MAWADZE J: This is an opposed application
in which the applicant seeks the setting aside of the judgement in case HC
6820/11 handed down on 30 August 2011 (which is a matter between first
respondent Robert Matoka v Daniel Tembinkosi Dube and another). The basis for
seeking the setting aside of the judgement is that it was obtained by fraud as
the court application leading to the granting of the default judgement was
never served on to the respondent Daniel Tembinkosi Dube. It is further alleged
that Daniel Tembinkosi Dube at the material time did not have the mental capacity
to perform juristic acts. Lastly is alleged that the transfer of the property
in issue was done after the death of the late Daniel Tembinkosi Dube before an
Executor had even been appointed and that this was a fraud on the estate and
the state.
The terms of the order sought by the applicant are couched as
follows;
“IT IS ORDERED THAT;
1. The
judgement case no HC 6820/11 handed down on 31 August 2011 in the mater
between Robert Matoka v Daniel Tembinkosi Dube and Another be and is hereby
rescinded.
2. The
transfer of the property known as Stand 106 Quinnington Township of Subdivision
K of Quinnington of Borrowdale Estate measuring 8397 square metres to
Robert Matoka under deed of transfer number 2261/2012 be and is hereby set
aside.
3. The
second respondent is hereby ordered to reinstate deed number 6366/00 dated 11
July 2000 in the name of Daniel Tembinkosi Dube.
4. The
agreement of sale between Daniel Tembinkosi Dube and Robert Matoka entered into
on 20 May 2011 be and is hereby declared null and void ab initio and
is set aside.
5. The first
respondent pays the costs of suit.”
The background
facts of the matter are as follows:-
The applicant is the surviving widow of
the late Daniel Tembinkosi Dube (the deceased) and was appointed the Executrix
Dative of Estate late Daniel Tembinkosi Dube DR 1104/12 on 14 September 2012.
She currently works in Mozambique but maintain residence at 62 Stepples Road
Colne Valley Chisipiti Harare. The deceased died on 3 July 2012.
The first respondent is a constable in the
Zimbabwe Republic Police based at ZRP Highlands and resides at the property in
dispute known as Stand No 11 Scanlen Drive, Quinnington Harare. He entered into
an agreement of sale of the said property with the deceased who was the owner
of the property on 20 May 2011 after which he instituted proceedings through a
court application to compel transfer on 13 July 2011 in HC 6820/11 which order
was granted in default on 31 August 2011. The first respondent effected
transfer of the said property on 18 July 2012 under deed of transfer number
2261/2012.
The second respondent, the Registrar of
deeds and the third respondent the Master of the High Court are cited in their
official capacities.
The applicant customarily married the
deceased in 2003 and the marriage was later solemnised in terms of the Marriage
Act [Cap 5:11] on 7 February 2006 in Harare. The marriage was blessed
with one child, a girl, Danixa Tanyaradzwa Dube who was born on 26 October
2004. The deceased before the marriage had acquired the immovable property
known as No 11 Scanlen Drive, Quinnington Harare which became the matrimonial
home. Applicant alleges she assisted in paying off the mortgage after the
marriage.
The deceased had a Bsc Economics degree
obtained at the University of Zimbabwe and he was a financial consultant. The
deceased's professional history is largely common cause. He worked for First
Merchant Bank and used to run a column in the Herald called “Economic Talk with
Danny Dube.” He left and joined CBZ as head of Economic and Strategic Unit
after which he joined Board Asset Management and was once ZNCC president in the
1990s. The deceased left Board Asset Management to set up Genesis Bank with one
Reg Max.
In 2002 the deceased left Genesis bank to
set up Innofin Asset Management with one Edwin Moyo. However, due to the
economic meltdown which started around 2003 Innofin Asset Management began to
struggle and was eventually liquidated at the instance of Old Mutual in 2006.
From that time the deceased was never employed, neither did he engage in any
meaningful economic activity until his death on 3 July 2012.
The applicant in her founding affidavit
chronicles how the collapse of the deceased's business enterprise was so
devastating on the deceased leading to severe stress and ultimately to mental
illness. In her founding affidavit the applicant states that on 26 January 2006
deceased was arrested at Eastgate Complex Harare after derobing and walking
nude in public. This according to the applicant was the beginning of the
deceased's mental illness which afflicted him until death. The applicant
said deceased had lost his mind as he would mumble to himself saying God
had instructed him to undress in public and that they had to stay with Doctor
Chimedza at his house for two weeks but deceased refused to be treated, he
would not eat or drink water but would be reading the bible incessantly.
However as per para 17 of the applicant's
founding affidavit the applicant said there were times when the deceased would
have lucid moments. She says;
“At times however he was his normal self
and I thought he was getting better.”
According to the applicant the deceased
was evaluated by Dr Madhombiro, a psychiatrist and was found to have manic
depression disorder but he refused treatment. The applicant said the deceased
developed the habit of borrowing money from several people or getting services
without paying back. This prompted applicant to pay off the mortgage for the
property.
