CHRISETTA CHIDZIVA (NEE CHINGOSHO)

versus

JULIET MUSARIRI

and

INNOCENT MUSARIRI

and

THE MUNICIPALITY OF MARONDERA

HIGH COURT OF ZIMBABWE

CHITANYE J

HARAREJuly 13, 2010 and February 17, 2011

OPPOSED APPLICATION

R M Mufuka, for applicant

F Piki, for the first and second respondents

No appearance for the third respondent

CHITAKUNYE J:      The applicant is a female adult resident in Marondera. The first respondent is a surviving spouse of the late Timothy Musariri who died on 25 September 1994. The first respondent was married to the late Timothy Musariri in terms of the African Marriages Act, (now Customary Marriages Act, Chapter 5:07). The late Timothy Musariri was the registered holder of interests and rights in the matrimonial home being house No. 7 Kasipiti Way, Rujeko, Marondera.

The second respondent is the son of the late Timothy Musariri and the first respondent. At the time of Timothy Musariri’s death he was a minor. The third respondent is a duly constituted urban council.

On 4 August 2001, the applicant and the first respondent entered into an agreement of sale of house number 7 Kasipiti Way, Rujeko, Marondera. Upon payment of the purchase price the applicant took occupation. It is not disputed that full payment was made to the first respondent and that at some stage the first respondent undertook to effect cession. No such cession has taken place. The applicant’s efforts to have the first respondent sign the necessary papers to effect cession has met with resistance. As a result of the resistance in September 2005 the applicant filed a court application at Marondera Magistrates Court seeking an order compelling the respondents to sign all necessary documents to enable cession of house number 7 Kasipiti Way, Rujeko, Marondera. The respondents opposed the application. The application was not successful as the presiding magistrate ruled that he had no jurisdiction to deal with the matter because the value of the property exceeded his monetary jurisdiction. That judgment was delivered on 12 March 2007.

The applicant thereafter approached this court for relief by way of a court application. This application was filed on 29 June 2007.

In the application the applicant seeks an order that the deputy sheriff , Marondera be authorized and directed to attend at the offices of the third respondent to effect cession from the respondents to the applicant in respect of the property in question. The first and second respondents opposed the application.

From the papers filed of record and submissions made in court most of the facts are common cause. The facts that are common cause include the following: The first respondent was married to the late Timothy Musariri in terms of the African Marriages Act (supra). Timothy Musariri died intestate in 1994. At the time of his death he left behind the first respondent and their only child the second respondent. The second respondent was a minor. In May 1995 the first respondent was appointed guardian to the second respondent. On the same certificate of appointment the second respondent was appointed heir to the estate late Timothy Musariri. The property in question as deceased estate remained to be dealt with in terms of customary law. At the time of Timothy Musariri’s demise the law applicable was in terms of s 68(1) of the Administration of  Estates Act, Chapter 6:01 prior to amendment 6 of 1997. That s 68(1) provided that:

“ If any African who has contracted a marriage according to African law or custom or who, being unmarried , is the offspring of parents  married according to African law or custom, dies intestate his estate  shall be administered and distributed according to the customs and usages of the tribe or people to which he belonged”.

In casu there is no dispute that the deceased was an African. His estate had to be dealt with in terms of customary law. The appointment of the second respondent as heir entailed the inherited the property in question as his property. That property became the second respondent’s property as heir and the only child of the late Timothy Musariri. (See Magaya v Magaya 1999 (1)ZLR 100 (S)).

It is not disputed that on 1 August 2001 the first respondent purported to sell the property to the applicant. An agreement of sale was entered into between the two parties. In furtherance of that purported sale the applicant paid the full agreed purchase price to the first respondent, albeit in installments. The first respondent in her notice of opposition did not deny receiving the full purchase price. Indeed the purported agreement of sale document and other documents showing how the payment was to be effected were tendered as annexures to the application.

