1

HH 48-15

HC 3598/13

SITHOKOZILE MUNYIKA

(In her capacity as Executrix Dative in the Estate of
the Late Jeffrey Dhliwayo D/E 75/13)

versus

MARSHALL MWASHORENI DHLIWAYO
and
THE MASTER OF THE HIGH COURT

and

DIRECTOR OF HOUSING CHITUNGWIZA CITY COUNCIL

HIGH COURT OF ZIMBABWE
TSANGA J
HARARE, 22, 24, 29 September 2014 & 22 January 2015

Trial Cause

B Makuvise, for the plaintiff
J Kotwe, for the 1^st defendant
S Nyagura, for the 3rd defendant

TSANGA J: “Whose house is it anyway”, is indeed a common theme underlying disputes involving deceased estates in which the one person who could put paid to a dispute that centres on this question, is no longer there to assist with the answer. The issue to be resolved in this trial is the claim of a purported swop between two brothers (one now deceased), and an alleged incomplete cession of the rights to one of the swopped properties that would have been in favour of the deceased had it been taken to its logical conclusion.

The facts

Sometime in 1979 the late Jeffery Dhliwayo acquired the right to purchase a vacant stand known as Stand 5389 in Glenview (‘the Glenview Stand) through a cession agreement with the City of Harare. It is not in dispute that the person who ended up building a seven roomed house on this stand was the first defendant Marshall Dhliwayo. According to the Plaintiff, who is the deceased’s daughter, this circumstance came about as a result of an alleged swop between the two brothers of their properties with first defendant Marshall Mwashoreni Dhliwayo purportedly swopping his two roomed house in Chitungwiza, namely Stand 4362 Unit D Chitungwiza (the Chitungwiza stand), for the Glen View stand. According to the plaintiff the swop was so that he first defendant in particular could be nearer his work place. She stated that the verbal swop agreement took place sometime between 1979 - 1982 but was unable to say exactly when. Plaintiff could also not say exactly when her family moved to Chitungwiza but alleged it was some time in the 1980s and that her siblings born in 1982, 1985 and 1992 were all born when they were staying in Chitungwiza. No evidence however was put forward in support of this claim. She however admitted that she herself was schooling in the rural areas when it was put to her that she only came into town in 1994.

It was also her testimony that the crystal evidence that there had been a swop was contained in an agreement authored by the first defendant himself in 1998 in which he stated his wish to swop his house with Jeffrey. It was her position that it was in 1998 when the purported swop was formalised with the Glenview Stand being ceded to the first defendant. However the Chitungwiza cession according to her testimony was not finalised as the late Jeffrey, her father did not have the requisite funds to complete the process – which was a sum of Z$300.00 that was needed to effect the cession. Thus according to plaintiff instead of a cession of the Chitungwiza house what the late Dhliwayo got was a lodger’s card reflecting him as a tenant at the Chitungwiza stand.

It was not disputed that by 1982/3 the first defendant had completed the construction of the house in Glenview and had moved on to the property. The plaintiff did not lay claim to this house. She agreed that the house on the stand was built by the first defendant but insisted that the whole arrangement where one family lived in Glenview and the other in Chitungwiza had its origins in a swop. She had lodged a formal claim to the property in 2012 after registering her father’s estate and being appointed executor. This followed the purported acquisition of the house by the first defendant’s son one Newman Dhliwayo through a donation from the first defendant sometime in 2003 and his effecting extensive improvements to the said house. He successfully brought an action in the magistrate’s court in case No. 17/13 against the first defendant to sign all relevant papers and to effect transfer in his name. Plaintiff was not a party to this matter.

Plaintiff was the only witness in her case. In support of her claim that there was a swop the plaintiff produced as exhibits the application for cession of Stand 5389 from Jeffrey Dhliwayo to Marshall Dhliwayo (exh 1); the City council’s Memorandum of Agreement regarding the cession of the glen view property (exh No.2); and with regards to the Chitungwiza property she placed before the court the letter penned by the first defendant and his wife (exh No.3); and a lodgers card showing her father as a tenant to the Chitungwiza property which she said he had gotten in lieu when he was unable to pay the full cession fees required exh No. 4. Her letters of administration where also produced as an exh No. 5.