The applicant in her founding affidavit
said deceased's condition deteriorated as he refused to take prescribed
medicine and was now unemployed and unable to fend for the family as he spent
most of the time preaching and reading the bible. He had also lost a lot of
weight. This prompted the applicant in March 2009 to relocate to Mozambique
with the daughter where she had secured employment. Applicant said she returned
briefly in June and September 2009 but deceased who had abandoned the
matrimonial home and staying with his parents in Chadcombe Harare was avoiding
her and locking himself in his room. There is no further details from the
applicant on what she did thereafter from 2009 until in July 2012 when she came
after the deceased's death on 3 July 2012. All the applicant said is that she
believed that in 2011 when deceased entered into agreement of sale of the
matrimonial house with the first respondent, he was mentally unstable, not able
to hold meaningful conversation, visibly sick and therefore had no capacity to
contract. It would appear applicant relies on the evidence of other witnesses
as regards deceased's state of mind in 2011 as it would appear she never
interacted with him during that time.
Dr Paul Chimedza who is a qualified
medical doctor and has been practising in Harare since 1998 was a close friend
of the deceased since their days at the University of Zimbabwe. In his
supporting affidavit he confirmed the incident of 26 January 2006 when the
deceased derobed in public and how he took deceased and stayed with him at his house
for two weeks. He said that deceased refused any medication hence he was unable
to help him. He said deceased suffered from bipolar disorder or manic
depression which he described as vacillating between two extremes of mania and
depression. Dr Chimedza explained that in such a condition deceased on one
extreme would seem to be normal and on the other extreme would be extremely
depressed and withdrawn. In such a state Dr Chimedza said deceased would lack
insight into thoughts and actions as he would not be aware of what is right or
wrong. It is Dr Chimedza's opinion that deceased would not have the capacity to
enter into contracts.
Dr Chimedza said he caused in January 2006
the evaluation at his house of deceased by Dr Madhombiro who after hours in
consultation with deceased confirmed that he suffered from manic depressive
disorder. Deceased however refused to take the prescribed medicine.
It is not clear from Dr Chimedza's
affidavit as to the exact dates after January 2006 that he interacted with the
deceased until his death. All Dr Chimedza says is that he would after 2006 meet
deceased who still refused treatment and would ask for money from him or avoid
him. The only incident he specifically refers to is some time in 2012when he
said he met deceased who asked for US$5000-00 saying he wanted Dr Chimedza to
be his guarantor at a Bank but Dr Chimedza told deceased he would only agree if
deceased sought medical help.
The applicant also relied on the evidence
of Peter Gumundani, Gift Shoko, Innocent Vusimuzi Dube and Alfred Muungani who
all filed supporting affidavits in relation to deceased's mental state. Let me
briefly deal with that evidence.
Peter Gumundani a car dealer grew up with
the deceased as deceased's father was his guardian. He said deceased suffered
from mental illness in 2006 when his business enterprise collapsed. Peter
Gumundani said deceased exhibited strange behaviour like talking to himself,
staying on hotels without paying and was now unemployed. At one time he said
deceased asked to use registration books of motor vehicles he sells as he
sought to borrow money but he declined. He said when applicant relocated to
Mozambique deceased was not able to pay utility bills at his matrimonial house
and moved to stay with his mother in Chadcombe, Harare.
Gift Shoko is the Chief Operating Officer
of Trust Bank and a cousin to the deceased in that Gift Shoko's mother and
deceased's father are siblings. Gift Shoko said he stayed with deceased's
parents in Chadcombe from 1992 when he was at University of Zimbabwe.
Gift Shoko said deceased was severely
depressed in 2006 when his company Innofin collapsed and in January 2006 he
allegedly disrobed in town. He said deceased showed signs of mental illness
from that time as he would preach incessantly alleging that the applicant his
wife was bewitching him and refusing any medical help. Gift Shoko said
deceased's matrimonial relationship collapsed in 2009 and that after the
applicant's departure for Mozambique deceased at one point left this
matrimonial home to stay in the streets of Harare. Gift Shoko said he
intervened, removed deceased from the streets and took him to his parents'
house in Chadcombe. He also said it was from 2009 that deceased would stay in
hotels without paying bills and was giving away movable property in the
matrimonial house to strangers like furniture. Gift Shoko said he is the one
who linked first respondent to deceased in 2011 after the burglary at deceased
house. Gift Shoko said he then met the deceased in August 2011 and deceased
wanted to borrow US 5000-00 in order to go to Israel and wanted Gift Shoko to
assist him to get the loan from First Capital Plus. Gift Shoko said he was
asked to provide security but he asked deceased why he was not using title
deeds of the matrimonial house and deceased said he had used the title deeds to
apply for permanent residence in South Africa. At that time Gift Shoko said
deceased still exhibited signs of illness as he talked to himself making
meaningless gestures. Gift Shoko seems to not to have interacted with the
deceased thereafter until the deceased's demise.
Innocent Vusimizi Dube is nephew to the
deceased and had been staying with deceased's parents since birth in Chadcombe
Harare at No 20 Clovelly Road. He said deceased came to stay with them in
Chadcombe in 2009 after abandoning his matrimonial home and was unemployed.
Innocent Vusimuzi Dube (Innocent) said deceased had been mentally ill since
2006. He said when deceased came to stay with them in 2009 he observed that he
was still afflicted with the mental problem as deceased could not sustain a
coherent conversation, would talk to himself, cry for no apparent reason
and refuse any medication.
