MATHONSI J: At the close of submissions in this matter we
dismissed the appeal with each party to bear its own costs and said the reasons
for doing so would follow. These are the
reasons:
The
late Greya Mhlanga was of Malawian origin.
He died in 1983 and is survived by his two daughters, the appellant and
the respondent as his wife Anna Makwelo is also deceased. He left behind a house namely No. B281 Njube
Township which the parties are now fighting over.
The
respondent approached the court a quo
seeking an order that she is entitled to a share of the house left by her
parents as the appellant was in occupation of the house and refusing to let her
have her share. The appellant contested
the action alleging that the respondent is not the child of the late Greya
Mhlanga and was not entitled to a share of the house.
The
evidence led in the court a quo is to
the effect that the respondent had a short birth certificate in which her
surname was recorded as Mhlanga. It got
lost at a time when she had taken a national identity card using her married
name of Mugore. She later divorced and
when she wanted to renew her passport she learnt that she was required to
produce a long birth certificate, her identity card and citizenship
certificate. Being of Malawian origin
she was required to renounce the Malawian citizenship.
The
respondent then took her grandmother and sister, the appellant, to stand as
witnesses for her to enable her to obtain a long birth certificate. This was in 1996. It must have dawned to the appellant that she
could take advantage of the respondent's problem with her particulars to
disinherit her because she refused to stand as a witness for the
respondent. It was not until their
uncle, one Joseph S. Moyo, was released from prison that the respondent was
able to obtain the birth certificate and much later the citizenship
certificate.
The
respondent produced documents in the form of her birth certificate, which shows
that her father is Greya Mhlanga; her certificate of registration as a citizen
of Zimbabwe using the name “Maggie Mhlanga” and her national identity card
showing the same. In addition, she
called Joseph S. Moyo who testified in court that both parties are his nieces
born of his sister and the late Greya Mhlanga.
The court a quo believed this
witness and the respondent.
Nothing
was advanced on behalf of the appellant as to why the respondent was not the
off-spring of the late Greya Mhlanga and why she should be disinherited. Clearly the appellant tried to take advantage
of a situation in order to disinherit her sister.
It
was for these reasons that we came to the conclusion that the appeal is without
merit and dismissed it with no order as to costs in light of the fact that the
appellant is indigent and was proceeding on an in forma pauperis basis.
Mlweli Ndlovu and associates,
appellant's legal practitioners
Ndou
J agrees..................................................................