The first defendant on the other hand denied that there was ever a swop and instead locates his taking over of the stand in 1979 in the late Jeffrey’s inability to pay for it himself. Rather than losing the opportunity to acquire the stand he allowed the late Jeffrey allowed his brother to take over the purchase of the stand and to build on it. His version was that there could not have been a swop in 1979 as alleged by the plaintiff since he only entered into an agreement of sale with Chitungwiza Town Council with respect to the Chitungwiza Stand in March 1981. He produced as exh No D1 a copy of the Deed of Sale with the Council showing that the sale was in 198l.

His further testimony was that the late Jeffrey had moved to Chitungwiza in 1996 as his tenant and prior to that had been staying in Highfield as a lodger. His explanation of the 1998 events in contrast to those alleged by the plaintiff was that in May 1998 when it became evident that the late Jeffrey was critically ill in May 1998 both brothers took action in fear of his impending death, to transfer the property into the first defendant’s name. However in attempting to effect change of name they encountered a hurdle in that in that the City of Harare’s refused to effect cession into his name by merely changing ownership. He said he was told that there had to be something in favour of Jeffery and it was then that the parties following some advice as to how they could get around the hurdle put into motion the simulated swop using his Chitungwiza Stand. The intention he says was never to take the Chitungwiza cession to its logical conclusion which is his explanation as to why it was never concluded but it was every intention according to him to change over the Glenview property into his name.

Girlie Dhliwayo the first defendant’s wife, having been party to the process also gave evidence with the leave of the court, after the first defendant, a stroke patient, could not be available due to illness to complete what remained of being cross examined and re-examined. The gist of her testimony was that Jeffrey whom she characterised as wayward and irresponsible in his family matters, was staying in Highfield in a cabin with his wife and children in very crammed conditions. Having observed the very hard conditions his wife and children were living under after he had chased his wife from the rural home where she had been staying, her evidence was that it was her suggestion that they be offered their Chitungwiza home as a humane gesture. She corroborated her husband’s version that it was only in 1996 that the family of the late Jeffery went to stay in Chitungwiza. She further confirmed that in 1998 when they went to the Harare offices to effect change of name they were told by the officials that they needed a valid reason for the change of name. Their claim that they had bought the property could not hold since they were unable to produce an agreement of sale or any proof in the form of bank statements confirming that any money had changed hands. She reiterated that it was when they got outside that someone suggested that they do a swop and that it was then that they devised the plan to say they had swopped the Chitungwiza house. She said at the Chitungwiza Council offices the officials had insisted on a letter pertaining to the purported swop and it was in that context that she says the letter was written. It was also her evidence that the reason why the late Jeffrey was given a lodgers card was in fact so that he could be allocated a stand since lodgers were prioritised. It was her testimony that in fact a stand had been allocated to Jeffrey albeit after he had died.

Newman Dhliwayo the first defendant’s son to whom he is said to have donated the house to resulting in an order from the Chitungwiza Court that the first defendant should transfer the house to him, also gave evidence. It was to the effect that following Jeffrey’s death in 1999, bills at the Chitungwiza house mounted and remained unpaid. His father asked him to settle the bills if he had money which he went on to do. Thereafter his father said that he could take over the house if he wanted to as it was his and explained to him the context that had led to Jeffrey’s family being on the property.. He explained that he went on to install electricity in 2004 and in 2005 started building extensions on the house completing his seven roomed project in 2011. His evidence was furthermore to the effect that it was in 2012 after he moved in that conflicts started with the children of the late Jeffrey Dhliwayo who now claimed that he had come to take over their father’s house. He said he explained the problems to his father and that he wanted the house to be put into his name for the avoidance of further problems. He took the matter to court as he was of the view that as his father was staying in Glenview he was not taking the matter seriously. It was in this context that the Chitungwiza Magistrate Court issued a document compelling the first defendant to transfer the property to his son.

