, disposed of fifty of those cattle by selling them to a retail outfit operating under the name “Montana meats” in Masvingo. At that stage the estate of her late husband had not been wound up.</p> <p>Aggrieved by the conduct of Irene Moyo in selling those beasts, the applicant, some four years later, made a report of stock-theft against her to the police. This culminated in her arraignment before Magistrate Mudzongachiso on stock-theft charges. According to the allegations as contained in the charge and state outline her conduct in disposing the fifty head of cattle amounted to stock theft as she had no right to sell them because they were part of the yet to be wound up estate.</p> <p> Her defence to the charges as same can be gathered from the record of proceedings was that she urgently needed cash to meet the expenses incurred at the funeral as well as to pay for the children’s school fees.</p> <p>As it turned out the applicant was the sole witness for the prosecution. His evidence was startlingly brief (consisting all of four sentences!) and his cross examination was shorter still, consisting as it did of a single question. At the close of the state case the Magistrate discharged Irene for want of evidence. More particularly, he found that the property which Irene Moyo is alleged to have stolen at law actually belonged to her by operation of Section 68F of the Administration of estates Act as read with the provisions of Act 7 of 1997.</p> <p>It is that decision to discharge Irene Moyo that prompted this current application (albeit some five and half years later).  The applicant, who is a self-actor avers that that decision was wrong and premised on a misapprehension on the part of the magistrate of the applicable legal principles under the administration of Estates Act.</p> <p>The respondent is the National prosecuting Authority (hereinafter shortened as “NPA”), a constitutional body responsible for the prosecution of criminal cases in Zimbabwe. In this application it was represented by officers attached to its local office. Whereas the opposing affidavit was deposed to by one Chiedza Muhwandavaka who identifies herself therein as a “Provincial Public Prosecutor currently stationed at Masvingo”, the matter was argued by a different officer, Mr Chikwati.</p> <p> In discharging Irene Moyo the magistrate remarked as follows:</p> <p><em>  “I am most perplexed at this matter. The law relating to these issues before me are governed by the Administration of deceased Estates Act and in particular Section 68F which categorically states that a surviving spouse upon the death of the other inherits the property left behind. The law clearly says that the inheritance is in the surviving spouse’s personal capacity. That position was made clear by Act No. 7 of 1997. The only fault here is the accused who is legally the owner of the property prejudiced the master in terms of master’s fees which she has to pay anyway. She has ownership of all the property in her individual capacity and cannot steal her own property. She is only advised to adhere to the Administration of Deceased Estates Act to regularise her ownership. She is acquitted of theft”</em></p> <p> </p> <p>In attacking this decision to acquit Irene Moyo and the reasons that were given therefor the applicant avers that since she was married to his father in terms of [<em>Chapter 238</em>] in 1979 and not under 5:09 (sic) (he obviously meant The Customary marriages Act, [<em>Chapter 5:07</em>]) Irene was therefore not entitled to the entire net estate of his late father.  More specifically he contends that the magistrate erred in disregarding the Master’s report which spelt out the manner in which the estate was to be administered. In a word, the portion of the report that the applicant relies on states that since the deceased was married to Mrs Irene Moyo in terms of the then “African Marriages Act [<em>Chapter 238</em>]” (now customary Marriages Act [<em>Chapter 5:07</em>] she was entitled to ownership of the house in which she was ordinarily resident and all household effects thereto. In addition she was entitled to the first $200 000 worth of assets or a child’s share whichever was the greater. The remainder of the net estate then stood to be shared equally between the spouse and all the deceased’s children.</p> <p>The respondent in a rather perfunctory and dismissive fashion elected to oppose the application almost entirely on the basis that the Prosecutor General, being an independent constitutional appointment, is not subject to the direction or control of anyone.  Implicit in such independence (so the argument goes) is that an application such as the present one where someone seeks an order compelling the PG to institute review proceedings is unconstitutional and should therefore fail.</p> <p>Apart from some vague and utterly superficial reference to the application being devoid of merit, there was no attempt whatsoever to engage the facts or to justify the decision of the magistrate rendering a review unmeritorious. In fact I find myself compelled to reproduce that part of the respondent’s opposing affidavit that purports to address the merits or otherwise of the applicant’s position. It reads:</p> <p><em>“8.       There are no merits in the record of proceedings (sic) warranting an application for review. The applicant himself does not advance any grounds to sustain an application for review.</em></p> <p> </p> <p><em>9.         There is no basis to set aside the judgment. The order being sought by the applicant of any legal basis. At best it can be described as confusing and embarrassing.</em></p> <p> </p> <p><em>            10.       The application is a clear abuse of the court process.”</em></p> <p>It goes without saying that such a cavalier approach to litigation by a functionary of the respondent the latter being a critical organ of the state in my view, amounts to a serious dereliction of duty<em>.  </em>There was not even the slightest attempt to demonstrate why it was contended that the application was utterly unmeritorious. Such abdication of responsibility cannot escape censure.</p> <p>Even the bald contention that decisions of the office of the Prosecutor General are by virtue of his independence, not subject to judicial review, is not entirely correct. The independence contemplated in Section 260 of the Constitution is independence from improper, corrupt or unlawful influence. It can never be understood to imply that bearers of that office can act without proper regard to the law, nor does it mean that the jurisdiction of the courts to review his decisions is ousted. It means independence from partisan or other external influences unconnected to the pursuit of justice. That issue has since been decided by the Constitutional Court in <em>In re Prosecutor General on his Constitutional Independence and protection from direction and control</em> CCZ13/2017 where it was held that the very s 260 (1) which the applicant sought to rely upon to assert his independence makes it crystal clear that the Prosecutor-General’s independence and autonomy in the exercise of his functions and powers are not absolute but are “subject to this Constitution”: meaning that the prosecutor general is enjoined at all times to observe both the Constitution and the rule of law. In other words the PG cannot act unlawfully by refusing to do what he is legally obligated to do and thereafter purport to hide behind the shield of the independence of his office. In appropriate cases he may, by a proper order of court upon application, be compelled to perform some positive act.</p> <p>The shortcomings or inadequacies in the respondent’s opposing papers, however, do not <em>ipso facto</em> translate to a finding for the applicant. The court is still enjoined to carefully consider the application to see if it is meritorious in the light of the applicable legal principles. In the context of this case, therefore, this application will only succeed if the court is of the view that the review application that applicant wants the respondent to be ordered to launch enjoys prospects of success.</p> <p>A perusal of the application reveals it is beset with a myriad of problems, chief among them being the delay in bringing this application in view of the relevant time limits imposed by the law. The other problem relates to the appropriateness of the procedure which applicant wants respondent to be compelled to embark on. Thirdly, there is the question of the non-joinder of relevant parties to this application. Each of these will be dealt with in turn.</p> <p><strong>Non-observance of time limits</strong></p> <p>As alluded to earlier, Irene Moyo was found not guilty and discharged by the magistrate on 12 November 2014 and the applicant filed this application in 30 January 2020. Needless to say that the application for review (should this current application succeed) is well out of time.</p> <p>The period within which a review must be filed is eight weeks calculated from the date when the matter that is sought to be reviewed was finalised. Order 33 rule 259 of the High Court Rules, 1971 (the rules) provides as follows:</p> <p><em> “Any proceedings by way of review shall be instituted within eight weeks of the termination of the suit, action or proceeding in which the irregularity or illegality complained of is alleged to have occurred: provided that the court may for good reason extend the time.”</em></p> <p> </p> <p>At the time of making this application the applicant must have been alive to the above provision given his attempt to rely on the proviso thereto. He stated as follows in paragraph 4 of his founding affidavit:</p> <p>“<em>4.       This is an application for an order compelling the respondent to seek a review in the outcome of the matter CRB MS 1558/14. If the respondent is ruled out of time, then he should seek the setting aside of the judgment in the interests of justice.”</em></p> <p> </p> <p>In<em> Forestry Commission </em>v<em> Moyo </em>1997 (1) ZLR 254 (SC) at 259 E-F GUBBAY CJ (as he then was) had this to say:</p> <p><em> “… if the application for review has been brought out of time, condonation for the failure to comply with rule 259 must be sought. If authority is required for this self-evident concept, it is to be found in Bishi v Secretary for education 1989 (2) ZLR 240 (H) at 242D; and Mushaishi v Lifeline Syndicate &amp; Anor 1990 (1) ZLR 284 (H) at 288 E-F. The court is entitled to refuse the review or may condone the omission. It exercises a judicial discretion, while taking into consideration all relevant circumstances</em>.”</p> <p> </p> <p>The court at 260 E - G went on to summarise the factors which are germane to an application for condonation for late filing of a review, and these are:</p> <ol> <li>That the delay involved was not inordinate having regard to the circumstances of the case;</li> <li>That there is a reasonable explanation for the delay;</li> <li>That the prospects of success should the application be granted are good; and</li> <li>The possible prejudice to the other party should the application be granted.</li> </ol> <p>            (See also <em>Leonard Dzvairo v Kango Products</em> SC 35/2017; <em>Director Civil aviation v Hall</em> 1990 (2) ZLR 354 (S)).</p> <p>In applying the above broad factors, one cannot help but observe, firstly that there was clearly an inordinate delay in bringing this current application. The inevitable consequence is that this will elicit a direct and similar reaction from the reviewing court were this application to succeed. Five and half years is too long a delay to bring such an application especially considering that no explanation was proffered for the apparent tardiness.</p> <p>In the present matter  the applicant does not in the least attempt to explain the basis upon which the respondent should rely in its application for condonation for the late filing of the review application should this current application succeed. Put more directly applicant does not bother to explain why <em>he</em> only came forward more than five years after the discharge of the Irene Moyo to bring it. It is obviously untenable to suggest (as applicant seems to imply) that the respondent must somehow conjure up some explanation to support the inevitable application for condonation that should precede or accompany the application for review.</p> <p>The <em>Forestry Commission </em>v<em> Moyo </em>case (supra) buttresses the principle that an application for condonation which is not accompanied by reasons for the late filing of the review application should not be entertained: the court posed the rhetorical question: <em>“How can a court exercise a judicial discretion to condone when the party at fault places before it no explanation for the delay?” </em></p> <p>In<em> Leonard Dzvairo </em>v<em> Kango Products (supra) </em>GUVAVA JA referred with approval to the case of <em>H. J. Vorster (Private) Limited </em>v <em>Save Valley Conservancy</em> SC 20/14 where it was stated as follows:</p> <p><em>“… there was no merit in the application for condonation because the applicant’s predicament was due to its own dilatoriness. Having so found, the court proceeded to dismiss both applications with costs on the legal practitioner and client scale</em>”</p> <p> </p> <p>It is not clear what the applicant meant by<em> “If the respondent is ruled out of time, then he should seek the setting aside of the judgment in the interests of justice.” </em>If by that he meant that condonation should nonetheless be granted (in the interests of justice) notwithstanding the absence of any reasons being proffered for the late filing of the review then that position is untenable not least because it is alien to rules of court.</p> <p><strong>Prospects of success</strong></p> <p>The third requirement that the respondent (then as applicant) will need to satisfy in the application for condonation is that it enjoys reasonable prospects of success in the review application. Although the applicant dwelt almost exclusively on the question of the relevant inheritance laws, this should not disguise the true character of what he ultimately seeks. He basically wants the discharge of Irene Moyo in the criminal trial to be set aside. Therefore, the applicant will need to satisfy the court that Irene Moyo should not have been discharged at the close of the state case but rather placed on her defence. Viewed from a different angle it will be incumbent upon the NPA to show (should this current application succeed) that it had in fact established a <em>prima – facie</em> case as against Irene Moyo on the stock-theft charges.</p> <p>Section 198 (3) of the Criminal Procedure and Evidence Act, [<em>Chapter 9:07</em>] provides as follows:</p> <p><em>“(3)     If at the close of the case for the prosecution the court considers that there is no evidence that the accused committed the offence charged in the indictment, summons or charge, or any other offence of which he might be convicted thereon, it shall return a verdict of not guilty.”</em></p> <p> </p> <p>In interpreting this provision the court in<em> S v Tsvangirai &amp; Ors </em>HH-119-03 summarized the circumstances in which discharge at the close of the state case will be granted as follows:</p> <p>“<em>Thus the court must discharge the accused at the close of the case for the prosecution where </em></p> <p> </p> <ol> <li><em>there is no evidence to prove the an essential element of the offence; </em></li> </ol> <p> </p> <p><em>(b) there is no evidence on which a reasonable court, acting carefully, might properly  </em></p> <p><em>      convict; </em></p> <p> </p> <p><em>(c) the evidence adduced on behalf of the state is so manifestly unreliable that no </em></p> <p><em>     reasonable court could safely act on it. Instances of the last such cases will be rare;  </em></p> <p><em>     it would only be in the most exceptional cases where the credibility of a witness is </em></p> <p><em>    so utterly destroyed that no part of his material evidence can possibly be believed.”</em></p> <p> </p> <p>These principles clearly must have eluded the applicant for he dwelt almost exclusively on the question of the provisions of the Administration of Estates Act. He fell short of alleging, let alone proving, that the respondent had established a prima facie case warranting placing Irene Moyo on her defence.</p> <p>The sole evidence at the disposal of the court was that of the applicant and it is perhaps necessary to reproduce it here in its entirety as same appears from the record of proceedings:</p> <p> <em>“I reside at number 1987 Bluff Hill Harare and I am aged 43 years. Accused is my step mother. The beasts should not have been sold but were for the deceased estate. It’s true she was married to the deceased. Well, ownership should have been done through a deceased estate and one would be given property with which the property was acquired during the pendency of their marriage which I only want (sic) it to have the matter resolved amicably”</em></p> <p> </p> <p>In cross examination the following exchange took place:</p> <p><em>Q:        I have no question for I sold the beasts after I made a decision to raise funds for the expenses and funeral expenses.</em></p> <p><em>A:         Well, no meeting was held.</em></p> <p> </p> <p>There was no re-examination. Thereafter the state closed its case. Apart from the marriage certificate which was produced by Irene Moyo when she gave her defence outline, showing the marriage between her and applicant’s father, no other documentary exhibits were produced.</p> <p>It is on that evidence that the court was to decide whether to place Irene Moyo on her defence or not.</p> <p>I will first deal with the applicable provisions which relate to succession and inheritance. Section 68F (2) (d) of the Administration of Estates Act and Section 3(b) of the Deceased Estates Succession Act [<em>Chapter 6:02</em>] (which are the applicable provisions in the current scenario) essentially provide the same thing namely that under customary law, in instances where the deceased dies intestate and is survived by one spouse and one or more children, then the surviving spouse should get ownership of or, if that is impracticable, a usufruct over, the house in which the spouse lived at the time of the deceased person’s death, together with all the household goods and effects thereto as well as a child’s share  (each child inheriting in equal shares) or to the specified amount (which according to the Master’s report must have been $200 000 at the time) whichever is the greater. The applicant confused himself by failing to appreciate that paragraph 2d of Section 68F forms a part of that Section. He seems to labour under the impression that the magistrate by referring to section 68F, he necessarily excluded s 68F (2) (d) which, of course, does not make sense.