Application
for joinder
CHITAKUNYE
J:
The
applicant is married to second respondent in terms of the Marriages
Act [Cap 5:11]. Their marriage is apparently on the rocks. The first
respondent was married to the late Tongai Katsande who was second
respondent's brother. The third respondent is cited in his official
capacity as the property involved is registered in the name of the
late Tongai Katsande.
In
the year 2010, the second respondent issued summons for a decree of
divorce and other ancillary relief against the applicant in case
number HC2340/10. In the declaration he listed Stand 14478, Zengeza
3, Chitungwiza as part of the parties' matrimonial property
acquired during the subsistence of the marriage and thus subject to
distribution in terms of the Matrimonial Causes Act [Cap 5:13].
Later
on, the second respondent sought to exclude that particular property
contending that it was not matrimonial property but belonged to his
late brother Tongai Katsande's estate.
In
the meantime, the applicant, in response to the summons, had made a
counter claim in which she also included Stand 14478 Zengeza 3,
Chitungwiza as part of the matrimonial property. Despite the second
applicant's effort to exclude the property the applicant has
insisted that it is matrimonial property.
It
was when faced with the above that applicant approached this court
seeking to join first respondent in her capacity as Executrix Dative
to Estate late Tongai Katsande and the Master of the High Court in
his capacity as the officer charged with overseeing the
administration of deceased estates.
The
first respondent opposed the application.
In
her opposition, the first respondent contended that the main matter,
HC2340/10, has nothing to do with her and her late husband. She
further contended that the property in question is registered in her
late husband's name and so should not be dragged into the divorce
action between the applicant and second respondent.
Rule
87(2) of the High Court Rules, 1971 states that:-
“At
any stage of the proceedings in any cause or matter the court may on
such terms as it thinks just and either of its own motion or on
application -
(a)……………………….
(b)
order any person who ought to have been joined as a party or whose
presence before the court is necessary to ensure that all matters in
dispute in the cause or matter may be effectually and completely
determined and adjudicated upon, to be added as a party;”
In
Macey's Supermarket and Bottle Store (Greencroft) (Pvt) Ltd v
Edwards 1964 RLR 13 (SR) HATHORN J held that:
“Any
party who has a direct and substantial interest in proceedings must
be joined.”
In
Marais & Another v Pongola Sugar Milling Co. & Ors 1961 (2)
SA 698 (N), a two-tier approach was formulated in the determination
of a joinder as follows:-
“(1)
that a party must have a direct and substantial interest in the
issues raised in the proceedings before the court; and that
(2)
his rights may be affected by the judgement of the court.”
The
issue sought to be determined is whether Stand 14478 Zengeza 3,
Chitungwiza should be distributed as the applicant's and the second
respondent's joint matrimonial property upon dissolution of their
marriage, and, if so, in what ratio.
It
is common cause that the property in question is registered in the
name of the late Tongai Katsande.
In
the main case, HC2340/10, that property was referred to as the
parties' matrimonial property by both second respondent and
applicant. In another case, no.172/10, at Chitungwiza Magistrates'
Court second respondent sued Angeline Maturure for several sums of
money connected to the property in question which he claimed was his
house.
Indeed
one such claim reads:-
“Payment
of US150 per month rent for the defendant's occupation of
plaintiff's occupation of plaintiff's house being 14478 Zengeza
3, Chitungwiza from January 2010 to date of vacation.”
Such
assertions can only lend credence to applicant's argument that the
house is in fact matrimonial property. The issue as to whether that
property is matrimonial property is thus before these courts for
determination.
It
is clear that the first applicant has a direct and substantial
interest in that issue. His rights as the person in whose name the
property is registered and who also claims to be owner by virtue of
such registration may be affected by court's decision. It is only
proper and in the interest of justice that the first respondent be
joined.
The
first respondent's opposition was clearly ill-advised and
detrimental to the interests of the estate late Tongai Katsande.
The
contention that the applicant's claim is prescribed is a mere
clutch at a straw.
If
that property is found to be matrimonial property there is no way
prescription would come in.
The
third respondent did not oppose the application to be joined and so
will be so joined.
Accordingly
it is hereby ordered that:-
1.
The first and third respondents be and are hereby joined as second
and third defendants respectively in case number HC2340/10.
2.
The first and third respondents are hereby granted leave to enter
appearance to defend in HC2340/10 within 10 days from the date of
this judgment.
3.
Should they enter or fail to enter appearance to defend the matter is
to proceed in terms of the rules in respect of other pleadings.
4.
Costs shall follow costs in the main cause HC 2340/10.
Machinga
and Partners, applicant's legal practitioners
F.
M. Katsande & Partners, first respondent's legal practitioners
