This
is a case where the claim exemplifies a crisis in expectations that often
arises in African settings such as ours where people govern their lives by
embracing a plurality of norms in their dealings.The formal law on a given
issue is often embraced just as much as families may simultaneously craft their
own expectations that may be at variance with those that flow from formal
rules. Such schisms in expectations between what the formal law provides and
what families themselves say they may have intended or not have intended in
utilising the formal legal system are common in property dealings. This is one
such case whose facts are centred on the acquisition and disposition of certain
immovable property within the framework of the formal legal system. The facts
which have ignited the dispute which now calls for a resolution by this court
are as described hereunder.
The
background
The
plaintiff, Sithembinkosi Godzongere, acting on behalf of a minor child, Jaden
Taongaishe Mutange, whose parents are in the United Kingdom, purchased certain
property known as Stand 11095 Teuropa Road, Zengeza. The purchase was from the
estate of the late Charles Munatsi who died on the 13th of September
2007. His widow, Annatoliah Muchemwa Munatsi, listed the property as forming
part of his estate. With the requisite consent of the Master, it was put up for
sale in August 2008. This was done thorough the executor of the estate, Mr
Musunga, and an estate agent, Golden Properties. The property was duly
transferred to the minor child and a certificate of occupation of the property
granted by the relevant Municipal Authority, namely, Chitungwiza Municipality.
What
has inflamed the dispute is the refusal to vacate the property by the second
defendant, David Mutanda Munatsi.
Despite
the property having been sold and all procedures completed, his refusal is
grounded in his assertion that although the property was registered in the name
of the late Charles Munatsi, who was his older brother, it, in fact, belonged
to their father, the late Andrew Royayi Munatsi, who died in 1996. Flowing from
this, his further argument is that the estate of the widow of the late Andrew
Royayi Munatsi, that is his mother, Margaret Munatsi, is the owner of the
property. Margaret Munatsi, having died before the trial could commence, her
estate is represented by the second defendant, David Munatsi. Annatoliah
Munatsi, the widow of Charles Munatsi, also died before this trial could
commence.
This
matter is, in essence, a consolidation of two matters. The first matter,
HC4966/08,
is a claim by Sithembinkosi Godzongere, as the plaintiff, of the property
bought on behalf of Jaden Taongaishe Mutange. Her prayer is as follows:
1.
That the second defendant and all those claiming occupation through him be and
are hereby ordered to vacate the premises known as Stand No.11095 Zengeza 4,
Chitungwiza, within 30 days from the date of this order, failing which the
Deputy Sheriff be and his hereby ordered and directed to evict the second
defendant together with all other persons claiming right of occupation through
him.
2. The
second defendant pays the costs of suit.
3.
That, in the event of the defendant's appealing against the decision of this
court in this case, this/these order shall, despite the appeal, be put into
force immediately to the effect that the defendants can appeal but the appeal
will not stop execution.
The
second matter, HC1922/10, is a claim by David Mutanda Munatsi on behalf of the
estate of Margaret Munatsi for the following prayer:
a)
The plaintiff's claim for ejectment of the defendant together with all persons
claiming title through the defendant be dismissed with costs.
b) The
contract of sale of the property to Jaden Mutange be and is hereby set aside.
c)
The transfer and or cession of the property to Jaden Mutange, the minor child,
be and is hereby set aside.
d)
The plaintiff pays the costs of the suit in case number HC1922/10.
The
issues which this court is asked to consider, after the consolidation of the
two matters HC4966/08 and HC1922/10, are as follows:
a)
Whether or not the property in dispute formed part of the estate of the late
Charles Munatsi.
b)
Whether or not the Master of the High Court erred in authorising the sale of
the disputed property.
c)
Whether or not Sithembinkosi Godzongere was aware of the dispute over the
property between the Munatsi family.
d)
Whether or not Sithembinkosi Godzongere, as the representative of the minor
child, is entitled to the relief sought.
The third
to fifth defendants were not represented in this matter….,.
The
plaintiff's evidence
The
first to give evidence in this matter was the plaintiff herself, Sithembinkosi
Godzongere.
