MAWADZE J: The facts of this matter
are as bizarre as one can imagine. This is more so when one considers the
defence proferred by the first respondent to the relief sought by the
applicant.
This is an opposed application wherein the applicant seeks the following
relief;-
“IT IS HEREBY ORDERED THAT;-
1.
The memorandum agreement of assignment of 29th August 2006 be
nullified and house number 6106 New Tafara resort into the late Yobe Chari'
name.
2.
The first respondent and all those claiming occupation of house number 6106 New
Tafara be evicted.
3.
Costs of suit”
The applicant Ellen Chari nee
Chakanyara instituted these proceedings in her capacity as the Executrix dative
in the estate of the late Yobe Chari.
The first respondent whose relationship to the late Yobe Chari remains unclear
has purportedly acquired rights, title and interests in house number 6106 New
Tafara, Harare which belonged to the late Yobe Chari and is in occupation of
the same. The second and third respondents are cited in the official
capacities.
It is rather difficult to outline the background facts of this case in view of
the rather bizarre facts alleged by the first respondent. Be that as it may, I
shall endeavour to summarise some of the facts which seem to be common cause.
The applicant was married to the late Yobe Chari. She attached to her founding
affidavit a copy of the marriage certificate Annexure 'B' which shows that the
marriage [Cap 5:11] was solemnised at the Harare Magistrates court on 17
September 2003. My only brief comment is that parties seem to have left it very
late in their lives to tie the knot as the applicant who is described as
spinister was 57 years old and the late Yobe Chari described as bachelor was 68
years old.
It is common cause that the late Yobe Chari passed on 17 June 2004. The
applicant attached the death certificate Annexure A to the founding affidavit.
The late Yobe Chari owned an immovable property No 6106 New Tafara , Harare
which is now the subject matter of the dispute between the parties. It would
appear that the late Yobe Chari passed on only nine months after solemnising
the marriage.
The applicant on 15 September 2011, some 7 years after the death of Yobe
Chari, was
appointed the Executrix dative of the estate of the late Yobe Chari as per the
Letters of Administration attached as Annexure C. What is puzzling is that as
per Annexure D also attached by the applicant, the first respondent had also
been purportedly appointed as the Executor Dative of the estate of the Yobe
Chari on 16 September 2005, some 6 years before the appointment of the
applicant. Apparently as per the record both the applicant and the first respondent
are executrix dative and executor dative respectively of the same estate of the
late Yobe Chari. Each one of them claims to be the legitimate executor of the
said estate.
The applicant in her founding affidavit states that after her appointment as
the Executrix dative on 15 September 2011 she attended to the second
respondent's offices executing her duties to administer the estate of her late
husband Yobe Chari. She said to her utter surprise she discovered that the
first respondent had already approached the City of Harare and effected cession
of house number 6106 New Tafara, Harare into his name. The applicant was shown
Annexure E the memorandum of agreement of assignment dated 29 August 2006. All
one can observe is that Annexure E is not date stamped. It is the applicant's
contention that the first respondent used fake documents (purported letters of
administration Annexure D and agreement of assignment Annexure E) to acquire
rights title and interests in house number 6106 New Tafara , Harare. According
to the applicant Annexure D and E are fake as they do not exist in the second
respondent, the master of the High Court's offices. Further the applicant
alleges that the first respondent is not even a relative of the late Yobe Chari
nor a beneficiary of the estate of the late Yobe Chari but that he simply used
fake documents to process cession of the immovable property house number 6106
New Tafara, Harare after he hoodwinked the second respondent by presenting the
fake Letters of Administration Annexure D. It is upon this basis that the
applicant seeks to have this process declared null and void which in essence
means reversal of the cession process so that house number 6106 reverts to the
estate or name of the late Yobe Chari. The applicant also seeks the ejectment
of the first respondent from the same property.
In his opposing affidavit the first respondent make what I would term very
bizzaire averments. The first respondent puts into issue each and every
allegation made by the applicant. The only fact the first respondent admits to
would seem to be the fact that Yobe Chari passed on.
