Lomathemba
Magadlela Songo is the widow of the late Sindiso Songo and was appointed
executrix of her late husband's estate. The first respondent, Silinda Songo, is
the father of the deceased while the second and third respondents are his
brothers.
On
31 January 2005, the first, second and third respondents, hereinafter referred
to as “respondents,” wrote a letter to the Master of this Court, and copied it
to the applicant as executrix, lodging a claim against the estate of the late
Sindiso Songo “the estate”. The claim was for ownership of the immovable
property, Stand Number 988 Mahatshula Township, Bulawayo “the property”. The respondents contended that the house was
a family asset in respect of which the deceased did not have exclusive
ownership but was just a joint owner with the respondents.
Before
their claim in the estate was finalized, they learnt that the Assistant Master
had given authority to the applicant to transfer ownership of the property into
her name. That prompted them to seek and were granted a provisional order under
case number HC933/05 on 27 May 2005 against the applicant interdicting her from
disposing of or alienating the property pending proper winding up of the estate.
The
respondents failed to prosecute their urgent chamber application resulting in
the applicant seeking and obtaining an order dismissing the application for
want of prosecution under case number HC1884/05. That dismissal of case number
HC933/05 led to the respondents launching an application, under case number
HC156/06, for its reinstatement. The application was successfully opposed by
the applicant and was consequently dismissed.
The
judgment of the court had been reserved.
In
the meantime, the Assistant Master and the applicant would not accept the
respondents' claim in the estate.
The
respondents then issued summons, under case number HC1519/07, claiming transfer
of the property to their names subject to payment of 10% value of the house to
the applicant as the late Sindiso Songo's share in the property.
Summons
was served at the applicant's address for service on 18 July 2007. Appearance
to defend was duly entered on behalf of the applicant by Messrs Advocate SKM
Sibanda and Partners but no plea was filed timeously. Upon being pressed to
file it, the legal practitioners filed a request for further particulars which
were supplied by the respondents' legal practitioners in September 2007. When
pressed again to file the applicant's plea, her legal practitioners renounced
agency in November 2007.
The
respondents' legal practitioners subsequently served a notice of intention to
bar on the applicant at the address stated by the legal practitioners in the
notice of renunciation of agency. The applicant was subsequently barred after
failing to respond to the notice to bar.
The
respondents subsequently obtained judgment in their favour against the
applicant under case number HC1519/07 on 17 July 2008.
Some
two years later, on 14 September 2010, the applicant launched this application
for rescission in terms of Rule 449(1)(a) of the Rules of Court on the basis
that the judgment was erroneously granted in her absence; in that when it was
granted, case number HC153/06 for reinstatement of HC933/07 was still pending
as judgment had been reserved.
I
observe that case number HC153/07 for the reinstatement of case number HC933/07
was dismissed with costs.
The Rule
that the applicant sought to rely on recites as follows:-
“449 Correction,
variation and rescission of judgments and orders
1.
The court or judge may, in addition to any other power it or he may have, mero
motu or upon the application of any party affected, correct, rescind, or vary
any judgment or order –
(a)
That was erroneously sought or erroneously granted in the absence of any party
effected thereby: or
(b) …,.
(c) …,.”
At
the hearing, the allegation that the judgment was granted in the absence of the
applicant was not persisted with. It was conceded, on the applicant's behalf,
that through her legal practitioners, she was very much aware of the matter as
she entered appearance to defend it. She requested for further particulars
which were supplied. In fact, two law firms representing her were fully
conscious of the dispute. The applicant was aware of the litigation at all
material times. The concession by her legal representative was, therefore,
properly made.
However,
the applicant persisted with the allegation that the judgment was granted in
error in that it, at the time it was granted, judgment in the matter wherein it
was sought to reinstate the case interdicting the applicant from disposing or
alienating the property, had been reserved.
The
respondents have contended, on the other hand, that the subject matter is
different in that the matter that the applicant wants rescinded relates to the
ownership of the property. The respondents are claiming ownership in the
property. This cannot be said to be lis pendens.
There
is merit in the respondents' submission. The respondents had the right to issue
summons in the matter in order to assert their rights.
The
judgment was not granted in error.
In
the result, I would dismiss the application with costs.