Her
evidence was that the parents of the minor child had responded to a classified
advert on the sale of this property and had gotten in touch with her regarding
a possible purchase. She had gone to the estate agents listed, namely, Golden
Properties, who had confirmed the sale of the house in Chitungwiza. She had
been accompanied by two representatives from the estate agent to see the
property. In addition, she said that she had undertaken a check with the
Chitungwiza Municipality to ascertain who owned the property and if it could
indeed be sold. She had satisfied herself that the property was indeed
registered to Charles Munatsi. She had met with the executor, the agent and had
also met with the widow, Annatoliah Munatsi, who confirmed that the house
belonged to her husband. The widow's explanation was that she was selling the
property because she needed to settle her husband's hospital bills. She also
told her that she had children at University who needed financial support. She
also said that she had seen the letters appointing Mr Musunga as executor. According
to her evidence, the second defendant, Mr David Munatsi, was at the property
when they got there. She confirmed to the court that this was the same Mr
Munatsi present in court. Her evidence was that he had shown them around and
she had satisfied herself that she liked the property. She described the house
as she saw it. She also stated that the estate agents had informed him that she
was a prospective buyer. Satisfied with what she had seen she had then
finalised the paperwork and made payment which resulted in the final sale of
the house and its transfer. The Agreement of Sale was availed as part of the
evidence as was the Certificate of Occupation.
The
plaintiff further asserted that after the finalisation of the sale they had
made arrangements to put tenants in the house. However, the second defendant
had been given three months following a plea that alternative accommodation was
proving hard to come by. During this three months period, it was her evidence
that the defendant had paid rentals into their Bank account. Proof of these
rental payments which she had tried to obtain from the bank could, however, not
be provided as they were in Zimbabwean dollars and the bank had said they were
no longer able to provide this data.
After the
expiration of the three months, she and her husband had gone to the house and
found the second defendant's wife. It was the plaintiff's evidence that all
goods had been packed. There was, again, a plea for more time which the
plaintiff said they could not entertain due to the fact that they had already
done so and had a tenant who was waiting to take occupation. It was also the
plaintiff's evidence that she and her husband were, in fact, given keys by the
defendant's wife which they gave to the tenant. They were satisfied that they
had introduced their tenant and went back home. On arrival, they got a
telephone message from the tenant saying that the defendant and his family were
refusing to vacate. The plaintiff stated that her husband had then gone back to
Chitungwiza where he had found a sizeable gathering of people from the
neighbourhood at the residence. He learnt that the second defendant was
refusing to vacate on the grounds that the house belonged to his parents. The
crowd had also threatened to turn violent in support of the second defendant
whom they said they knew as the occupant of the house over many years.
Following this development, the plaintiff and her husband had then gone back to
seek the assistance of the estate agent and the seller, the now late Annatoliah
Munatsi. The plaintiff averred that the widow had reiterated her position that
the house belonged to her husband. The plaintiff's evidence was also that the
widow had indicated that the property would have been sold a long time ago
since the money needed at the hospital was a lot. She had also said that she
had a letter from her husband saying she should sell the house. The house had,
at one time, been advertised but unfortunately her husband had died on the day
the advert came out. She also stated that had the widow survived this letter
and advert were to have been produced as evidence. The plaintiff was adamant
that she would not have bought the property had she known of any dispute. Her
position was that none had been brought to her attention until the day the
tenant tried to take occupancy. It was also her evidence that the first time
that they heard of the second defendant's claim was when the second defendant
refused to allow the tenant to take over.
In
cross examination, counsel for the second defendant argued that the plaintiff
was lying that she saw the second defendant when she went to view the property
since he would have been at work. The plaintiff was, however, resolute that she
had been shown the house by the second defendant. She was also challenged on
the issue of rentals and keys and she again remained unwavering in what she had
told the court. Much was also made of the fact that she could not possibly have
known of the private arrangements within the Munatsi family regarding the
house. Her response was that she had bought the house on the strength of the
papers that she had examined which showed that the house was owned by Charles
Munatsi….,.
The
second witness to give evidence was Mr Honerwa from Golden Estate Agents.
His
evidence was essentially that when selling property belonging to a deceased
estate steps are taken to ensure that the person selling has the authority to
sell. The sale was done because they were Letters of Administration and consent
to the sale from the Master. He confirmed going to view the property when the
second defendant was there, having made a prior appointment with him by phone.
He also said that the second defendant had indicated to him that the fence was
his as he had put it up and that whoever was buying the house should pay him
for the fence. It was after the meeting with the second defendant that the
property was advertised officially. The visit where representatives of the
Estate Agent accompanied the plaintiff to view the house was later after she
had responded successfully to the advert. He confirmed the second defendant's
presence, again, on this occasion.