The first respondent makes the
following averments;-
a)
that the applicant does not exist as a person but is a fictional character
created by one T. Savanhu and Nhende who are using this fictional character to
institute these proceedings in order for them to acquire title on the said
property.
b)
that the marriage certificate Annexure B attached by the applicant is fake and
was originated by this fictional character of the applicant. In fact the first
respondent stated that this is confirmed by the registrar of marriages and that
the marriage certificate number in issue as per the Registrar of marriage's
records has the bride as Ellen Chingwaru and not the applicant.
c)
that the applicant, who is a fictitious character is not known at house number
6106 New Tafara, Harare or No. 61643 New Tafara which she uses as her
residential address. The first respondent proceeded to explain, again in a rather
bizzaire and incomprehensible manner how he acquired title, rights or interest
in the property in issue No 6106 New Tafara Harare.
The first respondent alleges that he
was related to the late Yobe Chari through marriage although he does not states
the specific nature of the relationship. This was only explained by Mr Dondo
for the first respondent in his submissions by stating that the late Yobe Chari
was customarily married to one LEAH MUNOPFUKUTWA who happened to be the first
respondent's aunt. According to the first respondent the late Yobe Chari and
his aunt Leah Munopfukutwa each owned one half share (½) in stand number 6106
New Tafara Harare as per the order granted by DEVITTE J on 23 August 2000. The
respondent submitted that when the late Yobe Chari passed on he had not paid
out Leah Munopfukutwa her half (½) share in the property in issue. It is not
clear from the first respondent's affidavit if his so called aunt Leah
Munopfukutwa is deceased. However the first respondent said that when the late
Yobe Chari passed on and had no children it was then agreed at a family level
that the first respondent should inherit the property in issue No 6106 New
Tafara Harare and that he simply fulfilled the wish by the family. The names of
the family members are however not stated nor is it stated how these persons
are related to the Yobe Chari. It is also important to note that the first
respondent in the opposing affidavit makes no comment or mention of the
alleged forged documents being the letters of administration Annexure D and the
memorandum of assignment Annexure E. The first respondent did not seek to
comment on the applicant's assertion that these documents are not only fake but
were used by the first respondent to fraudulently acquire title, rights or
interest in the property.
After I had painstakily explained
the bizzaire facts as outlined by the parties I now turn to the merits of the
application.
The main, if not the only point taken in argument by the first respondent is
that there are serious disputes of facts in this matter which cannot be
resolved on the papers without calling viva voce evidence. The first
respondent further submits that the applicant should have known or ought to
have known of this fact but nonetheless chose to proceed by way of a court
application. Consequently the first respondent prays that the application be
dismissed or as at the very most be referred to trial.
The celebrated authors HERBSTEIN & VAN WINSEN in the Civil Practice of the
Supreme Court of South Africa 4th edition at page 234-5 had this to
say on the undesirability of a party proceeding by way of motion proceedings
where there are serious disputes of facts in the matter;-
“It is
clearly undesirable in cases in which the facts relied upon are disputed to
endeavour to settle the dispute of facts on Affidavit, for the ascertainment of
the true facts is effected by a trial Judge on considerations not only of
probability, which ought not to arise in motion proceedings but also on
credibility of witnesses giving viva voce evidence. In that event it is
more satisfactory that evidence should be led and the court should have the
opportunity of seeing and hearing the witnesses before coming to a
conclusion.”
See also Masukusa v
National Foods Ltd & anor 1983 (1) ZLR 232 (H) at 236E-F. Mashingaidze
v Mashingaidze 1995 (1) ZLR 219 (H) at 222A and Magurenje v Maphosa &
anor 2005 (2) ZLR 44 at 48 G-H.
