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HH 383-16

HC 5619/16

ESTATE LATE ENOS HWATA

(represented by VONAI HWATA

In her capacity as Executrix Dative)

versus

JABULANI HWATA

and

CEPHAS MUNANGATIRE

and

MASTER OF THE HIGH COURT N.O

HIGH COURT OF ZIMBABWE

MANGOTA J

HARARE, 23 & 27, June, 2016

Urgent Chamber Application

O. Zimbodza, for the applicant

G. Majirija, for the 1st respondent

            MANGOTA J: The applicant is the surviving spouse of the late Enos Hwata (Enos). He died on 2 May, 2000.

The applicant filed the present application in her capacity as the executrix dative of her late husband’s estate. She was appointed to the position in question on 11 November, 2015.

During his life time, Enos was appointed heir to the estate of his late father John Hwata (John). Part of the estate included the farm which is the subject of this application. Enos inherited the farm which John had purchased together with all the property of the latter person. His inheritance was in terms of the succession law as it existed then.

On 25 May, 2016 the first respondent contracted the second respondent whom he instructed to move onto the farm and start to construct houses for the first respondent and the latter’s siblings. The conduct of the respondents riled the applicant who tried, in vein, to contact the first respondent. She reported the matter to the police. These did not assist her either. She later filed the present application on an urgent basis. She moved the court to:

1. interdict the first and second respondents from interfering with her activities at, and occupation of, the farm:
2. interdict the mentioned respondents from accessing the farm and/or carrying out any activities at the farm – and
3. order the two respondents to remove all their building equipment from the farm.

She averred that she enjoyed peaceful and undisturbed occupation and possession of

Farm number 119, Zowa, Zvimba (“the Farm”) from 1992 which is the year that her late husband Enos inherited it from his late father, John to 25 May, 2016 when the two respondents despoiled her of the same. She, accordingly, moved the court to order the respondents to restore to her peaceful and undisturbed possession of the farm as was the case prior to 25 May, 2016.

            The first respondent opposed the application. The second and the third respondents did not. The first respondent raised two in limine matters after which he proceeded to deal with the substance of the application. His first preliminary point was that the fact that the application was filed eight (8) days after the event showed that the application was not urgent. The second was that the application did not meet the requirements of a spoliation order. On the merits, he stated that the applicant did not own the farm. He said his late brother, Enos, inherited the farm and held it in trust for the benefit of all the children of the late John Hwata..

            The applicant’s explanation as contained in para 9.1 of her founding affidavit disposes of the first respondent’s first preliminary matter. She said when she realised that the second respondent had moved building materials on to the farm, she confronted him. The second respondent, she averred, advised her that he was acting on the instructions of the first respondent. She stated that she made effort to contact the first respondent but she could not get hold of him as he had returned to South Africa where he worked. She said she enlisted the assistance of the police and these did not assist her as well. She stated that her efforts as stated above coupled with the fact that she was mobilising financial resources for her legal fees for the present application accounted for the delay.

            There was no doubt that the applicant acted with haste to protect her interests. The efforts which she made were reasonable in the circumstances of the present application. She could not have done better than what she did.

            The first respondent’s second in limine matter was misplaced. He sought to argue that the farm did not belong to the applicant but to all of John Hwata’s children, himself included. He missed the point that the court was not seized with the issue of ownership of the farm but with that of mandament van spolie

            The allegations which had been placed before the court were that the first and second respondents had disturbed the peace of the applicant. The applicant said their conduct had despoiled her of her peaceful and undisturbed possession as well as occupation of the farm.

            The first respondent did not deny that he instructed the second respondent to construct structure(s) at the farm. He also admitted that neither his siblings nor him stayed at the farm. He said he went to work in South Africa in 2004. His other siblings, the court was told, stayed and worked in Australia and his two sisters stayed with their husbands at their homes which were not at the farm. He was so candid as to inform the court that the applicant was staying at the farm alone.

            The first respondent, in the court’s view, misconstrued his perceived entitlement to the farm. That matter falls within the realms of ownership, as opposed to possession, of the farm. His siblings and him addressed a letter to the third respondent raising issues which had everything to do with their entitlement to the farm. The letter which they wrote through their legal practitioners on the matter is dated 22 January, 2016. The third respondent’s response to the same is dated 29 January, 2016. The last paragraph of the third respondent’s letter is relevant. It reads:

“should your client however have any claims, to the estate, they can file it with the master for consideration in terms of the Administration of Deceased Estates Act”.

It is evident from the foregoing that the first respondent was mixing two issues which

do not relate to one and the same subject. The issue which was before the court was whether or not his colleague and him despoiled the applicant of the farm. His perceived view which was to the effect that his siblings and him regarded the farm as their own home missed the point. He acted outside the law when he instructed the second respondent to construct or, as he put it, reconstruct houses at the farm.

            Reconstruction connotes that there was a house or  some houses at the farm, that such had been abandoned for a considerable length of time and had, therefore , fallen into a state of despair. The logical conclusion one comes to would be that the owner had given the distinct impression that he was not part of the establishment as he had gone somewhere else where he had settled himself. His coming back to the establishment should, under the circumstances, be supported at law as the third respondent advised in the cited last paragraph of his letter of 29 January, 2016. That is the route which the first respondent and his siblings should pursue to establish their entitlement to the farm which belonged to their late father, John, during the latter’s life time.

Mandament van spolie is what it is. It simply states that parties should revert to the status quo ante the spoliation. The issue of who owns what does not form part of the principle of spoliation proceedings. All what the despoiled is enjoined to show in that he was in peaceful and undisturbed possession and that the dispoiler despoiled him of his peaceful possession.

            The applicant proved that she was in peaceful and undisturbed occupation of the farm. She also proved, to the court’s satisfaction, that the two respondents despoiled her of the same.   

            The respondents resorted to self-help. The law cannot condone, let alone accept, their conduct.

            The applicant proved her case on a balance of probabilities. Her prayer for the interim relief is, accordingly, granted.     

Zimbodza & Associates, applicant’s legal practitioners

B. Matanga IP Attorneys’, respondent’s legal practitioners