</p> <p>Therefore, whether or not the surviving spouse will inherit the entire net estate after the allocation of the house to her is dependent on the size of the residue; i.e. whether that value exceeds the specified amount.   Even if one were to accept, therefore, that the magistrate erred by taking as given that the Irene Moyo was entitled to inherit the entire net estate in the circumstances of this estate, that would not necessarily be the end of the enquiry: this court will still have to decide if the evidence led in that trial justified placing Irene Moyo on her defence. Put differently; the fact that the magistrate’s decision was based almost entirely on his understanding of the law relating to inheritance from a deceased estate does not preclude this court from evaluating the rest of the evidence to see if it merited placing Irene Moyo on her defence.</p> <p> In my view the evidence adduced before the magistrate, fell far short of what was required to do so. The following are a few of the shortcomings of the state case. Firstly and perhaps most importantly Irene Moyo’s explanation for selling the cattle was basically that she needed to raise money as a matter of urgency to pay for school fees for the children, and that she needed to settle expenses incurred during the funeral. She stated as follows:</p> <p><em>“I was married to my husband to my husband in 1979 and we had nothing. We then bought a house and left the house and renting it as we were in a flat. We generated income then went to the farm. We then reared beasts which we would sell and send children to school. My husband died through as accident. I then instructed that beasts be sold to cater for funeral expenses and pay children’s school fees. That is how the allegations arose.”</em></p> <p> </p> <p>            Although she did not say this in as many words, she was obviously raising the defence of claim of right.  Feltoe in <em>“A guide to Criminal Law in Zimbabwe” </em>explains this defence in the following manner:</p> <p><em>“A claim of right is a “decently clothed” ignorance or mistake of the law. If ignorance or mistake of law is decently clothed, that is where X either knows or suspects that his action would normally be illegal but because of some extraneous factual basis, he believes that his action will not be unlawful in present circumstances.</em></p> <p> </p> <p><em>This defence only applies in respect of property crimes, such as theft, robbery or malicious injury to property. Some examples of where this defence will apply are as follows.</em></p> <p> </p> <p><em>X takes property from C mistakenly thinking that this property is X’s own property which C has stolen from him. X is not guilty of theft because he had no intention to steal: he thought he was recovering his own property, and had a lawful right to take it</em>.”</p> <p> </p> <p>In <em>S </em>v<em> Tamayi &amp; Ors</em> 1982 (1) ZLR 267 (S) the accused persons had taken cattle belonging to another because they thought that the family of that person had had something to do with the death of their relative. They took the cattle as compensation. They were found not guilty because of claim of right. See also <em>S </em>v<em> Ellis</em> 1961 R&amp;N 468 (FS), <em>S </em>v <em>Chihanya</em> 1981 ZLR (G)</p> <p>From Irene Moyo’s defence outline, it is clear that she was contending, firstly that the cattle that she sold jointly belonged to her and her late husband and secondly that she genuinely believed that she was entitled to dispose the cattle to offset the funeral expenses and to meet school fees requirements.</p> <p>An accused who raises the defence of claim of right is required to lay a foundation for that defence by leading evidence in that regard <em>(S </em>v<em> Kaiwona &amp;Ors</em> S-182-93, <em>S </em>v<em> Davy</em> 1988 (1) ZLR 386 (S)). In the present case Irene Moyo did lay such a foundation by stating as she did that she had contributed towards the acquisition of the property in question and that she believed she was entitled to dispose of the same. Although a defence outline is not evidence per se, it is nonetheless important evidential material that the court can have regard to. The state case on the other hand was woefully abysmal and ineffectual. It did not justify placing her on her defence for her to simply repeat what she had already stated in connection with the cattle that formed the subject matter of the charges.</p> <p>   Put in context, therefore, if indeed she was not bona fide in those assertions, cogent evidence should have been placed before the magistrate to that effect. Indeed it is not uncommon for the widow or widower of a deceased person to offset some of the immediate debts arising from the sickness and/or funeral expenses attendant to the death of the deceased from part of the assets owned by the deceased (See also Section 46 of the Administration Of Estates Act)</p> <p>Secondly, the Master’s report which the applicant places heavy reliance on was not produced in the criminal trial. How then would the magistrate have relied on same? The applicant seems to have laboured under the mistaken belief that the magistrate was aware of the existence of that report and should have somehow taken judicial notice of it which of course is incorrect. In a criminal trial the court’s decision is based squarely on the evidence placed before it and of course, the law not on speculation and suppositions.</p> <p>            Similarly, the applicant in his answering affidavit refers to his police statement which supposedly contains details of the alleged crime. He erroneously presumes that it too was placed before the magistrate. All the material evidence tending to point to the guilt of Irene Moyo needed to be placed before the court regard being had to the fact that the onus rests on the state to prove its case against the accused.</p> <p>Interestingly, the applicant in his evidence during the criminal trial before the magistrate indicated that all he wanted was for “the matter to be resolved amicably” That is a far cry from suggesting, let alone proving that Irene  Moyo acted with criminal intent.</p> <p>To sum up on this point, therefore, the prosecution of the case was lacklustre in the sense that the prosecutor patently neglected to extract from the applicant all the relevant information needed to support a conviction. That rather laissez-faire approach to prosecution which yielded the inevitable discharge cannot now be attributed to the magistrate.</p> <p><strong>Prejudice to the other party</strong></p> <p>Moving on now to consider the possible prejudice to the other party as one of the considerations in an application for condonation. “Other party” in this context should essentially be understood to mean Irene Moyo. Almost six years have gone by since her discharge on the stock-theft charges and sixteen years have flown past since the incident which gave rise to the charges. She surely must have moved on with her life and put this debacle behind her back by now. In my view, her constitutional right to a trial within a reasonable time (Section 69(1) of the Constitution) finds relevant application. Dragging her to court supposedly for a resumption after a six year hiatus amounts an infringement of this right. The expression “within a reasonable time” should be understood not only to mean from the time of arrest to time of commencement of the trial but includes the duration of the trial itself.    Ultimately, therefore, I believe the delay in bringing this application and consequently the intended application for review itself will unduly prejudice her.</p> <p>On the basis of the above I am of the considered view that the application for review does not enjoy prospects of success as it is highly unlikely to surmount the first hurdle namely the application for condonation.</p> <p>Over and above the above, there is yet another problem that confronts this application namely the conflation of the procedures of appeal and review.</p> <p><strong>The review/appeal dichotomy</strong></p> <p>The applicant wants to have the respondent compelled to seek a review of the decision of the magistrate to acquit Mrs Irene Moyo. The question that immediately springs to mind is whether that would be an appropriate procedure to adopt in the circumstances. In general a review is concerned with the procedure followed in arriving at a decision. It is not directed at correcting a decision on the merits.</p> <p>In Herbstein &amp; Van Winsen “<em>Civil practice of the High Courts &amp; Supreme Court of Appeal of South Africa</em>” (Fifth edition) at page 1271 the following is stated:</p> <p>            <strong><em>D Distinction between appeal and review</em></strong></p> <ol> <li><em>The reason for bringing proceedings under review or on appeal is usually the same, viz to have the judgment set aside. Where the reason for wanting this is that the court came to a wrong conclusion on the facts or the law, the appropriate procedure is by way of appeal. Where, however, the real grievance is against the method of the trial, it is proper to bring the case on review. The first distinction depends, therefore on whether it is the result only or rather the method of trial which is to be attacked. Naturally, the method of trial will be attacked on review only when the result of the trial is regarded as unsatisfactory as well. The giving of a judgment not satisfied by the evidence would be a matter of appeal and not a review, upon this test. The essential question in review proceedings is not the correctness of the decision under review but its validity</em>”</li> </ol> <p> </p> <p>In <em>Khan </em>v<em> Provincial Magistrate</em> HH 39/O6 MAKARAU J (as she then was)</p> <p>summarises the main differences between the two procedures as follows:</p> <p> “<em>An appeal seeks to attack the correctness of the decision of the inferior court or tribunal while a review seeks to attack the manner in which the decision of the inferior court or tribunal has been arrived at. Grounds of appeal are unlimited and cannot be prescribed as they relate to the errors in law or in fact made by the court whose decision is under attack. On the other hand, grounds of review are limited by law and have to be laid out in the application for review. An error in exercising one’s discretion can never be the basis for bringing a review. It is a ground of appeal</em>”</p> <p> </p> <p><em>In casu</em>, the applicant is aggrieved by the decision of the magistrate to acquit Mrs Irene Moyo. He does not in the least allege any procedural irregularity in arriving at that decision. It is therefore clear, this is quintessentially a matter for appeal if the decision was indeed wrong which as pointed out, wasn’t. The decision was correct albeit for different reasons.</p> <p>Sight must not also be lost of the provisions of Section 198(4) (b) of the Criminal Procedure and Evidence Act which are to the effect that if the Prosecutor General is dissatisfied with the decision of a Magistrate to discharge an accused at the close of the state case he may with the leave of a judge of the High Court <em>appeal </em>against the decision to the High Court (See <em>PG </em>v<em> Mtetwa &amp; Anor</em> HH 82-16).</p> <p>As it turned out, applicant got himself all tied up in knots as he clearly conflated the concepts of appeal and review. This is evidenced by his apparent summersault from the use of the term “review” in the founding affidavit to “appeal” in paragraphs 14 and 15 of his answering affidavit. Be that as it may what is clear from his founding affidavit is that he wants the respondent to be compelled to file a review against the decision of the magistrate which is obviously irregular.</p> <p>Another important aspect which has not escaped my attention (although this is by no means the decisive factor) is the failure by the applicant to cite in this application persons directly affected by the order that he seeks, namely Irene Moyo and the Magistrate. In <em>Rodger and Others </em>v<em> Muller and Ors</em> HH 2-2000, PATEL J (as he then was) had this to say regarding the failure to cite parties who ordinarily are expected to be affected by the outcome of litigation:</p> <p>“<em>While I accept that the non-joinder of a party is not necessarily and invariably fatal to the continuance or determination of any matter, it is trite that Rule 87(1) does not absolve a litigant to cite all relevant parties. The discretion of the Court in this regard must be exercised so as to ensure that all persons who are might be affected by its determination of the issues in dispute be afforded the opportunity to be heard before that determination is actually made</em>.”</p> <p> </p> <p>Surely both Irene Moyo and the magistrate who presided over the criminal trial have an interest in the outcome of this application even though it is meant to be a precursor of the intended review application. They have an interest in whether or not the respondent should be compelled to file the contemplated review. The interest of the former are self – evident; she runs the risk of being hurled before the criminal court for a resumption of a case which was terminated years ago. As for the magistrate, it is his decision that will eventually be reviewed were this application to succeed. The failure therefore to cite the aforementioned parties is fatal to this application.</p> <p><strong>DISPOSITION </strong></p> <p>In the final analysis, therefore, this application is fraught with serious irregularities hence the applicant’s quest to have the respondent compelled to resurrect the criminal case against Irene Moyo after its unceremonious demise in 2014 should fail.</p> <p><strong>Costs</strong></p> <p>No prayer for costs was made by the respondent and none will be given.</p> <p> </p> <p>Accordingly, The application is hereby dismissed with no order as to costs.</p> <p> </p> <p><em>National Prosecution Authority</em>, 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/masvingo-high-court/2020/16/2020-zwmsvhc-16.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=40145">2020-zwmsvhc-16.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/deceased-estate">Deceased estate</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/2017/35">Dzvairo v Kango Products (SC 35/2017 Civil Appeal No. SC 593/14) [2017] ZWSC 35 (23 May 2017);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2014/20">H. J. Vorster (Pvt) Ltd v Save Valley Conservancy (SC 124/13) [2014] ZWSC 20 (26 January 2014);</a></div><div class="field-item even"><a href="/zw/judgment/harare-high-court/2003/119">S v Tsvangirai and Others (HH 119-2003) [2003] ZWHHC 119 (07 August 2003);</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/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</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/1929/12">Administration of Estates Act [Chapter 6:01]</a></div></div></div> Thu, 25 Jun 2020 14:12:39 +0000 Sandra 9711 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 Muvandi v City of Mutare & Another (HMT 12-20, HC 303/19) [2020] ZWMTHC 12 (27 January 2020); https://old.zimlii.org/zw/judgment/mutare-high-court/2020/12 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>CHENESO MUVANDI   </p> <p>versus</p> <p>CITY OF MUTARE</p> <p>and</p> <p>MATIVENGA LLOYD MHISHI N.O</p> <p>(In his official capacity as the Executor of the Estate</p> <p>Late Washington Jekanyika)</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUZENDA J</p> <p>MUTARE, 27 January 2020</p> <p> </p> <p> </p> <p><strong>Opposed Application </strong></p> <p> </p> <p> </p> <p><em>H. B R Tanaya</em> with <em>A. N</em> <em>Nyamukondiwa</em>, for the applicant  </p> <p>Ms <em>T Gutuza</em>, for the 1st respondent</p> <p>Ms <em>M. Mandingwa</em>, for the 2nd respondent</p> <p> </p> <p> </p> <p>            MUZENDA J: The applicant made an application seeking the following order:</p> <p>            “IT IS HEREBY ORDERED THAT:</p> <p> </p> <ol> <li>The cancellation of the Memorandum of Agreement of Sale of Stand No. 11234 Darlington Extension, Mutare Township, measuring approximately 1, 1759 hectares, entered into by the City of Mutare and Washington Jekanyika, jointly together with Cheneso Muvandi, is a nullity, of no force and effect.</li> </ol> <p> </p> <ol> <li>The Memorandum of Agreement of Sale of Stand No. 11234 Darlington Extension, Mutare Township, measuring approximately 1, 1759 hectares, entered into by the City of Mutare and Washington Jekanyika, jointly together with Cheneso Muvandi, is declared valid.</li> </ol> <p> </p> <ol> <li>The 1st respondent shall pay costs of suit on a higher scale of attorney and client.”</li> </ol> <p> </p> <p>The application is opposed by the 1st respondent, the City of Mutare</p> <p> </p> <p>BACKGROUND</p> <p>On 20 July 2016 Clayhill Trading (Private Limited entered into an agreement of sale of a piece of land, namely Stand No. 11234 Darlington Extension, Mutare Township, measuring 1, 1759 hectares, with applicant and her late husband Washington Jekanyika. The purchase price was US$62 000-00. Clause 3 of the agreement of sale stipulated the payment plan: US$20 000-00 was payable against the signing of the agreement, US$20 000-00 was payable 3 weeks after the signing of cession papers. The balance of US$22 000-00 was going to be liquidated through monthly instalments of US$4, 000-00 commencing 30 September 2016.</p> <p>The preamble to the memorandum of agreement of sale between the seller and buyer provided that the buyers had to demand transfer from the Municipality of Mutare of such immovable property so purchased by the buyer, however the seller was responsible for the payment of all cession costs, including the city council’s cession fees and capital gain tax, if any (clause 8 of the agreement of sale). During the same year, 2016, the first respondent, City of Mutare, entered into an agreement of sale with the applicant and her husband, under clause 2 of this agreement, the purchase price “was the intrinsic value paid by Clayhill (Pvt) Ltd.” Clause 14 thereto stipulates that the purchasers shall demand transfer of the stand from the seller upon completion on the main building. The agreement of sale does not state any conditions for breach or grounds for cancellation of the agreement of sale.