CHITAKUNYE
J. The applicant is a son to the late
Jayison Mukuro. He is however not born of first respondent. The first
respondent is a surviving spouse of the late Jayison Mukuro. She was duly
appointed executor of the Estate late Jayison Mukuro.
The
second respondent was cited in his official capacity. Applicant as son to the
late Jayison Mukuro is a beneficiary in the estate.
The
first respondent upon being appointed executor proceeded with her duties in
that regard. On 11 November 2002 she filed a First and final Liquidation
account of the estate late Jayison
Mukuro DR 1746/00. In her distribution plan, in
terms of the Administration of Estates Act [Cap
6:01], she distributed the balance of the estate to herself and nine
children. The nine children included the applicant. Each of the children was
allocated a ninth share of the balance whilst she allocated herself stand no.
596 Section 2, Kambuzuma, household goods and effects and the first sum of 200
000 Zimbabwe dollars. The applicant was apparently not amused with the manner
in which first responded made the distribution. The applicant objected to the confirmation
of the distribution account on the basis that his mother had not been included.
A dispute thus arose which required resolution.
Section
68E (1) of the Administration of Estates
Act [Cap 6: 01], hereinafter referred
to as the Act, states that- “As soon as possible after drawing up a plan in
terms of section sixty-eight, an executor shall submit it to the Master for
approval.”
Section
68E (3) (c) of the Act provides that:-
“If
the Master has reason to believe that one or more of the beneficiaries
concerned have not agreed to a plan submitted to him in terms of subsection (1),
the Master shall proceed to determine, in accordance with section sixty-eight F, any issues in dispute
between the executor and the beneficiary or beneficiaries, and shall direct the
executor to distribute or administer the estate in accordance with his determination.”
Section 68 F deals essentially with the manner
the Master is expected to proceed in resolving the dispute.
In
casu applicant said his objection was
premised on s 68F (2) (c) (i) of the Act as amended by s 3 of the
Administration of Estates Act No. 6/97. That section states that-:
“The Master
shall be guided by the following principles, to the extent that they are
applicable, when determining any issue between an executor and a beneficiary in
terms of paragraph (c) of subsection (3) of section sixty-eight E-
(c) where the deceased
person was a man and is survived by two or more wives, whether or not there
are any surviving children, the wives
should receive the following property, in addition to anything they are
entitled to under paragraph (b)-
(i) where they live in
separate houses, each wife should get ownership of or , if that is
impracticable, a usufruct over, the house she lived in at the time of the
deceased person's death, together with
all the household goods in that house;…..”
Applicant stated that on 25 July 2007 he requested the first respondent,
through second respondent, to amend the First and Final Liquidation Account so
as to award stand 596 Section 2 Kambuzuma to Virginia Phiri, but the first
respondent has not done so. It is apparently upon realizing that the second
respondent had failed to get the first respondent to amend the distribution
account that applicant opted to approach this court for relief.
On 12 November 2009, the applicant
filed the present application seeking an order that:-
- the first
respondent be ordered to amend the
First and Final Liquidation Account
dated 11 November 2002 filed with second respondent DR 1746/2000 by
including Virginia Phiri and allocating to her stand no. 596 Section 2,
Kambuzuma, Harare;
- That the first respondent pays the costs of this
application.
In his application the applicant stated that his mother Virginia Phiri
was at all material times living at 596 Section 2, Kambuzuma, Harare up to the time of deceased's death. The
first respondent as the second wife was at all material times living at 6
Mahwemashava, Zengeza 3, Chitungwiza. He therefore argued that in terms of s
68F.his mother should be awarded the Kambuzuma house as the Late Jayison Mukuro's
first wife.
The first respondent opposed the application. In her opposition the first
respondent raised two points in limine.
The first pertained to applicant's locus standi
to bring such an application on behalf of his mother. The second point was that
the applicant has adopted the wrong procedure as it must have been evident that
there were disputes of fact that needed the calling of viva voce evidence. She contended that the matter can not be
resolved on the papers only. The factual disputes she pointed out included her
denial that Virginia Phiri is a surviving spouse. She contended that she was
the only spouse to the late Jayison Mukuro. She denied that Virginia. Phiri was staying at house no, 596
Section 2, Kambuzuma. She instead said she is the one who is residing at that
house and she has been so resident there since 1966 when she got married to the
late Jayison Mukuro. She went on to say that she had never stayed at No. 6
Mahwemashava Zengeza 3 Chitungwiza. From the time they bought that residence it
is their nephew who has been residing at that residence. The first respondent
went on to say that these are disputes of fact that are well known to
applicant.
