Final Orders re: Approach iro Equity Relief

HH99-09 : ALSPITE INVESTMENTS (PRIVATE) LIMITED vs TENDAYI WESTERHOFF
Ruled By: MAKARAU JP

The defendant was married to one Clemens Westerhoff in terms of the marriages Act [Chapter 5.11]. The marriage was dissolved by this court on a date that is not readily ascertainable, and is, any event, immaterial for the purposes of this trial.During the subsistence of the marriage, the parties had ...

During the subsistence of the marriage, the parties had acquired an immovable property called Stand 491 Mount Pleasant Township 13 of Lot 33 of Mount Pleasant. This they set up as the matrimonial home. Title in the property was held freehold by a company called Westerhoff Investments (Private) Limited. It is common cause that the parties regarded the company as their joint alter ego, set up primarily for the purposes of holding title in the property.

Prior to divorce, and with the assistance of the judge who presided over a pre-trial conference in their matter, the parties settled as between themselves, a consent paper, which disposed of the issues of paternity and maintenance for the minor child of the marriage and the distribution of the joint estate. The consent paper was, at the time of the divorce, incorporated into and became part of the divorce order.

Regarding the fate of the matrimonial home, the court ordered as follows, following the wording of clause 5 of the consent paper:

“5. After the results of the paternity tests, the following scenario will obtain:

(a) The property known as No.29 Morningside Drive, Mount Pleasant, Harare, shall be valued for commercial purposes and the value shall be divided in such a manner that:

(i) If the plaintiff is the natural father of the minor child, plaintiff gets a 40% share, the defendant a 40% and the minor child 20% share, and the defendant shall pay to the plaintiff such amount as may be the difference between the plaintiff's 40% share and the sum of $110 million which is the lump sum payment for the maintenance of the minor child in full and final settlement as provided for in clause 2 hereof; and

(ii) If the plaintiff is found by results of the tests not to be (the) natural father, then the ratio shall be 60% for the plaintiff and 40% for defendant.

(b) The valuation provided for in clause 5(a) hereof shall be conducted by an independent valuer appointed by the Master of the High Court from his list and such valuation shall be conducted and concluded within 7 days of receipt by plaintiff (who shall serve the results on the defendant's legal practitioner within 7 days of receipt of them) of the results of the valuation.

(c) The costs of the valuation shall be borne by plaintiff and defendant in the ratio of 50% plaintiff and 50% defendant. The valuation costs shall be paid for in full by plaintiff to facilitate the process and he shall be refunded his share by defendant at the time that defendant pays what is due to plaintiff either in terms of clause 5(a)(i) or clause 6.

(d) Should the defendant fail to pay the amount payable to plaintiff within 12 months of the date of valuation, then, and in that event, and without notice to defendant, the plaintiff shall be entitled to sell the immovable property, and from the proceeds pay $110 million as provided for in clause 2, to defendant for the minor child and 40% of the proceeds to the defendant as her share. In a sale in terms of this clause, the defendant herein irrevocably appoints her legal practitioner, failing him the Sheriff or his lawful deputy to sign all documents necessary to effect the sale and resultant transfer, and the rates duties and other taxes payable by reason of the transfer including transfer fees shall be paid from the proceeds of sale.

6….,.

7….,.

8….,.”

It is common cause that in January 2006, the property was evaluated for the purposes of clause 5(a) of the divorce order. This was to set the value of the property at which the plaintiff before me, then defendant, could “buy off” her former husband's share in the property to enable her to acquire joint title with the minor child in the property, to the exclusion of her former husband. The defendant had a year in which to do this and the clock started ticking against her in January 2006.

It is further common cause that the defendant failed to raise the requisite funding necessary to bring into effect the provisions of clause 5(a)(i) of the order. She could not buy out her former husband and her failure to raise the necessary funding triggered the provisions of clause 5(d) of the divorce order. In terms of this clause, the property had to be sold and the proceeds parceled out in a pre-determined ratio.

Again, it is not in dispute that in the course of time, the property was sold to the plaintiff. Transfer of title was conveyed to the plaintiff, and, in due course, the plaintiff sought the eviction of the defendant from the property.

The defendant resisted the plaintiff's claim for eviction and this is the suit that came before me.

In defending the eviction summons at the instance of the plaintiff, the defendant pleaded that the agreement of sale to the plaintiff was defective, transfer to the plaintiff was fraudulently procured and was to the prejudice of the defendant and the minor child of the marriage. In the plea, the defendant prays for the sale and subsequent transfer of the property to be set aside.

At the pre-trial conference of the matter, where, in terms of our procedures, all legal issues ought to have been crystallized, the matter was referred to trial on the following issues:

1. Whether or not the agreement of sale entered into by and between the plaintiff and Westerhoff Investments (Private) Limited in respect of the property known as No.29 Morningside Drive, Mt Pleasant, Harare, and its subsequent transfer by the latter to the former, is valid at law.

2. Whether or not the plaintiff is entitled to an order for the eviction of the defendant from the premises.

3. Who between the parties should bear the costs of suit?...,.

It would appear that in terms of the defendant's summary of evidence, and indeed according to the evidence led at the trial, the defendant took issue with the fact that she was not consulted on the ultimate price at which the house was sold to the plaintiff. She is of the view that the property was sold at an unreasonably low price to her prejudice as she then could not buy another property from her share of the proceeds....,.

To substantiate its claim, the plaintiff first called Joseph Mandizha. He was approached by a third party to act on behalf of the defendant's former husband. He was instructed to carry out the terms of the divorce order as between the parties and as it related to the distribution and disposal of the former matrimonial home.

In January 2007, the witness advised the defendant that he had been instructed to cause the sale of the property. His instructions had been for him to proceed without informing the defendant as her time to act had come and gone by. He met with the defendant and her legal practitioner and they discussed the matter. He informed the defendant and her legal practitioners on how he intended to dispose of the property. He indicated to the defendant that while clause 5(d) did not place any obligation on him to consult her in disposing of the property, he would nevertheless keep her informed of developments out of courtesy.

Before putting up the property for sale, the witness caused a market appraisal of the property to be done. The estate agents that were approached to carry out this appraisal included Heaven on Earth, an agency in which he is the majority shareholder. After the appraisal, instructions were given to Heaven on Earth to sell the property. It is at this stage that reports were received to the effect that the defendant was objecting to the mandate given to Heaven on Earth Real Estate to sell the property. She sought to introduce a new agent to handle the sale.

Undeterred by the efforts taken by the defendant to stall the selling of the property, the witness had the property sold to the plaintiff in June 2007. The defendant was advised of the sale of the property through correspondence to her legal practitioners. Requests were made for the attendance of the defendant upon the witness for the signing of the agreement of sale. It is at this stage that the defendant intimated that the property could be sold for a higher price. It was indicated to the witness, by the defendant's legal practitioners, that, in view of the prices she was expecting, she was unlikely to sign the agreement of sale which reflected a purchase price of $13 billion. He received the purchase price for the property and then proceeded to facilitate the registration of transfer of the property to the plaintiff.

In disposing of the property, he never had sight of the Articles of Association of the company that held title in the property. He merely followed the dictates of the court order as to how the property was to be disposed and the proceeds distributed between the divorced parties and their minor child. While the parties held a meeting before the property was sold, it was never his intention to re-negotiate the dispute between the parties or to be taken outside the provisions of the divorce order. His instructions were not to revisit the distribution of the property.

When he was genuinely convinced that the defendant would not sign the agreement of sale, he requested the Deputy Sheriff to sign on her behalf in accordance with the court order.

The witness gave his evidence well and was very candid with the court. His explanations were full and while one may not agree that it was prudent of him to instruct his own agency to sell the property, one cannot, on that basis, find that he was an unreliable witness.

Next to testify on behalf of the plaintiff was one Tongoringa Mubaiwa. He is an estate agent working for Heaven on Earth Real Estate. He handled the sale of the property in dispute. Prior to putting up the property for sale he did a market appraisal of the property. He compiled a report of his findings. He was then given instructions to market the property which he did. Eventually he sold the property to the plaintiff. He drafted the agreement of sale which was signed in due course.

The witness gave his evidence well. He fared well under cross-examination. His answers and explanations were easy to follow. I find him a credible witness.

The plaintiff called Muriel Chengetai Dowa as its third witness. She represented the directors of the plaintiff in the purchase of the property.

She was under instructions from the plaintiff to look for a property. She, at one stage, responded to an advertisement by Heaven on Earth for a property in Mt Pleasant. The deal fell through. She then advised the estate agency to contact her should they have another property in the same area for sale. After some time, she was informed of the property in dispute. She was advised that the property was being sold as a result of a divorce. She could not view the property but was shown pictures of the same. The directors of the plaintiff advised her to seek legal advice before proceeding. She did and proceeded to buy the property. Eventually, the property was transferred to the plaintiff and when she tried to gain access to the property, after transfer, she was denied same by the defendant.

I find no fault with the evidence and manner of testifying of this witness. I shall rely on her evidence.

After the evidence of this witness, the plaintiff closed its case.

The defendant called one Bruce Beaven Mujeyi to give evidence first. He was acting as the legal practitioner of the defendant during the hearing of the divorce matter and was especially instructed to deal with the matter of the disposal of the matrimonial home.

