This
is one matter in which a litigant simply cannot accept an outcome
preferring to blindly fight all the way even when it is apparent that
she is headed nowhere as she is treading on moving sand and can only
suffer grief for all her efforts in trying to reverse the outcome of
the process of winding up her late daughter's estate; an estate
which was wound up in accordance with the law no matter the perceived
unfairness of the result.
Perhaps
the moment our people accepted that the institution of marriage
brings with it certain rights and corresponding obligations to both
the wife and the husband, the better for all of us.
The
applicant is the mother of the late Rebecca Marange who died on 20
February 1998 but not before she had acquired, in her own name, Stand
5594 Dangamvura Township of Stand 5625 Dangamvura Township, Mutare in
June 1984 and got married to the first respondent, Tafirenyika
Kapende in 1989. The marriage was blessed with two children before
Rebecca died on 20 February 1998 and was survived by the first
respondent and the two children.
The
applicant has approached this court seeking condonation for the late
noting of an appeal against a decision of the Magistrates Court
sitting at Mutare on 22 August 2009. The application comes aboard a
founding affidavit deposed to by the applicant which makes for
interesting reading. After the usual salutations, the applicant
states:-
“3.
Sometimes in August 2008, an order was granted by the magistrates
court ordering the eviction of people whom I had placed to reside at
No.1380 Area 3 Dangamvura, Mutare. The judgment was not available to
me immediately. Even though the judgment was handed down on 22 August
2008, I only became aware of it on the 27th
March 2009. It has always been my intention to appeal against the
decision of the magistrates court. I filed an appeal, albeit out of
time, under Case No CIV “A” 135/09. My appeal was struck off roll
because I did not formally apply for condonation. I now seek to
regularise matter by formally applying for condonation.
4.
I was not availed with the judgment on time. It has always been my
desire to appeal. As will more fully appear on the attached notice of
appeal, I have good prospects of success on appeal.
5.
My late daughter was employed by CABS. I was employed as a domestic
servant and naturally my daughter had a more appealing job and source
of income. I applied to Council (City of Mutare) to be allocated a
house. I did not qualify for a bigger house because of my status. I
convinced my daughter to have the house registered in her name. She
agreed and the house was allocated to her. I then paid the house
using my daughter's name. This explains why the house was
registered in my late daughter's name. This was in June 1984. In
1989 my daughter began staying with the 1st
respondent as son in law. He came for formalities to be introduced as
a future son-in-law but fell short of paying lobola. They were
blessed with two children. At the time that they began staying
together the house had long been acquired. They never stayed in the
house. My daughter passed away on 20 February 1998. She was still
staying (with) the 1st
respondent but not at the house in question. I had always been
regarded as their (sic) of the house even by my late daughter.
6.
A dispute arose between myself and the first respondent over the
house. It spilled into courts and at one time the first respondent
indicated that he was going to ensure that the house was for the
minor children of the late Rebecca. It seemed a viable option rather
than for him to inherit it. He had come into my daughter's life
when the house was already there. The first respondent has since
pretended to dispose of the house to second respondent. This is a
flagrant disregard of the promise he gave the court. He also disposed
of it, without the consent of the Master. His actions were
fraudulent. The first respondent has also argued that he inherited
the house in his own right. This is fallacious. The law does not
allow this. It was never the intention of the law for a spouse to
inherit what he found at the time of entering a marriage already in
the possession or ownership of the other spouse.
7.
It is clear that I have good prospects of success on appeal. The
decision of the magistrate is more than likely to be reversed. I
respectfully apply for condonation of the late of (sic) noting of
appeal. I also undertake to pay all the costs associated with the
appeal. I have since written the undertaking to the Clerk of Court.
8.
I accordingly pray for an order in terms of the draft.”
A
mixture of a palpable misunderstanding of the law of inheritance and
outright dishonesty as well as a determination to undermine the
institution of marriage. What the applicant has done is to put before
the court a Spanish omlete
which does not begin to shed light on the real issues to be
considered in an application for condonation. The founding affidavit
is legendary by its failure to explain why the applicant did not file
her appeal on time, why she took exactly five years to bring this
application, if we are to accept for a moment that she only became
aware of the judgment of the Magistrates Court in March 2009.
I
am aware that the issue of inheritance may be outside the scope of
the present inquiry, which is limited to considerations of the delay
in appealing and the merits of such application, regard being had to
the fact that what is sought to be appealed against is an order for
the eviction of the applicant and those claiming through her as
opposed to the respective rights of the parties to inherit Rebecca's
estate.
It
is not easy to ignore that the applicant lays claim to a property
acquired in 1984 which she did not bother to have transferred to her
name until Rebecca died 14 years later. At the time it was purchased
she was a mere domestic worker while Rebecca was a Bank employee who
would ordinarily easily afford to purchase a house. She did purchase
the house and had it registered in her name and not that of the
applicant.
