Ex Tempore
KAMOCHA
J: The applicant in this matter was
seeking the rescission of this court's judgment granted on 19 November, 2009
under case number HC 1274/09. Further,
she sought leave of the court to file her opposing papers within 5 days of the
order being granted. If the 1st
respondent opposed the application she would be liable to pay costs of suit.
The judgment she sought to have
rescinded was in the following terms:-
“It is ordered that:-
(a)
the affidavit dated 12 August, 2009 filed by the
first respondent with the 2nd respondent be and is hereby declared
to be invalid and of no force and effect;
(b)
the
Last Will and Testament of the late Dickson Filson Goni dated 14 June, 2004, be
and is hereby declared to be valid.
(c)
1st
respondent and all those who claim occupation through her be and are hereby
ordered to vacate house number 3179 Magwegwe North, Bulawayo within 7 days of
service of this order;
(d)
should
1st respondent and all those who claim occupation through her fail
to comply with paragraph (c) above, the Deputy Sheriff, Bulawayo or his lawful
deputy be and is hereby authorized to evict them;
(e)
1st
respondent pays costs of suit.”
Zanele Sibanda was the executrix of the estate of the late
Dickson Filson Goni. She instituted
proceedings to evict the present applicant from house number 3179 Magwegwe
North, Bulawayo. The application was
served on the applicant personally on 26 October 2009. The Deputy Sheriff explained to her that if
she intended to oppose the application she would have to file her opposing
papers within 10 days as failure to do so would result in the application being
set down for hearing without further notice to her and the matter would be
dealt with as an unopposed application.
She failed to do so within the 10
days until the application was set down on the unopposed roll. She failed to so with the full knowledge of
the consequences for such failure. Her
explanation for the failure was that she had been looking for a legal
practitioner to represent her. The explanation
is unacceptable in the light of what she had said in an affidavit she had filed
two months before she was served with the application. She stated in an affidavit filed on 12 August
2009 that she had been seeking for the services of a legal practitioner at that
stage. It therefore cannot be true to
suggest that she started looking for a lawyer after she had been served with
the court application. She was clearly
in willful default since she deliberately failed to file her opposing papers and
only did so when her eviction was imminent.
Her suggestion that she was not aware of the time limit is untenable
because the Deputy Sheriff advised her of the same.
Having found that she was in willful
default the next issue I have to consider is whether or not she had a defence
to the executrix's claim to evict her from the property. She stated that the deceased was her maternal
uncle and she used to live with him at the said house and was claiming a usufruct
to the house.
However, papers filed of record
reveal that she never lived at the house during the deceased's life time. She only went to stay at the house after he
had passed on. This she did by arranging
with Kessie Sibanda who at that stage was in charge of the property. Kessie Sibanda was about to put some tenants
into the house when applicant pleaded with her to allow her to occupy the
house.
Further, the applicant attended an
edict meeting at the Master's Office.
She never raised the question of her right to a usufruct of the house.
Applicant alleged that before his
death, the deceased held a meeting with her, and Kessie Sibanda and four other
people whereat he declared that she would remain in the house and raise her
children therein and did not want her children to suffer. She said she did not remember the date of the
alleged meeting.
Kessie Sibanda on the other hand
denied that any such meeting ever took place.
She emphasized that applicant never lived at the house during the
deceased's life time. Deceased used to
stay with his tenants. He never gave a
usufruct to the applicant.
In light of the foregoing I find
that applicant does have a defence to the executrix's claim.
In the result her application must
fail and is accordingly dismissed with costs.
Messrs Moyo &
Nyoni, applicant's legal practitioners
Sansole & Senda,
respondent's legal practitioners