At the time he received instructions to act in the matter, the matter had received a lot of publicity and tensions were high on either side. The legal practitioner who had acted for the defendant's husband during the divorce proceedings had renounced agency and he had to deal with Mr Mandizha, who, like him, had been instructed to act in the matter after the divorce had been granted. Mr Mandizha wrote to the defendant advising her that he was now handling the matter. He responded to the letter by telephoning Mr Mandizha. They agreed to meet. In view of the fact that neither he nor Mr Mandizha had handled the much publicized divorce, he suggested that the best way forward was for the parties to negotiate their way through the disposal of the former matrimonial home. He was aware of the divorce order and the consent paper on which the order was based.

In the meeting, Mr Mandizha agreed to keep him abreast of developments as he had the company documents and the Deed of Transfer in respect of the property. He also understood that the draft agreement would be forwarded to him for his input.

Regarding the agency of Heaven on Earth in the matter, the defendant was clearly uncomfortable that an agency in which Mr Mandizha had an interest should be used to sell the property. On the instructions of the defendant, he addressed a letter to Mr Mandizha expressing these concerns. When Mr Mandizha responded showing little concern for this since his client had no problem with the arrangement, he filed an urgent application on behalf of the defendant seeking to interdict Heaven on Earth from proceeding. Regrettably, the matter was not determined as the judge before whom the urgent application was placed ruled that the matter was not urgent as there were other remedies available to the defendant.

His further understanding was that if the property was to be evaluated, this had to be done by an estate agent on the Master of the High Court's roll.

The defendant also informed him that she had problems with people coming to view the house. Since the parties had agreed to negotiate, they had not agreed on who was to carry out the evaluation of the property. His client was aggrieved by this as it went against the spirit of the meeting while Mr Mandizha was equally aggrieved by what he perceived as lack of co-operation from the defendant. He was somewhat caught in the middle.

On 25 June 2007, he received notification that the property had been sold and requesting his client to sign the draft agreement of sale. He had not been shown a copy of the draft. He was constrained to write to Mr Mandizha informing him that he could not sign the agreement on behalf of his client; that his client was out of the country; and that she would take issue with the price at which the property had been sold. From the response he received, he gained the impression that he should wait for Mr Mandizha's further advice. The letter read:

“Your letter of 26 the instant received in fax form refers. (Sic)

We advise that it has been referred to our client. We will revert to you once his instructions are to hand.”

When his client returned, he contacted Mr Mandizha to advise him that the parties could now move forward. He was advised that the property had been sold. For his client's signature, Mr Mandizha had approached the Deputy Sheriff. He then advised his clients of the developments and the two parted company after he felt that it was best that another law firm takes over the matter as the defendant felt that she had been let down.

The witness gave his evidence well. He was quite clear in his responses to questions and while his reading of the divorce order may have been different to mine, in some respects, that is not a basis for impugning his credibility.

The defendant also gave evidence.

During the subsistence of her marriage to her former husband, the two bought a property that was registered in the name of a company. At the time of the divorce, the parties entered into a consent paper.

She tried to raise money to “buy the defendant out” but failed. She is living openly with HIV/AIDS and was not in gainful employment at the time. When she realized that she could not raise the necessary funds to buy him out, she tried to sell the property within the one year stipulated in clause 5 of the divorce order. She failed.

In January 2007, she received a letter from Mr Mandizha advising her that he wanted to sell the property. She attended a meeting with Mr Mandizha in the company of her legal practitioner. It was agreed at the meeting that the fighting between the parties should come to an end; that the parties would henceforth resolve all issues amicably; and that the parties would be in constant communication over the disposal of the former matrimonial home. At the meeting, no mention was made of the estate agency that would dispose of the property.

A day after the meeting, an agent from Heaven on Earth came to the property to carry out an evaluation of the property. She allowed him in. Later on, she did not open her gate to him and to people who wanted to view the property. She had issues with the whole process as she had not received the valuation report to compare it with her own idea of how much the property should fetch. When she finally received the evaluation report, she then realized that Mr Mandizha was one of the directors of Heaven on Earth. She raised the issue with her legal practitioner. She felt that there was an obvious conflict of interest in that Mr Mandizha represented her former husband, was selling the property through his agency, would do the conveyancing, and then distribute the proceeds from the sale to the parties as between the parties and the minor child. The matter came to court, but, unfortunately, the urgent application was not granted.

While waiting for developments in the matter, she instructed her lawyers to place a caveat against title to the property as she felt that she had real rights in the property that needed protection. She was also protecting the interests of the minor child.

Some time later she sent an e-mail to her lawyer suggesting that an independent estate agent be appointed to handle the sale. She suggested one. She copied the email to Mr Mandizha. In the e-mail she also gave her own suggestion of the fetching price for the property.

She left Harare for some time and when she returned she was advised that the property had been sold. She was not happy. She went to her legal practitioner and asked him to stop the transfer and he filed an urgent application. She went to the Anti-corruption Unit and lodged a complaint. Before the urgent application to stop the transfer could be heard, Mr Mandizha appeared and showed them the Deed of Transfer. She then withdrew the case.

At one point she expected her former husband to call for a company resolution on the disposal of the property.

In her view, her former husband did not comply with the court order from the beginning. Her legal practitioners ought to have been shown a copy of the draft agreement. They were not. At the same time she was also looking for another house to buy. The price fetched for the former matrimonial property was not sufficient to meet her obligations in procuring another property.

In conclusion, she prayed for an order setting aside the sale and transfer to the plaintiff and for the property to be resold under the supervision of the Master of this court.

The defendant was understandably highly emotional when she gave her evidence. This however did not deter her from giving her opinion on how the former matrimonial home should have been disposed of. Her testimony was to a large extent corroborated by that of her former legal practitioner. I have no cause to disbelieve her on fact. Due to the emotion which the defendant testified and presumably which she attaches to this matter, I have reproduced her testimony in greater detail than for any other witness deliberately as I shall try and examine each issue that she has raised in her evidence and upon which she rests her defence.

It is not in dispute that the plaintiff has brought the rei vindicatio against the defendant.

As aptly summarized by counsel for the plaintiff, in his closing submissions, the plaintiff has approached this court as an owner of the property to seek the ejectment of the defendant simply on the basis that it is the owner and is thus entitled, as such, to enjoyment of its property.

The rei vindicatio is an action that is founded in property law. It is aimed at protecting ownership. It is based on the principle that an owner shall not be deprived of his property without his consent. So exclusive is the right of an owner to possess his or her property that, at law, he or she is entitled to recover it from wherever found and from whomsoever is holding it without alleging anything further than that he or she is the owner and that the defendant is in possession of the property. Thus, it is an action in rem enforceable against the world at large.

This is settled law in this jurisdiction which hardly requires authority. See Sibanda v The Church of Christ 1994 (1) ZLR 74 (SC); Musanhi v Mt Darwin Rushinga Cooperative Union 1997 (1) ZLR 120 (SC); Mashave v Standard Bank of South Africa Ltd 1998 (1) ZLR 436 (S); Jolly v A Shannon & Anor 1998 (1) ZLR 78 (HC); and Stanbic Finance Zimbabwe Ltd v Chivungwa 1999 (1) ZLR 262 (HC).

The bedrock of all the above decisions is Chetty v Naidoo 1974 (3) SA 13 (A) where…, JANSEN JA had this to say:

"It is inherent in the nature of ownership that possession of the res should normally be with the owner, and, it follows that no other person may withhold it from the owner unless he is vested with some right enforceable against the owner (eg. a right of retention or a contractual right). The owner, in instituting a rei vindicatio, need, therefore, do no more than allege and prove that he is the owner and the defendant is holding the res - the onus being on the defendant to allege and establish any right to continue to hold against the owner."

There are primarily two defences to the rei vindicatio, each aimed at destroying each of the two essential elements of the action;

1. The first one seeks to destroy the claim of ownership completely by denying that the plaintiff is the owner of the property in question or seeks to diminish his rights in the property by admitting his or her ownership but by alleging that the plaintiff has parted, under some recognized law, with the right to exclusive possession of the property.

2. The second defence, of course, is to deny possession of the property at the time the action is brought or the claim is instituted.

There are no equities in the application of the rei vindicatio. Thus, in applying the principle, the court may not accept and grant pleas of mercy or for extension of possession of the property by the defendant against an owner for the convenience or comfort of the possessor once it is accepted that the plaintiff is the owner of the property and does not consent to the defendant holding it.

It is a rule or principle of law that admits no discretion on the part of the court. It is a legal principle heavily weighted in favour of property owners against the world at large and is used to ruthlessly protect ownership.

The application of the principle conjures up in my mind the most uncomfortable image of a stern mother standing over two children fighting over a lollipop. If the child holding and licking the lollipop is not the rightful owner of the prized possession and the rightful owner cries to the mother for intervention, the mother must pluck the lollipop from the holder and restore it forthwith to the other child notwithstanding the age and size of the owner-child or the number of lollipops that the owner-child may be clutching at the time. It matters not that the possessor child may not have had a lollipop in a long time or is unlikely to have one in the foreseeable future. If the lollipop is not his or hers, he or she cannot have it.

In casu, the plaintiff has not denied that the plaintiff is the owner of the property. She has not denied that she is in possession of the property in issue. She has however sought to attack the right of the plaintiff to exclusive use of the property on the basis that she was unfairly treated by her former husband and his agents when the property was disposed of.

In my view, the defendant's case is hampered by the application of three legal principles.