Also produced as exhibits for the first defendant claim was the court order from the Magistrate Court ordering Marshall Dhliwayo to transfer the property to his son Newman Dhliwayo (exh D3); the Council of Chitungwiza’s building inspectors report confirming that renovations to the house were being done as way back as 2005. (exh D2).

Therefore in the context of all the above facts this court is asked to decide primarily on the following issues:

1. Whether there was a swop agreement between the late Jeffrey Dhliwayo and the first defendant in respect of Stand 5389 72, Crescent Glenview and Stand 4362 Unit D, Seke, Chitungwiza owned by the first defendant.
2. Whether the first defendant can be compelled to transfer Stand 4362 Unit D, Seke Chitungwiza into the Estate of the Late Jeffrey Dhliwayo.
3. Whether the first defendant can be compelled to transfer Stand 4362 Unit D Seke Chitungwiza in view of the judgement dated 18 January 2013 handed down by Chitungwiza Magistrate’s Court.
4. Whether Plaintiff’s claim is prescribed in terms of the law.

While there was appearance by Ms Nyagura on behalf of the second defendant she did not make any submissions. Counsel for the third defendant Messrs Matsikidze and Mucheche also cited in an official capacity as custodians of the records of the property in dispute indicated that they would abide by the decision of the court with no order as to costs against it.

Analysis and disposition

The issue of prescription as well as that of the Magistrate’s Court decision obviously need to be dealt with first as both would dispose of the case. With regards to prescription the first defendant’s argument is that if as the plaintiff claimed in her evidence, the agreement dates back to 1979, then it had prescribed by 1981. The case of Nyarai Hwaire v Mbare Development LTD T/A Shelter Zimbabwe & Others HH 105/05 was cited in support of the contention that an agreement of sale is a debt in terms of the Prescription Act [Cap 8:11]. Also cited was the case of Coutts and Company v Ford & Another 1997 (1) ZLR 440 (H). Plaintiff counter argued that her claim was not prescribed since in relation to deceased estates the date of the appointment of executor governs the prescription of any claim that relates to that estate. To this the first defendant’s argument was that there are time frames according to s 5 (1) and s 14 (1) and  (3) of the Administration of Estates Act [Cap 6:01] which govern time limits within which a death must be notified and the process of administration of such estate initiated. The essence of his argument is that these time frames have not been observed.

Counsel for first defendant Mr Koto indeed applied for absolution from the instance at the close of the plaintiff’s case on account of his arguments on prescription. I refused to grant absolution particularly in light of the plaintiff’s exhibits as it was still very murky to me why the first defendant himself had signed and penned the 1998 agreements if the matter had prescribed. Plaintiff’s claim that she had persistently tried to enforce her claim needed to be put to factual scrutiny through the first defendant‘s own evidence to assess the prescription argument.

I do not think that the argument of prescription pertains to this matter since at the very core of the dispute is whether there was ever an agreement to swop that could be subject to lapse in terms of the relevant Act. Indeed the resolution of the case rests on resolving these factual disputes. As regards the time frames stipulated by the administration of estates Act, it is true that these were not observed. However with the administration of deceased estates being an area of law characterised by lay people only seeking to register an estate in the face of a problem, it would hamper the administration of justice to insist on formalism. It is best in my view to allow cases of this nature involving families and emotional ties to be resolved on the merits rather than on technicalities in the hope that this will bring up some lasting resolution to a dispute.

