The
second respondent raised a point in limine that, in
fact, the applicant should not have proceeded by way of application and that
the issues are obviously so contentious that only an action would resolve this
matter.
At
the close of arguments by both counsel, counsel for the applicant conceded that,
in fact, there are material disputes of fact in this matter and he submitted
that the court should not penalise the applicant for the approach she adopted
as she was under a lot of pressure since the second respondent was about to register
the estate of the late Sonto Dube and have herself appointed as executrix, yet
the will provided for an executor testamentary.
I
will therefore not dwell on the aspect of whether there is a material dispute
of fact or not as we are all in agreement that there is. What remains is
for the court to then assess whether this is one of the cases that should then
be referred to trial or be dismissed at this stage.
At
this juncture, I will refer to the case of Masukusa v National Foods Ltd and
Another 1983 ZLR (1)…, where McNALLY J…, stated thus:
“Where
the facts are in dispute, the court has a discretion as to whether to dismiss
the application or allow the matter to go to evidence. The first course is
appropriate where an applicant should, when launching his application, have
realised that a serious dispute of fact was inevitable.”
Refer
as well to the case of Jirira v Zimcourt Trustees Ltd
and Another HH98-10.
In
the case before me, the applicant filed this application seeking an order that
the Will of the late Sonto Dube be declared null and void. She states, in
paragraph 7 of her founding affidavit, that:-
“That
I would like to oppose and challenge the admission of the Will alleged to have
been made by Sonto Dube for a number of reasons. Inter alia, I do not
believe it was made by Sonto Dube, and even if it is proved to have been made
by him, I challenge the legal basis on which he could bequeath the property
that he purports to bequeath on the ground that he was not the owner of the
property.”
This
paragraph gives the very basis of this application.
The
applicant does not believe that the Will was made by the late Sonto Dube hence
her challenge to its validity. How will the applicant prove to the court, on
paper, her lack of belief? Evidence obviously is needed, factual averments
as to why there is this perception on the applicant's part that the Will was
not made by the late Sonto Dube.
Can
this aspect be resolved on paper? Certainly not.
It
should have been so obvious at the inception of this application that the applicant's
beliefs or otherwise regarding the validity of the late Sonto Dube's Will can
only be resolved through viva voce evidence
and in no other way.
Again,
the applicant states Sonto Dube (who according to her own affidavit is the registered
owner of the Stand in issue), is, in fact, not its true owner hence he could
not bequeath the property.
There
are serious factual issues here.
There
is need for oral evidence to be led on who, in fact, acquired this property;
ownership of this property, that is, and how the late Phineas Dube is the owner
of a property registered in Sonto Dube's name. Viva voce evidence has to be led to establish why the late
Phineas Dube acquired the immovable property in his father's (the late Sonto
Dube's) name.
This
is one case whose factual disputes are so glaringly obvious that the applicant
is expected to have foreseen the practical difficulty of presenting her case on
this platform.
I
am unable to exercise my discretion in the applicant's favour.
I
hold the same view as McNALLY J's views in Masukusa v National Foods Ltd and
Another 1983 ZLR (1). The applicant in this case should have
realised that her own allegations and beliefs on the validity or otherwise of
the late Sonto Dube's Will, were, in fact, allegations that by their very own
nature required viva voce evidence to be led to support and establish
same. The applicant accordingly approached this court on a wrong platform.
I
accordingly dismiss the application with costs.