(a) Firstly, she is relying on the consideration of equities in the matter to deny the plaintiff exclusive enjoyment of its property.

I repeat her evidence in this regard. She could not raise enough funds to purchase her former husband's share in the property as she was not in gainful employment at the time. She could not raise any loans as she is publicly known to be living with the HIV/AIDS virus. She intended to purchase another property for herself and for the minor child of the marriage. She could not do so from the proceeds of the sale of the property as her share was too low. The success of this suit against her will literally make her and the minor child of the marriage homeless.

On the other hand, the plaintiff has bought the property for investment purposes. It does not require the property for its own accommodation but as an income-generating investment. Thus, on equities alone, the defendant has a strong case.

Having heard and seen the defendant testifying and having listened to the impassioned plea that she was making to the court for a break for herself and the minor child of the marriage and having heard the anguish in her voice, I would have, if I had any, used my discretion in her favour and granted her prayer.

I have none. The law gives me none. I have no power to abrogate any to myself to change the principles of the rei vindicatio to bring in the consideration of equities into the matter. My hands are tied. I must apply the law that denies her a remedy even if I am keenly aware of her circumstances.

(b) Secondly, the defendant has not raised any personal relationship with the plaintiff in terms of which the plaintiff may be estopped from taking possession of the property from her.

The legal authorities are all clear that in a rei vindicatio, where the defendant shows that he or she has some right of possession enforceable against the owner, then the action cannot succeed. To succeed in defeating the action, a defendant must therefore set up facts that establish a legal relationship in terms of which possession of the property by the defendant is justifiable.

It is a settled position at law that it is only when the wife in the position of the defendant proves that the plaintiff has associated with her former husband to defraud her of her rights in the former matrimonial home can she resist an action of eviction at the instance of the plaintiff.

See Ferris v Weaven 1952 (2) ALL ER 23: Maganga v Sakupwanya 1996 (1) ZLR 217; and Nene v Nyatwa SC119-91.

In casu, no suggestion was ever made, in evidence, that the plaintiff fraudulently associated with the defendant's former husband to defeat her just claims in the former matrimonial home. If anything, all the blame was heaped on the legal practitioner acting for the defendant's former husband for violating the consent order in more than one respect.

I have been referred to two decisions of this court that seem to go against the finding that I make in this matter. See Ndlovu v Ndlovu HH15-04 and Chapeyama v Chapeyama HH96-05.

In Ndlovu v Ndlovu HH15-04 I made the finding that the personal rights that the wife had in that matter were equal to the personal rights that the third party had from his agreement of sale with the respondent/husband. It is worth noting that in that case, no transfer of the property had been effected in favour of the third party when the wife/applicant approached the court for relief. The facts of that matter are therefore distinguishable from the facts in this matter. The competition in that case was between two equal rights. The applicant wife and the respondent/purchaser had personal rights against the respondent/husband, and, on a balance of equities, the applicant succeded.

In Chapeyama v Chapeyama HH96-05 the suit was between the former spouses, and, in my view, GOWORA J correctly held that as between the two of them the wife had breached the terms of the divorce order in having transfer registered in her favour before first affording her former husband the right to purchase her out. She therefore ordered the two parties to proceed in terms of the divorce order.

In any event, the above two cases were each instituted by the wives to protect their rights in the properties in question. The causes of action in both cases were different and called for different considerations. As indicated above, the applicant in this matter is bringing a rei vindicatio. The considerations that I have to take into account when dealing with this specific cause of action are different from the considerations that arose in the above cases. Such is the law.

Finally, the defendant has raised issues with the manner in which the property was disposed of in terms of the divorce order. She alleges that the terms of the consent paper, incorporated into the divorce, were violated to her prejudice.

Two issues arise here.

(1) Firstly, the divorce order is only a judgment in rem as far as it regulates the status of the former spouses. When it deals with the distribution of the matrimonial estate, it becomes a judgment inter partes and is only binding as between the parties. It creates personal rights in favour of the divorcing parties and where it is violated, the injured former spouse can seek recourse against the other former spouse. The injured party cannot seek recourse against the world at large for an injury occasioned by a judgment that is personal.

(2) Secondly, the rights to property in the matrimonial estate that a divorcing party is afforded by the divorce order are founded on principles of equity as provided for in section 7 of the Matrimonial Causes Act [Chapter 5.13]. Such rights, even if granted by a court order, are not rights in rem.

Where a spouse has been awarded a share in the matrimonial estate by a court order, until that share is transferred to them, no rights of ownership are created in favour of that spouse by the mere issuance of the divorce order. At best, the court order serves as a declarator of the respective rights that the former spouses have in the property.

It has been the position in this jurisdiction that the rights that a wife has against her husband in terms of family law are personal against her husband and do not enter the realm of property law to clog the rights of an owner.

The chasm between family law considerations and property law considerations has been the subject of many debates in this jurisdiction. This court is getting hoarse from bemoaning the injustice that this chasm has wrought on wives and from imploring the legislature to redress the injustice by enacting appropriate legislation. The situation has not yet been addressed and many wives in the position of the defendant will have to wait a while longer for redress and justice. See Muswere v Makanza HH16-05 and P.M. Semwayo and Another v C Chitara and Another HH48-07.

In casu, and for my purposes, it is not therefore material for me to determine whether or not the property was sold strictly in terms of the divorce order. Even if the defendant is correct and I find that the property was not sold strictly in accordance with the provisions of the court order, that finding will not assist the defendant's case. She cannot raise a defence from the principles of the law of husband and wife to defeat a rei vindicatio at the instance of a third party.

On the basis of the foregoing, the plaintiff's claim must succeed….,.

In the result, I make the following order:

1. The defendant and all those occupying through her are to give vacant possession of the property called Stand Number 491 Mount Pleasant Township 13 of Lot 33 Mount Pleasant to the plaintiff within 30 days of this order failing which the Deputy Sheriff is hereby authorised to evict the defendant and all those occupying through her from the property and give vacant possession to the plaintiff.

Appealed
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Ruled By: CHIGUMBA J

It is my respectful view that section 48 of the Value Added Tax Act [Chapter 23:12] does not oust this court's inherent power of judicial review of an administrative body, to scrutinize the exercise of discretion by that body, at any time, and to ensure, on the limited grounds provided in section 68 of ...

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SC28-16 : ZIMBABWE REVENUE AUTHORITY vs PACKERS INTERNATIONAL (PRIVATE) LIMITED
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DISPOSITION In my view, the court a quo allowed itself to be preoccupied by the catastrophe that could potentially befall Packers and dealt with the matter on that basis without determining the true dispute between the parties as pleaded in terms of the relevant law. In doing so, the court seriously misdirected itself. Its decision cannot be allowed ...

SC94-20 : ZIMBABWE HOMELESS PEOPLE'S FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and ZVIMBA RURAL DISTRICT COUNCIL and LEENGATE PL and MINISTER OF LANDS
Ruled By: PATEL JA, MAVANGIRA JA and MATHONSI JA

Section 175(6)(b) of our Constitution empowers every court, “when deciding a constitutional matter within its jurisdiction”, to “make any order that is just and equitable.”...,.It is necessary to apply the pivotal criteria of reasonableness and flexibility in balancing competing interests so as to arrive at an appropriate order that is ...

SC86-20 : CONSTANTINE CHIWENGA vs MARRY MUBAIWA
Ruled By: GWAUNZA DCJ, GARWE JA and BHUNU JA

This is an appeal against the whole judgment of the High Court handed down on 24 January 2020. The appeal seeks to impugn the court a quo's order awarding custody of the parties' three minor children to the respondent upon the separation of the parties.

The appellant also challenges the jurisdiction of the court a quo, and the urgency and validity of the interdict granted against him in respect of the parties' disputed properties.

Although the parties were also quarrelling about the respondent's right to access the matrimonial home, that dispute has since been resolved by the court a quo in the appellant's favour. That issue consequently falls away.

The respondent has, in turn, abandoned her claim that the appellant be barred from being heard until he has purged his dirty hands. That issue has also fallen away for the reason that it has been abandoned by the respondent.

CHOICE OF LAW

Although the parties were married under Customary Law, they have both elected to have their matrimonial rights and obligations regulated and determined in terms of General Law; section 3(b) of the Customary Law and Local Courts Act [Chapter 7: 05].

It is convenient that their dispute be regulated and determined in terms of General Law because of their sophisticated way of life and ownership of immovable private property.

As the concept of private ownership of immovable property is unknown at Customary Law, it is virtually impossible to determine rights and obligations pertaining to privately owned immovable property in terms of any law other than General Law. Thus, the appropriate applicable law in this case is the General Law. See Mandava v Chasekwa 2008 (1) ZLR 300…,.

BRIEF SUMMARY OF THE CASE

The appellant is the Vice President of Zimbabwe whereas the respondent is his estranged wife. The two were married under an unregistered customary law marriage also known as a customary law union. The marriage was blessed with three minor children. The eldest, Tendai Dominique Chiwenga, is aged 9 years whilst Christian Tawanazororo Chiwenga is 8 years, and Michael Alexander Tadisiswa Chiwenga is 6 years old respectively.

During happier times, the parties resided at their matrimonial home situate at Number 614 Nick Price Drive, Borrowdale Brooke, Harare together with their three minor children. During the subsistence of the marriage, the parties acquired both movable and immovable property either jointly or in their personal capacities. The acquired property includes the matrimonial home, a fleet of cars, immovable business premises known as Orchid Gardens, along the Domboshava Road, personal effects, and other paraphernalia.