</p> <p>On 24 September 2019 the City of Mutare wrote a letter to the applicant’s legal practitioners indicating that the agreement of sale between itself, the applicant and her husband had been cancelled. First respondent alleged in the letter the applicant’s late husband, Mr W. Jekanyika had misrepresented to the city council that he had fully paid the purchase price of the property to the developer, Clayhill and that Clayhill had since cancelled the first agreement of sale. As a result of the “fraud” committed by the purchasers, the first respondent was cancelling the agreement of sale. A lot of correspondences were exchanged between the city council’s legal practitioners and the purchasers’ lawyers but nothing came out of the correspondences until the applicant approached this court. Clayhill (Pvt) Ltd had since issued summons against the purchasers  claiming an amount of US$28 000-00 for arrear payments, it is important to note that there is no  allegation nor prayer by Clayhill for the cancellation of the agreement of sale or a misrepresentation on the part of the applicant and her late husband.</p> <p>The first respondent, in its opposing papers contends that the applicants’ application should fail for failing to join Clayhill Trading (Private) Limited as a party to the proceedings. As already addressed in the foregoing above, the first respondent went on to state that applicant and her husband breached the terms of their agreement with Clayhill by failing to pay the full purchase price and that led to the cancellation of the agreement of sale by letter of 21 November 2016 written by Clayhill Property Development. Hence the agreement of sale between City of Mutare and the applicant and her husband was a nullity because at the time it was drafted, the city council did not hold any rights, interest or title in the stand, instead such rights were vested with Clayhill, and as such the cancellation of the agreement was above board and before the cancellation of that agreement, applicant’s legal practitioners were fully appraised of the whole scenario of the events. To the respondent the relief being sought by the applicant has no basis.</p> <p>The second respondent is an estate of the late Washington Jekanyika. The executor had notified the registrar of the court that he will abide by the decision of this court.</p> <p>Both applicant and first respondent had raised preliminary points in their respective papers and I directed the legal practitioners to holistically address the court by commencing with points <em>in limine</em> and then the main issues.</p> <p> </p> <p>Applicant’s point <em>in limine</em> </p> <p>The applicants on filing her affidavit raised a preliminary point to the effect that the first respondent’s Town Clerk in filing the opposing affidavit was not authorised by the council. Hence the application should proceed as unopposed. The applicant amplified her argument by submitting that first respondent’s notice of opposition is fatally defective for warrant of a proper opposing affidavit. The Town Clerk, Mr Maligwa, did not attach authority which he alleges to have to depose to the affidavit. Mr <em>Tanaya</em>, to advance his argument, cited s 136 (2) of the Urban Councils Act [<em>Chapter 29:15</em>] which basically provides as follows:</p> <p>“Functions of town clerk</p> <p>  </p> <ol> <li>The town clerk shall be responsible for-</li> </ol> <p> </p> <ul> <li>the proper administration of the council;and</li> <li>managing the operationsand property of the council; and</li> <li>supervising and controlling the activities of the employees of the council in the course of their employment.</li> </ul> <p> </p> <ol> <li>For the purposes of subsection (1),the town clerk, in addition to any other duties that may be assigned to him by the council shall,</li> </ol> <p> </p> <ol> <li> </li> </ol> <p>(b) where so authorised by the council, sign orders, notices, or any document requiring authentication, or execution on behalf of the council…”</p> <p> </p> <p>            As such, applicant, contended, the town clerk was required to produce a resolution on which he relies on not depose to the opposing affidavit. To the applicant, the town clerk has no automatic authority to oppose this matter.</p> <p>            First respondent, in response to this point <em>in limine</em> submitted that the absence of the resolution does not prove that the town clerk did not have authority. The town clerk is the chief executive officer of the first respondent and in charge of the entity including litigation and defending council. Ms <em>Gutuza</em> went on to cite the case of <em>Tian Ze Tobacco Co. (Pvt) Ltd v Muntuyedwa</em> and also the matte of <em>Zimbabwe Open University v Magaramombe and Another.</em></p> <p>In summary the first respondent submitted that the averment in the deponent’s opposing affidavit is adequate and in its view there was no need to attach the resolution reached by the full council meeting.</p> <p>            Given the nature of the facts in this application more particularly the stance adopted by the first respondent towards the application the applicants’ contention holds firm. It was incumbent upon the council to deliberate on the facts of this matter and consider whether there was any basis to oppose the application brought about by the applicant and also seriously outline the basis of such opposition. This analysis would be dealt with below on the aspect of costs but given the provisions of s 136 (2) I agree with the applicants’  counsel, that there was  need for a special resolution passed by the council mandating the town clerk to depose to an opposing affidavit on its behalf. At the same time, this court will not lose sight of the fact that there is an opposing affidavit before it which affidavit contains material documents that are going to be of a great assistance in the resolution of this application. It will be in the interests of justice that I will condone the failure to file that resolution by the first respondent and allow the first respondent to be heard on merits, applicants’ point <em>in limine </em>though valid is dismissed.</p> <p> </p> <p>First Respondent’s point <em>in limine</em>   </p> <p>On 29 October 2019 the first respondent filed its opposing affidavit and raised a preliminary point to the effect that applicant ought to have joined Clayhill Trading (Private) Limited from whom applicant allegedly purchased the stand in dispute. According to first respondent Clayhill is still the holder of all rights, interests and title in the stand and it cancelled the agreement between it and applicant. First respondent added that given the nature of relief being sought by the applicant, the ultimate order cannot be effectively carried out, without the involvement of Clayhill. This non joinder is fatal to applicants’ case.</p> <p>In response to the preliminary point raised the applicant contented that there was no need for the applicant to cite Clayhill because applicant’s course of action arises out of a contract between applicant, her husband and first respondent, Clayhill is not party to that agreement. By the doctrine of privity of contract, there is nothing that affects the company that arises from the four corners of the agreement. It is the council which is the holder of real rights on the property in question. The applicant attached copy of summons commencing action issued by Clayhill against the late Washington Jekanyika and the applicant; where Clayhill is claiming US$28 000-00 being the balance in respect of immovable property sold by plaintiff to the defendants pursuant to the agreement of sale.</p> <p>When  Ms <em>Gutuza</em> was asked by the court to explain why joinder was necessary, she submitted that the city council did not want to expose itself to litigation from Clayhill. It is not in dispute that Clayhill has already chosen who and what to sue for arising out of the agreement of sale relating to stand in question. No one is left to speculate, thus the very fundamental basis relied upon by the first respondent is palpably answered by the company itself Clayhill wants to be paid $28 000-00 by applicant not by the first respondent. In light of this positive development, there is virtually no need to have a joinder where the company has expressly shown that its interest is in the recovery of the balance of the purchase price not recovery of the stand for reallocation. The point <em>in limine</em> by the first respondent has no merit and it is dismissed.</p> <p>On the merits of the application the following issues are uncontroverted in my respectful view:</p> <ol> <li>Applicant and her husband, the late Washington Jekanyika purchased Stand No. 11234 Darlington Extension, Mutare for $62 000-00, paid cash of $20 000-00 upon signing of the agreement of sale and from the calculation between the cost price and balance being claimed on the summons alluded to above, it is clear that the applicant paid another instalment of $14 000-00, to make a total of US$34 000-00.</li> <li>At the agreement of sale between Clayhill and the applicant another agreement of sale was concluded between City of Mutare, applicant and the late W. Jekanyika.</li> <li>The applicant took occupation of the purchased stand and started to develop it.</li> <li>The selling company is suing the applicant for an amount of $28 000-00 as balance outstanding. The company (Clayhill) is not praying for the cancellation of the agreement of sale on grounds of fraudulent misrepresentation not for the cancellation of sale between the City of Mutare and the purchaser.</li> <li>In terms of the agreement of sale concluded between applicant and City of Mutare (first respondent) there is virtually no clause pertaining to which conditions would justify cancellation of the contract concluded between the parties. Though not addressed by the parties, it appears the first respondent was paid by the developer before the developer (Clayhill) was allowed to offer such stands for sale to the public.</li> <li>City of Mutare remained the title holder both for purposes of cession or transfer that is why the second agreement of sale between applicant and the first respondent had to be drafted. Transfer of ownership between City of Mutare and applicant would only be processed after the property had been fully developed.</li> </ol> <p>All these aspects are common cause and this court asked the first respondent its basis for opposing the application. If Clayhill is fully paid the balance, it means the matter between it and applicant would have been resolved, and by necessary implication the subject stand has to remain with the applicant and the estate of her husband. After going through the opposing papers filed on behalf of the first respondent, it is apparent that the first respondent, <em>mero motu</em> proceeded to cancel the agreement of sale it had entered into with the purchaser without having heard from them. That was not proper. As long as the administrative authority is involved in making such decisions, it is required to comply with the dictates of administrative justice, that requirement applies even when the first respondent was acting in terms of a contract. The first respondent was duty bound to hear the applicant and her husband first and even ask them to reduce their response in writing. No such evidence was produced by the first respondent. Hence cancellation of the agreement was arbitrary and cannot be allowed to stand.</p> <p>The first respondent also contended that what prompted her to cancel the agreement was that the late Washington Jekanyika fraudulently did not disclose that he had not fully paid the purchase price to Clayhill. This court will not dwell much on this issue simply because the first respondent stated that it learnt this from Clayhill and as already covered hereinabove the summons issued by Clayhill do not allude to any fraud on the part of W. Jekanyika what Clayhill needs is its payment of the balance of $28 000-00. In any case fraud should not only be pleaded but must be established by way of tangible evidence.</p> <p>I am hence satisfied that the first respondent failed to justify its cancellation of the agreement of sale with applicant and her husband on a balance of probabilities, there is no condition which could have been relied upon in the agreement of sale, which f breached by the purchasers could have justified the cancellation of such a contract.</p> <p>Costs</p> <p>The applicant prayed for costs on a punitive scale of attorney-client. A lot of correspondence between the first respondent’s office and applicant’s legal practitioners exchanged hands, including documents pertaining to the matter more particularly the summons issued by the developer Clayhill where it was claiming $28 000-00 from the purchasers. Surely at that stage of proceedings and letter written by applicants’ lawyers to first respondent about that, should have caused the first respondent to reconsider its stance about the application. It did not. Even after heads of argument were filed and served on the firs respondent it persisted with the opposition of the application. The court is aware that any order of costs adversely affect the rate payer but the aptitude of the first respondent’s action clerk exhibits a nonchalant attitude bordering on recklessness and abuse of court process all done in the name of public entity whose resources should better be ploughed towards service delivery than defending indefensible, unilateral and unjust conduct by its officials. This judgment must be brought to the attention of the Mayor and councillors to censure in strongest terms the behaviour of the town clerk.</p> <p>In future legal costs of this type should be met by the city official personally, however in this case the first respondent stated that he was authorised to oppose the matter by the council so the council/public entity will be ordered to pay applicant’s wasted legal costs.</p> <p>As a result the following order is granted:</p> <ol> <li>The cancellation of the Memorandum of Agreement of Sale of Stand 11234 Darlington Extension, Mutare Township, measuring 1, 1759 hectares, entered into by City of Mutre and Washington Jekanyika jointly together with Cheneso Muvandi is a nullity, on no force.</li> <li>The Memorandum of Agreement of Sale of Stand No. 11234 Darlington Extension, Mutare Township, measuring approximately 1, 1759 hectares, entered into by the City of Mutare and Washington Jekanyika, jointly together with Cheneso Muvandi, is declared valid.</li> <li>The 1st respondent to pay respondent’s costs on attorney - client scale.</li> </ol> <p> </p> <p> </p> <p> </p> <p><em>Tanaya Law Firm</em>, applicant’s legal practitioners</p> <p><em>Bere Brothers</em>, 1st respondent’s legal practitioners</p> <p><em>Mativenga Nkomo Legal Practice</em>, 2nd respondent’s legal practitioners</p> <p>HH 626/15 per Mathonsi J (as he then was)</p> <p> </p> <p>See U-Tow Trailers (Pvt) Ltd v City of Harare and Another 2009 (2) ZLR 259 (H) per Makarau JP (as she then was</p> <p>U-Yow Trailers (<em>supra</em>) on p 268 A-B</p> <p>Muzondo and Others v Usayiwevanhu and Ohters HH 107/12.</p> <p>SPF &amp; Ano v LBCCT/ALB &amp; Ano 26492/13 [2016] ZAG PPHC 378</p> <p>Chikwanira v Mutonhora &amp; Anor HH 224/16</p> <p>Mkandla &amp; Ano v Ncube &amp; Ano HB 93/14</p> <p>See Binza v Acting Director of Works &amp; Anor 1998 (2) ZLR</p> <p> 364 (H)</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/mutare-high-court/2020/12/2020-zwmthc-12.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=31099">2020-zwmthc-12.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/mutare-high-court/2020/12/2020-zwmthc-12.pdf" type="application/pdf; length=348113">2020-zwmthc-12.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/deceased-estate">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/contract">CONTRACT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/cancellation">Cancellation</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/breach-one-party-obligations">breach by one party of obligations</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/breach-contract">breach of contract</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/joinder-parties">Joinder of parties</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/non-joinder">non-joinder</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/principles-joinder-parties">principles (Joinder of parties)</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/2015/626">Tian Ze Tobacco Co. (Pvt) Ltd v Muntuyedwa (HC 10938/14) [2015] ZWHHC 626 (21 July 2015);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2016/5">Zimbabwe Open University v Magaramombe &amp; Another (SC 5/2016 Civil Appeal No. SC 25/2012) [2016] ZWSC 5 (23 February 2016);</a></div><div class="field-item even"><a href="/zw/judgment/bulawayo-high-court/2007/41">Mkandla and Another v Dube and Others (HB 41/07) [2007] ZWBHC 41 (14 March 2007);</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/2001/222001">Urban Councils Act, 2015 [Chapter 29:15]</a></div></div></div> Fri, 27 Mar 2020 10:01:15 +0000 Sandra 9596 at https://old.zimlii.org The Deputy Master N.O v Lunga No. & Anor (HB 2-20, HC 977/15) [2020] ZWBHC 2 (16 January 2020); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2020/2 <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>THE DEPUTY MASTER N.O</strong></p> <p> </p> <p><strong>Versus </strong></p> <p> </p> <p><strong>BARBRA LUNGA N.O</strong></p> <p>(in her capacity as the Executrix Dative</p> <p>of Estate late Mariana Moyo)</p> <p> </p> <p><strong>AND</strong></p> <p> </p> <p><strong>ESTATE LATE MARIANA MOYO</strong></p> <p> </p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>BERE J</p> <p>BULAWAYO 11 APRIL 2017 &amp; 16 JANUARY 2020</p> <p> </p> <p> </p> <p><strong>Opposed Application</strong></p> <p> </p> <p> </p> <p><em>L Chimire, </em>from the applicant’s office</p> <p><em>Professor W Ncube, </em>for 1st respondent</p> <p> </p> <p>            <strong>BERE J:         </strong>The late Mariana Moyo died intestate prompting the administration and management of her estate to be placed in the hands of the 1st respondent as the Executrix Dative on 19 March 2012.  