MAKONESE J:
The Plaintiff in this matter initially instituted proceedings by way of a Court
application filed on the 11th July 2013. The Plaintiff sought
the following relief against the defendant:
“IT IS ORDERED THAT:
1. The Respondent and all those
claiming occupation of house number 20339
Pumula South, Bulawayo, vacate
the said house within 5 days of the granting of the order.
2.
Failing which the Deputy Sheriff and his lawful assistant are authorised to
evict the Respondent or anyone claiming through her from house 20339, Pumula
South, Bulawayo.”
The relief sought by the Plaintiff in the Court application was opposed and
after both parties had filed Heads of Argument it became apparent that the
dispute between the parties could not be resolved on the papers without leading
viva voce evidence. On the 21st June 2013 the court
issued the following order by consent:
“The matter be and is hereby
referred to trial. The papers filed of record shall stand as
pleadings. Costs shall be costs in the cause.”
The issues for determination in this trial are summarised in the Pre-Trial
Conference memorandum as follows:
1.
Whether or not Stand 20339 Pumula South, Bulawayo was transferred to the
Plaintiff after the death of her husband.
2. Whether
or not the defendant or her husband bought the property in question.
The burden of proof on the first issue lay with the Plaintiff whilst on the second
issue the defendant had the burden of proving that she or her late husband
purchased the property from the Plaintiff.
The background to this matter is as follows:-
The Plaintiff was married to the late Njani Majola who died on the 16th
July 1999. It is not in dispute that the Plaintiff and her late husband
acquired Stand 20339 from the City of Bulawayo as an undeveloped Stand on 26th
August 1997. The purchase price for the Stand was Z$6000-00. It is
further not disputed that the Plaintiff and her husband were required to erect
a residential property upon the vacant stand upon submission of approved
building plans to the City of Bulawayo's Housing office. The Plaintiff
registered the late Njani Majola's estate under DRB Number 633/10 and Letters
of Administration were duly issued in favour of the deceased's sister Getrude
Lusinga who was appointed Executrix Dative. The Plaintiff then proceeded
to execute a cession of the rights, title and interest in and to the property into
her names on the 4th of May 2011. Once the Plaintiff had
finalised the process of cession of the rights into her names she sought to
take occupation of the house that she had constructed on the stand in
dispute. The defendant resisted her efforts to evict her and instead
averred that the property belonged to her and her late husband. The
defendant contends that she was married to the late Njani Majola's brother, one
Ambrose Majola in 2003. Ambrose Majola fell ill and passed away in
2004. The Defendant contends that the house on the stand in dispute was
built by Ambrose Majola and herself after the Plaintiff had sold the stand to
Ambrose Majola for Z$20 000.00 because she had fallen in arrears in respect of
rates for the property. The Defendant vehemently denied that when she
married Ambrose Majola there was already a house on the stand and that she
simply moved into a dwelling house that was ready for occupation.
The Plaintiff Ellen Majola led evidence in support of her
claims. She denied ever selling stand 20339 Pumula South, Bulawayo to the
Defendant or to her husband. She explained that the Defendant's husband,
Ambrose Majola was like a son to her and her late husband. She testified
that after she had finished the construction of the house she asked Ambrose to
go and look after the property with her children who resided there. At
that stage Ambrose was not yet married to the Defendant. Her evidence was
that the Defendant only moved into the house around 2003 when the house had
already been erected. The late Ambrose Majola died a shortwhile
afterwards during the year 2004. The Plaintiff stated that after the
demise of her own husband she purchased building materials slowly through her
proceeds from farming and the sale of livestock. She refuted the
Defendant's assertions that the stand was almost re-possessed by the City
Council because she had failed to pay rates for the property.
The court found the evidence of Ellen Majola to be simple and
straightforward. She was candid with the court and she gave the
impression of an unsophisticated woman who simply narrated events that occurred
without any tinge of exaggeration. Her demeanour on the witness stand was
satisfactory and I find her evidence to be worthy of belief.
The second witness called by the Plaintiff is Getrude Lusinga.
She confirmed that she was a sister to both the late Njani Majola and Ambrose
Majola. She regarded both Plaintiff and Defendant as her
sisters-in-law. She testified that stand 20339 Pumula South, Bulawayo was
purchased by Njani Majola during his lifetime. She was emphatic that the
late Ambrose Majola never purchased the stand in question and never constructed
a house upon the stand. She stated that Ambrose was looked after by the
Plaintiff as “a son”. The witness went further to indicate that Ambrose
was only requested to move into a completed house. She asserted that
Ambrose did not have the financial ability to purchase the stand. He came
in and out of the country and spent most of his time in South Africa where he
did odd jobs. Getrude Lusinga indicated that the Defendant joined the
late Ambrose Majola when the house was already complete in 2003. Ambrose
died the following year in 2004. She went further to point out that she
assisted the Plaintiff to secure a builder and that the Defendant erected the
house using proceeds from her farming activities and sale of her cattle.