It however so happened that the marriage later fell on turbulent times resulting in the appellant initiating divorce procedures under customary law. In those proceedings he alleged that he had given her a divorce token known as 'gupuro'.

In her papers before this Court, and in paragraph 8.1 of her heads of argument, the respondent continues to hold herself out as the appellant's wife. The divorce issue therefore appears not to have been resolved.

The appellant has nevertheless now issued summons against her in the court a quo under case number HC9837/19 claiming custody of the three minor children in terms of section 4 of the Guardianship of Minors Act [Chapter 5:08] and division of the matrimonial property acquired during the subsistence of the marriage.

The current proceedings and the parties' relationship are severely strained, acrimonious, and discordant. This is mainly because of the respondent's arrest on multiple charges of attempted murder of the appellant, fraud, money laundering, and contravention of the Exchange Control Regulations.

Upon her arrest, the respondent was detained in custody for a period spanning three (3) weeks, from 14 December 2019 to 6 January 2020. She went to prison without making proper provision for the custody of their three minor children, possession, and administration of her personal property and effects.

At the time of her arrest and detention, the appellant had voluntarily moved out of the matrimonial home. He avers that he returned to the matrimonial home to fill in the void occasioned by the respondent's arrest and detention in custody. In the absence of the respondent, he then assumed de facto custody of their three minor children and possession of their matrimonial property including the fleet of cars, Orchid Gardens, personal effects, and other paraphernalia.

His conduct in this respect was perfectly lawful and undisputed at the material time.

On 6 January 2020, the court a quo granted the respondent bail and ordered her to reside at the matrimonial home at her specific instance and request. Upon her release from prison, on bail, she returned to the matrimonial home to assume residence as ordered by the court a quo. State security guards stationed at the home denied her access to the matrimonial home.

The same scenario played out when she sought access to Orchid Gardens which was also guarded by State security guards. They also denied her access to the premises.

She further alleges that she claimed custody of her three minor children without success, a fact denied by the appellant.

THE RESPONDENT'S CLAIM A QUO

Under the circumstances, the respondent submits that she had no option but to approach the appropriate court, on an urgent basis, for relief. To that end, she lodged an urgent application in the court a quo for a 'provisional spoliation order' directing the appellant to grant her the following interim relief on a prima facie basis pending the return date for a final order:

1. Access to the matrimonial home.

2. Access to and use of her personal motor vehicles.

3. Access to her clothing, personal goods and effects.

4. Return of her safes containing her personal property.

5. An order directing the appellant to return the three (3) minor children of the marriage to the respondent.

6. An order compelling the appellant to return to the respondent all furniture, goods and effects removed from the business premises at Orchid Gardens.

7. An order denying the appellant access to the court until he has purged his dirty hands.

8. An order directing the Sheriff, with the assistance of the police, to execute the court a quo's order forthwith.

In the final order, the respondent sought the following relief:

9. That the appellant be interdicted and restrained from interfering with the respondent's use and enjoyment of the matrimonial home and her business premises at Orchid Gardens pending the conclusion of the matrimonial proceedings under case number HC9837/19.

10. That the appellant be restrained from removing the three (3) minor children of the marriage from the applicant's custody.

11. That the appellant be ordered to pay costs at the punitive scale as between legal practitioner and client scale.

Though the terms of the provisional and final orders sought are somewhat worded differently, the import and effect of the two orders are materially the same. This is because they both seek to wrestle custody of the three minor children and possession of the disputed property from the appellant and confer them on the respondent.

Basically, the respondent's complaint was that the appellant had abused his office as Vice President of Zimbabwe using soldiers to despoil her of access to the matrimonial home, her children, and property.

THE APPELLANT'S DEFENCE A QUO

The appellant objected to the respondent's claim that the matter was urgent.

He further questioned the assumption of jurisdiction by the court a quo as usurping the function of the Children's Court which is specifically conferred with the jurisdiction in terms of section 5 of the Guardianship of Minors Act [Chapter 5:08] to determine the question of custody of minor children when spouses begin to live apart.

He vehemently denied abusing his office as alleged or at all. He denied that the respondent had custody of the minor children and possession of the disputed property when he assumed de facto custody of the children and possession of the disputed property while she was in prison.

The appellant denied having given the guards at the matrimonial home, and Orchid Gardens, any orders to deny the respondent access to the premises.

His submission, to the effect that he had no control over the guards, was not rebutted.

Placing reliance on the South African case of Fraser v Children's Court, Pretoria North 1997 (2) SA 261, the appellant argued that it was wrong to discriminate against fathers in matters pertaining to the custody of their minor children.

It was his further submission that throughout the whole episode, he acted lawfully as a diligent pater familias. At paragraph 3(c) of his opposing affidavit, in the court a quo, the appellant makes the valid point that, as a responsible parent, he was obliged and duty bound to move into his home and take care of his minor children and family property when the respondent was detained in prison. He averred, further, that, as the father of the children, he was best suited to have their custody because the respondent was a drug addict and a psychiatric patient.

THE COURT A QUO'S FINDINGS AND DETERMINATION

On the basis of the above summation of evidence and arguments, the court a quo found that:

(a) The matter was urgent mainly because of the welfare of the minor children. It also found that the matter was urgent because the respondent was arbitrarily evicted from the matrimonial home without a court order. It also found that spoliation matters are, by nature, urgent; and

(b) Notwithstanding that the respondent was in prison, she was unlawfully despoiled of the custody of her children and property.

The court a quo proceeded to make the following final order despite the fact that the respondent had asked for a provisional order on a prima facie basis:

“1. The respondent (Constantino) is hereby ordered to restore custody of the minor children, namely, Tendai Dominique Chiwenga (born 4 November 2011), Christian Tawanazororo Chiwenga (born 5 November 2012), and Michael Alexander Tadisiswa Chiwenga (born 13 February 2014) to the custody of the applicant (Marry) within 24 hours of this order.

2. The respondent (Constantino) is hereby interdicted and restrained from interfering with applicant's (Marry) access to, use and enjoyment of the property known as 614 Nick Price Drive, Borrowdale, Harare.

3. The respondent (Constantino) is hereby interdicted and restrained from interfering with applicant's (Marry) access to, use and enjoyment of the property known as Orchid Gardens, Domboshawa, Harare.

4. The respondent (Constantino) is hereby interdicted and restrained from interfering with applicant's (Marry) access to, use and enjoyment of the motor vehicles, namely, Toyota Lexus, Mercedes Benz S400, Mercedes Benz E350 (Black).

5. Respondent (Constantino) is interdicted and restrained from interfering with applicant's (Marry) access and/or possession of her clothing.

6. The respondent (Constantino) is ordered to pay applicant's (Marry) costs of suit.”

GROUNDS OF APPEAL AND ISSUES FOR DETERMINATION

Aggrieved by the above order, the appellant appealed to this Court on ten (10) grounds of appeal which in fact raise only three issues for determination by this Court on appeal. It is cumbersome to regurgitate all the ten (10) grounds of appeal. It is however convenient to dwell on the three issues raised by the grounds of appeal. These are;

1. Whether the court a quo correctly determined that the matter was urgent.

2. Whether or not it was competent for the court a quo to grant a final interdict when the respondent had asked for a 'provisional' spoliation order.

3. Whether the court a quo had jurisdiction to determine the question of custody of the three (3) minor children in light of the provisions of section 5 of the Guardianship of Minors Act [Chapter 5:08].

APPLICATION OF THE LAW TO THE FACTS...,.

The court now turns to determine the appeal on the remaining two issues.

WHETHER OR NOT IT WAS COMPETENT FOR THE COURT A QUO TO GRANT A FINAL ORDER IN THE FORM OF AN INTERDICT?

Despite the respondent having asked for a 'provisional' spoliation order based on a prima facie case, the learned judge in the court a quo went on to grant an interdict which neither party had asked for nor pleaded.

The two critical questions to be answered are:

1. Was it competent, at law, for the court a quo to grant the respondent a final order when her claim was for a 'provisional' spoliation order? In any case, was the provisional order sought a competent remedy?

2. What were the parties' rights of custody of their three minor children at the time of separation?

The court now proceeds to deal with the two questions in turn.

(a) Whether it was competent at law for the court a quo to grant the respondent an interdict when she had asked for a 'provisional' spoliation order?

In answering this question, it is necessary to set out the applicable law in some detail as it is apparent that both the court a quo and the respondent's legal practitioners were labouring under some serious mis-apprehension of the law in this regard.

THE APPLICABLE LAW

The answer to this question is a well beaten path at home, regionally, and abroad. In this judgment, the word 'injunction' is used interchangeably with the term 'interdict' with reference to English and Roman Dutch Law, respectively.

The respondent approached the court a quo seeking a 'provisional' spoliation order on a prima facie basis. It is however trite that a spoliation order, being final in effect, cannot be granted as an interim order on the evidence of a prima facie right, as happened in this case. See Blue Ranges Estates (Pvt) Ltd v Muduviri & Anor 2009 (1) ZLR 370…,.

On this basis, the respondent's quest for a 'provisional' spoliation order was misplaced and bad at law.