It would appear that the appointment of the 1st respondent was brought about by the deceased’s relatives together with the beneficiaries of the estate.  This estate appears to be facing a number of challenges as evidenced by this application.</p> <p>            The challenges bedeviling this estate have been fairly detailed by both the applicant and the 1st respondent with none of the two parties prepared to shoulder the blame.  There has been serious allegations and counter-allegations thrown at each other by the two parties, which scenario I view as very toxic given the undeniable fact that under normal circumstances the two are supposed to create a conducive working relationship to enable the smooth winding up of this estate.</p> <p>            Initially there was an attempt to unlawfully revoke the first respondent’s letters of the administration of this estate by the applicant.  However I am not going to dwell much on this issue since the bringing of this application is confirmation that the applicant appreciated the folly of his initial conduct.</p> <p>            This application purports to have been made in terms of section 117 (1) (b) and 1 (d) of the Act (the Act) and is supported by the applicant’s founding affidavit which comprises of three pages only.</p> <p>            The basis of the application is a well documented complaint by the beneficiaries of the estate against the first respondent.  The beneficiaries have listed a litany of allegations against the first respondent.  The allegations range from wanton disposal of estates assets  (immovable properties) without their consent, the delay in winding up the estate, abuse of rentals collected from leased estate properties and lack of financial and or medical support to one of the beneficiaries’ siblings who is a mental patient.  They also cited the estate’s failure to pay for one of the estate beneficiaries studying in Cyprus.</p> <p>            In unison, the beneficiaries pleaded with the applicant to have the first respondent recalled as the Executrix to their estate.</p> <p>            In support of his application the applicant attached the letters of complaint from the beneficiaries dated 3rd and 19th of June 2013 as annextures.</p> <p>            In addition the applicant also attached correspondence from a law firm called Hara and Partners which was approached by the beneficiaries to take over the administration of the estate, as additional annextures.</p> <p>            The written responses from the first respondent were also attached as annexures to the application.</p> <p>            When served with the application whose affidavit comprised of barely three typed pages the respondent filed a notice of opposition comprising twelve typed pages.  She opposed the application but grudgingly offered to relinquish her position provided certain conditions were met.</p> <p>                In addition, the first respondent also attached several annexures whose relevance and significance I will deal with later in this judgment.</p> <p><em>Point in limine</em>.</p> <p> </p> <p>            Before we could deal with the matter on merits, <em>Mr W Ncube</em> who appeared for the first respondent sought to have the application dismissed for failing to comply with section 117 of the Act.  Counsel’s argument was that the act allows the applicant to file a chamber application for the removal of an executor and not a court application like the one filed in this matter.  Owing to this anormally Counsel sought to have the matter dismissed arguing the omission was fatal.</p> <p> </p> <p>            <em>Mr L Chimire</em>, from the applicant’s office indicated to the court that the point <em>in limine</em> be dismissed since the first respondent had not given the applicant prior warning that this preliminary point would be raised.</p> <p> </p> <p>            I do not wish to be detained by the technical argument raised in this case.  A proper reading of rule 117 (1) of the Administration of Estates Act does not seem to me to carry out the interpretation attributed to it by first respondent’s counsel.  The rule is framed as follows:</p> <p>           </p> <p>“117 (1) The Master may apply to a judge in chambers for the removal of an executor or curator ……. “ (my emphasis)</p> <p> </p> <p>The rule clearly does not make it mandatory for the applicant to initiate the process by way of a chamber application as argued by Counsel for the first respondent.  A court application may suffice as long as it can be demonstrated that there is no prejudice suffered by the respondent.</p> <p> </p> <p>Indeed, when I sought clarification Mr Ncube instinctively responded that his client had not been prejudiced by the Court application filed.</p> <p> </p> <p>I therefore move to determine the case on merits.</p> <p> </p> <p>As earlier on indicated, the applicant’s application was anchored on numerous complaints raised against the first respondent by the beneficiaries to this estate.</p> <p> </p> <p>It will be noted that section 116 of the Act enjoins the Master to supervise executors, tutors and curators to ensure among other issues maximum protection of estate assets.  Once a complaint is made against an executor, the Master must investigate the conduct complained of before he/she takes appropriate remedial action.</p> <p> </p> <p>Consequently, when the applicant received a complaint against the first respondent he did what the law required him to do, to investigate same by seeking the first respondent’s response.</p> <p> </p> <p>The first respondent was simply asked to respond or comment on the allegations raised against her by the estate beneficiaries.  The first respondent’s response is of concern to this Court.  It projects her in bad light.  Instead of giving a simple response, the first respondent chose to start by putting on her fighting gloves ready for a fight.  This is how she opened her response on 19th June 2013:</p> <p> </p> <p>            “The Deputy Master</p> <p>            …………………….</p> <p>            Dear Sir</p> <p>            ……………………</p> <p>            I would like to comment as follows:</p> <p>First and foremost my work place is 7th Floor Fidelity Life Centre, Office 701.  I did not go out to invite Beatrice Malaba and Admire Moyo to my office.  They came to seek professional advice without a cent.  Why didn’t they come to the Assistant Master’s office if they knew what they were supposed to do?</p> <p> </p> <p>How do they explain the word “short change” I am not a conman, can they elaborate that word explicitly for me to get sense of it.</p> <p> </p> <p>They came with nothing as evidenced by the inventory.  There is no cash in the estate.  Actually when they came I did assist to pay ZESA bill for electricity which was disconnected for non payments.  I advertised for the edict and debtors meeting just to mention a few things.</p> <p> </p> <p>For me to work and pay administration expenses, I need money.  I am not a charitable organization …….”</p> <p> </p> <p>            She went on to explain in her response how some of the beneficiaries had gone on to loot estate property.  This is despite the fact that the first respondent had all the ammunition at her disposal to effectively deal with looters of estate property.</p> <p>           </p> <p>The tirade tone of the first respondent’s letters to the applicant is evident in almost every letter she wrote to the applicant.  It gets worse even in her notice of opposition to the application where she chose to go on a lecture to the applicant on the law on estate administration and how well schooled she was in estate administration.</p> <p> </p> <p>            Even more shocking was that before the Master had concluded his investigations on the allegations raised by the beneficiaries, the first respondent literally ‘galloped’ to dispose of one of the estate properties without the consent of the Master (given that there was a mentally challenged beneficiary amongst the beneficiaries).</p> <p> </p> <p>            <em>Mr Chimire</em> from the applicant’s office submitted that there was overwhelming evidence that the first respondent had violated the provisions of section 120 of the Act in disposing of the estate property without the consent of the Master.  In so arguing, counsel relied on the ratio in the case of <em>Kizito Mutsure</em> versus <em>Ichabod Muringisi</em> where NDOU J put the position of the law as follows:</p> <p> </p> <p>“In terms of section 120 of the Administration of Estates Act (Chapter 6:01), the approval of the Master of High Court is required for such agreement of sale of a immovable asset of the estate.  This is a condition precedent which suspended the operation of all obligations flowing from the agreement until the approval of the Master.”</p> <p> </p> <p>Applicant’s representative also argued that the mere fact that three out six beneficiaries may have orally consented to the sale of the property did not give the first respondent the right to sell the property.  I entirely agree with this position.</p> <p> </p> <p><em>Mr Chimire</em> further argued to the Court’s conviction that in estate administration one does not start to dispose of estate property without the knowledge and approval of the Master because such conduct seduces fraud.</p> <p>It was further argued for the applicant that the first respondent had also set her fees at 6% as opposed to 4,3% of the gross value of the estate, which the beneficiaries felt was too high and actuated by greed.</p> <p> </p> <p>Finally, <em>Mr Chimire</em> argued that the first respondent had failed to file either the first or final distribution account of the estate account within the time stipulated by the Act and that she had not formerly sought an extension of the time so laid down.</p> <p> </p> <p>Mr Chimire argued that the cumulative effect of the conduct of the first respondent justified that the first respondent be removed from the executorship of this estate.</p> <p> </p> <p><em>Mr Ncube</em> who appeared for the first respondent sought to counter each and every allegation leveled against the first respondent by arguing that everything she did was done in terms of the law and that the issues raised by <em>Mr Chimire</em> had not been pleaded in the founding affidavit.</p> <p> </p> <p>Respondent’s counsel further argued that section 120 of the Act is only set into motion where an executor requires to sell estate property by private treaty and that sale by public auction did not require the Master’s consent.</p> <p> </p> <p>When this matter was argued I did not believe that some of the issues like the 6% fees which the applicant admitted was charging was going to attract a justification because at the relevant time the first respondent’s fees were pegged at 4.3 % of the gross value of the estate.  Such fees were supported by the relevant Statutory Instrument (SI 54 of 2007).  So on her own admission made in her opposing papers, the first respondent was overcharging the estate and this was one of the reasons why the beneficiaries had raised alarm with the applicant.</p> <p> </p> <p>The lack of good faith by the first respondent is demonstrated by the fact that whilst the applicant was investigating her conduct which included among other wrongful or unlawful disposal of estate assets, the first respondent appeared to have been in a hurry to quickly dispose of one of the estate properties without either consulting the beneficiaries or even obtaining the consent of the applicant.  That conduct on its own, in my view did not project the first respondent in good light.</p> <p>The conduct becomes even more questionable given that the curatorship issue which had to do with the mentally challenged beneficiary was yet to be finalized.  In other words the first respondent wanted to dispose of the estate property without even the curator <em>ad litem</em> being aware of that development.</p> <p> </p> <p>It will also be noted that the estate property, <em>viz,</em> stand 631 Gwanda Township, was being sold not by public auction but by private treaty as evidenced by the sale agreement on page 11 of the consolidated index.  The sale was conditional upon the first applicant’s consent in terms of section 120 of the Act but before the consent was granted.and in the middle of the applicant’s investigations on the complaints raised against the first respondent, a sale had been quickly concluded.</p> <p> </p> <p>The reason why the Master’s consent is sought is because the Master is required to consider whether among other things the proposed sale is in the interest of the estate.  The first respondent seemed to have this misconception that the Master’s consent merely meant an automatic ratification of the sale without further ado.  This is apparent from the tone of the letters to the applicant from the first respondent that literally demanded his consent in terms of section 120 of the Act.   Again, the letters clearly showed the contempt with which the first respondent treated the applicant’s office.</p> <p> </p> <p>As CHITAKUNYE J observed in the case of <em>Kudzanayi Frank Katsande</em> v <em>Raymond Katsande and Three Others</em> “It is pertinent to note that the Master’s office needs to awaken to the serious duties and responsibilities bestowed on that office in deceased’s estate ……  Section 120 of the Administration of Administration of Estates Act enjoins the Master to do an inquiry in order to be satisfied that the request being made would be to the advantage of the persons interested in the estate to sell the property.  Due inquiry connotes that the Master takes active or positive steps to verify the contents of the application before granting consent.”  </p> <p> </p> <p>But in the instant case, the first respondent could have none of this.  To her the Master needed to just blindly grant her authority to sell the property.  She had a negative attitude and this gave weight to the complaints made against her by the beneficiaries to this estate.</p> <p> </p> <p>If there was any doubt on the impropriety of the conduct of the first respondent, one needs to merely go through her notice of opposition which largely confirms that she had failed in her duties as an executrix of the estate.</p> <p> </p> <p>There is overwhelming evidence that the first respondent was on a serious collision with the beneficiaries of the estate due to her improper conduct in the administration of the estate.  The beneficiaries had completely lost confidence in the conduct of the first respondent.  In my view, no law must compel beneficiaries to remain in bed as it were with an executor or executrix with whom the relationship has become toxic as in this case.</p> <p> </p> <p>It is not accidental that the first respondent was unable to attach any supporting affidavit from any one of the six beneficiaries of the estate.  The answer must be an obvious one.  None of the beneficiaries needed her to continue administering the estate for reasons already outlined.</p> <p> </p> <p>Taking a holistic view of this matter I am of a very firm view that the first respondent is a danger or a threat to the 2nd respondent.  She must not continue to lay her hands on this estate.</p> <p> </p> <p>In the result it is ordered:</p> <p> </p> <p>1.         That the first respondent be and is hereby removed as the Executrix Dative of the estate of the late Mariana Moyo.</p> <p>2.         That the beneficiaries of the estate be and are hereby authorized to appoint another Executor/Executrix of their choice failing which the applicant shall appoint one.</p> <p>3.         That the first respondent be and is hereby ordered to pay costs.</p> <p> </p> <p> </p> <p> </p> <p> </p> <p><em>Messrs Coghlan and Welsh</em>, first respondent’s legal practitioners</p> <p> </p> <p>Chapter 6:01</p> <p>HB 20/19 at page 2</p> <p>HH 113-2010 at page 7</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/bulawayo-high-court/2020/2/2020-zwbhc-2.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=25012">2020-zwbhc-2.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/bulawayo-high-court/2020/2/2020-zwbhc-2.pdf" type="application/pdf; length=240384">2020-zwbhc-2.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/deceased-estate">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/master-high-court">Master of the High Court</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/2010/113">Katsande v Katsande and Others (HC1359/09) [2010] ZWHHC 113 (30 June 2010);</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> Thu, 12 Mar 2020 13:50:30 +0000 Sandra 9560 at https://old.zimlii.org Mwinjilo v Munyoro & Another (HB 42-20, HC 2775/10) [2020] ZWBHC 42 (05 March 2020); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2020/42 <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>MARITHA MWINJILO</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>LOVIE CHARITY MUNYORO</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>MAGISTRATE L. RWODZI</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>TAKUVA J</p> <p>BULAWAYO 14 JUNE 2019 &amp; 5 MARCH 2020</p> <p> </p> <p><strong>Opposed Application</strong></p> <p> </p> <p><em>A.  Chihiya</em> for the applicant</p> <p><em>Advocate S. Siziba</em> for the 1st respondent</p> <p>            <strong>TAKUVA J:  </strong>This is an application for review in terms of O33 r256 wherein the applicant seeks the setting aside of a judgment handed down by the 2nd respondent sitting at Kwekwe Magistrates’ Court on 17th December 2010 on the following grounds:</p> <p>“1.       2nd respondent’s order is improper, incompetent and invalid.</p> <p>2.         The 2nd respondent sitting as an Assistant Master of the High Court could not substitute letters of administration properly issued and granted by an Assistant Master of the same court in the absence of the revocation of the prior letters of administration by the Master of the High Court as provided for under section 117 of the Administration of Estates Act (Chapter 6:01)</p> <p>3.         The order of the magistrate was wholly inappropriate and unreasonable as it sought to appoint 1st respondent as a co-executor of deceased’s estate when there was clear evidence that 1st respondent had been separated or divorced by the deceased person some thirty years prior to the death of the deceased.