He
too, under cross examination, maintained his stance that he had interacted with
the second defendant and that the sale of the property was kosher. Asked if he
agreed that it is possible for a family to agree to register a property under
the name of a particular person without the intention of it belonging to him,
he agreed that it can happen but opined that it would be stupidity because
nothing could stop that person legally from saying that the property belongs to
him. It was put to him that the family had lodged their complaint with the
Master regarding the inclusion of the property under the late Charles Munatsi's
estate. His response was that if that was indeed the case, then the fact that
the Master consented to the sale was evidence that he did not put any store to
these objections as he would not have consented otherwise. It was also his view
that if all these objections to ownership had been raised during the late Charles
Munatsi's lifetime, it would have helped to shed light on the matter. In his
assessment, the difficulties had arisen because in-laws usually do not want the
property to be acquired by a daughter-in-law. The issue only arose after Charles
Munatsi's death to prevent a stranger taking over the property. He also stated
that it would not have been possible for him to go into the house without the
parent's permission since the children had clearly refused the first time that
he had gone to look at the property. This is why he had made an appointment
with the second defendant.
The second defendant's evidence
The
second defendant, David Munatsi, gave evidence in his capacity as executor in
Margaret Munatsi's estate and in his own interest. However, he did not produce
any evidence confirming his appearance as executor.
His
evidence regarding how Stand No.11095 Zengeza 4, Chitungwiza was acquired was
that their rural home was burnt down during the height of the liberation
struggle in the mid-1970s. His brother, Charles Munatsi, already then a
teacher, had taken in the whole family at his place in Glen Norah. However, as
he was sharing this accommodation with another teacher, the arrangement was not
practical as the place was overcrowded. Their father, Andrew Munatsi, who was
working in South Africa, tasked Charles Munatsi to look for a property where
the family could stay. This was done. A two-roomed core house was found, which,
according to the second defendant, was paid for by his father who sent money to
his mother, who in turn gave the money to Charles Munatsi. This was in 1978-9.
The house was later developed into a five-roomed house and it was his evidence
that his father, Andrew Munatsi, and not Charles Munatsi, who paid for the
extensions. He also told the court that the house was put in Charles Munatsi's
name because his father had acquired South African citizenship and believed
that he was not allowed to own a house in Zimbabwe as a foreign citizen. He
averred that the house was acquired as a family home and was never meant to
benefit Charles Munatsi alone.
On
why his father had not registered the house in his name when he returned to
Zimbabwe in the 1990's, he stated that this was because there was no need to
rock the boat since all were staying peacefully. He emphasised that the
acquisition of the house predated Charles Munatsi's marriage to Annatoliah
Munatsi. He said that he only got to know about the registration of the estate
when he was phoned by the now late Annatoliah Munatsi that he was wanted at the
High Court. This was also when he got to know that Mr Musunga had been
appointed as executor. Following family consultations his sister, Longina, and
he, were tasked to unearth further particulars regarding the winding up of the
late Charles Munatsi's estate. Upon discovery that Stand No.11095 Zengeza 4,
Chitungwiza had been listed as part of Charles Munatsi's property, he said that
he had written a letter to the Master which he left at the Master's office. The
purpose of the letter was to highlight that the property in question should not
have been listed under the late Charles Munatsi's estate….,.
He
says that he was under the impression that the objections had been accepted.
Though
probably unintended, the second defendant's letter in fact lends support to the
late Charles Munatsi as an enterprising developer. He acquired the house in
Glen Norah under the home ownership scheme. In addition, the second defendant's
letter points out that when their father eventually returned to Zimbabwe he
gave each of them money. The second defendant bought himself a Stand in Glen
Norah which he admits he failed to develop. He states that it was the late
Charles Munatsi who then constructed five rooms on this property. Regarding Stand
No.11095 Zengeza 4, Chitungwiza, he insists, in this letter, that it was
developed for the family using money sent by his father. He also states that he
has resided in this house with his wife and four children from the time it was
completed. While he paints his brother in somewhat of an unpleasant light
regarding the use of the second defendant's car which he said that he had been
given by his father, the letter clearly paints a picture of Charles Munatsi as
the one who was prone to take the bull by the horns. Regarding the sale of the
house, he denied ever showing the plaintiff the house maintaining that she must
have been shown by a ghost as it was not him. He further vehemently denied ever
seeing the estate agent. He said he had met Mr Godzongere only whom he told
that the person selling the house was not the owner and said that the
Godzongeres had proceeded to buy the house at their own peril. He denied ever
paying rent to the Godzongeres in any account. He also denied that his wife had,
at any time, surrendered keys. He acknowledged the altercation with Mr
Godzongere on the day the tenant was supposed to take occupation and said he
had told him that the only person who could remove him was the one who had put
him there in the first place. He said it was not true that the house needed to
be sold to pay hospital bills as a relative who had been looked after by his
mother had paid the bill as an act of gratitude. He emphasised the point that Annatoliah
Munatsi wanted to take property which does not belong to her. In his estimation,
that house was supposed to remain as is since they were staying well. Although
his father built himself a house in the rural areas when he returned, the
second defendant said that he still regarded the Zengeza house as his and would
occasionally visit. He said that he had heard that it was Annatoliah Munatsi
who advertised the house for sale on the day her husband died. He said he had
been cheated into signing the documents appointing Mr Musunga as executor and
that he did not understand these documents.
