KAMOCHA J: On 20 May 2004 plaintiff issued summons claiming the following against
the defendants:-
“1. An
order that, the agreement of sale entered into by and between plaintiff and
first and second defendants on 6 April 1999 be and is hereby declared valid and
binding on first and second defendants;
2. An
order setting aside the cession of stand number 1401 Dingumuzi Extension,
Plumtree to first defendant;
3.
An order that the first defendant as the sole beneficiary and surviving spouse
of the second defendant takes all necessary steps in the 3rd
defendant's offices to transfer the right, title and interest in stand number
1401 Dingumuzi Extension, Plumtree to the plaintiff's names within 7 days of
the granting of this order failing which the Deputy Sheriff, Bulawayo be and is
hereby authorized to act in her stead;
4. An
order that the first and second defendants, jointly and severally, the one
paying the other to be absolved, pay the costs of suit on an attorney and
client scale.”
When the parties attended a
pre-trial conference formulated by agreement the following issues to be
determined by the trial court:-
“(a) Whether
the agreement of sale entered into by and between plaintiff and first and
second defendant is valid;
(b) Whether
the cession of stand number 1401 Dingumuzi Township, Plumtree should be set
aside;
(c) Whether
the first defendant should be compelled to transfer stand number 1401 Dingumuzi
Township, Plumtree, to the plaintiff;
(d)
Whether the affidavit and “the letter for construction” both dated the 6th
of April were written and signed by the late Mr Ndlovu on the same day; and
(e) Whether first
defendant should pay plaintiff's costs on an attorney-client scale.”
The first defendant, hereinafter
referred to as “defendant” since she was the only one before the court, was
married to one Mfakazi Dennis Ndlovu who died at Plumtree on 4 October
2001. She was the surviving spouse of
Mfakazi Dennis Ndlovu and sole beneficiary of his estate. By virtue of being married to the deceased in
his life time she is also known as Pumulo Mulemba Ndlovu.
In his life time, the deceased owned
a residential stand known as stand number 1401 Dingumuzi Extension, Plumtree as
reflected in a letter by the Rural District Council dated 28 August 2002 which
was filed of record by the defendant and reads thus:
“To Whom It May Concern
Dear Sir/Madam
Confirmation of stand number
1401: Dingumuzi Extension, Plumtree
Bulilimamangwe Rural District Council confirms that
residential stand number 1401 Extension, Plumtree is being owned by Mfakazi
Dennis Ndlovu identity number 08-305325 B 39.
Thank you
A S Khumalo
For: Chief Executive Officer”
The defendant was seeking
confirmation of ownership of the said stand since she had been appointed
executrix dative to the estate of her late husband on 15 July 2002 which she
was going to administer.
In the distribution account dated 10
April 2003, as the sole beneficiary, she was awarded all the assets of the
estate including the said stand. The
estate was accordingly wound all the
property which it had belonged to the defendant.
That being the case she took steps
to have the residential stand registered into her name. Armed with the award in the distribution
account she approached the Plumtree Town Council seeking registration of the
said property into her name. A
determination was made at a full Council meeting on 31 August 2003. The defendant was informed by the following
letter.
“15 October 2003
Pumulo M Ndlovu
Phakamani Secondary School
P O Box 156
Plumtree
Re: Confirmation of change of
ownership to stand 1401 Matiwaza Township
I am glad to advise you that this Council has approved change
of ownership from Mfakazi Dennis Ndlovu I.D 08-305325 B 39 to Pumulo Mulemba
Ndlovu I D No. 79-023193 Z 39.
Reference is made to Full Council Meeting Number 6 resolution
F115 dated 31/8/08 at 1700 hours.
Thank you
D D Luthe
Town Secretary”
What comes out clearly from all the
documents filed of record is that by the time summons was issued out of this
court the estate had long been wound up.
The defendant who was the sole beneficiary to the estate had taken
ownership of the estate property and had the immovable property registered in
her name. There was no property left in
the estate. Consequently there was no
need to cite the estate in these proceedings after it had been wound up and had
nothing left in it.
The documents also reveal that the
said stand belonged to Mfakazi Dennis Ndlovu and was not jointly owned with the
defendant. That being the case the late
Mfakazi Dennis Ndlovu was at liberty to sell the property if he had so wished
without having to seek the consent of the defendant.
The crux of the dispute in casu is whether or not the late
Mfakazi Dennis Ndlovu in the presence of the defendant sold the said vacant
stand to the plaintiff and her husband.
While the plaintiff and her husband on the one hand alleged that that was
the position the defendant on the other hand vehemently put that in issue.
The plaintiff gave evidence in an
effort to prove her case and called her husband to support her story.