</p> <p>4.         The judgment of the learned magistrate was incompetent and there was nothing to show that the appointment of the applicant had been induced by fraud or mistake.”</p> <p><strong>Background facts</strong></p> <p>            The applicant is the surviving spouse of the late Washington Munyoro (Washington) who died at Kwekwe on the 11th October 2010.  Applicant was married to the late Washington in 1994 in terms of the African Customary Law and there is one child of the marriage namely Angeline Munyoro born 7 February 1996.  On 11 October 2010, applicant registered Washington’s estate at Kwekwe Magistrates’ Court and she was issued with Letters of Administration by the Assistant Master of the High Court.  On 16 November 2016, 1st respondent lodged a complaint with the Assistant Master claiming that she was also a surviving spouse.  Second respondent proceeded to conduct a hearing which she <em>mero motu</em> called out Richard Munyoro, a son to the 1st respondent to testify.</p> <p>            After hearing evidence, 2nd respondent declared 1st respondent as co-executrix to the estate of the late Washington on 17 December 2010.  The 2nd respondent then issued and signed fresh Letters of Administration without revoking the letters of administration issued to the applicant.  This decision led to this application.</p> <p>            One of the grounds for review is that the magistrate failed to comply with the provisions of the Administration of Estates Act (Chapter 6:01) in particular sections 116, 117, 29A and 68(1) (b).  Section 29A states:</p> <p>“The Master shall not grant letters of administration to a person … unless that person is:-</p> <p> </p> <ul> <li>registered under the Estates Administration Act (Chapter 27:20).</li> <li>a surviving spouse or next of kin of the deceased person concerned.”</li> </ul> <p>The applicant’s contention here is that the 2nd respondent’s finding of fact that the 1st respondent had not been divorced was unreasonable in its defiance of logic that no reasonable person faced with similar facts would have made such decision.  The judgment by the court <em>a quo</em> is therefore wrong at law as it does not comply with the relevant legislation.</p> <p>Section 68(B) states;</p> <p>            “68B    Appointment of Executor</p> <p> </p> <ol> <li>Upon the death of a person referred to in subsection 1 of section 68A, the Master shall summon the deceased person’s family or such members of the family as are readily available, for the purposes of appointing a person to be the executor of the deceased person’s estate.</li> <li>The Master with the concurrence of the relatives present at a meeting summoned in terms of subsection (1) shall appoint a person to be executor of theestate of the deceased person referred to in that subsection:</li> </ol> <p>Provided that:-</p> <p>(i)         if the relatives are unable to agree upon a person to be appointed as executor, the Master shall appoint a person as provided in section twenty-six, which section shall apply <em>mutatis mutandis</em>, in relation to any such appointment.</p> <p>(ii)   No person shall be appointed executor under this subsection unless he is (a) registered under the Estate Administrators Act (Chapter 27:20) or</p> <p>(b)a member of the deceased person’s family</p> <ol> <li> </li> <li> </li> <li> </li> </ol> <p>Section 29 deals with the appointment of a new executor.  It states:</p> <p>“29.                 When by reason of any testamentary or assumed executor whom letters of administration have been granted having died or become incapacitated to act as such or having been removed from his office by the decree of any competent court or a judge thereof, there does not remain for the administration of the estate any executor whatever, … and when it happens that any executor dative after letters of administration have been granted to him, dies or becomes incapacitated or is removed in a manner aforesaid then and in every such case proceedings for the appointment of an executor in place of such executor so dying or so become incapacitated or removed shall be taken by the Master in like manner on all respects as provided in section twenty-five, twenty-six and twenty-seven.”</p> <p>Revocation of letters of administration shall be done in terms of section 30 which <em>inter alia</em> provides that;</p> <p>“… (4) The Master shall revoke letters of administration granted to a person as executor if the master is satisfied that:-</p> <ul> <li>When the letters of administration were granted to him, that person was registered under the Estate Administration Act (Chapter 27:20) and his registration has subsequently been cancelled or suspended in terms of that Act, or</li> <li>In the case of an executor dative, the person is not the surviving spouse or next of kin of the deceased person, and when the letters of administration were granted to him, he was not registered under the Estates Administration Act (Chapter27:20)or his registration under that Act was suspended.”</li> </ul> <p>Supervision of Executors by the Master is provided for in section 116 which states;</p> <p>“116 (1)                       If it appears to the Master that any executor, tutor or curator is failing or neglecting to perform satisfactorily his duties or to observe all the requirements imposed upon him by law or otherwise in regard thereto or if any complaint is made to the Master by any creditor, legatee or heir in regard thereto, the Master share inquire into the matter and take such action thereon as he shall think expedient.“ </p> <p> </p> <p>The Master is empowered to conduct a hearing, receive documents and hear viva voce evidence. Any party that refuses to comply with the Master’s directives shall be guilty of an offence.</p> <p>            The removal of an executor, tutor or curator from office is regulated by section 117 as follows;</p> <p>“117(1)     The Master may apply to a judge in chambers for the removal of an executor,</p> <p>tutor or curator from the office on the ground-</p> <ul> <li>that he was not qualified for appointment to such office or that his appointment was for any other reason illegal; or</li> <li>that he has failed to perform satisfactorily any duty or requirement imposed upon him by or in terms of any law; or</li> <li>that he is mentally or physically incapacitated of performing satisfactorily his duties; or</li> <li>that in his opinion such person is no longer suitable to hold such office;</li> </ul> <p>and the judge may, upon such application remove the executor, tutor or curator concerned from his office or make such other order as he sees fit.</p> <p>2.         Where an executor, tutor or curator has been removed from his office, the Master shall revoke any letters of administration or confirmation, as the case may be which have been granted to such person.” (my emphasis)</p> <p>            The 1st respondent opposed the application on the following two grounds.  Firstly, it was argued that the 2nd respondent’s decision to appoint 1st respondent as co-executor was regular because the 2nd respondent did not remove the applicant from being executor but merely added 1st respondent as co-executor.  Secondly, it was contented that the 2nd respondent’s finding of fact that 1st respondent had not been divorced was reasonable.</p> <p>            <em>In casu</em>, it is common cause that the 2nd respondent proceeded to issue fresh letters of administration to applicant and 1st respondent before revoking the first set of letters of administration granted to the applicant in violation of s117(2) above.  Put differently, where there is a need to appoint or add another person as executor, the previous letters of administration must be revoked.  The reason is simple.  It is not to permit two letters of administration in respect of one estate to co-exist in circumstances where it is not clear whether the new letters of administration automatically nullify the previously granted letters or whether they are to operate <em>pari pasu</em>.</p> <p>            In <em>Estate Late Bridget Makapila</em> v <em>Denia Matongo and Director of Housing and Community Services and the Master of the High Court</em> HH-71-08, the court was seized with deciding between two executrix, one appointed by the Master and the other in a Will.  The court stated that “The Master’s appointment of 1 October 1999 was not impugned by the testamentary executor or an interested party.  In my view, it remains valid until set aside by a competent court.  While the appointment of Bridget (the second appointed executrix) was invalid, that of the first respondent was valid as it was the first in time.”</p> <p>            <em>In casu,</em> the applicant’s appointment was the first in time and therefore should not be impugned.  Further, the ill-conceived contention that the 1st respondent is a surviving spouse should not even have led to her appointment as co-executrix, the court a quo should not have entertained her claim the way it did as this has injurious effects on the legislative provisions relating to the appointment of executors.</p> <p>            In any event, the 2nd respondent could not have competently “reviewed” the decision of another magistrate sitting as Assistant Master.  In <em>Drummond</em> v <em>The Master of High Court &amp;Ors</em> 19992 (2) ZLR 232 (SC) it was held that,</p> <p>“The Master derives his power only from within the four corners of the Administration of Estates Act.”</p> <p>            Accordingly, the new letters of administration were invalidly granted to the 1st respondent and applicant as co-executors.  The method 2nd respondent used to arrive at her decision is <em>ultra vires</em> the Administration of Estates Act and grossly irregular.</p> <p>            In view of my finding in respect of the first ground of review, it is unnecessary to decide the 2nd ground in that even if I were to find in 1st respondent’s favour  that would not justify her appointment as co-executor without 1st revoking applicant’s letter of administration.  On the facts of this case, the confirmation as a surviving spouse would have simply granted her certain rights as a beneficiary and not an automatic right to be appointed as an executor where there was no such vacancy.  There was no need for the appointment of a co-executor in the circumstances.</p> <p>            In the premise, it is ordered that:</p> <ol> <li>The order granted by 2nd respondent at Kwekwe Magistrates’ Court under case number DRKK 23/10 on the 17th December 2010 be and is hereby set aside.</li> <li>Each party shall bear its own costs..</li> </ol> <p> </p> <p> </p> <p> </p> <p><em>Makonese &amp; Partners</em>, applicant’s legal practitioners</p> <p><em>Mhaka Attorneys</em>, 1st 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/bulawayo-high-court/2020/42/2020-zwbhc-42.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=22934">2020-zwbhc-42.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/bulawayo-high-court/2020/42/2020-zwbhc-42.pdf" type="application/pdf; length=138931">2020-zwbhc-42.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/deceased-estate">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/joint-executors">joint executors</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></div> Tue, 10 Mar 2020 09:36:09 +0000 Sandra 9540 at https://old.zimlii.org Madamombe v Madamombe & 4 Others (HH 455-19, HC 6977/16) [2019] ZWHHC 455 (03 July 2019); https://old.zimlii.org/zw/judgment/harare-high-court/2019/455 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>ISHMAEL MADAMOMBE</p> <p>versus</p> <p>WINNIFILDAH MADAMOMBE                                                                          </p> <p>and</p> <p>SIBONGILE MADAMOMBE</p> <p>and</p> <p>MOLLY KAPUNGU</p> <p>and</p> <p>INNOCENT MADAMOMBE</p> <p>and</p> <p>THE MASTER OF THE HIGH COURT (N.O)</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHITAKUNYE J</p> <p>HARARE 16-17 July, 3 August 2018, 6 March 2019 &amp; 4 July 2019</p> <p> </p> <p><strong>Civil Trial</strong></p> <p> </p> <p><em>Z W Makwanya,</em> for plaintiff</p> <p><em>N T Tsarwe,</em> for 1st to 3rd defendants</p> <p> </p> <p> </p> <p>CHITAKUNYE J. The plaintiff was married to the late Nyembesi Kapungu on the 9th May 1997 in terms of the Marriage Act [<em>Chapter 5:11</em>]. Prior to that date they had been living as husband and wife in an unregistered customary law marriage from about 1982. Their marriage was blessed with three children; that is, first, second and fourth defendants. The third defendant, Molly Kapungu, was the late Nyembesi Kapungu’s child from an earlier relationship hence applicant’s step child.</p> <p>During the subsistence of the marriage an immovable property, namely stand 9208 Paradise Highfield, Harare was acquired in the name of the late Nyembesi Kapungu through Highfield Co-operative Society (Pvt) Ltd.  The plaintiff and defendants are, however, not agreed as to whether the late Nyembesi Kapungu (hereinafter referred to as the deceased) joined the co-operative in her own right or both the deceased and plaintiff joined the co-operative as a couple albeit the name registered was that of the deceased.</p> <p>The plaintiff averred that he joined the Co-operative Society together with the deceased in 1989 for purposes of acquiring a stand to build a house. However, the Co-operative Society by-laws were such that only one spouse could be registered as member and so, as he was on military assignments most of the time they resolved to register the deceased’s name as she would be available to attend meetings of the Co-operative Society in his absence. As far as he was concerned he was the one who provided funds for joining the Co-operative and for developments on the Stand.</p> <p>The defendants on the other hand contended that their late mother joined the co-operative in her own right and that she developed the Stand on her own as plaintiff was an irresponsible father. Defendants contended that plaintiff deserted their home and their mother in 2000 only to resurface at her funeral in August 2007. As far as they were concerned the plaintiff was not living at the property in question at the time of their mother’s death. Instead plaintiff, after abandoning their mother in 2000, went and begun cohabiting with another woman. Later he secured a plot in Gutu where he was now staying with that other woman. They thus maintained that at the time of their mother’s death on 19 August 2007, plaintiff was not living at Stand 9208 Paradise Park, Highfield but had his home at a plot in Gutu.</p> <p>The stance taken by the parties led to a dispute as to who should inherit Stand 9208 Paradise Park, Highfield, Harare. It was, however, common cause from the pleadings that as at the date of death of deceased, the property in question was under her name hence it was treated as part of her estate. It was also not disputed that the plaintiff was not present with the deceased at the time she died.</p> <p>After a flurry of exchanges the fifth respondent eventually recommended that the property be inherited by applicant and the parties’ children in equal shares. This was premised on the finding that the plaintiff was not living at the property in question immediately before the demise of his wife and so he could not inherit on his own in terms of section 3A of the Deceased Estates Succession Act [<em>Chapter 6:02</em>].</p> <p>This did not go down well with applicant who then approached this court on an application seeking, <em>inter alia,</em> an order that:</p> <ol> <li>The 5th respondent’s decision is hereby set aside</li> <li>The applicant be and is hereby declared the surviving spouse for purpose of inheritance</li> <li>The applicant be and is hereby declared the sole beneficiary of his matrimonial house being stand number 9208 Paradise Highfield, Harare</li> <li>The 5th respondent is hereby directed to do everything necessary to ensure that the applicant is the sole beneficiary in terms of paragraph 3 above</li> <li>The 1st to 3rd respondents to pay the costs of suits.</li> </ol> <p>            The first to third respondents opposed the application. When the opposed application was placed before a Judge for hearing on the opposed roll, a determination was made to the effect that there were disputes of facts that could not be resolved on the papers. The application was thus converted to action proceedings and parties were directed on how to proceed. Upon filing additional pleadings in tandem with an action matter a pre-trial conference was held on the 18th October 2017 after which the issues for trial were identified as follows:</p> <ol> <li>Whether or not the plaintiff is entitled to inherit his matrimonial property to the exclusion of his major children as a surviving spouse of the deceased whom he was married to in terms of the Marriage Act [<em>Chapter 5:11</em>].</li> <li>Whether or not the plaintiff deserted his matrimonial home or was away from his matrimonial house on duty at the time when the deceased passed away.</li> </ol> <p>                                                                                                                         </p> <p>            Section 3A of the Deceased Persons Succession Act; [C<em>hapter 6:02</em>] under which plaintiff intended to exclusively inherit the property in question states that:</p> <p>“The surviving spouse of every person who, on or after the 1st November 1997, dies wholly or partly intestate shall be entitled to receive from the free residue of the estate-</p> <ul> <li>The house or other domestic premises in which the spouse or the surviving spouse, as the case may be, lived immediately before the person’s death; ..”</li> </ul> <p>            The term ‘lived immediately before the person’s death’ has been interpreted to mean that the surviving spouse must having been resident in that property, if not, there must at least be links that the deceased and surviving spouse still regarded that property as their house in which they lived as husband and wife.