Alfred Muungani (Alfred) is a cousin to
deceased and is a Financial Consultant with Genious Advisory Services. He
regarded deceased not only as a friend but a mentor in their profession. He
said he met deceased in November 2011 and realised that deceased was mentally
ill as he talked to himself and made nonsensical gestures. In January 2012
Alfred said he took deceased to First Capital Plus several times where deceased
wanted a loan of US$5000-00 to travel to Israel and wanted Alfred to offer
himself a surety. Alfred said one Mr Munyeza of First Capital Plus refused to
loan money to deceased saying deceased was mentally ill and unstable. Alfred
believed deceased had no mental capacity to execute agreements on account of
mental illness.
It is the applicant's case that the
deceased suffered from mental illness from 2006 to the time of his death that
is on 3 July 2012. It is on this basis that applicant seeks to have the
agreement of sale entered into between the deceased and first respondent to be
declared null and void and set aside due to lack of compos mentis on
the part of the deceased on the time of the transaction.
The first respondent has vehemently
disputed that the deceased suffered from the mental illness at the time they
entered into an agreement of sale. In his opposing affidavit he stated that he
cannot admit or deny the deceased's mental state alluded to in 2006 as no
psychiatrist report has been provided. The first respondent said he met the
deceased after the burglary at the property Stand No 106 Quinnington Township
of Subdivision 11 of Borrowdale Estate also known as No 11 Scanlen Drive Quinnington,
Harare (hereinafter the property) and denied that he was linked to deceased by
Gift Shoko.
The first respondent said when deceased
came to the Police Station in connection with the burglary at the property
deceased was normal in 2010 and gave a very comprehensive statement to the
police about the burglary. He said it was after this interaction that deceased
asked him to be a tenant at the property. He said deceased drafted a lease
agreement (see pp 86 of the record) which is an agreement of tenancy between
the deceased and first respondent signed by the parties on 30 October 2010. The
first respondent was to occupy the property on 1 January 2011 and would be
responsible for all outstanding maintenance and utility bills which were in
arrears and was not paying rentals. The first respondent said that agreement
was drawn by the deceased and none of the persons who provided supporting
affidavits like Gift Shoko and Innocent who were aware that the first
respondent was staying in the house never raised any issue, more so of
deceased's alleged mental illness. The first respondent said when he entered
into the agreement of sale of the property with the deceased on 20 May 2011
deceased did not exhibit any signs of mental illness. Infact the first
respondent said throughout all his dealings with the deceased he never noticed
that the deceased was mentally ill. He chronicled his dealings with the
deceased.
The first respondent said the agreement of
sale was done by a legal practitioner appointed by the deceased Mr Chinyama who
has confirmed that in his supporting affidavit. He said one Itayi Munyeza was
also involved and both deny that deceased was mentally ill.
The first respondent said the deceased and
his parents visited him at the property when he had already bought the property
in the company of Peter Gumundani. The first respondent puts into issue the
version by Peter Gumundani that first respondent in December 2011 or January
2012 denied when asked that he had bought the property and that he was just
living rent free clearing accumulated utility bills which were to be cleared by
May 2012 after which issue of rentals would be discussed. (See para 15 of Peter
Gumundani's affidavit). In fact Peter Gumundani's version is that first
respondent, during that visit was advised that deceased was mentally ill and
could not sell him the house and that first respondent simply said deceased had
told him to lie to deceased's relatives that he had bought the house. The first
respondent's version is that the deceased was also present during the visit and
that deceased told all present, that is, his parents and Peter Gumundani that
he had sold the property to the first respondent and showed them the agreement
of sale. The first respondent said no one protested and no issue of deceased's
mental illness arose nor was it ever raised. The first respondent said the only
person who protested was deceased's father who said the property was his and
that deceased should not have sold it. This was to no avail as the property was
in deceased's name. There is therefore a material dispute of fact on what
transpired on this day. No affidavits were recorded from the deceased's parents
who were present that day hence is just Peter Gumundani's word against the
first respondent.
The first respondent said that when he was
advised of the death of the deceased he had long bought the property and
effected transfer. He denied that there was any discussion about his status at
the property at that stage. The first respondent therefore puts into issue
the deceased's state of mind during the transaction and insists that deceased
was mentally sound at the material times he interacted with him.
In relation to the allegation of fraud, the applicant in her founding affidavit
raised a number of irregularities she said the unearthed which confirm that the
first respondent committed fraud.
The deceased died on 3 July 2012 and the cause of the death is chronic kidney
failure. He died at Parirenyatwa Hospital. The applicant said it
was after deceased's death and burial that the first respondent was as
approached by Gift Shoko and one Mike Dube and asked to pay rentals and that
the first respondent then claimed for the first time that he had bought the
property and hold title to the property. As already said this is disputed
by the first respondent.
The applicant said this prompted her to carry out a deeds search and on 11 July
2012 she established that the transfer had not been done contrary to the first
respondent's assertions. She said the attempts to obtain the Agreement of
Sale were unsuccessful as Itayi Munyeza of First Capital Plus was
unco-operative. The applicant then requested the Registrar of Deeds to
place an XN caveat on the property but this was declined in the absence of a
court order. The applicant said First Capital Plus who were said to have
the title deeds remained uncooperative. The applicant said she suspected
that the deceased had borrowed money from First Capital Plus using title deeds
to the property as surety. The applicant said she only established later
that the first respondent had hurriedly effected transfer on 18 July 2012 on
the basis of a court order in HC 6820/11 granted in default and deceased was
compelled to transfer the property to the first respondent on the basis of an
Agreement of Sale.