The question to be answered in this matter is therefore whether there are
serious disputes of facts which cannot be resolved on papers filed without
calling viva voce evidence. I am not persuaded by the
respondent's argument in this regard. I am rather inclined in this case to
adopt the robust approach enanciated by GUBBAY JA (as he then was) in Zimbabwe
Bonded Fibreglass 1981 (Pvt) Ltd v Peech 1987 (2) ZLR 338 (S) at 339 C-D
where in it is stated;
“It is, I
think, well established that the motion proceedings a court should endeavour to
resolve the dispute raised in affidavits without hearing of evidence. It must
take a robust and common sense approach and not an overfastidious one, always
provided that it is convinced that there is no real possibility of any
resolution doing an injustice to the other party concerned. Consequently there
is a heavy onus upon an applicant seeking relief in motion proceedings, without
the calling of evidence, where there is a bona fide and not merely an illusory
dispute of fact.”
Let me now deal in specific terms
with the so called disputes of facts raised by the first respondent.
a)
Whether the applicant exists
The assertion that the applicant
does not exist and is a fictional character is puzzling. The first respondent
does not even bother to explain the objective basis of the assertion and how a
party who has instituted proceedings, attested to both the founding and
answering affidavits and attached relevant documents with her marriage
certificate can be said to be a fictional character. Even Mr Masango for the
applicant was baffled by this allegation He clearly states that the applicant
exists and had instructed him in this matter. I am equally baffled by this
allegation. Who then proceeded to register the late Yobe Chari's estate at the
second respondent's offices and was issued with the letters of administration
Annexure C if the applicant does not exist. There is no objective basis
at all the support this allegation. The inescapable conclusion is that there is
an imaginary dispute of fact.
b)
Whether the marriage certificate No. 2144/2003 dated 17 September 2003
(between the applicant and the late Yobe Chari) is fake. (Annexure B)
The first respondent alleges that
the marriage certificate Annexure B is not genuine but was originated by the
applicant the same person the respondent alleges does not exist. Again the
first respondent does not provide any iota of evidence to support this but
merely makes a bold assertion. The first respondent alleges that the registrar
of marriages had confirmed this fact but attaches no such evidence. In a bid to
bolster this rather strange allegation the first respondent then made a very
confusing allegation that the marriage certificate produced by the applicant
Annexure B belongs to one ELLEN CHINGWARU. Again no such marriage
certificate is attached by the first respondent. Instead the first respondent
conveniently refers to marriage number 4228/2003 when it is clear from Annexure
B that the marriage number is 2149/2003. The relevance of Ellen Chingwaru is
not explained. Is the first respondent alleging that the late Yobe Chari was
also married to the so called ELLEN CHINGWARU. Where is the proof? So is the
first respondent's alleging that his called aunt Leah Munopfukutwa was also the
wife of the late Yobe Chari? All these issues are unexplained by the first
respondent yet he alleges that this amounts to serious dispute of fact.
The real dispute between the parties
which the first respondent conviniently avoids is whether the first respondent
legally acquired the rights, title and interest in the immovable property No
6106 New Tafara Harare. Put differently, the question is whether there is a
serious dispute of fact as regards the first respondent's alleged illegal
conduct in obtaining the letters of administration Annexure D and the
memorandum of assignment Annexure E.
The first respondent did not bother explain in his papers how he obtained the
letters of administration Annexure D which the applicant alleges were obtained
fraudulently. It cannot be disputed that the first respondent used Annexure D
dated 16 September 2005 appointing him the Executor Dative of the estate
of late Yobe Chari to obtain Annexure E dated 29 August 2006 which
authorised him to obtain title, rights and interest in the property in dispute.
The first respondent is not keen to explain in his papers whether he followed
due process and whether everything is above board. This was necessary in view
of the applicant's allegation.
From the papers filed of record the
first respondent dismally failed to rebut the allegation that he acted improperly
in using Annexures D and E and acquiring title rights and interest in the
property in dispute. In his opposing affidavit the first respondent alleges
that he derived such authority from the order granted by DEVITTE J on 23 August
2000 in as a matter between Leah Munopfukutwa as the plaintiff and the late
Yobe Chari as the defendant which reads as follows;-
“Whereupon after reading documents filed of record;-
It is ordered;-
a)
that the defendant be and is hereby ordered to pay to the plaintiff an amount
of $70 000,00 being a one half share of stand 6106 New Tafara Mabvuku, Harare.
b)
that the defendant be and is hereby ordered to pay interest on the said amount
at the rate of 25% per annum calculated from the date of judgment to the date
of payment.
c)
that the defendant pays costs of suit.”