The court expects legal practitioners to place before it, cases that are founded on sound substantive and procedural law. The court cannot, and should not, be expected to make a case for the parties. Its role is to determine the dispute put before it, on the basis only of the applicable law and procedure.

The definition and purpose of a provisional order is diametrically different from that of a final order. C. B. PREST in his book, The Law and Practice of Interdicts, 9th ed Juta & Co (Pty) Ltd…, defines and explains the purpose of a provisional order as follows;

“A provisional order is a remedy by way of an interdict which is intended to prohibit all prima facie illegitimate activities. By its very nature, it is both temporary and provisional, providing (interim) relief which serves to guard the applicant against irreparable harm which may befall him, her, or it, should a full trial of the alleged grievance be carried out. As the name suggests, it is provisional in nature, as the parties anticipate certain relief to be made final on a certain future date upon which the applicant has to fully disclose his, her or its entitlement to a final order that the interim relief sought was ancillary to.”

In the South African case of Development Bank of Southern Africa (Ltd) v Van Rensburg NO and Ors [2002] 3 All SA 669 (SCA) the court clarified that its purpose is to preserve the status quo pending the return day.

Australia has intrinsically the same definition and purpose. In Re Brian Charles Gluestein; Exparte Anthony [2014] WASC 381 the court said:

“Relatively, the purpose of an interlocutory injunction is to preserve the position until the rights of the parties can be determined at the hearing of the suit. A plaintiff seeking an interlocutory injunction must be able to show a sufficiently arguable claim to a right to the final relief in aid of which the interlocutory relief is sought.”

Under English Law, the law remains virtually the same. In Attorney General v Punch Limited and Anor [2002] UKHL 50, the court held that:

“The purpose for which a court grants an interlocutory injunction can be stated quite simply. In American Cyanamid Co v Ethicon Ltd [1975] AC 396, 405D LORD DIPLOCK described it as a remedy which is both temporary and discretionary. Its purpose is to regulate, and, where possible, to preserve, the rights of the parties pending the final determination of the matter which is in issue by the court.”

The purpose of a provisional order is the same in our jurisdiction as in the other jurisdictions stated above.

The purpose of a final order is different from that of a provisional order in that a final order is conclusive and definitive of the dispute. It finally settles the issues and has no return date. Once a final order is given the court issuing the order becomes functus officio and it cannot revisit the same issues at a later date.

It is settled law that the standard of proof for a provisional order is different from that of a final order.

A provisional order is established on a prima facie basis because it is merely a caretaker, temporary order pending the final determination of the dispute on the return date. The parties have an opportunity to argue the matter again on the return date.

On the other hand, a final order is obtained on the higher test of a clear right because it is final and definitive as it has no return date.

It so happens that lawyers often seek a final order disguised as a provisional order as happened in the well-known case of Blue Ranges Estates (Pvt) Ltd v Muduviri & Anor 2009 (1) ZLR 368 and in this case.

That case lays down the test for distinguishing a provisional order from a final order despite the presentation of a final order disguised as a provisional order. In that case MALABA DCJ…, had this to say…,.:

“To determine the matter one has to look at the nature of the order and its effect on the issues or cause of action between the parties and not its form. An order is final and definitive because it has the effect of a final determination on the issues between the parties in respect of which relief is sought from the court…,.

For an order to have the effects of an interim relief it must be granted in aid of, and as ancillary to the main relief which may be available to the applicant on final determination of his or her rights in the proceeding.

…,. The test is whether the order made is of such a nature that it has the effect of finally determining the issue or cause of action between the parties such that it is not a subject of any subsequent confirmation or discharge.”

In the South African case of Pretoria Racing Club v Van Pietersen 1917 TS 687…, SMITH J had occasion to remark that:

“In order to decide whether such an order is final or not I think the test must be arrived at by considering what the object of the proceedings is as a matter of substance. See the Judgment of ROMER LG in RE Herbet Reeves & Co [1902] 1 Ch 29.”

The respondent's object and purpose in filing the urgent chamber application was to obtain custody of her minor children, access to the matrimonial home and repossession of the disputed property.

It is self-evident that the interim relief she sought was crafted in such a way that if granted she would get the primary relief sought. Through the interim relief, she would have obtained access to the matrimonial home, custody of her children, and disputed property.

Such an order does not fit the definition of an interim order. It is nothing other than a final order disguised as a provisional order.

The learned judge a quo, perhaps having realized that the interim order sought fitted the definition of a final order, apparently threw caution to the wind and granted a final order that had not been sought by the respondent.

By going on a frolic of his own and determining issues not placed before him, the learned judge fell into grave error and misdirected himself.

The net result was that the respondent was granted a final interdict when she had asked for a provisional order after pleading a prima facie right.

In Nzara & Ors v Kashumba NO & Ors SC18-18…, this Court held that:

“It is clear from the court a quo's orders that some of the orders it granted had not been sought by the other party. It is also clear that parties had not made any submissions for and against those orders. They were granted mero motu by the court a quo. It did so without seeking the parties' views on those orders. There is no doubt that the court a quo exceeded its mandate which was to determine the issues placed before it by the parties through pleadings and proved by the evidence lead.

The function of the court is to determine the disputes placed before it by the parties. It cannot go on a frolic of its own. Where a point of law or a factual issue exercises the court's mind but has not been raised by the parties or addressed by them either in their pleadings, in evidence, or in submissions from the bar, the court is at liberty to put the question to the parties and ask them to make submissions on the matter.”

It is therefore settled law that a judicial officer is strictly bound by the issues pleaded by the parties. Going on a frolic of his/her own and determining issues not pleaded or raised by the parties constitutes a fatal procedural irregularity.

When this is taken together with the fact that the respondent sought relief that was incompetent at law, in respect of her claims to property and custody of the children, there can be no doubt that the entire proceedings before the court a quo were a nullity ab initio.

The appropriate remedy would, therefore, have been to strike out the entire chamber application without any further ado....,.

In granting the respondent a final interdict which she had not asked for in respect of her claims, the learned judge a quo fell into grave error and misdirected himself;

(i) Firstly, because he had neither the jurisdiction nor the discretion to award the respondent relief that she had not asked for.

A judicial officer who acts without jurisdiction acts without authority, and, to that extent, illegally.

The court was at fault in that it determined a matter that was not before it; and without hearing argument on the question of whether or not to grant a final interdict. The matter that was before it was whether or not to grant the 'provisional' spoliation order. The question of the final interdict was supposed to be argued and determined on the return day, which, however, never saw the light of day....,.

In determining the issue mero motu, without hearing argument from both parties, the court a quo was in fundamental breach of the audi alteram partem rule which forms the backbone of our adversarial legal system....,.

It appears that the learned judge a quo was overwhelmed by the status of the appellant, as Vice President of the country, and the intensity of the conflict. His vision was apparently clouded by the dust of the conflict, prompting him to wade into its murky waters in aid of the respondent, and granting her relief that she had not asked for.

Such conduct was injudicious and an affront to the time honoured tenets of justice, fairness, and equality before the courts.

In the absence of any evidence of abuse of office, the appellant ought to have been treated like any other citizen before the court a quo....,.

As the respondent's claim was incompetent and a nullity at law, the court a quo ought to have found that the application was not properly before it and struck the matter off the roll.

Appealed
SC188-20 : GERALD CHIGWADA vs PENELOPE CHIGWADA and SHEPHERD KUSADA N.O. and MASTER OF THE HIGH COURT
Ruled By: MALABA CJ, GARWE JA, MAKARAU JA, GOWORA JA and BERE JA

This is an appeal against the whole judgment of the High Court.

The question for determination is whether the law governing the property rights of married persons, or the law of testamentary disposition of estates, binds a testator to bequeath his or her right in an estate to the husband or wife.

The Court holds as follows;

The law governing the property rights of married persons in Zimbabwe is the Married Persons Property Act [Chapter 5:12] which provides that, since 1929, marriages in Zimbabwe are out of community of property. Parties to a marriage out of community of property are legally entitled to own and dispose of property in their individual capacities.

The law of testamentary disposition in Zimbabwe recognises the doctrine of freedom of testation and does not oblige a testator to bequeath his or her property to the surviving spouse.

The law of testamentary disposition, which is based on the universal principle of equality of men and women, gives a right to a person married out of community of property to dispose of his or her estate, by will, to whomsoever he or she chooses.

Decisions of the High Court, to the effect that a testator is, in the circumstances, bound to leave his or her property to the husband or wife and declaring testamentary disposition to the contrary to be void are inconsistent with the law. They should no longer be followed.

The reasons for the decision of the Court now follow.

FACTUAL BACKGROUND

The facts are common cause. The first respondent was married to the late Aaron Chigwada (“the deceased”) in 1971 in terms of customary law. In 1975, the parties had the union solemnised in terms of the Marriage Act [Chapter 5:11]. Before marrying the first respondent, the deceased had been married to the appellant's mother. They had divorced.

The deceased had six children with his first wife, the appellant being the fifth child and the youngest son.

During the subsistence of their marriage, the first respondent and the deceased acquired a house, Stand No.28181 Harare Township of Salisbury Township Lands, also known as No.85 Vito Street (“the immovable property”). The immovable property, which became the matrimonial house, was registered in the joint names of the husband and wife. Each spouse owned half of the beneficial interest in the house.