According to the applicant her investigations revealed a number of
irregularities which she outlined as follows:-
i)
that the Deputy Sheriff was granted the power of attorney to transfer the
property on 11 July 2012. Soon after the deceased's death on 3 July
2012. According to the applicant this was irregular and improper as no
curator or executor to the deceased's estate had been appointed.
ii)
that the first respondent only started to put into motion the fraudulent
process of transfer of the property after deceased's death.
iii)
that the court application HC 6820/11 to compel transfer was served at No 11
Scanlen Drive (the property) where the first respondent was now staying and not
the deceased who was now staying at No 20 Clovelly Road, Chadcombe, Harare and
had given that address as his domicilium as per the Agreement of
Sale. According to the applicant there was a deliberate ploy and misrepresentation
by the first respondent to serve the court application where the deceased was
not staying. Thus the first respondent served the court application on
himself.
iv)
that the return of service of the court application shows that the court
application had been served on the deceased's employee, one Nickson Chabvunda
when the truth is that the deceased never had such an employee who is
also not known to this applicant and deceased's relatives. According to
the applicant this employee is fictitious. This would mean that the court
order to compel transfer was fraudulently obtained without proper
service.
v)
that the court application was purportedly served on 14 July 2011 when it had
been issued in August 2011. Applicant queries how service could have been
effected before the process itself had been issued out.
vi)
that the forced transfer of the property was premised on an Agreement of Sale
which Agreement of Sale according to the applicant is invalid because deceased
had no mental capacity to enter into any agreement, a fact the applicant says
the first respondent was well aware of.
vii)
that the property was sold for a paltry US$50 000-00 when its current value as
per the Valuation Certificate Annexure 1 is US$230 000. According to the
applicant, this puts into issue the genuinesses of the sale of the property,
and deceased's mental state.
viii)
that it is not even clear if deceased was paid any purchase price as the acknowledgment
of receipt of money by the deceased from the first respondent is fraudulent
because it does not show when and how this purchase price was paid. The
applicant stated that she doubts that a mere constable in the police had the
wherewithal to even raise this US$50 000 in one month.
It is on the basis of the above alleged
irregularities that the applicant seeks to have the order in HC 6820/11 set
aside on the basis that it was fraudulently obtained. It is the
applicant's case that the court application was in fact never served on the
deceased and that the Agreement of Sale is invalid as deceased lacked mental
capacity to contract. It is on this basis that the applicant seeks an
order to set aside the transfer of the property to the first respondent on
account of the fact that it is based on an order obtained by fraud and was done
without the Master's consent. A declaration to the effect that an
Agreement of Sale is void on account of lack of mental capacity by the deceased
to enter into such an agreement is sought on the same basis.
The first respondent has not only disputed
deceased's alleged lack of mental capacity to contract but also disputed that
there was impropriety, let alone fraud in the transfer process of the
property. The first respondent also denied that the transfer of this
property was hurriedly done after deceased's death. Let me deal with the
first respondent's version of events on the irregularities raised by the
applicant:
i)
the first respondent disputes that there was any impropriety in effecting the
transfer of the property after the deceased's death. This is a legal
point which I shall later deal with conclusively.
ii)
the first respondent denies that the transfer process was hurriedly done after
deceased's death. The first respondent said when the deceased delayed to
facilitate transfer, probably in a bid to avoid paying capital gains tax as he
was a financial expert, he breached the Agreement of Sale. This prompted
the first respondent to make a court application in HC 6820/11 on 13 July 2011
to compel transfer which a court order was granted on 30 August 2011.
According to the first respondent, the deceased had signed an acknowledgement
of payment of the purchase price of US$50 000 on 22 June 2011. (See p 103
of the record). This acknowledgment of payment was signed by the first
respondent and the deceased. It is not clear if applicant puts deceased's
signature into issue on this document or simply relies on deceased's alleged
lack of mental capacity. The first respondent stated that the transfer of
the property is a process not an event and that it started in July 2011 almost
a year before deceased's death and that the rates clearance certificate (see
p108) was only obtained on 22 March 2012 and expired in May 2012.
iii)
The first respondent denied committing any fraudulent act preceding the court
application in HC 6820/11 as alleged. He said after executing the lease
agreement (see Agreement of Tenancy on p 86 of record) dated 30 December 2010
the deceased and the first respondent entered into an Agreement of Sale of the
same property on 20 May 2011 (see Memorandum of Agreement of Sale on pp 40 – 44
of the record). Both the Lease Agreement and Agreement of Sale bears
deceased's signature. The first respondent stated that the Agreement of
Sale was drafted by a legal practitioner Mr Chinyama chosen by the
deceased. This is confirmed by Mr Chinyama in his supporting
affidavit. The first respondent said that the full purchase price was
paid in terms of the Agreement of Sale and that the one Itayi Munyeza in his
supporting affidavit confirms this fact.
iv)
The first respondent admits that in terms of the Agreement of Sale the
deceased's domicilium was No 20 Clovelly Road Chadcombe, Harare and
that the court application was not served at that address but at the property
in issue. According to the first respondent the deceased was aware of the
court application as per the affidavit of one Webster Mandimutsa an employee in
the firm Chinyama and Associates who served the court application. In his
affidavit Webster Mandimutsa stated that on 14 July 2011 he was asked to serve
the court application on deceased at No. 20 Clovelly Road, Chadcombe. However,
before he did that he telephoned the deceased on his mobile number which he had
to confirm his whereabouts. He said the deceased advised him to proceed
to No 11 Scanlen Drive Quinnington, Borrowdale, Harare (the property) and serve
the caretaker, one Nickson Chibvonda, which he did. On the allegation by
the applicant that Nickson Chibvonda may be fictitious as deceased had no such
employee, the first respondent attached a supporting affidavit from Nickson
Chibvonda who stated that he was employed by deceased at the property at the
end of 2010 after the property had been broken into as a caretaker and that he
would receive deceased's correspondence. He confirmed that on 14 July
2014 he was served with a court application in HC 6820/11 which deceased received
after two weeks.