In his answering affidavit
applicant maintained his stance and insisted that an order be granted in terms
of the draft. He attached an affidavit purportedly from his mother and a letter
from the City of Harare
(as annexure E and F) all in an effort to show that Virginia Phiri was a surviving
spouse to the late Jayison Mukuro.
Locus standi
Locus standi may be defined as the right
to be heard in court or other proceedings. It is a right dependant on the
interest one has. If one is to represent another the basis for the
representation must be made clear from the founding papers.
In
Stevenson v Ministry of Local Government and
Others 2002 (1) ZLR 498 (S) at 500 C-D SANDURA JA stated that:
“Whilst it is
well established that a party who initiates legal proceedings, whether by
application or summons, should indicate in the commencing papers that he has
the locus standi to bring such
proceedings, what he has to show in order to satisfy that requirement is that
he has an interest or special reason which entitles him to bring such
proceedings.”
In
ZIMTA and Others v Ministry of Education
1990 (2) ZLR 48 court considered a number of case authorities on the issue of locus standi. One of the cases was S.A. Optometric Association v Frames Distributors
(pty) ltd t/a Frames Unlimited 1985 (3) SA 100 (O) wherein at 103 I to 104F
LICHTENBERG J said that-:
“To
justify its participation in a suit or to bring proceedings for relief, a party
must show that it has a direct and substantial interest in the right which is
the subject matter of the litigation and in the outcome of the litigation and
not merely a financial interest which is only an indirect interest in such
litigation.”
After
a consideration of the cases the learned judge in ZIMTA and Others v Ministry
of Education (supra) at 57 B-C
concluded that-
“From
these authorities it is apparent what the legal approach to the issue of locus standi should be. The petitioners
must show that they have a direct and substantial interest in the subject
matter and what is required is a legal interest in the subject matter of the
action.”
In
casu the applicant was required to
clearly state the basis upon which he brought this application on behalf of his
mother.
A
reading of the applicant's founding affidavit does not reveal the basis of his authority
to seek the relief on behalf of his mother. The section he cited does not cloth
him with the authority to sue or make an application for any relief on behalf
of his mother. If anything it is the aggrieved spouse who should seek the relief
in question. As a beneficiary, applicant is not complaining that he has not
been adequately catered for. It is his representative capacity that in my view
has not been justified. It was only after the issue of locus standi was raised in first respondent's opposing affidavit that
applicant attached his supposed mother's supporting affidavit. But again there
is no where stated either in the answering affidavit or in the mother's
supporting affidavit authority for applicant to act on behalf of his mother.
For instance in paragraph 4.4 of her opposing affidavit, first respondent
stated that: -
“It is
surprising that the applicant is bringing this application on behalf of his
mother Virginia Phiri when in fact the application should have been brought by
the mother. I am advised by my legal practitioners, which advise I take, that
the Applicant has no legal standing to institute these proceedings on behalf of
his mother. He has not demonstrated the authority he is using to make this application.”
Instead
of stating precisely his locus standi
as challenged by 1st respondent, applicant in response to that paragraph stated
in his answering affidavit that-:
“Ad para 4.4
This is denied. Applicant
and Virginia Phiri who is his mother are the first family to the late Jayison
Mukuro such that no. 596 Section 2, Kambuzuma, Harare, is a family home to applicant and his
mother. First respondent left out Virginia Phiri on the First and Final
Liquidation Account annexure A to undermine the family status which has existed
between applicant, Virginia Phiri and the late Jayison Mukuro.”
It
is apparent that applicant did not address the issue of his locus standi. As if that was not enough,
in his heads of argument applicant never addressed the issue at all. It was
only in his viva voce submissions in
court that counsel for applicant referred to the issue of first family as the
basis for the locus standi. But surely
being a son or daughter to another does not on its own cloth the son or
daughter with legal capacity to act for and on behalf of the parent in legal
proceedings. No effort was made for the mother to be a party to the proceedings
or to purport to be giving applicant authority to act on her behalf.
I
am of the view that applicant has lamentably failed to show that he has any
direct or substantial interest or legal interest to act for his mother as he
purported to do. The mother in her affidavit in support of applicant's
assertion that she was married to the late Jayison Mukuro did not state that
she had authorized applicant to act for her or even that she suffers from any legal
incapacity such that she could not act on her own and needed applicant to act
for her.
I
am of the view that applicant has not shown that he has locus standi to seek the relief he is seeking on behalf of his mother.
The application can thus be dismissed on that basis.
The second
point in limine on material disputes
of fact.
I will proceed to deal with it for
completeness sake on the points in limine.
The
first respondent contended that there are material disputes of facts that are
apparent and as such applicant should have proceeded by action and not by
application. The applicant's response to this point was unclear as in his
answering affidavit he did not dispute that there were indeed disputes of fact.