Their story is as follows. The plaintiff Sithembile Sibanda and Nhlanhla
Dube are married to each other. The
husband used to work in Botswana but the couple has got a rural home in
Bhambadzi in the Plumtree area. The
couple was looking for a vacant stand in Plumtree town. They sent word through relatives and friends
to that effect.
A friend called Moyo who used to
work for Agritex in Plumtree contacted the husband about a colleague of his who
was selling a stand in Plumtree. The
husband came from Botswana and proceeded to his rural home in Bhambadzi to
fetch his wife. The two then proceeded
to Plumtree town to see the friend Moyo who, unfortunately is now late.
The late Mr Moyo took them to the
late Mfakazi Dennis Ndlovu's house. They
found the late Mfakazi Dennis Ndlovu
with his wife who is the present defendant.
The parties discussed the sale of the stand and concluded its sale
agreement. The late Mfakazi later made
an affidavit to that effect which reads thus:-
“AFFIDAVIT
I Mfakazi Dennis Ndlovu 08-305325 B 39 residing at GP 2231
Park Rd Plumtree do hereby solemnly and sincerely swear/declare the following:-
That I sell stand number 1401 Dingumuzi Extension pending
processing lease agreement which will be transferred to Sithembile Sibanda I D
No. 56-050824 H 56 of Bhambadzi Secondary School P O Box 118 Plumtree. …”
The above document was signed by
Mfakazi Dennis Ndlovu on 6 April 1991 before a Commissioner of Oaths and bears
the District Administrator's stamp.
The purchase price for the stand was
$29 000,00. But before payment for the
stand was made the parties agreed to go and verify at the Council offices if
indeed the said stand belonged to Mfakazi Dennis Ndlovu. The defendant did not
go to the Council offices but both plaintiff and her husband averred that she
had not objected to the sale of the stand by her husband. Instead she gave the impression that she was
quite happy with the sale of the stand.
On arrival at the Council offices
the officials of the Council confirmed that the stand belonged to Mfakazi
Dennis Ndlovu and was registered in his name.
That being the case the plaintiff and her husband then paid the full
purchase price of $29 000,00 to Mfakazi Dennis Ndlovu in his office at Agritex
where he was employed.
After the purchase price had been
paid the parties discussed the issue of constructing a dwelling house on the
vacant stand. An agreement was reached
to the effect that the plaintiff could go ahead with construction pending
changing of ownership. The late Mfakazi
Dennis Ndlovu reduced the agreement to writing thus:-
“This is to certify that I Mfakazi Dennis Ndlovu of Agritex,
Box 87, Plumtree, GP 2231, Park Rd have allowed Sithembile Sibanda to proceed
and carry out construction of stand 1401 ZBS known as Dingumuzi Extension for
$29 000 …”
The document bore the signature of
the author as M D Ndlovu and was signed by two witnesses one Ncube and one P
Moyo and was dated 6 April 1999. The
deceased also wrote his telephone number at the foot of the document and signed
M D Ndhlovu at the foot of it. This time
he spelt his Ndhlovu with an “h”.
After he had executed the above
document he gave them an approved plan of the building to be constructed on the
stand. The plaintiff and her husband
started construction of a dwelling house on the stand using the said approved
plan in 2000 and completed it in mid 2003.
It was the plaintiff's evidence and
that of her husband that the defendant was aware that there was construction
going on at the said stand right from the beginning up to the end. They based their assertion on the ground that
she knew that the stand had been sold to the plaintiff. Moreover the stand was about 2 kilometres, from
where defendant lived, and was therefore
not far and was also on the way to
town. She therefore saw construction
going on for more than three years but she did not report to the local
authority that someone was unlawfully building on her stand. She even could have reported to the police if
she did not get any joy from the local authority.
The witnesses told the court that
they had agreed with the late Mfakazi Dennis Ndlovu that the stand would be
registered in the name of the plaintiff and her husband but he unfortunately
passed away before that could be done.
They, however, learnt of his death after sometime and went to pay their
condolences to the defendant at the loss of her husband and to also discuss the
issue of the transfer of the stand. When
the subject was raised with her she advised them that she was in the process of
winding up the estate of her late husband.
She assured them that she would contact them as soon as she completed
processing the estate. She had promised
to phone them but never did. She led
them to believe that she had no problem with facilitating the transfer of the
said property into their names.
The defendant did not mean what she
had assured the plaintiffs she would do.
Instead, when she was awarded the stand as the sole beneficiary of the
estate on 10 April 2003, she proceeded to have ownership of the property
changed from her late husband's name into hers on 15 October 2003.