The issue of whether the High Court can direct cession in the face the Magistrate Court has ordered cession of rights to Newman Munyika by the first defendant is one that would have effectively disposed of the matter if Sithokozile Munyika had been cited as a party to that action. The High Court will not interfere with an order of the Magistrate Court outside the accepted channels of a review or an appeal a review. (See Berly-Lynn Surtee v Mohammed Hassin Surtee HH 7/2008; Raath v Carikas 1966 (1) SA 756; Kunz v Pretorius 1982 (2) ZLR 24 ( HC); Walkinshaw v Walkinshaw 1971 148 ( NC). Karimatsenga v Tsvangirai & Ors HH 369-12; Nyaguwa v Gwinyai 1981 ZLR 25 at 27; Damson v Ushamba HH 335/14) However, this cannot be the case in relation to a matter in which a party who  has an interest in a matter was not made a party to that action.  Should such a person bring their own independent claim it should be entertained and dealt with on its own merits. This is core to the meaning of equality before the law.

Although the matter before relates to the same property under dispute, it is not a matter that involves the exact same parties. At most this court can take cognisance of the matter without necessarily precluding the rights of party who was not part of the case. It is for this reason that I go ahead to determine this case before me on its own merits.

Was there a swop?

The document dated 12 May 1998 that captures purported swop with regard to the Chitungwiza property and submitted as exh No 3 by the plaintiff reads as follows:

“I Marshall Mwashereni Dhliwayo 63-1193020P13 wish to swop my house with Jeffrey Munyika Dhliwayo Nr 63-199102R 13 for free.”

It is signed by the first defendant and his wife also signs giving her consent.

It is a vague document that does not detail which house is being swopped for what house and cannot be said to constitute any agreement between the parties to effect a swop. It is void for vagueness. Besides there is no indication that the late Jeffrey Dhliwayo was party to it.

As stated in resolving such disputes as these much will of course rest on the facts of the particular case. As regards the swop if indeed the only thing that stalled the cession of the Chitungwiza property was lack of funds, there is no reason why payment could not have been subsequently made. Even accepting the death of Jeffrey in 1999, it still boggles the mind why if the property was in essence that of the deceased by virtue of a swop, his late wife who only died in 2003, almost five years later than him, never took any steps to register the property. The fact that there was no effort to assert a claim in my view bolsters the claim by first defendant wife that the reason was because it was always known to her in no uncertain terms that the property did not belong to her. The fact that the late Jeffery was given a lodger’s card for allocation of a stand also supports the first defendant’s argument that the letter regarding the swop was never intended to have any real meaning as a basis of any swop.

Even more puzzling to plaintiff’s claim is why no concrete legal action was taken in the face of the improvements that were being effected by the first defendant’s son to the property as way back as 2005 if she genuinely believed the property was her father’s. Her argument that she registered her complaints with the first defendant who took no action cannot absolve her failure to take more stern action.

Counsel for plaintiff Ms Makuvise argued that the evidence of Girlie Dhliwayo should be discounted for its inconsistencies with her husband’s with respect to whether the advice to simulate a swop had come from an outsider or from Chitungwiza Town Council. Far from implying that the advice was that of Chitungwiza council officials her evidence stated that it was when they got outside that in talking, someone suggested a swop. It was after that they had decided to use their Chitungwiza property that they had proceeded to Chitungwiza where they were advised to do the letter. I saw no glaring inconsistences that go to the root of the matter in her testimony. Instead there were many positive indicators from her testimony compared to that of the plaintiff and the first defendant who both encountered credibility pitfalls as a result of blatantly seeking to answer questions to suit a particular argument. For instance in not pinning herself to an exact date of the alleged agreement, besides the fact that having been born in 1975 plaintiff would have been too young to appreciate the events that took place at the time, the impression formed was that she was deliberately trying to evade the pitfall that there could not possibly have been any swop in 1979 since the record from the Chitungwiza Urban Council confirms that the Chitungwiza property was only acquired in 1981 consisting of the two roomed core house.

The first defendant equally emerged as not being entirely truthful when asked if he had faced any impediments in seeking transfer of the Glenview property into his name or on who had advised him to swop. It may have been a bid to protect any Council officials who may have been party to facilitating the ruse of the simulated swop.