On 20 September 2007, the deceased made a will, in terms of which he bequeathed his half share of the beneficial interest in the immovable property to his son, the appellant. He appointed the second respondent as the executor to give effect to the testamentary disposition. The deceased died on 19 July 2011.

The will surfaced after the deceased's death.

The first respondent, who is the surviving spouse, approached the High Court (the court a quo) challenging the right of the appellant to succeed to the half share of the beneficial interest in the immovable property left to him by the deceased in terms of the will.

The first respondent believed, from teachings at her church, that the surviving spouse had a right to inherit the estate of the deceased husband or wife regardless of the existence of a will disposing of the property to a person other than the surviving spouse. Motivated by the belief she held, she thought that had it been the testator's intention to bequeath the property to his child, he ought to have bequeathed it to all the children that survived him.

During the proceedings in the court a quo, the only issue that remained for determination was whether the will was valid under the Wills Act [Chapter 6:06].

The other grounds for disputing the will were abandoned.

Initially, the first respondent sought an order declaring the will void on the allegation that the deceased lacked mental capacity to execute the will. She had also alleged fraud and undue influence. The first respondent eventually settled on the allegation that the will was invalid because the disposition did not leave the testator's estate to her as the surviving spouse.

The contention addressed the question of the essential validity of the will by making the allegation that the law of testamentary disposition binds a spouse to leave his or her entire estate to the husband or wife.

THE QUESTION FOR DETERMINATION IN THE COURT A QUO

The question for determination was whether there was a law which binds a spouse desirous of disposing of his or her estate, by will, to leave the property to the surviving spouse. If the correct finding by the court a quo was that there was such a law, the disposition by the deceased of his estate by will, to the appellant, would be void on account of failure to comply with an essential requirement of validity.

The question for determination by the court a quo was not one of construction of any of the provisions of the Wills Act. The learned Judge identified what she believed to be the law binding a spouse intending to make a disposition of his or her property by will to leave the estate to the surviving spouse as section 3A of the Deceased Estates Succession Act [Chapter 6:02].

The law in question addressed matters of succession to an intestate estate and had nothing to do with the question of the right of a testator to dispose of his or her property to whomsoever he or she chooses.

The learned Judge, nonetheless, found that section 3A of the Deceased Estates Succession Act [Chapter 6:02] was the law referred to in section 5(3)(a) of the Wills Act as the “law governing the property rights of married persons”, to which the validity of the disposition of property by will is made to be subject.

In what can only be described as an unusual process of reasoning, the learned Judge concluded that section 3A of the Deceased Estates Succession Act binds a married person to dispose of his or her estate, by a will, to his wife or her husband. She held that the deceased's will was void for contravening section 3A of the Deceased Estates Succession Act because it gave effect to a disposition of his estate to a person other than the surviving spouse.

The court a quo set aside the deceased's will, leaving the estate to be disposable in terms of the law of intestate succession.

The appellant was aggrieved by the court a quo's decision, against which he appealed to the Court.

The interpretation and application of section 5(3)(a) of the Wills Act has given rise to conflicting judgments in the High Court. The conflicting decisions of the High Court, on the question whether a person married out of community of property in Zimbabwe enjoys freedom of testation or is bound to dispose of his or her estate, by will, to the surviving spouse have caused confusion and created uncertainty in the minds of members of the public as to the correct legal position.

A five-member Bench of the Court had to be constituted to answer the divisive question once and for all.

CONFLICTING DECISIONS OF THE HIGH COURT

It is prudent to set out the cases which support the two different schools of thought in order to appreciate the nature and source of the conflicting decisions rendered by different Judges of the High Court on the matter.

In Estate Late Wakapila v Matongo & Ors 2008 (2) ZLR 43 (H)…, (“the Wakapila decision”) KUDYA J had this to say:

“The argument advanced by Mr Matimba, that the surviving spouse is vested with rights in a deceased estate, in which a testamentary disposition has been made at the time of death, is fallacious for three reasons;

(i) The first is that the divested property, subject to acceptance by the beneficiary, no longer belongs to the testator.

(ii) The second being that giving such a meaning to the provision in issue would result in so radical an alteration of the common law power of a spouse to dispose of his or her property to whomsoever he or she wishes.

If the lawmaker intended such a radical departure from the common law it would have said so in clear language.

It would be absurd to allow the spouse to dispose of his or her property during his or her lifetime but take away that power from him or her to dispose of it by will.

(iii) The third, being that a wife married under customary law can only inherit from her husband's estate if he dies intestate. Where he has disposed of his estate by a will, she does not inherit and thus has no rights in any property belonging to his estate.”

In Roche v Middleton HH198-16 CHITAKUNYE J held that the Estate Late Wakapila v Matongo & Ors 2008 (2) ZLR 43 (H) decision was based on the correct interpretation and application of section 5(3)(a) of the Wills Act. The court intimated that it would be absurd to hold that a person who could dispose of his or her property without the other spouse's consent would lose the right to dispose of it by will to whomsoever he or she chooses. The court further held that if the Legislature intended such a radical departure from the common law it would have enacted express provisions to that effect.

The reasoning championed by Estate Late Wakapila v Matongo & Ors 2008 (2) ZLR 43 (H) was to be rejected in later decisions of the High Court where the position adopted was that a will which does not bequeath the matrimonial house to the surviving spouse is void.

The departure from Estate Late Wakapila v Matongo & Ors 2008 (2) ZLR 43 (H) was registered in Chimbari NO v Madzima and Ors HH325-13, where the court held that section 5(3)(a) of the Wills Act prohibits a testator from disinheriting a surviving spouse. The court, in that case, held that the provisions of section 5(3)(a) were put in place to safeguard the rights that accrue to a surviving spouse at the death of the testator.

In Chiminya v Estate Late Chiminya and Ors 2015 (1) ZLR 450 (H) (“the Chiminya decision”) the court expressed the view that the purpose of section 5(3)(a) of the Wills Act was to cure the mischief by testators who wanted to disinherit their surviving spouses. The reasoning of the court was based on the assumption that the surviving spouse has a “right of inheritance” which is protected by section 5(3)(a) of the Wills Act. The court relied on section 3A of the Deceased Estates Succession Act which it said prescribed inheritance principles regarding surviving spouses.

The court adopted the reasoning, notwithstanding the fact that section 3A of the Deceased Estates Succession Act applies where the deceased died intestate whilst section 5(3)(a) of the Wills Act addresses requirements for the validity of disposition of estates of married persons by will.

The reason given by the court, for relying on section 3A of the Deceased Estates Succession Act, was that the provision was in conformity with section 56 of the Constitution which prohibits discrimination based on marital status and promotes equality before the law.

The reasoning, with respect, is not logical, as there was an admission of the fact that section 3A of the Deceased Estates Succession Act was irrelevant to the matter under discussion. The attempt to draw similarities between the purpose of section 5(3)(a) of the Wills Act and that of section 3A of the Deceased Estates Succession Act was unnecessary.

The court had this to say at 453E-G:

“I am alive to the fact that the Deceased Estates Succession Act [Chapter 6:02] deals with intestate succession. Suffice to mention, at this stage, that I have alluded to it in so far as it is in conformity with the Constitution and insofar as it recognises the surviving spouse's right to inheritance. In the same manner, the Wills Act [Chapter 6:06] recognises the surviving spouse's rights by having provisions such as section 5(3)(a) which recognise rights of a surviving spouse and seek to protect inheritance right of a surviving spouse even where the other spouse dies testate.”

The approach adopted in Chiminya v Estate Late Chiminya and Ors 2015 (1) ZLR 450 (H) was followed in Majuru v Majuru HH404-16 where the court held that a will that disinherited a surviving spouse was in contravention of section 26 of the Constitution which recognises equality of spouses during marriage and at dissolution either through death or divorce. The court held that disinheriting a spouse was contrary to public policy and prejudiced the surviving spouse's right to inherit the deceased's estate.

This is also a judgment based on the wrong premise that section 5(1) of the Wills Act, which gives every person, possessed of the capacity to do so, a right to dispose of his or her estate by will to whomsoever he or she pleases, is not based on the principle of equality of men and women.

The reasoning in Chiminya v Estate Late Chiminya and Ors 2015 (1) ZLR 450 (H) was also adopted in Nyamnshanya and Ors v Nyamnshanya and Ors HH693-17.

The court held that a will which disinherited a surviving spouse was void for the reason that it contravened section 5(3)(a) of the Wills Act and section 3A of the Deceased Estates Succession Act. The court further held that the surviving spouse's right to inherit the deceased spouse's estate was guaranteed by the statutory provisions and that the will ran foul of the law by bequeathing the matrimonial house to a person other than the surviving spouse.

Needless to say, the decision was also based on the erroneous proposition that there is a correlation between the provisions of section 5(3(a) of the Wills Act and those of section 3A of the Deceased Estates Succession Act.

The departure from Estate Late Wakapila v Matongo & Ors 2008 (2) ZLR 43 (H) to Chiminya v Estate Late Chiminya and Ors 2015 (1) ZLR 450 (H) is predicated on the presumed applicability of section 3A of the Deceased Estates Succession Act in the interpretation of section 5(3)(a) of the Wills Act.