He
maintained that his prayer was for the sale to be set aside and also for the
cession to Jaden Matange to be set aside….,.
While
the history surrounding the acquisition of the original core house has truth to
it, there was no evidence placed before the court to categorically support the
assertion that the house was, from start to finish, inclusive of the extensions,
entirely funded by their late father, Andrew Munatsi, who was based in South
Africa. Despite the fact that the late Andrew Munatsi did return to Zimbabwe in
1990, particularly at a time when the legal consequences of letting the eldest
son remain with title were well appreciated, he did nothing to change the
status quo. The law of inheritance at the time when he died was that the eldest
son inherited in his individual capacity. This property was already in the
eldest son's name. Absolutely nothing was done to change this reality or that
is not what the family intended. The argument that nothing was done because
things were going smoothly and that “a good thing is a good thing” as the
second defendant put cannot absolve the inaction in light of the very
well-known legal consequences of the single heir at that time. Indeed, there
may have been no need for the transfer into Andrew Munatsi's name because he
saw Charles Munatsi as his legitimate heir and the property was already in his
name. In 1996, the property would not have gone to Margaret Munatsi if he died
intestate but to Charles Munatsi. The Administration of Estates Amendment Act,
which changed the position of inheritance under customary law, only came into
effect on the first of November 1997. There was no challenge to ownership when
the purported real owner of the property, Andrew Munatsi, returned to Zimbabwe.
There was, again, no challenge regarding the property being in Charles Munatsi's
name when Andrew Munatsi, his father, died. During Charles Munatsi's lifetime,
there was no effort to challenge his sole ownership either. In fact, it is only
after the sale was effected and the transfer had gone through that the matter
was legally challenged.
Longina
Munatsi, the sister to the second defendant, also gave evidence. She confirmed
the story relating to the history of the acquisition of the house. She said
that she was staying with her brother, Charles Munatsi, at the time the house
was acquired and going to school in Glen Norah. She recalled that they did
things as family and that they all agreed that the registration be done in Charles
Munatsi's name. She said that during the time her father was in South Africa,
it was Charles Munatsi who looked after the family. Her evidence was that her
father returned in 1990 and died in 1996. The reason why he did not change the
status quo was because he found everyone staying well. Also, she said he wanted
to rebuild his rural home. Unlike David Munatsi, whose stance was that the
house forms part of his mother's estate, her evidence was that the house
belongs to all of them. In her view, it was not put in a Trust because under
customary law it is the eldest son who acts in trust for the whole family and
that is exactly what Charles Munatsi did. She said that Charles Munatsi's
salary would not have been enough to do the extensions hence her insistence
that it was her father who sent the money. She acknowledged that neither of
them had any proof to show to the court that their father sent the money but
that she knew that the money would come in letters. The letters were also no
longer available. She was of the view that Charles Munatsi would have had the
receipts for the materials because the money was sent to him and he would go
and buy the materials. Her opinion was that the house was claimed by Annatolia
Munatsi as part of her husband's estate because she was being greedy and
selfish yet she and her husband already had properties of their own.
When
asked whether her father's estate was not wound because there was nothing to
wind up her response was that Charles Munatsi had been the one who saw to the
winding up of their father's estate.
Regarding
the edict meeting, she said that she had only heard from David Munatsi when he
came to report that he had been called by Annatoliah Munatsi. She confirmed
that the family had met and had decided to challenge Annatoliah Munatsi's
registration of the property as belonging to her husband. She had also heard
about the sale from her brother who had told her that the Godzongere's had come
and that he had been held by the collar by Mr Godzongere. She also said that
she had told her brother not to leave the house as Sithembinkosi Godzongere had
no right to buy that house. She described Annatoliah Munatsi as someone who did
things crookedly behind their backs.
She
conceded, in cross-examination, that it was only after the house had been sold
that they had decided to engage lawyers to assist with the case although she
maintained that they had lodged an objection earlier with the Master regarding
the listing of the property.