Mr Chinyama
in his affidavit said after the court application in HC 6820/11 was issued out
on 13 July 2011, served on 4 July 2011 and order granted on 31 August 2011 he
later served the deceased with the court order well before the transfer of the
property.
v)
The first respondent correctly refuted the allegation that the court
application was issued in August 2011 and purportedly served on 14 July 2011.
I invited both counsel for the applicant and the first respondent to inspect
original record in HC 6820/11 and they both confirmed that the court
application was issued on 13 July 2011. Applicant's allegation in this
regard lacks merit and is false.
vi)
The first respondent disputed that the Agreement of Sale is void ab initio as
he puts into issue the deceased's alleged mental status at the time of signing
this agreement. The first respondent attached supporting affidavits from
a legal practitioner Charles Chinyama and Itayi Munyeza who
all disputed that the deceased was not mentally stable at the time the
Agreement of Sale was signed.
Charles
Chinyamawho claims not to have personal interest
in the matter said that he prepared the Agreement of Sale of the property on
the deceased's instructions and that the deceased did not exhibit any
abnormalities during the time he took instructions from him in May 2011 and
throughout the process of preparing the Agreement and the signing which all
happened in Mr Chinyama's offices. In fact Mr Chinyama said
prior to the signing of the Agreement of Sale he advised deceased to have the
bond against this property cancelled and that deceased did so on 30 May 2011 as
per consent no 1672/11. As per the letter dated 31 May 2011 this process
was done by Wintertons who then wrote to the deceased of the cancellation of
the bond and that deceased should collect the title deeds of the property from
Wintertons. As per that letter, the deceased did so on 22 June 2011
as he signed on the letter. The applicant has not commented on the
deceased's signature on this letter (see p 111 of the record). Mr Chinyama
said after deceased had been paid the purchase price he left for South Africa
without attending to the transfer of the property and that the first respondent
then approached Mr Chinyama who then started the transfer process in
HC 6820/11 culminating in the order granted by my late brother KARWI J dated 1
September 2011 (see p 55 of the record). Mr Chinyama said he
then served the deceased with the court order to compel transfer on 20
September 2011 at his offices. All in all Mr Chinyama said both
the deceased and the first respondent had the capacity to contract, and that
everything was done above board.
Itayi Munyeza
the Chief Executive Officer of Finance Pvt Ltd, a micro finance institution
stated in his affidavit that he interacted with the deceased in May 2011 when
the first respondent approached his company to borrow money to purchase the
property in issue from the deceased. He requested to see the deceased who
came in June 2011 with the first respondent. Itayi Munyeza said he
interviewed the deceased to establish if indeed the sale of the property to the
first respondent was genuine. He observed no irregular speech or
countenance on the part of deceased whom he said was very eloquent. Itayi
Munyeza said the deceased explained that the first respondent was his friend
who had done a lot for him and that if he fails to buy the property deceased
would rather donate it to church as he was not after making money from the property.
Itayi Munyeza said they caused a deed search of the property to be done and
advised deceased to have bond against the property cancelled. He
said deceased alleged he had received part payment of the purchase price.
Later, he said the deceased came to collect the balance and signed an
acknowledgment of receipt of payment in the presence of Itayi Munyeza. He
said at no stage did he notice that the deceased suffered from mental disorder
and that as a professional financial institution he ensured everything was
above board.
It is clear
that both Mr Chinyama and Itayi Munyeza corroborate the first
respondent that deceased did not exhibit any signs of mental illness at the
time of executing the Agreement of Sale and other processes ancillary
thereto.
vii)
The first respondent admits that he bought the property for US$50 000 and
insists that deceased was paid the money, a fact supported by Itayi
Munyeza. The first respondent said the price of US$50 000 is what
deceased asked for as deceased was very grateful for the help the first
respondent had rendered to him when all deceased's close relatives had
abandoned him. In fact the first respondent said deceased threatened to
donate this property to the church if the first respondent failed to buy
it. This is confirmed by Itayi Munyeza. The first respondent said
the impression he got was that the deceased was abandoned by all those close to
him and did not want anyone else besides the first respondent to benefit from
the property. There is therefore a dispute as to the fairness or
otherwise of the purchase price of the property and the circumstances
surrounding the agreement on the figure of US$50 000. There is also a
dispute as to whether this purchase price was paid and if so how it was paid.
The first
respondent submitted that the fact that applicant and the deceased's relatives
took no action from 2006 to have the deceased mentally treated or to protect
his estate shows that the deceased was not mentally ill. The first
respondent said during his stay at the property from January 2011 until after
deceased's death in July 2012 the applicant never visited the property to check
on its state or the furniture they allege the deceased had abandoned in
2009. He said such conduct by applicant is strange and not explained,
more so as applicant alleged deceased was mentally ill and had abandoned the
matrimonial home. The first respondent said deceased's cause of death was
kidney failure and that there is no medical evidence on his mental state either
that the time of signing of Agreement of Sale or of death. The first
respondent said he borrowed US$80 000 from More Finance (Pvt) Ltd using the
property in issue as security. He offers no further explanation how he managed
to do that.