Estate Late Wakapila v Matongo & Ors 2008 (2) ZLR 43 (H) is to the effect that the rights of the surviving spouse, protected by section 5(3)(a) of the Wills Act, are those that the surviving spouse holds at the time that the will is executed. In other words, the rights must flow from a law which governed the rights of the deceased spouse and the surviving spouse while they were both alive. On the other hand, Chiminya v Estate Late Chiminya and Ors 2015 (1) ZLR 450 (H) holds that section 5(3)(a) of the Wills Act protects the rights that a surviving spouse holds under section 3A of the Deceased Estates Succession Act.

Chiminya v Estate Late Chiminya and Ors 2015 (1) ZLR 450 (H) suggests that the rights which flow from section 3A of the Deceased Estates Succession Act entitle a surviving spouse to inherit the matrimonial house. This is a departure from Estate Late Wakapila v Matongo & Ors 2008 (2) ZLR 43 (H).

REASONING OF THE COURT A QUO

The court a quo adopted the reasoning in Chiminya v Estate Late Chiminya and Ors 2015 (1) ZLR 450 (H). It held that the testator's will, which bequeathed his half share of the beneficial interest in the matrimonial house to the son, was invalid because it had prejudiced the surviving spouse's right to inherit the whole beneficial interest.

The court a quo stated that section 3A of the Deceased Estates Succession Act is the law governing the property rights of married persons. It held that if the deceased had died intestate, the surviving spouse would have been entitled to inherit the matrimonial house in terms of section 3A of the Deceased Estates Succession Act. The view of the court a quo was that she could not be prejudiced merely because the deceased had executed a will. The court a quo further held that the fact that section 3A of the Deceased Estates Succession Act applied to spouses who died wholly or partly intestate was indicative of the intention of the Legislature to protect surviving spouses even in situations where there was a will. The effect of the judgment was that the overriding factor was that the person affected was a surviving spouse.

The learned judge had this to say at p3 of the cyclostyled judgment:

“The fact that section 3A above includes situations where part of the estate is covered by a will as evidenced by the use of the phrase 'dies wholly or partly intestate' is an indication that the intention of the Legislature was to protect such spouses even in situations where there is a will.

Section 3A of the Deceased Estates Succession Act [Chapter 6:02] is part of the law referred to in section 5(3) of the Wills Act which would have made the plaintiff obtain 50% of the house from the testator's estate if the bequest to the first defendant had not been made by the testator in his will.

This means that the bequest of 50% of the matrimonial home to the first defendant in the will by the late Aaron Chigwada is the obstacle which is now prejudicing the plaintiff from the enjoyment of the only home she has ever known since she got married.

In my view, this is the mischief which the legislature intended to cure when it enacted section 5(3) of the Wills Act [Chapter 6:06]. The intention was to intervene in situations where surviving spouses would be rendered homeless by the wills of their deceased partners in situations where the will bequeathed the spouses' home, or part of it, to a third party as in the present situation.”…,.

The view of the court a quo cannot be the correct interpretation of the provisions of section 5(3)(a) of the Wills Act.

The effect of the approach adopted by the court a quo, in interpreting section 5(3)(a) of the Wills Act, is one which abrogates the right of testation given under section 5(1(a) of the Wills Act. The words “wholly or partly intestate” do not refer to property disposed of by a will. They refer to property not covered by a testamentary disposition.

At law, property is disposed of by a will or it is not.

RELEVANT STATUTORY PROVISIONS GOVERNING THE DISPOSITION OF DECEASED ESTATES

It is necessary to set out the statutory provisions at the centre of the divergent opinions of the High Court.

Section 5 of the Wills Act

“5 Power to make dispositions by will

(1) Subject to this Act, and any other enactment, any person who has capacity in terms of section four to make a will may, in his will -

(2) Subject to this Act, and any other enactment, a will shall not be invalid solely because the testator has disinherited or omitted to mention any parent, child, descendant or other relative or because he has not assigned any reason for such dis-inheritance or omission.

(3) No provision, disposition, or direction made by a testator in his will shall operate so as to vary or prejudice the rights of —

(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.”…,.

Section 3A of the Deceased Estates Succession Act

“3A The surviving spouse of every person who, on or after the first of November 1997, dies wholly or partly intestate shall be entitled to receive from the free residue of the estate:

(a) The house or other domestic premises in which the spouses or surviving spouse, as the case may be, lived immediately before the person's death; and

(b) The household goods and effects which immediately before the person's death were used in relation to the house or domestic premises referred to in paragraph (a); where such house, premises, goods and effects form part of the deceased's estate.”

SUBMISSIONS ON APPEAL

The appellant's submissions

The submissions by counsel for the appellant were largely based on Estate Late Wakapila v Matongo & Ors 2008 (2) ZLR 43 (H) and the reasoning therein. He argued that the first respondent had not been prejudiced in relation to any of her rights in the property. His argument was that the deceased owned a half share of the beneficial interest in the house and the first respondent owned the other half. The deceased did not bequeath any part of the first respondent's half share. Realizing that he owned half of the beneficial interest in the immovable property, the deceased bequeathed the estate that belonged to him. As a result, the first respondent's property rights were not varied or prejudiced as she remained the sole owner of her half share of the beneficial interest in the matrimonial house.

Counsel for the appellant submitted that the property rights referred to in section 5(3)(a) of the Wills Act are rights which exist at the time that the will is executed. The appellant's argument was that had the deceased bequeathed the first respondent's half share of the beneficial interest in the matrimonial house the bequest would have been void on account of the operation of section 5(3)(a) unless she would have consented to the variation of her rights.

He further submitted that to give to section 5(3)(a) of the Wills Act the meaning given by the court a quo would result in a radical alteration of the common law. The argument was that if Parliament intended to make such a radical departure from the common law principle of freedom of testation it would have done so through express provisions.

The first respondent's submissions

Counsel for the first respondent submitted that the first respondent was entitled to receive the deceased's half share of the beneficial interest in the matrimonial house because she is the surviving spouse. She contended that the will that had been executed by the deceased prejudiced the surviving spouse's right to inherit his estate. She argued that the right to inherit the deceased's estate was based on section 3A of the Deceased Estates Succession Act. Her argument was predicated on two legal assumptions;

(a) The first assumption was that a surviving spouse has a right to inherit the deceased's estate.

(b) The second assumption was that the law governing property rights of married persons, referred to in section 5(3)(a) of the Wills Act, is section 3A of the Deceased Estates Succession Act.

Counsel went further and submitted that the fact that most of the challengers of wills in cases of this nature are women betrays the reality of gender issues in Zimbabwe. She argued that a decision that allowed a testator to dis-inherit the surviving spouse of the matrimonial house, whilst gender neutral on the face of it, has adverse effects on women. She further contended that due to gender inequality men are the property holders. According to counsel, the decision in favour of the appellant would lead to the perception of discrimination against women on the ground of gender.

Counsel for the first respondent submitted that the Court should take cognisance of the fact that Estate Late Wakapila v Matongo & Ors 2008 (2) ZLR 43 (H) was made in 2008 before the current Constitution came into effect.

The contention was that Estate Late Wakapila v Matongo & Ors 2008 (2) ZLR 43 (H) is inconsistent with the provisions of the Constitution which place emphasis on respect for gender equality, protection of vulnerable members of society, and promotion of family values.

Counsel further submitted that the rules of Constitutional interpretation include a presumption that Zimbabwe does not intend to abrogate its obligations under international law. The point made was that Zimbabwe is party to several international conventions that prohibit discrimination against women. To buttress the point, counsel made reference to the Convention on the Elimination of all forms of Discrimination Against Women (1979) (“CEDAW”) and General Recommendation 29, which speak of property rights of spouses. Reference was also made to Article 21 of the Protocol To The African Charter On Human and Peoples Rights On The Rights Of Women In Africa (“the Maputo Protocol”). She further submitted that, in terms of section 326 of the Constitution, the Court should adopt an interpretation that honours Zimbabwe's obligations under international law.

The first amicus curiae' s submissions

Ms Mahere argued that the court a quo erred in awarding the property in question to the first respondent contrary to the express intention of the testator. For this proposition she made reference to section 5(1)(a) of the Wills Act, which underscores the doctrine of freedom of testation. She said that the testator was at large to dispose of his property, by will, to whomsoever he chose. She quoted from De WAAL and MALAN "Law of Succession" (4ed, Juta & Co Ltd, Cape Town 2008) in which the learned authors state…, that, although strict formalities attach to the execution of a will, its contents are left to the discretion of the testator.

Ms Mahere also made reference to an article by EDRICK ROUX titled ''Freedom of Testation - Can a person disinherit a spouse?" DR, November 2013:48 [2013] DEREBUS 225. The writer states that freedom of testation goes beyond the testator distributing his or her assets to his or her surviving family members. He emphasizes that the assets can be distributed to whomsoever the testator chooses.

Ms Mahere further argued that the doctrine of freedom of testation is entrenched by section 71(2) of the Constitution, which provides that:

“(2) Subject to section 72, every person has the right, in any part of Zimbabwe, to acquire, hold, occupy, use, transfer, hypothecate, lease or dispose of all forms of property, either individually or in association with others."…,.

She submitted that the right to private property, guaranteed under the Constitution, includes the right to decide how one's property is disposed of during one's lifetime and after death.

De WAAL and MALAN "Law of Succession" (4ed, Juta & Co Ltd, Cape Town 2008), the learned authors, postulate that the Constitutional protection of the right to freely determine how one's estate is to be distributed after death protects the principle of freedom of testation that supports it. Ms Mahere argued that the right to property enshrined in section 71(2) of the Constitution, and, by extension, the right of testation, is a fundamental right.