</p> <p>In <em>Ndoro</em> v <em>Ndoro &amp; Another</em> HH 198-12 at p 6 guvava j (as she then was) after considering evidence on the circumstances of applicant’s absence from what had been her matrimonial home, concluded that:</p> <p>“In order for a spouse to inherit the house they must show that they lived in that house immediately before the deceased’s death. The applicant in my view has failed to show that she lived at 4 Mimosa road Kadoma immediately before the death of the deceased. The evidence shows that she had left the property. She was not just staying in Norton because of her work commitments but she had separated from the deceased. However, it was clear from the evidence that during the period February 2008 to June 2009 she passed through the property once for a few minutes in order to collect her belongings. This cannot be said to be living at the residence particularly in view of the fact that she had issued summons for divorce in October.”</p> <p>            It is clear that the physical separation of the parties coupled with the issuance of divorce summons whilst staying away from the house appears to have confirmed that she was no longer living at the house in question.</p> <p>In <em>Chinzou v Masomera N.O &amp;Others</em> 2015 (2) ZLR 274(H) @ 279H upon considering the purpose and background of the legislation in question I stated that:</p> <p>“….. the intention of the legislature was that a surviving spouse in an intestate estate should not be uprooted from the house or domestic premises he / she lived in immediately before the death of the person, and provided such property formed part of the deceased person’s estate.”  </p> <p>In my view, it may not always be that one must be physically present at the premises as living together does not necessarily mean physically present. Thus in instances where a spouse is away on employment, education or such other causes but for all intents and purposes the spouse still considers the premises as the matrimonial house where when not away on the aforementioned reasons, that is the premises he or she comes to as home, such spouse would still be considered as living at the premises. </p> <p>            It is apparent from the above that the circumstances of the spouse’s absence from the property in question must be examined to ascertain if they lead to a conclusion that the spouse was not just temporarily away but had intention to permanently be away.</p> <p>It was upon plaintiff to satisfy court that for the period he was not on deployment, he was resident at Stand 9208 Paradise Park, Highfield and so court should find that though he was not physically present at Stand 9208 Paradise Park Highfield on the date of the demise of the deceased, he should be held to have been living at that address immediately before deceased’s death as his absence was due to work commitments.</p> <p>            The plaintiff gave evidence and called two witnesses. The plaintiff’s evidence was to the effect that in 1989 he was on military assignment in Mozambique. One weekend he came home and his late wife, (the deceased), advised him about a housing co-operative. They agreed to join the co-operative. They were, however, advised that the co-operative rules were such that only one spouse could be registered as a member. They agreed to have the deceased’s name registered as she was the one who was available to attend meetings of the co-operative. She was, however, to pay the cooperative dues using his bank account as she was unemployed. </p> <p>In 1996, they were then allocated the house in question. At that time it was a three roomed house. The following year they solemnised their marriage in terms of the Marriage Act, (C<em>hapter 5:11).</em></p> <p>The plaintiff averred that he continued his military service and in that vein in 1999 he was deployed to the Democratic Republic of Congo (DRC). He left his bank card with his wife to continue with payments of the co-operative dues and buy building materials for the extension of the house to 6 rooms. In 2002 he returned from DRC and continued staying with his family until 2007 when he was deployed to Nyamapanda Border Post. It was whilst he was at Nyamapanda border Post on duty that his wife passed on.</p> <p>As far as he was concerned, therefore, his absence from the matrimonial home at the time the deceased died was because he was on duty and not that he was no longer living at the matrimonial house. In support of the assertion that he was indeed deployed at Nyamapanda plaintiff tendered a letter from the army dated 7 March 2017 authored by one R L Chikwari as exhibit 2. The letter was to the effect that plaintiff was employed by the Zimbabwe National Army from 1980 to 2007 and that during the period April 2007 to October 2007 he was deployed at Nyamapanda Border Post.</p> <p>The objective of the exhibit was to buttress plaintiff’s argument that his absence from home at the time the deceased passed on was due to employment commitments and so he cannot be said not to have been living at home immediately before her death. Another letter was also furnished to court from the Army Headquarters. That letter dated 4 October 2018, by M Chinhondo, was to the effect that plaintiff was employed by the Army from 1 August 1979 to 31st October 2007. It also confirmed that during the period April 2007 to October 2007 he was deployed at Nyamapanda Border post and that he only returned to his Unit in Harare upon expiry of his six months deployment term on 31st October 2007. Though the above letters were intended to confirm plaintiff’s whereabouts at the time of his wife’s death, I am of the view that the letters were not adequate to establish that plaintiff was living at the property in question. The letters only covered a period of 6 months yet the period plaintiff was said to have been away prior to deceased’s death is about 8 years.</p> <p>            The plaintiff in his evidence insisted that other than for the times he was on army deployment, he was always at home with the deceased and his family. He denied that he had moved on and married another woman. He equally seemed to deny setting another home with another woman in the period in question. His evidence in this regard was however undone when he was cross examined about this other woman. Under cross examination plaintiff had the audacity to deny coming with his ‘wife’ at the edict meeting in this manner:</p> <p>“Q:  is it not correct that in September 2011 you came with the wife you had been staying with for an edict meeting at the Master’s office?</p> <p>A:  she never came what interest would she have?</p> <p>Q:  Your brothers-in-law complained bitterly that you had forsaken your wife and started   </p> <p>     staying with Time Chikosi?</p> <p>A:  is Time Chikosi someone’s name? I know nothing about that name. Who is Time Chikosi?</p> <p>Q: I put it to you that this is the woman you were staying with at Gutu Plot since 2000 to              </p> <p>     2007.</p> <ul> <li>I know nothing about Time Chikosi. My current wife I married her in 2009 and started living together at the plot.</li> </ul> <p>Q. the person who recorded the minutes at the edict meeting recorded Time Chikosi as your   </p> <p>     wife.</p> <p>A. I do not know that.</p> <p>Q. At page 75 (exhibit 11) look at the attendance list do you see the name Time Chikosi           </p> <p>           there?</p> <p>A. I do not know that name can we have some other person.</p> <p>Q. what is written against Time Chikosi?</p> <p>A. it is written ‘wife to Ishmael.’</p> <p>Q. and it is you Ishmael?</p> <p>A. yes.”</p> <p> </p> <p>Despite confirming that pages 75 and 76 of the record are a recording of the edict meeting plaintiff persisted in denying that he knew Time Chikosi and that he had brought her to that edict meeting. The plaintiff could, however, not proffer any reason why the Master could have recorded a name of a woman and proceeded to indicate that the woman was plaintiff’s wife if he had not brought such a woman and had not indicated that she was his wife.  This exposed the plaintiff’s penchant for lying. </p> <p>            When asked why the deceased had recorded on the Information sheet exhibit 15 and on the lease document at page 77 only her name and those of her children to the exclusion of plaintiff, if he was the one who had in fact recommended that they use the deceased’s name and he was the provider of the funds, plaintiff had no answer. Equally deceased had in fact indicated that she was single on the lease document.  On exhibit 15 she endorsed that the property was not a result of the marriage but it was hers and for the benefit of the children only. The plaintiff could not provide an explanation for deceased to have done all this if he was there at home and was the provider of the funds.</p> <p>            To buttress his story plaintiff called two executive committee members of Highfield Cooperative Society. Their evidence was basically on the manner in which the Cooperative operates. The first to testify was Power Chikonzo. His evidence was to the effect that he joined the co-operative at its inception in 1989. He was an ordinary member and only became an executive member in the capacity of Chairman in November 2010. His evidence was to the effect that for married couples, only one of them could register as member and the other would be recognised as a beneficiary. In the event of the one registered dying the surviving spouse would automatically take over as member. In this case therefore when the deceased died plaintiff was to automatically take over as member. As far as he was concerned though plaintiff had not been registered as member during the lifetime of his wife, he was nevertheless recognised as a beneficiary.</p> <p>Under cross examination the witness confirmed that he had not brought the co-operative by-laws he referred to as conferring beneficiary status to plaintiff and as providing that a surviving spouse automatically takes over when the one registered as member dies. Further cross examination confirmed that the witness was not aware if such terms were in writing. When shown exhibit 15  the witness confirmed that in terms of that document the deceased  indicated that she joined the co-operative on her own,  was paying on her own and it was for the benefit of her children only. </p> <p>The witness was also heard to say that the co-operative by-laws forbade a spouse member from nominating any other person other than his/her spouse to take over upon his/her death. This evidence contradicted exhibit 15 which clearly showed deceased excluded plaintiff and included her children as beneficiaries only. On the same aspect the witness’ evidence was contrary to by-law 13 which shows that a member is not restricted to nominate his/her spouse but can also nominate a child to take over their shares on their demise.</p> <p>       By- law 13, of the Co-operative Society’s By-Laws tendered into evidence provides that:-     </p> <p>“13(1) Any member may, if he wishes by notice in writing signed in the presence of two or more witnesses, nominate a person to whom, on the member’s death, the society shall transfer his shares and other interests in the society.</p> <p>Provided that the nominee shall not be any person other than the spouse or child of the member if any of the children or the spouse have not been adequately provided with accommodation by the member. …”</p> <p> </p> <p>By virtue of the above a member is not restricted to nominate only their spouse, but can nominate a child as well.</p> <p>Where a member has not nominated anyone by-law 13 (3) provides that:</p> <p>“In the event of a member becoming insane or dying without having appointed a nominee or if such nominee is dead, missing or cannot otherwise be traced within a period of the member declared insane in terms of section 28 of the Mental Health Act, November 16 of 1996, his interest and share in the society shall form part of his deceased estate.”</p> <p>The above by-laws are in tandem with section 74 of the Cooperative Societies Act C<em>hapter 24:05</em> on the nomination of nominees by a member and on the fact that if no one was nominated that member’s share or interest go to his estate.</p> <p>When this witness was referred to these provisions he could not persist with his contention that a surviving spouse automatically assumed a deceased member’s shares even if he had not been appointed as the nominee. When the contents of exhibit 15 were read together with the above provision the witness was simply dumbfounded by the import of that exhibit and the lease document which clearly showed exclusion of the plaintiff and inclusion of children as beneficiaries. This tended to prove that the witness was not being truthful on how he said the deceased had joined the co-operative and the role he said plaintiff had played in all this.</p> <p>The next witness was Daniel Bowa. He was elected into the Executive Committee as treasurer of the Co-operative in November 2010. He testified that he joined the Co-operative in 1994. His evidence was similar to Power Chikonzo’s in material respect. His evidence on how the Co-operative functioned and who was to take over shares of a deceased member was contradicted by the by-laws and the Co-operative Societies Act, section 74 already alluded to. The witness could not deny that in terms of exhibit 15 the deceased indicated how she joined the cooperative and the fact that the property belonged to her and her children. This aspect of the exhibit contradicted the witness’ evidence on what he said the Co-operative by-laws stated.</p> <p>In as far as the two witnesses are Executive Committee Members of the Co-operative (Chairman and Treasurer) one would have expected them to produce the correct co-operative information sheets or lease documents if the ones tendered by second defendant were not the correct ones. This, the witnesses did not do. Their half-hearted misgivings on how second  defendant was furnished with the documents did not mean that the documents were not a correct reflection of the records pertaining to deceased’s joining of the co-operative.</p> <p>I am of the view that the plaintiff’s version as testified to by plaintiff and his witnesses did not tell a true story. This is why his version was not in sync with documents tendered.</p> <p>            The second defendant gave evidence and called two witnesses. The second  defendant’s evidence was to the effect that the plaintiff left Stand 9208 in 2000 after he had come back from army deployment in DRC. At that time plaintiff had a lot of money earned from the DRC mission. At the time plaintiff left home he intimated that he was going to find his own house as stand 9208 belonged to his wife. It was her evidence that she had witnessed misunderstandings in the home between plaintiff and the deceased during which plaintiff would allege that since deceased was saying that this was her house he was going to look for his own house. It was as a consequence of these misunderstandings that plaintiff eventually left Stand 9208. After he left she learnt that he was staying in Kuwadzana and later moved to Mufakose. In the process he started living with another woman as his wife.</p> <p>The second defendant also testified that after leaving home in 2000 the plaintiff was no longer providing for the family such that her mother on at least two occasions applied for maintenance from the Maintenance Court. In this regard she referred to exhibit 9, summons for maintenance dated 15 April 2002 and exhibit 10 being another application for maintenance M 210/2005 dated 23 August 2005. She however indicated that due to some challenges the mother did not pursue the applications to their logical conclusions. It was also her evidence earlier on that in 2000 she was in form 3 and plaintiff was not paying for her school fees. At some point her mother sent her and Winnifildah to see their father at his workplace for financial assistance. They proceeded to Cranbourne barracks where plaintiff was based and upon informing him of their financial plight <em>vis-à-vis</em> funds for food and school fees plaintiff referred them to their mother and did not give them anything. The second defendant was categorical that plaintiff virtually abandoned the family and never came home. He only surfaced at the deceased’s funeral. As far as second defendant was concerned therefore plaintiff was not living at 9208 at the time of the deceased’s death. She instead contended that he was living with his new wife at a plot in Gutu.</p> <p>I am of the view that second defendant’s version is more credible than plaintiff’s. As already alluded to above the two letters plaintiff sought to rely on do not state where plaintiff would be when he was not at his station of deployment. The second defendant on the other hand clearly stated that she had to go and see plaintiff at his workplace because he was no longer coming home and was no longer providing for the family. Had plaintiff been going home after work surely second defendant would not have visited him at his workplace. I did not hear plaintiff to deny that first and second defendant did indeed visit him at his work place seeking financial assistance for their schooling and other family needs at home. Had he been home as he alleges such a visit would not have been necessary.</p> <p>The plaintiff could also not state when exactly he had left Stand 9208 for Nyamapanda and from where. It was clear that he left for Nyamapanda from some other place. It is in this respect that second defendant contended that he left from the place he was staying with his new wife and not from Stand 9208 Paradise Park, Highfield.</p> <p>            Neverson Kapungu gave evidence for the second defendant. He was a brother to the deceased. His evidence was that he used to visit his sister’s residence and would find plaintiff there prior to 2000. However from 2000 whenever he visited he would not find plaintiff home. When deceased fell ill he had to take her into his house as plaintiff was nowhere to be found. The deceased spent about six months at his house before she died on the 19 August 2007. It was his evidence that when deceased died he indicated to the relevant officials that he did not know where plaintiff was and this led to an issuance of a death certificate indicating that deceased was divorced. The witness denied being the one who phoned plaintiff to inform him about his wife’s death. He categorically stated that he could not have done so as he did not even know plaintiff’s phone number.