The first respondent was not part of
proceedings in the matter between Leah Munopfukutwa and the late Yobe Chari.
The order granted by DEVITTE J does not confer upon the first respondent any
rights in respect of No. 6106 New Tafara Harare. Even Mr Dondo for the first
respondent abandoned this clearly misleading averment and conceded that what
the first respondent alleges is incorrect. Where then does this leave the first
respondent's case? The question now is whether the first respondent properly
registered the estate of the late Yobe Chari and was appointed as the
Executor Dative.
The master prepared report in terms of Rule 248 (1) of the High Court Rules
1971. There are two reports. The first one compiled on 13 January 2012 after
the master was served with the copy of the application is devoid of detail and
is unuseful. I requested the master in terms of Rule 248 (1) to compile a
supplementary report addressing the issue of whether there was double
registration of the estate of the late Yobe Chari, whether both the applicant
and the first respondent were appointed executors of the same estate and the
status of the estate in question. A detailed supplementary report dated 19 October
2012 was compiled by the master and the master makes very useful insights which
I shall summarise as follows;-
a)
that the estate of the late Yobe Chari was properly registered in terms of the
Administration of Estates At [Cap 6:01] by the applicant as a surviving
spouse on 7 July 2011 and that an edict meeting was held on 17 August 2011 and
the applicant was appointed the Executrix dative and is the only legal
executrix of the estate.
b)
that the Letters of Administration Annexure D in possession of the first
respondent purporting to appoint him as the Executor Dative of the estate of
the late Yobe Chari is fraudulent as it did not originate from the master's
office. Infact the master attached to this report a letter written to the
police dated 30 July 2010 asking the police to investigate the matter as to how
the first respondent obtained fake Letters of Administration Annexure D.
c)
that the reference number on the Letters of Administration possessed by the
first respondent Annexure D refers to the estate of the late Dennis
Mashonganyika which estate is still under administration and is not relevant to
the estate of the late Yebo Chari. It is also important to note that the report
to the police on 30 July 2010 was well before the applicant had registered the
estate of the late Yebo Chari.
d)
that the first respondent cannot purport to have administered the estate of the
late Yebo Chari and also awarding himself the sole asset of the estate.
The master's report is clear that
there is no double registration of the estate of the late Yebo Chari. This
makes it abundantly clear that the first respondent acquired rights over the
property in issue No 6106 New Tafara, Harare through an illegal act of using
forged document Annexure D. There is therefore no basis upon which the
purported cession should not be reversed and thereafter to allow the estate of
the late Yebo Chari to be administered in terms of the relevant Act.
The first respondent has dismally
failed to show that there are serious disputes of facts in the matter. The
alleged dispute of facts are imaginary and illusory. There is therefore clear
basis to grant the relief sought by both in respect of the reversal of the
cession and the eviction of the first respondent who has not shown the basis
upon which he occupies the premises including all those who claim occupation of
No. 6106 New Tafara through the first respondent.
In the result, I make the following
order.
- It is ordered that the memorandum of agreement of
assignment of 29 August 2006 be nullified and that Number 6106 New Tafara
Harare resorts to be registered into the name of the late Yobe Chari.
- It is ordered that the first respondent and all those
claiming occupation of house number 6106 New Tafara Harare through the
first respondent shall vacate house number 6106 New Tafara Harare within
seven (7) days of this order being served upon them failing which the
Deputy Sheriff is authorised and directed to evict the first respondent
and all those claiming occupation of the said house through him.
- The first respondent shall pay the costs of suit.
Musunga & Associates, applicant's legal practitioners
Dondo & Partners, 1st respondent's legal
practitioners.