It is further common cause that thereafter the applicant took occupation of the property. It is not denied by the first respondent that after the applicant made the payment and took occupation the applicant made effort to have cession effected to no avail. Documents written in Shona and translated into English for court’s benefit show that from the time of the purported sale to the time the applicant resorted to courts of law the applicant and the first respondent were in contact over the issue of cession. Indeed on 4 June 2005 the parties appended their respective signatures to a document tendered as annexure A and titled “Acknowledgment of payment.”  The main body of that document reads:

“ I Juliet Musariri , residing at number 1632 Unit A do hereby acknowledge receipt of the sum of three million two hundred thousand dollars = 3,200 000 = as rent from August 2001- March 2002. I also consent and admit to go and have the ownership changed from my name to Mrs Chingosho 47-035295 V 47

This day of 4 June 2005.”

The document is thereon signed by the first respondent and the applicant and their respective witnesses.

It is apparent that it was upon failure of this undertaking by the first respondent to have cession effected that the applicant decided to approach courts of law for relief.

The applicant’s position as portrayed above is clear. She wants the first respondent to perform her side of the transaction.

The respondents’ opposition as deposed to by the second respondent was to the effect that the first respondent had no right to sell the property, as in terms of customary law, that property belonged to the heir, who in this case was the second respondent. As the second respondent was a minor, the first respondent even as guardian could not sell the property without obtaining the Master’s consent to sale in terms of s 120 of the Administration of Estates Act.

It was not disputed that the property was registered in the name of Timothy Musariri and so upon his demise and in terms of the legal position then obtaining, the property devolved to the heir in his personal capacity.

The applicant contended that the first respondent as surviving spouse had a claim to the estate and that claim together with her appointment as guardian to the second respondent entitled her to sell the property.

The major issue may be viewed as whether or not the first respondent as guardian to the second respondent could validly sell the first respondent’s property as she purported to do; or did her appointment as guardian bestow on her the powers to deal with the property as she deemed fit?

Section 91 of the Administration of Estates Act prohibits alienation of immovable property by curator or tutor. The section states that:

“No tutor, either testamentary or dative, and no curator, either nominate or dative, or curatorbonis shall sell, alienate or mortgage any immovable property belonging to any minor or forming part of any estate under the guardianship of such tutor or curator, unless the High Court or any judge thereof has authorized such sale, alienation or mortgage or unless the person by whom any such tutor testamentary or curator nominate has been appointed has directed such sale, alienation or mortgage to be made.”

In casu it is common cause the first respondent did not get the authority of the High Court or any judge of the High Court.

Further on s 122 of the same Act states that:

 “In cases where minor heirs are interested in property inherited from the estate of any deceased person the Master may apply through the chamber book to a judge for authority for the lease, mortgage, sale or other disposition of such property, and the judge may make such order as in the circumstance he considers advisable.”

This was not done at all. It may also be observed that the first respondent did not seek or obtain the Master’s consent to sale as required by s 120 of the Act.

In as far as it is conceded that the first respondent did not comply with the provisions of the Act as stated above it follows that the purported sale was a nullity. The first respondent had nothing to sell. That property belonged to a minor.

The applicant’s plea became more of moral persuasion which unfortunately cannot override the legal position. The applicant’s recourse can only be against the first respondent for having misled her that she could validly sell a minor’s property in those circumstances.

The respondents’ contention that the matter was prescribed was without basis. Clearly on 4 June 2005 the first respondent acknowledged her obligations and under took to make good her side of the contract. In September of that year court process was started in the magistrate’s court. When that was dismissed for lack of jurisdiction the present application was launched.

The respondents’ contention that the matter was res judicata was also ill conceived. The judgment from the Magistrates’ Court is clear that the presiding magistrate’s reason for dismissal was that he ruled that the value of the property exceeded his monetary jurisdiction. This is what he said:

“What I have stated above as regards the status of the contract I have just said it in passing (sic) but not making a determination. Having said all this, the application is hereby dismissed for want of jurisdiction.”

Clearly therefore the matter is not res judicata.

Though both sides prayed for costs on the higher scale in the event of the decision being in their favor I am of the view that taking into account the circumstances of the case it may not be appropriate to award costs on a higher scale. Costs will be awarded on the general scale.

Accordingly the application is hereby dismissed with costs.

Mufuka & Associates, plaintiff’s legal practitioners

I F G Musimbe & Partners, first and second respondents’ legal practitioners