The applicant herein seeks an order that the second respondent re-open the estate of the late Felix Mudimu so that she may lodge her claim for the transfer of a property known as House Number 5747 Nketa 9, Bulawayo.
The application is opposed by the first respondent who is the widow of the late Felix Mudimu....,.
The following salient facts have been established on the papers:
The applicant and the late Felix Mudimu concluded a written agreement of sale of Stand Number 5747 Nketa 9, Bulawayo for an agreed purchase price of Z$14,000.
As lay persons are wont to do, the parties drafted a simple handwritten agreement of sale on 2 December 1993 (Annexure 'P').
However, when the parties attended at the offices of Beverley Building Society, who held a mortgage bond over the house, they were advised to seek services of a legal practitioner and have a proper sale agreement drafted.
This they did at Webb, Low & Barry Legal Practitioners on 9 March 1994.
The late Mudimu acknowledged receipt of a deposit of Z$6,000 by 9 March 1994 as reflected on Annexure “Q”.
The applicant lodged the agreement with Beverley Building Society and took over the monthly repayment for the mortgage bond number 8490/91 in the sum of Z$8,000 which was due and owing then. By 19 December 2002 the applicant had completed payment of the mortgage bond.
Meanwhile, unbeknown to the applicant, Felix Mudimu had passed away, on 25 May 1997, in Chivhu rural.
When the applicant traced the late Mudimu to his rural home, in Chivhu, with a view to have the house transferred into her name, she discovered that Mudimu had died.
The applicant tracked down Wonder Mudimu, Felix's brother, in Harare and requested him to register Felix's estate, but Wonder indicated that he could not since the first respondent was alive. She then waited for the first respondent to register the estate.
Since the date of signing the sale agreement, the applicant has enjoyed undisturbed possession of Stand Number 5747 Nketa 9, Bulawayo. She has never paid rent or any other consideration to the first respondent during her tenure at the property neither has the first respondent made any claim to the property until she registered the estate of the late Felix Mudimu in August 2013.
The applicant has extended and developed the structure from a single room to a seven roomed house during her tenure and has paid all water, rates, and electricity charges thereon for the entire period of her occupation.
The first respondent only registered the estate after Wonder had informed her that the applicant wanted assistance in transferring the property from the estate into her name.
The first respondent registered the estate without informing the applicant and she went on to advertise for claims against and for the estate in 2013, which advertisements the applicant never saw.
Despite the fact that the first respondent was well aware of the sale of the property to the applicant, she willfully chose not to alert the applicant about the registration of the estate.
However, in spite of the foregoing, the first respondent opposed the application.
Three main planks were raised as the basis of the opposition, viz, in limine:
(i) That, there is no founding affidavit by the applicant because the signature thereon is not hers hence no court application before the court; and
(ii) That, if the property was purchased on 9 March 1994, then, the applicant's claim is prescribed; and
(iii) Lastly, on the merits, that the agreement of sale is not valid therefore not enforceable at law.
I will deal with the three points raised in opposition hereunder....,.
2. WHETHER APPLICANT'S CLAIM FOR TRANSFER OF THE PROPERTY IS PRESCRIBED
The first respondent premised this point on the Prescription Act. She simply averred, that, because the applicant purchased the house on 9 March 1994, then, in terms of that Act, her claim is prescribed.
She did not state what chapter is the Prescription Act, what the period of the alleged prescription is or what section of that Act is the applicable one as if her allegation is trite.
This is bad pleading.
If the first respondent was alluding to the three year period of prescription of debts in section 15(d) of the Prescription Act [Chapter 8:11] then she must have missed her law by a mile.
That provision does not apply to the instant case.
The applicable provision here is section 17(1)(e) of the Prescription Act. It provides as follows:
“17. When completion of prescription delayed
1. If –
…,.
(e) The creditor or the debtor is deceased and an executor of the estate in question has not yet been appointed;
and the period of prescription would, but for the subsection, be completed before or on, or within one year after the date on which the relevant impediment referred to in paragraph (a), (b), (c), (d) or (e) has ceased to exist, the period of prescription shall not be completed before the expiration of the period of one year which follows that date.”
Clause 8 of the Agreement of Sale states, that, transfer of the property would only be effected once the applicant had completed paying off the mortgage bond to Beverley Building Society.
The applicant fulfilled this suspensive condition on 19 December 2002.
Meanwhile, Felix Mudimu had died on 25 May 1997 in Chivhu. The applicant could not claim transfer from a deceased person and also before fulfilling the suspensive condition. Only the executor of the estate, once the suspensive condition had been fulfilled, could legally pass transfer of the house.
The estate was only registered, and the executrix appointed, on 9 August 2013.
On the authority of section 17(1)(e) of the Prescription Act, by the time the applicant put in motion the legal process of claiming transfer, viz 3 March 2014, the one year prescriptive delay had not yet run its full course from 9 August 2013.
In the result, it is a legal fallacy to allege that the applicant's claim has prescribed.