</p> <p>In cross examining this witness I did not hear plaintiff to deny the assertion that as from 2000 whenever the witness came to Stand number 9208 Paradise Park he would not find plaintiff. I also did not hear him to deny that the witness had indeed been a frequent visitor to their home. Further, I did not hear plaintiff to insist that it was this witness who had informed him about the deceased’s death. Clearly the witness gave his evidence well.</p> <p>The last witness for the second defendant was Philip Mahoso, an ex-soldier. The import of his evidence was to cast aspersions on the documents plaintiff produced as evidence that he was on deployment at Nyamapanda. In this regard the witness testified on the documents used when soldiers are deployed and that the letter by Chikwari was not proper as it ought to have emanated from the ZNA headquarters. I am however of the view that not much turns on this witness’ evidence. His evidence was as an ex-soldier who retired in 2013 and not as someone who had been employed in the particular department that dealt with deployments or with responding to queries on deployments. His was thus a general view of what he believed was the procedure at the Army. In any case his reservations on the letter by Chikwari were clarified by the 2nd letter by Chinhondo from Army Headquarters.</p> <p>After a careful analysis of the evidence by the parties and their witnesses I was convinced that plaintiff’s version is not probable from a number of features.</p> <p>For instance, it was plaintiff’s evidence and that of his two witnesses that the Highfield Co-operative Society by-laws were such that only one spouse would be registered as member whilst the other spouse was to be a beneficiary. However both plaintiff and his witnesses did not tender such by-laws which prohibited the registration of two spouses or even the recording of the other spouse as a beneficiary. The two witnesses from the Co-operative Society were elected into office in November 2010 well after the co-operative had been formed and the deceased had died. As executive committee members one would have expected them to have tendered records from the co-operative such as the by-laws and documents relating to the property in question. Instead of bringing such documents to confirm plaintiff’s stance, the witnesses chose to come and repeat what plaintiff had told them.</p> <p>In this regard an examination of Co-operative Society’s documents tendered by defendant exposed plaintiff’s lack of probity. It was the plaintiff’s evidence that the deceased and himself made a decision to have the wife’s name registered as member whilst he retained position of beneficiary. Since this was an agreement one would expect such to be reflected in the documents signed at the cooperative but alas no such documents were tendered. Instead second defendant tendered documents which showed a clear exclusion of plaintiff from membership or position of beneficiary. The plaintiff and this two witnesses alluded to the fact that upon registering there is an information sheet where members enter their details and their beneficiaries. Somehow the two witnesses did not produce such a sheet in respect of this case. No plausible reason was given for such failure. Upon being shown exhibit 15 the witnesses confirmed that it was the information sheet they were referring to but they did not know how second defendant got a copy thereof. That exhibit 15 contains the member’s details, In this case deceased’s details. On the next of kin are recorded the names of her children- Molly Kapungu, Sibongile Mercy Madamombe, Winnifildah Madamombe and Innocent Madamombe.</p> <p>On remarks she wrote words to the effect that: ‘I joined the cooperative in 1989 I was paying $ 100 per month. I was allocated in December 1996. I did not have a marriage certificate. I got the marriage certificate on 9 May 1997. It is not for the marriage certificate it is mine. It is for my children please.’</p> <p>This document was completed and signed on 10 May 2003.</p> <p>Another document related to the stand is the lease on page 77. This documents shows the deceased as lessee at Cottage 9208. She is recorded as self-employed and single. In it are the names of her children. As with exhibit 15, the plaintiff is not mentioned anywhere in that lease document titled Part 1 Details of lease. This is a document from the co-operatives records but as with exhibit 15, the two witnesses for plaintiff had no such document.</p> <p>The above two documents clearly show the exclusion of plaintiff from the property in question by the deceased. Such exclusion was not consistent with plaintiff’s argument that they had joined the cooperative together and he was the provider of the funds for all payments required.</p> <p>The second defendant’s version on the other hand is credible. It is in my view clear and straight forward. The plaintiff left home as a result of quarrels with the deceased which quarrels plaintiff ascribed to deceased being the owner of the house and so he left to find his own. That aspect is supported by the information sheet exhibit 15 and the lease document. As stated above these documents exclude plaintiff from being beneficiary or nominee to deceased’s shares in the cooperative. In those documents deceased clearly stated that she joined the co-operative on her own and was making payments on her own and that the property was for her and her children only.</p> <p>It was also second defendant’s evidence that after leaving home in 2000 plaintiff never came back till 2007. He instead moved on with another woman, she later learnt to be Time Chikosi. Though she had no first-hand information on how many houses plaintiff moved, she, nevertheless, stated that at the time of deceased’s demise she heard that deceased was living at a Plot in Gutu. The plaintiff himself confirmed that he had in fact acquired a Plot but this was in Chivhu and not in Gutu. Though he denied that he had moved on with Time Chikosi as his new wife, the minutes of the edict meting confirmed second defendant’s evidence in this regard. The plaintiff’s denial of Time Chikosi only served to show that he had something to hide as regards this woman. It is unfathomable that the Master would have brought up such a name on his own and ascribed that person to be plaintiff’s wife if plaintiff had not brought such a woman with him and had not informed the Master that she was his wife. In fact the second defendant’s assertion that plaintiff’s brother in law complained bitterly about the presence of this woman makes probable reading given the circumstances of the case.</p> <p>The probability is that plaintiff had moved on with another woman and had established another home at the Plot in Chivhu with this woman. He had effectively ceased to be resident at 9208 Paradise Park Highfield when he deserted the place in 2000.</p> <p>As has already been alluded to the second defendant’s version that plaintiff left the property in question in 2000 is more probable than plaintiff’s version that he never left the property serve when going on military deployments.</p> <p>This view is also buttressed by the fact that after the burial of the deceased plaintiff left only to resurface in about 2011 claiming the property. The fact that the dispute only arose so many years after deceased’s death tends to support the view that Plaintiff was not resident at the property. I am of the view that had he been resident there, the wrangle over inheritance would have erupted soon after he came from his military deployment in 2007. It is apparent that the plaintiff only begun claiming the property after the Cooperative through his witnesses had registered his name against the property well after deceased’s death. His witnesses confirmed that they were only voted into the executive Committee in November 2010 and it is after that that they effected the change of names. They were thus not privy to the state of affairs at the time of deceased’s demise. In effecting this change they did not consider what deceased had stated in the information sheet and the lease documents referred to above. Instead they just considered that he was a surviving spouse and so he should take over the deceased’s share. Unfortunately that is not what the cooperative by-laws and the Cooperatives Act section 74 provide. Their conduct was clearly a bid to clandestinely assist plaintiff in his dispute with the defendants.</p> <p>I thus find that plaintiff was not living at Stand 9208 Paradise Park Highfield immediately before deceased’s death. He had settled somewhere else at a plot in Chivhu. In the circumstances, it cannot be said that he still retained his links to the premises in question to entitle him to exclusively inherit the same. Applicant had clearly moved on during the latter part of deceased’s life and had established another home such that he was not living at the premises in question. It cannot be said by any stretch of imagination that by denying him exclusive inheritance plaintiff will be uprooted from a home or domestic premises he was resident.</p> <p>            I am thus of the view that the plaintiff cannot exclusively inherit stand 9208 Paradise Park Highfield in terms of s 3A of the Act. This is a property he should inherit together with the deceased’s children in equal shares.</p> <p>Accordingly therefore the plaintiff’s claim is hereby dismissed with costs.</p> <p> </p> <p> </p> <p> </p> <p> </p> <p><em>Makwanya Legal Practice</em>, plaintiff’s legal practitioners</p> <p><em>Tadiwa and Associates</em>, first to third respondents’ legal practitioners</p> <p> </p> <p> </p> <p> </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/harare-high-court/2019/455/2019-zwhhc-455.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=38607">2019-zwhhc-455.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/2019/455/2019-zwhhc-455.pdf" type="application/pdf; length=173440">2019-zwhhc-455.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/deceased-estate">Deceased estate</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/family-law">FAMILY LAW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/husband-and-wife-family-law">Husband and wife (FAMILY LAW)</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-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/1964/81">Marriage Act [Chapter 5:11]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1873/2">Deceased Estates Succession Act [Chapter 6:02]</a></div></div></div> Tue, 16 Jul 2019 11:36:40 +0000 admin 9351 at https://old.zimlii.org Mamutse & Anor v Tichareva & 5 Others (HH 258-18, HC 8779/17) [2018] ZWHHC 258 (15 May 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/258 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>RICHARD MAMUTSE</p> <p>and</p> <p>PINIEL MAMUTSE</p> <p>versus</p> <p>ISAAC TICHAREVA</p> <p>(In his capacity as the Executor of the Estate of the Late</p> <p>SHINGIRAI MAMUTSE)</p> <p>and</p> <p>THE MASTER OF THE HIGH COURT</p> <p>and</p> <p>HEATHER DANAI MATIMADIYI</p> <p>and</p> <p>TENDAI PRINCE HILLARY MATIMADIYI</p> <p>and</p> <p>REGISTRAR OF DEEDS</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUNANGATI-MANONGWA J</p> <p>HARARE, 15 May 2018</p> <p> </p> <p> </p> <p> </p> <p><strong>Opposed Matter</strong></p> <p> </p> <p> </p> <p><em>Ms L Gaba</em>, for the applicants</p> <p><em>Mr E Ngwerewe</em>, for the respondents</p> <p><em>Mr R Zimudzi </em>for 3rd and 4th respondents</p> <p> </p> <p><strong><em>EX TEMPORE JUDGMENT</em></strong></p> <p> </p> <p>            MUNANGATI-MANONGWA J: The applicants who are siblings approached this court seeking a declaratory order <em>viz</em> the estate of their deceased mother on the following terms:</p> <ol> <li>The sale and transfer of the immovable property described as Stand 1249 Rugare Township, Harare to the 3rd and 4th respondents is null and void and consequently set aside.</li> <li>The 5th respondent should give effect to the provisions of Paragraph 1 and restore the property back into its previous owners’ name.</li> <li>In the interim, pending the finalisation of the Estate, the Court Order obtained in HC10668/16 against the applicants be and is hereby suspended.</li> <li>The 1st respondent pays costs of this application on an Attorney-client scale</li> </ol> <p>            The application is opposed by the first respondent who is the Executor of the estate of the Late Shingirai Mamutse, and the third and fourth respondents a couple that purchased the only asset of the estate stand 1249 Rugare Township Harare. Suffice to state that the third and fourth respondents already hold title to the property.</p> <p>            The grounds upon which the applicants rely for seeking the aforementioned relief are listed in paragraph 25 of the founding affidavit under the heading “Declaratur” and are that:</p> <p>“(a)      the executor had sold the immovable property to the third and fourth respondents “precipitously” without their consent and “for debts that were not even due and payable.”</p> <p> </p> <p>(b)        “that the first respondent acted capriciously in selling the property at grossly undervalued purchase price thereby prejudicing the estate and the beneficiaries of more than US$10 000-00.</p> <p> </p> <p>(c)        other factors like greed and avarice seem to have motivated the actions of the first respondent.”</p> <p> </p> <p>It is the applicant’s contention that the aforementioned grounds point to a conflict</p> <p>between their interests and those of the Executor and the Master of High Court which therefore removes the matter from the realm of an ordinary appeal or review.</p> <p>            In opposition the first respondent raised a point <em>in limine</em> that the applicants have used a wrong procedure, instead of applying for a declaratur an application for a review would have been appropriate. This is a clandestine attempt to seek a review of the Master’s decision via the back door by disguising same as an application for a declaratur.</p> <p>            The third and fourth respondents raised several grounds in opposition including points <em>in limine. </em>At the hearing Mr Zimudzi abandoned the points. The simple facts of this case are. The late Shingirai Mamutse died intestate leaving stand No 1249 Rugare Township as the only meaningful asset. The first respondent was appointed neutral executor and proceeded to handle the estate. The estate had obligations amounting to US$4 404.00 consisting of electricity bills and City of Harare rates. The applicants raised an amount of US$640.00.  The first respondent applied to the second respondent for authority to sell the immovable property to meet the estate’s obligations, same was granted and the property was sold to third and fourth respondents. The latter now hold title to the property.</p> <p>            It is common cause that the applicants applied for a review in Case No. HC 6902/16 seeking the setting aside of the sale on the basis that the sale was irregular. The application was dismissed with costs on 1 June 2017. Equally there is an extant order granted on 18 July 2017 against the applicants who then were respondents in Case No. HC 10668/16 which ordered that the applicants vacate stand 1249 Rugare Township within 48 hours of the order and pay rentals from the date of institution of the summons to the date they vacate the property. It is common cause that applicants have not complied with this order.</p> <p> Of note is the fact that the applicants have projected the notion that it is the Master’s decision to authorise the sale that is being impugned. Yet a look at the grounds that have been provided clearly attack the manner in which the Executor has disposed of the property. There are barely any details regarding the allegations against the Master being the second respondent. Ms Gaba for the applicant submitted that the applicants were not consulted by the first and second respondents in the whole process leading to disposal of the property. Evidence on the papers shows that there was exchange of information by way of letters being written to the applicants.</p> <p>As the basis of the application is to challenge the Master’s decision a review would have been the appropriate application see <em>Geddes</em> v <em>Tawonezvi</em> 2002 (1) ZLR 479. A reading of the present application shows that the issues raised are the same ones raised in the review matter Case No. HC 6902/16. Even the relief sought is essentially the same, being the setting aside of the sale of the immovable property. Central to both applications is a complaint against the manner in which the executor conducted the sale or disposed of the estate’s asset. The parties are the same, the same grounds are relied upon and so is the relief sought. Clearly there is an attempt to disguise this application as something different from the previous one by calling it an application for a declaratur, but such efforts proved dismal.</p> <p>                        That the application is a review in disguise is confirmed by the concession by Ms Gaba that a review would have been out of time and seeking condonation would have delayed justice as the third and fourth respondent would have dealt with the property as they wished. In that regard to protect the interests of the applicants they had to ask for a declaratur.</p> <p>            Since the initial review proceedings were thrown out on technicalities the issue of <em>res judicata</em> would not arise. The applicants could have applied for condonation and started the whole process again. Given the aforegoing the applicants got mixed up <em>viz</em> the grounds relied upon in an attempt to have the application fit the requirements of a declaratur. In the process a wrong procedure was adopted. Consequently the application cannot succeed.