At the
commencement of the hearing, Mr Shava for the first respondent
withdrew one of the two points in limine he had raised. I
dismissed the remaining point in limine after hearing arguments by
both counsel for lack of merit. Mr Shava for the first
respondent had taken the point that this application should be dismissed as if
it was made out of time and that no explanation for the delay has been given by
the applicant. There is no merit in this argument as this application is
not being brought in terms of r 63(1) of the High Court Rules 1971(the Rules)
which gives time limit in which to apply for rescission of a judgement granted
in default. This application is being made in terms of r 449 (1) (a) of
the rules which relates to setting aside or rescinding a judgment or order
given in error. There is no time limit prescribed in respect of this
Rule. The applicant also seeks the setting aside of that judgment on the
basis of common law ground of fraud. The applicant said she became aware
of the judgment on 10 July 2012, hence the cause of action cannot be said to
have prescribed. It is on this basis that I dismissed the points in
limine.
I now turn to the merits of this
application.
There are certain factual and legal issues raised by the applicant which are
incorrect. I intend to dispose of these first.
It is incorrect as the applicant alleges that the court application in HC
6820/11 was purportedly served before it had been issued. The record of
proceedings in HC 6820/11 shows that the court application was issued on 13
July 2011 and served on 14 July 2011.
It is therefore incorrect to allege that
it was issued in August 2011.
The legal point taken by the applicant is
that the transfer of the property was done after the death of the deceased and
that this was in violation of the Administration of Estates Act [Cap 6:01]
as no curator or executor had been appointed and that the Master had not
consented to the transfer. The deceased died on 3 July 2012 and the
property was transferred on 18 July 2012, which is after deceased's
death. It is the applicant's case that the transfer of this property is
invalid on the basis that it was done without complying with the provisions of
the Administration of Estates Act [Cap 6:01]. This issue in my
view can be resolved by the interpretation accorded to s 44 of the
Administration of Estates Act [Cap 6:01]. The Master's report
(see p 132 of the record) also relies on this provision.
The question which arises is whether the death of the deceased stopped the
execution of this judgement granted in favour of the first respondent before
deceased's death. The answer is in the negative. In the case of Margaret
Malawusi v SladenMarufu&5 Ors SC 1/03 SANDURA JA at pp 8-9 of
the cyclostyled judgment had this to say in dealing with the same question.
“In my view, the section is clear and
unambiguous. Subsection (1), in relevant part reads:
'No person who has obtained the judgment
of any court against a deceased person in his life time may sue out or
obtain any process in execution of any such judgment –' ” (emphasis
added)
Clearly, what is prohibited is suing out
or obtaining a writ of execution after the death of the judgment debtor.
Subsection (2) in relevant part reads:
“No person
shall sue out and obtain any process in execution of any such judgment ……………..
without first obtaining an order from the court or some judge thereof for
the issue of such process. (emphasis added)
Again subs (2)
makes it clear beyond doubt that what is affected is suing out and obtaining
any process in execution of judgment after the judgment debtor's death.
In other words what is affected is applying for and obtaining the writ of
execution after the debtor's death.
Neither subs
(1) nor subs (2) affects the continuation of the process of execution where the
writ was issued before the debtor's death as was the position in the present
case.”
In casu, the order to compel transfer was granted on 30 August 2011
well before deceased's death on 3 July 2012. I do not believe that the
deceased's death would have affected the process of execution where the order
to compel transfer had been issued before deceased's death. I find no
merit in this point relied upon by the applicant to have the transfer of this
property declared invalid.
The applicant seeks the setting aside or rescission of the court order in HC
6820/11 on the basis of r 449 (1) (a) of the Rules that it was erroneously
granted in the absence of the deceased as the first respondent is alleged to
have fraudulently engineered the non- service of the application. The
error referred to by this applicant is fraud. The applicant further seeks
the setting aside of the Agreement of Sale of the property on the basis of lack
of compos mentis on the part of the deceased at the time of the
transaction.
In terms of R 449 (1) (a) of the rules a party affected by the judgment or
order that was erroneously granted in his or her absence is allowed to apply
for the rescission of that judgment or order. See Matambanadzo v
Goven 2004 (1) ZLR 399 (S) at 403F – 404A-E.
I am satisfied on the facts of this case that the applicant has the locus
standi injudicio to institute these proceedings as she has an
interest in the subject matter of the judgment in issue. The applicant is
the surviving widow of the deceased and now the sole guardian and custodian of
the minor child. The applicant therefore, has a direct and substantial
interest in the property in question which was the matrimonial home. See Matambanadzo
v Goven (supra) at 404D.
It is an established principle of law that a judgment or order obtained by
fraud will not be allowed to stand. The celebrated authors Herbstein
& Van Winsen The Civil Practice Of High Courts and Supreme Court of Appeal
of South Africa 5thed at pp 939-940 discuss this established
principle and state inter alia ………………….