The plaintiff only discovered what
had happened when she went to pay her water bill. The plaintiff and her husband then went to
confront the defendant who, to their surprise and dismay, pretended not to know
what they were talking about and professed ignorance of the sale of the said
property.
Plaintiff and her husband stated
that they found the defendant busy writing at a table which was full of
papers. As the defendant was denying any
knowledge of the sale of the stand the husband of the plaintiff noticed the
affidavit of sale on the table and immediately pointed it out to her and she
read it. The affidavit quoted in
extension at page 5 supra belied her story but she persisted that she had done
nothing wrong.
The parties then agreed to go to the
magistrates' court to seek legal advice.
An officer there advised the defendant that she was wrong and should
transfer ownership of the property into the plaintiff's name. She did not accept the opinion and advice of
the officer. She suggested that the
parties go to seek a second opinion from the police. The parties proceeded to the police station
where she was told once more that she had done wrong and was advised to
transfer the property into the plaintiff's name. She still did not accept that she had done
any wrong and handed the matter to her lawyers.
Plaintiff and her husband were
subjected to lengthy cross examination which in each case appeared to be
designed to get the witness tell the court about the exact dates, times when
things were done and places where they were done and who did what. For instance a lot of time was spent on what
date were documents quoted above in this judgment were written and where they
were authenticated. The witnesses were
also asked about who had done the introductions when they were at the house of
the defendant.
It was suggested to the witnesses
that the signatures appearing on the two documents allegedly written by the
late Mfakazi Dennis Ndlovu were forgeries.
It was even put to them that Mfakazi Dennis Ndlovu did not spell his
Ndlovu with an “h”. The reply from both
witnesses was that that was his choice to write it as either Ndlovu or
Ndhlovu. They were emphatic that that
was his signature and he even wrote his telephone number.
The court observed that the
defendant was being untruthful when she made these suggestions. That is so because when the defendant
appeared before the Master of this court she told him that Mfakazi Dennis
Ndlovu was also known as Mfakazi Dennis Ndhlovu. Quite clearly the suggestion was designed to
mislead the court.
The witnesses emphasized under
cross-examination that the defendant agreed to the sale of the stand to them
and she even told them that she had received the proceeds of the sale from her
late husband. She said it was a lot of
money which she banked. They further
revealed that the construction was at window level when Mfakazi Dennis Ndlovu
died. They were therefore emphatic that
both defendant and her late husband were fully aware of the construction taking
place at the stand. The witnesses knew
only one wife of Mfakazi Dennis Ndlovu and that is the defendant. She is the one who was in agreement with her
husband to sell the stand.
The witnesses repeated under
cross-examination that when they went to see her after the death of her husband
she pretended not to know them and secondly she professed ignorance of the sale
of the stand but the fortuitous discovery of the affidavit of sale belied her
innocence. She thereafter changed her
attitude and promised to contact them to sign certain documents after sorting
out the estate. She was clearly being
untruthful as she never meant what she was saying.
The two witnesses gave their
evidence well. Their evidence flows well
and is easy to follow. They corroborated
each other on all material points and are worth to be believed.
The same cannot be said about the
defendant. Her story is full of
improbabilities and untruths. For
instance it is highly improbable that someone could have started building on
the stand which is about two kilometers from where she lived without her
knowledge for a period of two years.
Plumtree is a small town. The
suggestion is not only improbable but is also false. She was untruthful when she suggested in
court that Mfakazi never used to write Ndlovu as Ndhlovu. She was a bad witness who was not worth to be
believed. Where her story conflicts with
that of the plaintiff and her husband I prefer that of plaintiff and her
husband.
The court has no difficulty in
finding that the defendant in fact was in agreement with her husband when
selling the stand. She even received the
proceeds of the sale. Even if the court
had found that she had not consented to the sale that would not have changed
anything as the property belonged to her late husband and was not jointly
owned. Her consent was not necessary.
This court finds that the defendant
was actuated by greed that is why she transferred the stand into her name
instead of the names of the plaintiff.
The defendant deserves to be visited with an award of punitive
costs. She led the plaintiff to believe
that she was sorting out the estate of her late husband and thereafter would
contact her inviting her to go and sign the necessary papers relating to the
change of ownership. She instead had the
property registered into her own name.
The plaintiff was forced to institute these proceedings to assert her
rights. It is only fair that she
recovers her full costs.
The estate was wound. The defendant had been appointed executrix
dative before it was wound up and she was the sole beneficiary. The responsibility of bearing the costs is
hers and hers alone.
In the result I would grant the
order in terms of the draft with a rider that the costs on an attorney and
client scale be borne by the first defendant alone.
Sansole and Senda, plaintiff's legal practitioners
Cheda and Partners, 1st
defendant's legal practitioners