</p> <p>            Apart from that finding, the application cannot succeed on merits. The applicants are indeed beneficiaries to their mother’s estate together with their other siblings. It is common cause that they were given time to raise the US$4 404.00 which was required to pay obligations due by the estate. The applicants only raised $640.00. The executor sought the Master’s consent to sale and there is no evidence that the Master decision can be faulted in view of the fact that the applicants had been given time to raise the amount and failed to do so. The master and the executor did not require the beneficiaries to consent to the sale. That they were engaged to raise what was due is sufficient. The requirements of s 120 of the Administration of Estates Act were satisfied. Disposal of assets falls in the hands of the executor upon due authority from the Master. (See <em>Dondi N.O</em> v <em>Muganhiri &amp; Ors</em> HH 77/15). Hence nothing was untoward viz the actions of the first and second respondents. Whilst there is an allegation that the property was grossly undervalued, no evidence was furnished by the applicants by way of a valuation to show what would have been a fair value for the property. Again no evidence supports the allegation that “greed and avarice” motivated the actions of the first respondent, the executor. US$4 404 was outstanding as an obligation against the estate and the estate only had one asset being an old house in a high density suburb with cracks on the front elevation (as <em>per</em> the valuation report). Faced with beneficiaries who could not raise the amount, coupled with five other beneficiaries who supported the sale in order to get their shares, the first respondent was within his mandate to seek consent from the 2nd respondent to dispose the asset. The consent was properly granted in the circumstances and the court finds nothing untoward in the manner the sale proceedings were conducted to declare them null and void.</p> <p>            Equally the interim relief sought in the draft order to suspend the court order in HC 10668/16 which granted the eviction of applicants from the property in issue is not competent. This application is for a declaratur hence the application for an interdict is misplaced. Neither is there a legal basis to grant such relief in the absence of a pending review or an appeal let alone a proper application. I find that this application was ill-thought, reckless and constitutes an abuse of court process.</p> <p>Accordingly the application is dismissed with costs on an attorney and client scale.</p> <p><em>Takawira Law Chambers</em>, plaintiff’s legal practitioners</p> <p><em>Zimudzi &amp; Associates, </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/harare-high-court/2018/258/2018-zwhhc-258.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=21622">2018-zwhhc-258.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/2018/258/2018-zwhhc-258.pdf" type="application/pdf; length=122990">2018-zwhhc-258.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/deceased-estate">Deceased estate</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/executoradministrator-deceaseds-estate">Executor/Administrator of deceased&#039;s estate</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/master-high-court">Master of the High Court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-practice-and-procedure">Application (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/declaratory-order">Declaratory order</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/review">Review</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/condonation-review">Condonation (Review)</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/2015/77">Dondo N.O. v Muganhiri &amp; Others (HC 9920/13) [2015] ZWHHC 77 (28 January 2015);</a></div></div></div> Mon, 25 Jun 2018 07:27:42 +0000 admin 8937 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 Mzite v Damafalls Investments (Private) Limited & Another (SC 21/18, Civil Appeal No. SC 89/16) [2018] ZWSC 21 (23 June 2016); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2016/21-0 <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>EASTER        MZITE</strong></p> <p><strong>(In     her     capacity     as     the     Executrix     Dative     of     the     Estate     Late     Chemayi      Joseph     Mtize)</strong></p> <p><strong>v</strong></p> <ol> <li>DAMAFALS INVESTMENTS (PRIVATE) LIMITED &amp; THE MASTER OF THE HIGH COURT</li> </ol> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>HARARE: JULY 18, 2016</strong></p> <p> </p> <p><em>D.P. Drury (Pro amico), </em>for the applicant</p> <p>Ms<em> Matshiya, </em>for the first respondent</p> <p>No appearance for the second respondent</p> <p> </p> <p><strong>IN CHAMBERS</strong></p> <p> </p> <p><strong>BHUNU JA:</strong>       This is an application for condonation and extension of time within which to note an appeal in terms of r 31(3) of the Supreme Court Rules 1964. The applicant is the widow of the late Chemayi Joseph Mtize. She is the duly appointed executrix dative of his deceased estate.</p> <p>The first respondent, Damafalls (Pvt) Ltd is a duly registered company in terms of the laws of Zimbabwe whereas the second respondent, the Master of the High Court is cited in his official capacity. He is responsible for the administration of deceased estates.</p> <p> </p> <p>The first respondent sued the applicant in the High Court alleging that during his life time the deceased sold stand number 2699, Gwelo Township to it. In consequence whereof it sought the following relief against his deceased estate:</p> <ol> <li>An order for the setting aside by the second defendant of the distribution of Stand 2699 Gwelo Township to the beneficiaries of the estate Late Chemayi Joseph Mtize.</li> <li>An order for the transfer of Stand 2699 Gwelo Township from the estate of the Late Chemayi Joseph Mtize to the plaintiff, failing which the Deputy Sheriff Gweru be authorised to sign the transfer documents.</li> <li>An order for the eviction of the first defendant from Stand 2699 Gwelo Township.</li> <li>An order for payment of US$2 800-00 together with a sum of US$400-00 per month from 1 December 2014 to date of eviction of first defendant and all those claiming occupation in her name. Or alternatively an order for payment to the plaintiff by the first defendant of the value of the said property currently US$60 000-00.</li> <li>An order for payment of legal costs on an attorney client scale.</li> </ol> <p> </p> <p>The applicant unsuccessfully defended the respondent’s suit in the court <em>a quo</em> with judgment being given against her on 23 December 2015. If she intended to appeal against that judgment she had 15 days from the date of judgment to note her appeal in terms of r 30 of the Supreme Court Rules 1964. She however only approached this court on 26 February 2016 with this application for condonation of late noting of appeal and extension of time to file the appeal. By then she was 26 days out of time excluding weekends and public holidays.</p> <p> </p> <p>The requirements for the application of this nature to succeed are well known as outlined in the case of <em>Kombayi v Berkout</em> 1988 (1) ZLR 53 (S). These are:</p> <ol> <li>The extent of the delay;</li> <li>The reasonableness of the explanation for the delay; and</li> <li>The prospects of success on appeal.</li> </ol> <p>I now proceed to consider the three requirements in sequence.</p> <p> </p> <p>The Extent and Reasonableness of the Explanation for Delay</p> <p>The judgment sought to be appealed against is dated 23 December 2015 but was issued to the applicant on 25 January 2016. Rule 30 of the Supreme Court Rules 1964 requires that where leave to appeal is not necessary the aggrieved   party must appeal to this court within 15 days of the date of judgment.</p> <p> </p> <p>The applicant’s explanation for delay is that despite frequent enquiries with her erstwhile Legal Practitioners she was consistently told that judgment was not yet ready. She only received notification that the judgment was now ready for collection on 19 January 2016. Her erstwhile Legal Practitioners did not receive the notification timeously because the Law Firm had closed for the Christmas and New Year holidays.</p> <p> </p> <p>It was her submission that when she received the letter advising her that judgment was ready for collection, she promptly consulted her current Legal Practitioners and made arrangements to travel from Gweru to Harare to collect the judgment. She however only managed to collect a copy of the judgment from the Registrar of the High Court on 25 January 2016.</p> <p> </p> <p>Having received a copy of the judgment on the 25 January she only filed this application on 23 February 2016 which is almost a month after receipt of a copy of the judgment. Her explanation for this further delay is that she was conferring with her current legal practitioners.</p> <p> </p> <p>That explanation is rather unsatisfactory but considering her indigent state and the importance of this case to her and her family, it is difficult to dismiss her explanation off-hand as being unreasonable. I take that view because her current legal practitioners are representing her <em>pro amico </em>out of their generosity and benevolence of their good heartedness.</p> <p> </p> <p>In the normal run of things I consider that it is difficult to find a legal practitioner willing to offer his services for free within a short space of time.</p> <p> </p> <p>The applicant presents a picture of an elderly unsophisticated widow, desperately fighting to save her home with paltry resources and scanty knowledge of the legal intricacies. Despite those impediments she did not sit back doing nothing about this case. She fought tooth and nail in search of justice in circumstances where she could not afford legal representation. For that reason there is need to give her the benefit of a reasonable doubt so as to consider and ventilate her prospects of success on appeal on the merits.</p> <p> </p> <p>Prospects of success on Appeal</p> <p>The plaintiff relied on the evidence of four witnesses in the court <em>a quo</em>, comprising Martin Mataranyika, Edmore Samson, Priscilla Marume and Ravheti Kaseke.</p> <p> </p> <p>Martin Mataranyika was the main witness for the plaintiff. It was his testimony that he was a business consultant with a company called Millennial Insurance Company. The first respondent was the principal shareholder whereas, the late Joseph Chemayi Mtize was one of the executive Directors.</p> <p> </p> <p>Sometime in 2005 there was need to inject more capital in the company. He then advised the executive directors to top up their nominal shareholding in a board meeting to avoid their shareholding being diluted to zero by the envisaged increase in capital. The late Chemayi Mtize who had no money offered to sell the disputed property to the first respondent to raise funds to purchase more shares. He is not privy to the contract of sale but he knows that the late Mtize travelled to Gweru with a representative of the respondent company to view the property. Following the trip to Gweru the late Mtize later bought more shares from Millenial Insurance Company.</p> <p> </p> <p>Edmore Samson is the first respondent’s Managing Director and a shareholder in Millenial Insurance Company. He confirmed Mataranyika’s evidence that in 2015 there arose need to raise Millenial Insurance Company’s share capital. It then became necessary for shareholders to increase their shareholding by purchasing more shares in the company. He corroborated Mataranyika’s evidence to the effect that the late Mtize who had no money offered to sell his house to the first respondent.</p> <p> </p> <p>It was his testimony that the first respondent then bought house Number 5 Cooper Road Southdowns being the disputed property. The property was bought for $Z300 000 000 (three hundred million Zimbabwean Dollars) payable in instalments from May 2005 to August 2005. The agreement of sale was reduced to writing and signed by both parties. The written agreement of sale has since been misplaced and the first respondent’ officials are still looking for it.</p> <p>When the purchase price was paid in full, the late Mtize handed over the title deeds of the disputed property to the first respondent. He then took a copy of the title deeds saying he was taking it to ZIMRA for capital gains exemption since he was above the age of 60.</p> <p> </p> <p>It is common cause that the first respondent had possession of the original title deeds of the disputed property which were produced in evidence at the trial in the court <em>a quo</em>. It is also not in dispute that the first respondent took peaceful and undisturbed occupation of the property way back in 2005 soon after payment of the purchase price in full as alleged.</p> <p> </p> <p>Mrs Mtize the executrix dative of the late Mtize’s deceased estate alleged without proof that the first respondent stole the title deeds from the late Mtize’s office while he was ill. This unfounded allegation was denied by both witnesses for the first respondent, saying that Mtize’s office was kept under lock and key during the duration of his illness. Despite those serious allegations of theft of property of immense value, Mrs Mtize did not bother to report the theft to the police.</p> <p> </p> <p>Samson testified that Mrs Mtize only emerged about 9 years later when she invaded the property, forcibly took the keys and occupation of the property.</p> <p> </p> <p>Priscilla Marume testified that at the material time she was employed as the first respondent’s accountant. It was her testimony that she signed the agreement of sale as a witness in the presence of the late Mtize and Samson. She was responsible for paying the purchase price in full to the late Mtize. It was her evidence that she paid him the full purchase price starting from 13 May 2005 to 22 August 2005. Each time she paid him he would sign on a petty cash voucher to acknowledge receipt. She produced 3 cash voucher receipts dully signed by the late Mtize. The amounts on the 3 petty vouchers add up to a total of $Z300 000 000.00 (Three hundred million Zimbabwean dollars).</p> <p> </p> <p>She denied that the first respondent ever managed the property on behalf of the late Mtize as alleged by Mrs Mutize.</p> <p> </p> <p>It is common cause that Mrs Mtize in her first and final distribution account in the estate of her late husband Mtize deliberately left out the disputed property from the inventory.  </p> <p> </p> <p>According to Samson’s evidence when he approached Mrs Mtize seeking transfer of the disputed property, she was surprised that the property had not yet been transferred to the first respondent’s name.</p> <p> </p> <p>Upon realising that the property was still registered in her husband’s name she refused to effect transfer and filed a supplementary distribution account in which she included the disputed property in the distribution inventory. The supplementary account was advertised in the newspapers. The first respondent did not object because it did not see the advertisement.</p> <p> </p> <p>In her evidence Mrs Mtize confirmed having deliberately left out the disputed property from the first and final distribution account. She also confirmed having included it in the supplementary account upon realising that it was still registered in her late husband’s name. She explained that she initially left out the property from the initial distribution account because she wanted to investigate whether indeed the first respondent had purchased the disputed property as alleged.</p> <p> </p> <p>The evidence on record however establishes that she carried out no such investigations. She only decided to claim the property after being approached for transfer and realising that it was still registered in her late husband’s name.</p> <p> </p> <p>It is only then that she started to question the validity of the sale. She alleged without proof that the first respondent was merely administering the property on her late husband’s behalf. She did not know the terms of that arrangement or the commission her husband was paying to the first respondent.  She first said Z$325 after contradicting herself under cross-examination she ended up saying that she did not know.</p> <p> </p> <p>Faced with the totality of the evidence placed before her, the learned judge in the court <em>a quo</em> weighed the credibility of witnesses and made material findings of fact: She had this to say:</p> <p>“Looking at the evidence led before the court, I am inclined to find in favour of the plaintiff that there was indeed a sale agreement involving the late Mr Mtize’s property in Gweru between the plaintiff and Mr Mtize. I am convinced because the plaintiff’s witnesses gave their evidence very well and impressed the court as credible witnesses. They were truthful and did not exaggerate their testimonies”.</p> <p> </p> <p> </p> <p>The learned judge in the court <em>a quo</em>’s summation of evidence and analysis of the credibility of witnesses is beyond reproach. The evidence clearly exposes Mrs Mtize as a desperate widow trying to pounce on the delay in effecting transfer to hang onto property which her husband sold during his life time. The late Mtize having validly sold his property during his life time, it cannot form part of his deceased estate.</p> <p> </p> <p>For the foregoing reasons I consider that the judgment the applicant seeks to appeal against is water tight and unassailable. As such, there are no reasonable prospects of success on appeal.</p> <p> </p> <p>Although the first respondent has asked for costs at the punitive scale, these are not warranted. The first respondent was in a way to blame by delaying in seeking transfer.</p> <p> </p> <p>It is accordingly ordered:</p> <ol> <li>That the application for condonation of late noting of appeal and extension of time within which to appeal to the Supreme Court be and is hereby dismissed.</li> <li>That the applicant shall pay costs of this application at the ordinary scale.</li> </ol> <p><em>Honey &amp;</em> <em>Blanckenberg</em>, applicant’s legal practitioners<em>.</em></p> <p><em>Wilmot &amp; Bennett, </em>first respondent’s legal practitioners<em>.</em></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/2016/21/2018-zwsc-21.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=31725">2018-zwsc-21.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/2016/21/2018-zwsc-21.pdf" type="application/pdf; length=235799">2018-zwsc-21.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/deceased-estate">Deceased estate</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal">Appeal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-supreme-court">Appeal to Supreme Court</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/civil-matter-appeal">Civil matter (Appeal)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/condonation">Condonation</a></li></ul></span> Fri, 18 May 2018 10:22:59 +0000 admin 8828 at https://old.zimlii.org