“A judgment
procured by fraud of one of the parties whether by forgery, perjury or in any
other way such as fraudulent withholding of documents cannot be allowed to
stand………………. It must however, be shown that the successful litigant was a
party to the fraud or perjury on the grounds of which it is sought to set aside
the judgment. Furthermore, there must be proof that the party seeking
rescission was unaware of the fraud until after judgment was delivered
……………….. The person seeking relief must be able to show that because of
fraud of the other party, the court was mislead into pronouncing a judgment
which, but for the fraud it would not have done.”
In the case of Mutare City Council v Mawoyo 1995 (1) ZLR 258
(H) MALABA J (as he then was) at 264A stated as follows:
“The general
rule is that once a final judgment or order has been given, the judge who gave
it or any other judge of parallel jurisdiction has no power to alter, rescind,
vary or set it aside excepting few instances recognised at common law or by
rules of the High Court.
One of the
exceptions recognised at common law is when a judgment has been obtained through
fraudulent misrepresentation. The statutory exception would in our case
include Order 49 r 449 (1) and Order 9 r 63 (1) of the Rules of the High Court
of Zimbabwe.”
See also Bopoto v Chikumbu & Ors 1997 (1) ZLR 1
(H).
The esteemed authors Hebstein & Van Winsen (supra) at 940-941 cite
the case of Swart v Wessels 1924 OPD 187 at pp 789-90 which
explains the nature of the onus the applicant has to discharge in seeking the
setting aside of a judgment procured through fraud. A party seeking
such a relief on the grounds of fraudulent evidence must prove the
following;
“(1) that the evidence was
incorrect.
(2)
that it was made fraudulently and with intend to mislead, and
(3)
that it diverged to such an extent from the true facts that the court would, if
the true facts had been proved before it, have given a judgment other than what
it was induced by the incorrect evidence to give."
The position of the law and what the
applicant has to prove in order to have the judgment granted in HC 6820/11 set
aside on the basis of fraud is therefore clear.
The applicant also seeks to have the
Agreement of Sale set aside on the basis of the deceased lack of mental
capacity to contract. The issue which arises is whether the deceased was
capable at the material time of managing his affairs and enter into such
contracts like the Agreement of Sale of the property. In other words was
deceased of such sound mind to appreciate and understand the contractual
obligation. In the case of Executive Hotel (Pvt) Ltd v Bennet
NO 2007 (1) ZLR 343 (S) CHIDYAUSIKU CJ stated that the question of whether
the deceased had the requisite mental capacity at the time of signing the
Agreement of Sale is a question of fact to be decided by the court. The
learned Chief Justice went further to state that it is not always necessary to
call for oral evidence where the relevant doctor's evidence would be tested by
cross examination. In other words where the doctor's evidence in relation
to deceased mental state remains uncontroverted (by other expert evidence) or
its veracity is not put in doubt the court should be able to take a robust
approach and make a proper finding of fact in that regard. The court
should however, be guarded against the risk of doing an injustice to the other
party.
The question one should answer in relation
to deceased's mental state at the material time is whether there is a material
dispute of fact in that regard which cannot be resolved on the papers
even after taking a robust approach. The same applies to the question of
whether the element of fraud has been proved.
The sum total of the applicant's argument
on the issues in dispute is that I should adopt the approach enanciated in Fibreglass
(Pvt) Ltd v Peech 1987 (2) ZLR 388 at p 339 where it was stated
that;
“It is, I
think, well established that in motion proceedings a court should endeavour to
resolve the dispute raised in affidavits without the hearing of evidence.
It must take a robust and common sense approach and not an over fastidious one,
always provided that it is convinced that there is no real possibility of any
resolution doing an injustice to the other party concerned.”
I am satisfied that there are real and material disputes of facts in this
matter both in relation to the allegation of fraud and deceased's alleged
mental state which cannot be resolved on the papers filed. I have already
summarised in much detail the contrasting versions of the applicant and the
first respondent on the contentious issues. I shall therefore simply
highlight the difficulty the court has faced in resolving these disputes.
(a)
Whether proper service was affected in HC 6820/11:
While it is
accepted that service was not effected at the domicillium in terms of
the Agreement of Sale the question which arises is whether the first
respondent acted fraudulently or proper service on the instructions of deceased
was effected. The applicant's case is that there was no basis to serve
the court application at an address deceased was not residing which is a place
the first respondent was staying except to ensure that deceased would not
receive the court application and to fraudulently obtain a default
judgment. The first respondent has given an explanation as to why service
was not done at the domicillium and insisted that proper service was
therefore effected and that deceased was aware of the court process. The
affidavit of Webster Mandimutsa cannot be simply dismissed as false without
showing why it is false. I am unable to agree on the basis of applicant's
assertion that Nickson Chibvonda who deposed to an affidavit is a fictitious
person and that he does not exist. I am also not able to disregard Mr Chinyama's
evidence that he served the court order on the deceased. In my view both
versions by the applicant and the respondent remain probable. In other
words there are legitimate concerns raised in relation to the propriety of the
service of the court application and there is a prima facie plausable
explanation tendered by the first respondent. The dispute cannot be
resolved on the papers filed of record.