If
Rebecca died in 1998 leaving behind two children, assuming she was
not married as the applicant has sought to imply, it is those
children who should inherit her estate and not her mother. This is
the same mother who tells us that she had struck a deal with the
first respondent to have the house inherited by Rebecca's children.
If it was hers, the applicant would certainly not have acceded to
inheritance of the house by her grandchildren. The more likely
explanation is that indeed the house belonged to Rebecca and all that
the applicant is unhappy with is having it inherited by her husband.
Coming
back to the issue at hand, the first respondent inherited the house
from his late wife in terms of the law and the estate was wound up
with the house being transferred to him. He sold it to the second
respondent who took transfer and now holds title by Deed of Transfer
No.985/10. The applicant does not care about all that and wants to be
given an opportunity, even at this late stage, to challenge her
eviction from the house to enable her to bring up her claim of
ownership of the house.
Significantly,
when the applicant purported to note an appeal against the decision
of the Magistrates Court, on 16 April 2009, she was aware that such
appeal was out of time. This is because she said so in her preamble
to the Notice of Appeal which reads:-
“Be
pleased to take notice that the appellant hereby notes and files her
appeal against the decision of the Magistrates Court which was handed
down at Mutare Magistrates Court on 22nd
August 2008 but was only availed to the appellant on 27th
March 2009. Take
further notice that the appellant shall apply for condonation of late
noting of the appeal.”…,.
We
know, of course, that the applicant did not apply for condonation,
electing, instead, to only appear before the Appeal Court on 4 June
2013 to move the appeal - an appeal which did not exist considering
that it had been filed out of time. The appeal was consequently
struck off the roll. The effect of that order, in terms of Practice
Direction 3/2013 is:-
“3.
The term shall be used to effectively dispose of matters which are
fatally defective and should not have been enrolled in that form in
the first place.
4.
In accordance with the decision in Matanhire
v BP & Shell Marketing Services (Pvt) Ltd
2004 (2) ZLR 147 (S) and S
v Ncube
1990 (2) ZLR 303 (S); if a court issues an order that a matter is
struck off the roll, the effect is that such a matter is no longer
before the court.
5.
Where a matter has been struck off the roll for failure by a party to
abide by the Rules of the Court, the party will have thirty (30) days
within which to rectify the defect, failing which the matter will be
deemed to have been abandoned.
Provided
that a Judge may, on application and for good cause shown, reinstate
the matter, on such terms as he deems fit.”
It
is important to note that the order of the Appeal Court was issued on
4 June 2013, in open court, with the applicant firmly represented by
counsel. It was not until 11 March 2014, more than nine months after
the appeal was struck off, that the applicant filed this application
for condonation - an application which does not explain her failure
to act from 22 August 2008, when the judgment sought to be appealed
against was made, right up to the time the appeal was thrown out on 4
June 2013. It is an application which is deafeningly silent on why
the applicant was unable to act for nine months after the appeal was
struck off. In fact, the appeal was considered abandoned at the
expiration of 30 days from 4 June 2013 because the applicant did
nothing about it.
An
application for condonation must be made as soon as a party requiring
it realises that he has not complied with the Rules. If such party
does not do so, he should give an acceptable explanation not only for
the delay in making the application for the rescission of judgment
but also for the delay in seeking condonation. Viking
Wood Work (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd
1998 (2) ZLR 249 (S)…,.
In
an application of this nature, the court has regard to certain broad
factors in deciding whether to condone or not. These are:-
(a)
That the delay was not inordinate, having regard to the circumstances
of the case;
(b)
That there is a reasonable explanation for the delay;
(c)
That there are prospects of success should the application be
granted; and
(d)
The possibility of prejudice on the other party should the
application be granted.
See
Director
of Civil Aviation v Hall
1990 (2) ZLR 354 (S)…,.; Forestry
Commission v Moyo
1997 (1) ZLR 254 (S)…,.; Ncube
v CBZ Bank Ltd & Ors
HB99-11; Munonyara
v CBZ Bank Ltd & Ors
HH91-15.
In
this case, the applicant has failed to satisfy even a single
requirement for condonation. She has not explained the inordinate
delay in seeking condonation. She has not shown any prospects of
success if the application were to be granted and has not said
anything about the interests of a third party that purchased the
house and took transfer. The closest she has come to referring to
that is when she stated, in her founding affidavit, that the first
respondent “pretended to dispose of the house to the second
respondent.” She did not elaborate.
I
am satisfied that the application is without merit whatsoever. It
should not have been made at all except that the applicant appears to
take the court for granted, that the court would indulge whatever the
circumstances. In fact, counsel for the applicant was reduced to
appealing to the court's sympathy asking that it be charitable
enough to allow the application, even when it has no merit, because
the applicant is an elderly woman. Unfortunately this is a court of
law and not equity. As ARISTOCLE put it:-
“The
umpire has regard to equity and the judge the law.”…,.
In
the result, the application is hereby dismissed with costs on the
legal practitioner and client scale.