In his submissions to court applicant's counsel urged court to take a robust
approach and decide the application on the papers as filed of record. The first
respondent's counsel on the other hand maintained the stance that the
application cannot be resolved on the papers as the disputes of fact are
material.
It
is trite that where there are disputes of fact the motion procedure should not
be adopted. Where disputes of fact become apparent a court may take a robust
approach to the conflicts of facts and decide the case where it thinks that it
can solve the issue despite the apparent conflict. In Masukusa
v National Foods Limited and Another 1983(1) ZLR 232(H) MCNALLY J, as he
then was, had occasion to deal with circumstances court may take a robust
approach as advocated by applicant's counsel. At p 235 he stated that: -
“A court will
take a robust view of conflicts of fact where it thinks it can solve the issue
despite the apparent conflicts.”
The
question that arises is whether this is a case where court can resolve the
matter without the need for resolution of the conflict in the facts. I am of
the view that the disputes of fact as pointed out by first respondent are
fundamental to the relief applicant is seeking. The applicant's case is based
on his assertion that Virginia Phiri is a surviving spouse of the late Jayison
Mukuro and was the one residing at no. 596 Section 2, Kambuzuma at the time of
Jayison Mukuro's demise. The first respondent disputes that. She indicated that
she was the only spouse of the late Jayison Mukuro and she is the one who has
been staying at no. 596 Section 2 Kambuzuma since her marriage to the late Jayison
Mukuro in 1966.
It
is not disputed that the question of whether or not Virginia Phiri is a surviving
spouse of the late Jayison Mukuro has been known to applicant for a long time.
Indeed applicant has been before these courts in HC 9730/02 and SC.54/05. He
knew from the opposition of first respondent to his application in those cases
that first respondent was disputing that Virginia Phiri was a surviving spouse
of the late Jayison Mukuro.
In
Musukusa v National Foods Limited and
another (supra) at p 236C-D the judge quoted with approval the words of
CENTLIVRES CJ in Adbro Investment Co. Ltd
v Minister of the Interior 1956 (3)
SA 345 (AD) at 350A wherein the learned judge said that-
“Where the facts
are in dispute the court has a discretion as to the future course of the
proceedings. It may dismiss the application with costs or order oral evidence
in terms of any Rule of court. The first course maybe adopted when the
applicant should have realized when launching his application that a serious
dispute of fact was bound to develop.”
At
p 236E-G MCNALLY went on to say that-
“Now, in the present
case I have not the slightest doubt that the applicant should have realized
that a serious dispute of fact was bound to develop as between himself and both
respondents. Should I, nevertheless, in the interest of saving costs and
generally getting on with the matter condone the wrong approach? In my view it
would be wrong to do so. There are a number of reasons. In the first place this
is a very clear example of the wrong use of the procedure. The conflicts of
fact were glaring and obvious and were in fact referred to in the applicant's affidavit…..”
The
above statement by the learned judge in that case equally applies to the
circumstances of this case. It was obvious from the onset that the issue of Virginia
Phiri's status was disputed and the contention that she was the one residing at
no. 596 Section 2 Kambuzuma was disputed. The applicant in fact mentioned those
aspects in his founding affidavit. These are also disputes that had been
evident from the prior court cases between applicant and first respondent. The
applicant knew that he would be required to prove that his mother was a surviving
spouse of the late Jayison Mukuro and that she was the one residing at the house
in dispute at the time of Jayison Mukuro's death. The letter from the City of Harare the applicant
tendered was highly inadequate to prove the contentious facts. Not only was the
letter not specific as to its point in time, but it did not identify the
subject of its application. That letter reads as follows –
“RE: CHARITY MUKURO- V- MAXWELL MUTOKO.
I refer to your
letter referenced DE/MM/2000 dated 26th October 2000.
Virginia Phiri
was registered in our records, but she was later cancelled.”
If
any one were to use such a letter as evidence that Virginia Phiri was a
surviving spouse of the late Jayson Mukuro and that at the time of his demise
she was the one living at house no. 596, Section 2, Kambuzuma they would
certainly need to call viva voce
evidence as the letter is bereft of such information.
I am of the view that from the above this is
not one of the cases were a robust approach would do justice to the case. It is
a case deserving of dismissal. This is a
case where court must show its displeasure at the procedure adopted by
applicant more so at his insistence on the procedure even when from his own
papers it was clear that he knew there were disputes of fact that needed to be
resolved before the order he sought could be granted.
Accordingly the applicant's
application is hereby dismissed with costs.
Chivaura & Associates, plaintiff's legal practitioners.
Bachi- Muzawazi &
Associates, first respondent's legal practitioners.