(b)
The allegation that the transfer was improper:
The applicant
has put into issue the Agreement of Sale and the manner the first respondent
allegedly hurriedly effected transfer of the property few days after deceased's
death. The applicant has also raised doubt as to whether the deceased
received any purchase price in view of the inconsistencies between Itayi
Munyeza, the first respondent and Mr Chinyama on when and how the purchase
price was paid. The applicant has, with good cause, questioned the role
of Mr Chinyama and his legal firm in this matter. Mr Chinyama
acted for the deceased as he said but thereafter acted for the first respondent
virtually in the same transaction. There is apparent conflict of interest
and it is his firm which also effected the disputed service of the court
application and also effected transfer of the property after obtaining the
order in HC 6820/11. The applicant raises several allegations against Mr Chinyama,
a senior legal practitioner and officer of this court. On the other hand
Mr Chinyama has given his own version of events insisting that his
conduct was above board and that due process was followed. Relevant
documents like the lease agreement, agreement of sale, cancellation of bond,
acknowledgment of payment and the court order completion transfer were
provided. It would not be possible to resolve this factual dispute I have
alluded to and the propriety or otherwise of the roles played by Mr Chinyama
and Itayi Munyeza in this matter.
(c)
Deceased's alleged mental capacity:-
Applicant has
raised genuine concerns about deceased's alleged mental illness. On the
other hand the first respondent has denied all these allegations and gave his
own version. Let me just highlight some of these disputed facts.
(a)
it is not in dispute that in 2006 as per applicant and doctor Chimedza's
evidence deceased suffered from some mental illness diagnosed as mamic
depression disorder. I do not believe that applicant fabricates the story
of deceased derobing in public and all other observations corroborated by other
witnesses who filed supporting affidavits. It is also correct that doctor
Chimedza is not a psychiatrist and most importantly the bulk of his evidence
relates to 2006 some five years before the signing of the Agreement of Sale in
May 2011. Applicant's evidence is that she last interacted with deceased in
2009. It is also applicant's case that at times deceased had lucid moments.
Without giving further details applicant has not placed before the court clear
and relevant evidence about deceased's state of mind during the relevant period
in 2011. One would have thought that the evidence of the deceased's
parents who stayed with him from 2010 until his death in 2012 would be
relevant. On the other hand the first respondent, Mr Chinyama
and Itayi Munyeza has disputed deceased's state of mind. While one may be
tempted to dismiss their evidence on account of the fact of them not being medical
experts they gave detailed evidence of their interaction with the deceased and
why they came to the conclusion that deceased was of sound mind. Such evidence
can only be properly interrogated in cross examination.
(b)
the fact that deceased just abandoned the property with all movable property
inside maybe indicative of his mental state. However, the question
remains why applicant also abandoned the same property and why deceased's
relatives failed to take action to protect the property if at all deceased was
mentally ill.
(c)
the sale of the property probably valued at USD230 000 for a
paltry USD50 000 maybe indicative of
an unstable mind as the deceased would not have failed to appropriate the
value of the property he acquired being an astute economist himself. On
the other hand the first respondent and Itayi Munyeza explained the possible
reason why deceased accepted USD50 000. It may be true that deceased felt
betrayed by those close to him when his fortunes waned and was abandoned.
It may be true that the first respondent is a cunning and calculating policeman
who took advantage of his role in investigating the burglary and subsequently
took advantage of the deceased's mental state to dispossess him of his property
through a well crafted and elaborate process. It is equally true that the
first respondent can be the biblical good Samaritan who helped deceased in time
of need and was genuinely rewarded by the grateful deceased after which he
followed all due process to take possession of the property.
(d)
the deceased maybe deemed to have been non-compos mentis on account of
a number of factors stated like abandoning the property, failure to pay utility
bills, undressing in public, inability to hold meaningful conversion, refusing
medication, staying in the streets, accusing wife of witchcraft, talking to
himself, preaching and reading bible incessantly, failure to pay for services
rendered and crying for no reason. All these factors taken cumulatively
may show that deceased was non- compos mentis at the relevant time on
20 May 2011 when the agreement of sale was signed which would render it null
and void and the transfer of the property a nullity. On the other hand
there is evidence that deceased exhibited lucid moments like signing all
relevant documents produced. His signature has not been put in
issue. He approached Wintertons to cancel the bond and went to the law
firm to collect his title deeds which he signed for. His interaction with Mr Chinyama
and Itayi Munyeza are of a person who was in his sound and sober senses.
I am therefore
satisfied that there are material disputes of facts in this matter which cannot
be resolved on the papers filed. In the exercise of my discretion I have
two options, which is to dismiss the application, see Masukusa v
National Foods Ltd &Anor 1983 (1)ZLR 232 at 234D – F, Mashingaidze
v Mashingaidze 1995 (1) ZLR 219 (H) or to refer this matter to trial.
I have opted
for the latter option because I am of the view that the interests of justice
are better served if this matter is referred to trial. The matter
involves the property in which the applicant and a minor child have an
interest. There are serious questions which arise in this matter which
can only be answered after the trial process. At this stage it is unfair
and unjust to dismiss the matter as there is a possibility that first
respondent may have acted improperly. A proper ventilation of all the
issues through a trial process would resolve these material disputes of facts
and put the matter to rest in a fair and just manner.
Accordingly, it
is ordered that:
1.
The matter be and is hereby referred to trial.
2.
The court application shall stand as the summons and the notice of opposition
as the appearance to defend.
3.
The applicant be and is hereby ordered to file the declaration within 10 days
of this order and thereafter the matter shall proceed in terms of the rules of
this court.
4.
Costs shall be in the cause.
Honey & Blackenburg, applicant's legal practitioners
Mbidzo,
Muchadehama & Makoni, 1st respondent's legal
practitioners