She further quoted from De WAAL and MALAN "Law of Succession" (4ed, Juta & Co Ltd, Cape Town 2008) where…, the learned authors say:

“Nobody has a right to inherit. Leaving someone out of a will as a beneficiary therefore does not amount to an encroachment upon or taking away of an existing right. A potential beneficiary has, at most, a so-called spes or hope.”

The contention by Ms Mahere was that a court's prerogative is not to write a will for the deceased but to give effect to the testator's intention. She submitted that section 5(3)(a) of the Wills Act places a limitation on the exercise of the right of testation. The limitation is that the testator must not vary or prejudice the property rights of the person to whom he or she is married. She submitted that the first respondent had to illustrate that a right that she held in the property had been prejudiced by the testator's disposition of his own half share of the beneficial interest in the matrimonial house.

Ms Mahere emphasised the point that the property rights that are protected from possible prejudice, flowing from a disposition by the deceased, are the rights which the surviving spouse holds at the time the will is executed and not future or contingent rights.

She argued that the marriage to the deceased did not endow the first respondent with any proprietary rights in the deceased's half share of the beneficial interest in the immovable property. The contention was that the proprietary rights the first respondent had in the immovable property accrued to her as a result of the registration of her own half share in the beneficial interest as a joint owner of the matrimonial house. The deceased continued to exercise dominion over his share of the matrimonial house. Consequently, the contention that the first respondent's rights were prejudiced by the disposition by the deceased of his own property rights, by will, was not supported by the facts.

Ms Mahere further argued that the court a quo was wrong to rely on section 3A of the Deceased Estates Succession Act. It conflated instances where one died testate with instances where one died intestate.

The contention was that what determined the applicable law was the answer to the question whether the deceased died intestate or testate. The determinant factor was not the marital status of the deceased.

Her argument was that the court a quo failed to take into account the fact that marriages in Zimbabwe are out of community of property. As a result, there has to be a clear law prohibiting testamentary disposition of a matrimonial house before a court can hold that the surviving spouse's rights or interests have been prejudiced or interfered with by a disposition by the deceased of his or her estate in the matrimonial house, by will, to a person other than the surviving spouse.

On the argument by counsel for the first respondent that women ought to be protected as vulnerable members of society, Ms Mahere made the observation that the first respondent was a property holder who owned a half share in the property in question. She owned the property in her personal capacity in terms of the law governing the property rights of married persons. Consequently, the first respondent could not be deemed to be economically disadvantaged.

The second amicus curiae's submissions

The submissions made by Mr Uriri were in support of Estate Late Wakapila v Matongo & Ors 2008 (2) ZLR 43 (H). Mr Uriri submitted that section 5(3)(a) of the Wills Act does not create proprietary rights. It relates to existing rights. These rights must be provided for in terms of a law governing the property rights of married persons. He submitted that the law governing the property rights of married persons in Zimbabwe is the Married Persons Property Act [Chapter 5:12], which provides that all marriages in Zimbabwe are out of community of property. The contention was that the import of the provision of the Married Persons Property Act is that spouses are equal partners, each with the capacity and freedom to hold and dispose of property independent of the other.

Mr Uriri argued that section 5(1)(a) of the Wills Act embodies the principle of freedom of testation. He argued that the wording of section 5(3)(a) of the Wills Act is clear and requires no interpretation. He said that, in its literal sense, section 5(3)(a) of the Wills Act proscribes prejudice to the surviving spouse's rights held in terms of the law governing the property rights of married persons.

Mr Uriri contended that the purpose of section 5(3)(a) of the Wills Act is to safeguard the respective spouses' rights acquired under the Married Persons Property Act; the object of which was to abolish the matrimonial power of the husband under the community of property legal regime.

Having chosen to be married under a specific matrimonial regime, neither party requires protection from the known legal consequences of their own choice. The known consequence of marriage out of community of property is the existence of separate and divisible estates between the spouses. The contention was that property acquired by a spouse in his or her own right belongs to that spouse. The parties jointly own property by agreement.

ANALYSIS OF THE ISSUES

The first respondent based her case on the premise that the disposition by the deceased of his half share of the beneficial interest in the matrimonial house ran foul of section 5(3)(a) of the Wills Act, in that it allegedly contravened section 3A of the Deceased Estates Succession Act which entitles the surviving spouse to inherit the matrimonial house and goods in it.

A reading of section 3A of the Deceased Estates Succession Act reveals that it is not any spouse who is entitled to inherit the matrimonial house and the chattels in it. It is the spouse of a person who died wholly or partly intestate.

The first respondent is a surviving spouse of a person who died testate. She is not eligible to the benefits of entitlements that flow from section 3A of the Deceased Estates Succession Act because there was a valid will executed by the deceased.

It should follow that where there is a valid will, section 5(3)(a) of the Wills Act cannot be said to have been contravened by the disposal of a matrimonial house and the chattels therein.

The purpose of section 5(3)(a) of the Wills Act is to provide protection for the property or estate belonging to the other spouse from being disposed of by the testator, by will, as if it is part of his or her own estate. The effect of section 5(3)(a) of the Wills Act is that, if the property belongs to the other spouse, in terms of the law governing the property rights of married persons, the execution of the will disposing of that property is a nullity.

For the first respondent to benefit from the provisions of section 5(3)(a) of the Wills Act, she had to allege, and prove, that the deceased made a will by which he sought to dispose of her property.

She, however, accepted that the half share of the beneficial interest in the immovable property the deceased disposed of, by the will, belonged to him.

She claimed a right to the immovable property on the sole ground that she was the surviving spouse.

Section 5(3)(a) of the Wills Act could not be invoked to assist her cause. Subject to the condition that a disposition of an estate by will must not have the effect of varying or prejudicing the property rights of a spouse under a law governing property rights of married persons, section 5(3)(a) of the Wills Act does not subtract from the right of testation provided for in section 5(1).

Section 5(2) is important in that it provides that a will shall not be invalid solely because the testator has disinherited or omitted to mention any relative or because he or she has not assigned any reason for such disinheritance or omission.

The subject matter of section 5 of the Wills Act, as a whole, is the provision, disposition, or direction made by a testator in his or her will. The testamentary power given to a testator under section 5(1) of the Wills Act relates to these subject matters.

The effect of section 5(3)(a) of the Wills Act is that the testator must not include in the disposition by will property belonging to the other spouse except with his or her consent. He or she must include in the disposition by will assets consisting of his or her own estate. Including in the disposition of the estate by will assets belonging to the other person to whom the testator is married, without his or her consent, would render the will void. Such a disposition by will would inevitably have the effect of varying or prejudicing the property rights of the other spouse, contrary to section 5(3)(a) of the Wills Act.

Section 5(3)(a) of the Wills Act cannot be understood to mean that a testator has no right to dispose of his or her estate to whomsoever he or she chooses. Such a view of section 5(3)(a) the Wills Act would ignore the provisions of subsection (1) of section 5, which is the root to the provisions of the other subsections. The only qualification to the right of testation, provided for in sub-section (1) by section 5(3)(a), is that the testator must ensure that the assets he or she intends to have disposed of by will to whomsoever he or she chooses belong to him or her. Section 5(3)(a) of the Wills Act is not concerned with the status of the person to whom the testator intends to have his or her estate disposed upon his or her death.

The issue is not that the person to whom the testator was married is dis-inherited. A surviving spouse can be a subject of disinheritance by a will complying with the formalities of a valid will as well as with the requirements for essential validity such as are prescribed under section 5(3)(a) of the Wills Act.

Once a will complies with all the requirements of validity, its terms and conditions determine the question of succession to the deceased's estate. Section 5(3)(a) of the Wills Act should not be read to mean that a husband or wife cannot disinherit the surviving spouse by a will. The requirements for the essential validity of the will are not to the effect that the testator must leave his or her estate to the surviving spouse.

The reference to section 3A of the Deceased Estates Succession Act in the interpretation of section 5(3)(a) of the Wills Act was an attempt at finding justification for a decision to set aside an otherwise valid will. The purpose was to imbue a surviving spouse in a testate succession with the same benefits that accrue to a surviving spouse under intestate succession.

There is no legal basis for the adoption of such an approach....,.

A will, as a legal document, derives its validity from compliance with the provisions of the statute prescribing the requirements of a valid will. A will which complies with all the requirements of validity cannot be set aside on the basis of extraneous matters, such as that its execution has the effect of disinheriting the surviving spouse. The law of wills imposes an obligation on all who deal with the deceased's property, including the surviving spouse, to give effect to the intention of the deceased regarding the disposition of his or her property as expressed in a valid will.

A court is bound to act in terms of the law.

It cannot set aside a valid will because it thinks that the testator ought to have bequeathed his or her property to the surviving spouse.

View Appeal
SC18-18 : SHORAI NZARA and AAROLA IDEHEN and AMOSOGE IDEHEN and OSARETIN IDEHEN vs CECILIA KASHUMBA N.O. and REGISTRAR OF DEEDS and MASTER OF THE HIGH COURT and TAFIRENYIKA KAMBARAMI
Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

Whether or not a court can grant an order not sought by the parties?Counsel for the appellants, citing authorities which will be analysed below, submitted that the court a quo erred and misdirected itself when it granted relief which had not been sought by either party.Counsel for the first respondent ...

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