She flatly denied the suggestion that Ambrose Majola or the Defendant had
purchased the property from the Plaintiff. I found the evidence of this
witness to be credible and consistent with Plaintiff's evidence in material
respects. She gave her evidence well and was comfortable on the witness
stand. She indicated that she stood to gain nothing by giving evidence in
court but wanted to ensure that the facts were presented in their proper
context. She appeared to be genuinely shocked by the claims by the
Defendant that she was the rightful owner of the property.
In support of her case, the Defendant gave evidence. She said that
sometime in the year 2000, she together with her late husband purchased stand
20339 Pumula South from the Plaintiff after the death of Plaintiff's
husband. They proceeded to develop the stand. Plaintiff undertook
to transfer the property into Defendant's names after winding up her husband's
estate. Plaintiff failed to do so and instead instituted proceedings to
evict the Defendant from her lawfully acquired property. The Defendant
swore that she witnessed the Plaintiff being handed the sum of Z$20 000-00 by
the late Ambrose Majola. She stated that she was the only witness to the
transaction. The Defendant conceded that she moved in to cohabit with the late
Ambrose Majola sometime in 2003. Her husband died the following year in
2004. Defendant averred that the Plaintiff never come to the property and
resided in the rural areas. She however confirmed that when the Plaintiff
attempted to evict her from the premises, she resisted those attempts.
Defendant alleged that the late Ambrose Majola had at the time of his death
approached the City of Bulawayo to change the account name on the water and
rates bills. The Defendant's contention was that because the rates and
water bills were in the name of Ambrose Majola proved that he had acquired
ownership in the property. The Defendant further alleges that the
Plaintiff is taking advantage of the fact that the agreement of sale was verbal
and that the Defendant's husband is now late. I found the evidence of the
Defendant difficult to believe for the following reasons:
(a) Defendant
said she married and moved in to cohabit with the late Ambrose Majola in
2003.
(b)
The evidence of the Plaintiff and Getrude Lusinga clearly shows that the house
was constructed between the year 2000 and 2003.
(c)
The late Ambrose Majola was being looked after by the Plaintiff as “a son” and
could not have had the financial means to purchase the property.
(d) The alleged verbal
agreement had no witness except Defendant herself.
(e)
If the Defendant commenced co-habiting with the late Ambrose Majola in 2003 she
would not have been party to the construction of the property. The house
was erected when she moved in.
(f) The Defendant
failed to establish the basis of her entitlement to the property.
I concluded that the evidence of the Defendant was discredited under
cross-examination. Her narration of events was not convincing and she did
not impress as an honest witness. The version of the Plaintiff is more
credible than that of the Defendant. I make the specific finding that on
the evidence placed before the court, the Defendant could not have constructed
the house with her late husband because they only started co-habiting in 2003 when
the dwelling house was already complete. The Defendant moved into the
property in 2003, her husband fell ill and died in 2004. It is
inconceivable that the house would have been erected before the Defendant moved
in in 2003 in that her late husband was actually being looked after by the
Plaintiff and her husband. There was no evidence placed before the court
to show that Defendant had the financial means to pay for the property.
Analysis of the Law
The law is clear on the sale of immovable assets belonging
to a Deceased Estate. The Assistant Master should give his consent in
terms of section 120 of the Administration of Estates Act [Chapter 6:01].
The section provides as follows:
“If, after due inquiry, the
Master is of the opinion that it would be to the advantage of persons
interested the estate to sell any property belonging to such estate otherwise
than public auction he may, if the will of the deceased contains no provision
to the contrary, grant the necessary authority to the executor so to act.”
In the case of Kizito Mutsure v Ichabod Muringisi HB 20/09, the
learned NDOU J stated the position as follows:
“In terms of section 120 of the
Administration of Estates Act [Chapter 6:01], the approval of the Master of the
High Court is required for such agreement of sale of an immovable asset of the
estate. This is a condition precedent which suspended the operation of
all obligations flowing from the agreement until the approval of the
Master.”
In casu, the absence of the Master's authority is fatal to any
purported sale of the property which renders any agreement void ab initio.
The Defendant admitted under cross-examination that when the late Njani
Majola's estate was advertised calling upon debtors and creditors to submit
their claims she did nothing about it. The Defendant was
subsequently aware that the property was transferred into the names of the
Plaintiff and yet she chose to sit back and do nothing. It is self
evident that the Defendant only took action when she faced eviction from the
property.
In the circumstances I am satisfied that the Plaintiff has succeeded in proving
that the rights, title and interest to and stand 20339 Pumula South, Bulawayo
were transferred to the Plaintiff in accordance with the law after the death of
her husband. On the other hand, however, I find that the defendant
hopelessly failed to convince the court that her late husband or herself
purchased the property in question at any time.
In the result, I make the following order:-
1.
The Defendant and all those claiming occupation of house 20339 Pumula South,
Bulawayo be and hereby ordered to vacate the aid house within 5 days of the
granting of this order.
2.
In the event that the Defendant to comply with this order the Deputy Sheriff,
Bulawayo or his lawful deputy be and are hereby authorised to evict the
Defendant or anyone claiming ownership through her from house number 20339,
Pumula South, Bulawayo.
3. The
Defendant is ordered to pay the costs of suit.
Mlweli Ndlovu and Associates, applicant's legal practitioners
Messrs
Marondedze, Mukuku & partners, defendant's legal
practitioners