In my opinion because of the straight forward factual nature of Girlie Dhliwayo’s testimony and its grounding in every day realities in providing a picture of what really transpired in relation to the two properties, I found her testimony the most believable of the witnesses. It assisted the court greatly to understand murky areas that appeared to have arisen as a result of clearly rehearsed responses. I also had no difficulties with the testimony of Newton Dhliwayo as it was also of a straight forward factual nature.

Ultimately the reality is that simulations such as these within family contexts to acquire property or facilitate transfers in instances where city council officials may appear to be placing impediments are not uncommon. It is not an unusual occurrence in our setting for parties to acquire property by navigating their way through the city council’s requirements. (See for instance Kamanga v Estate Late Chikondo as represented by Oswold Bute Chikondo in his capacity as executor and others 93/2011).

Also disputes such as these often times in our context have their origins in some desire to maximise the opportunity to acquire property within an extended family context if one cannot take it up themselves, as opposed to letting the opportunity slip without helping one’s own. Legal effects of property being registered in someone else’s name when they are not entitled to it are often not appreciated. It cannot be said that lack of foresight to resultant problems amounts to breaking the law. In light of economic woes and the significance of having a roof over one’s own head, the deceased’s children in some such arrangements as in this case, who may in some instances have been no more than toddlers at the time of the arrangement, nonetheless assert their claim to the property with the tenacity of those who were part of the contract at the time.

In reality there had never been a sale of the stand to or by Jeffrey Dhliwayo since from the outset it was Marshall Dhliwayo and his wife who had paid for the Glenview property and built on it. The impediment that they faced was getting it transferred into their name and it is in this context that the stimulated swop of the Chitungwiza property, which understandably was never taken to its logical conclusion came into play.

It is my finding there was never intended to be a swop of the properties.

It is equally my finding that the first defendant cannot be compelled to transfer Stand 4362 Unit D Seke Chitungwiza into the Estate of the Late Jeffrey Dhliwayo.

As summarised in the case of Page Automation (Pvt) Ltd v Profusa Properties T/A Homenet OR Tambo and Others 2013 (4) SA 37 (GSJ) at p 40 the elements of a cession are as follows:

1. An act of transfer
2.  The subject matter of the transfer is a right in movable incorporeal thing
3. The transfer is effected by agreement between the cedent and the cessionary and
4.  The agreement consists of the concurrence between the cedent’s animus transferendi and the cessionary’s corresponding animus acquirendi

There was never intended to be a cession of rights which the first defendant held with the Chitungwiza urban council in relation to the Chitungwiza stand. However there was intended to be a cession of rights which the late Jeffrey Dhliwayo held with the City of Harare in relation to the Glen View stand. The evidence suggests that there was a clear meeting of minds among the parties involved regarding what was intended.

As explained in the South African case of Hippo Quarries (TVL) (Pvt) Ltd v Eardley 1992 (1) SA 567 (A) at p 873 E-F.

Cession, it is trite, is a particular method of transferring a right. The transfer is effected by means of agreement. The agreement consists of a concurrence between the cedent’s animus transferendi of the right and the cessionary’s corresponding animus acquirendi. If a complete surrender of a right is not intended, the transaction however dressed up, is not an out and out cession. The aim is to discover the true intention of the parties to the disputed cession. That enquiry, like any enquiry into intention, is a purely factual one. If found to be feigned the simulation is disregarded.

From an assessment of the facts placed before the court, the true intention of the parties was to complete the transfer of rights which Jeffrey Dhliwayo held with the City of Harare in the Glen View property from being held by himself to being held by the first defendant in respect to stand. This one was not a feigned cession. It was real. The parties were agreed and the complete surrender of rights was effected.

In casu there was no animus transferendi in relation to the Chitungwiza property and there was equally no animus acquirendi.

Accordingly plaintiff’s claim is hereby dismissed.

There is no order as to costs as the plaintiff is represented by the Legal Aid Directorate.

Legal Aid Directorate, Plaintiff’s legal practitioners

Koto & Company, first defendant’s legal practitioners