MAKONESE
J: This
is an application for absolution from the instance.
The
first defendant contends that at the close of the plaintiff's case
the court should find that the first plaintiff has hopelessly failed
to place any evidence before the court upon which a reasonable court
may find for the first plaintiff.
A
joint pre-trial conference memorandum signed and filed by the parties
sets out the issues for determination as follows:
1.
whether or not house number 8566 Pumula East Township, Bulawayo,
registered in the names of the late Preece Nhliziyo should be
declared as being owned by the estate of the late Harold Nhliziyo.
2.
whether or not Thembelani Adrian Nhliziyo should be declared the only
beneficiary in the Estate of the Late Preece Nhliziyo and house
number 8566 Pumula East Township, Bulawayo, must be transferred into
his names.
3.
whether or not first plaintiff and all those claiming occupation
through her should vacate house number 8566 Pumula East Township,
Bulawayo, fourteen days after the order is served on her.
4
whether or not the first plaintiff should pay holdover damages
(rentals) in the sum of US$250.00 calculated from the date she issued
summons to date of her eviction.
The
first plaintiff avers in her declaration that she is the Executrix
Dative in the estate of the late Harold Nhliziyo in terms of Letters
of Administration dated 22 March 2011. The second plaintiff is the
estate of the late Harold Nhliziyo who died at Bulawayo on 17
December 2010.
The
first defendant is cited in her capacity as the guardian of
Thembelani Adrian Nhliziyo, a minor child and beneficiary in the
Estate of the third defendant.
The
first plaintiff further avers that the late Harold Nhliziyo was
married to three different women before his demise. His first
marriage ended in divorce and his second wife predeceased him.
At
the time of his death he was married to first plaintiff.
It
is not in dispute that on 14 February 1986 the late Harold Nhliziyo
purchased from the City of Bulawayo stand 8566 Pumula East, Bulawayo.
First plaintiff alleges in her declaration that after his divorce
with his first wife the late Harold Nhliziyo transferred stand 8566
Pumula East, Bulawayo into the names of his late son Preece Nhliziyo.
She
avers further that it was the intention of the former that upon his
death the property be inherited by Preece and his siblings. Preece
Nhliziyo died in 2004 before his father died and his estate was
registered in 2007.
It
is the first plaintiff's case that the late Harold Nhliziyo failed
to effect a change of ownership of the property back into his names
before he died.
First
plaintiff also contends that first defendant was once married to the
late Preece Nhliziyo before she abandoned him when he became
critically ill.
It
is the plaintiff's case that Preece was never ordinarily resident
at the property in dispute and that first defendant has no right to
the property.
At
the heart of the plaintiff's case was the assertion that the house
belongs to the estate of the late Harold Nhliziyo and not the estate
of the late Preece Nhliziyo.
The
property was “provisionally” registered in the name of Preece
Nhliziyo to prevent Harold Nhliziyo's first wife from laying a
claim in the property in divorce proceedings.
This
was the first plaintiff's position. She said her version was
largely based on what she was told by Harold Nhliziyo before he died.
The
first plaintiff gave evidence.
She
largely abandoned her case as set out in the declaration.
It
emerged from her evidence that it was not true that Harold Nhliziyo
had transferred stand 8566 Pumula East, Bulawayo into the names of
Preece Nhliziyo after his divorce with his first wife. The first
plaintiff admitted that that the property was transferred into
Preece's names before the divorce.
It
was also established that first plaintiff was only married to Harold
Nhliziyo in 2005.
She
had two children with the late Harold Nhliziyo, namely Ashley
Nhliziyo (born in 1998) and Andila Nhliziyo (born in 2002).
The
house in dispute was registered into the names of Preece Nhliziyo in
1993.
It
is therefore not possible for Harold Nhliziyo to have intended the
unborn children to benefit from the said property.
In
any event, when the house was transferred into the names of Preece
Nhliziyo, the late Harold Nhliziyo had not even met the first
plaintiff.
Her
claim that her late husband had told her that he was making provision
for children who were not born does not make sense and the plaintiff
failed to explain that discrepancy.
Under
re-examination by her legal practitioner she was asked to explain why
her husband transferred the house into the names of Preece. She said
her husband had told her that he had a problem pertaining to divorce.
When
first plaintiff led evidence she gave the impression that at the time
the property was transferred into Preece Nhliziyo's names, he was a
school going child who had no means of income. This was refuted by
first plaintiff's own witness, Mandleni Nhliziyo who testified that
at the maternal time Preece was already in his late twenties.
First
plaintiff's witnesses, Jack Nhliziyo and Mandleni Nhliziyo were
extremely unhelpful to the court.
Their
evidence was vague and of little assistance to the plaintiff's
case.
Jack
Nhliziyo stated that he was a brother to the late Harold Nhliziyo. He
informed the court that he was staying in Gwanda at the relevant
time. He would visit his brother in Bulawayo from time to time. He
said his brother told him certain things, but that sometimes he would
not. He testified that sometime in 1993 he approached the late Harold
Nhliziyo at Edgars, Bulawayo where he was employed. His late brother
confided that he had a problem with his wife. He indicated that he
would use his child Preece to protect his property from distribution
in a pending divorce.
Jack
Nhliziyo said he did not have any further information on the house in
dispute save for that discussion he had with his late brother.
The
second witness for the first plaintiff, was Mandleni Nhliziyo. The
witness told the court that he knew the property being 8566 Pumula
East, Bulawayo to belong to the late Harold Nhliziyo. He stated that
on a certain day he saw papers at the late Harold Nhliziyo's house
bearing the names Preece Nhliziyo. He said upon enquiry with the late
Harold Nhliziyo he was advised that the property had been transferred
into Preece Nhliziyo's names for the sole purpose of preventing the
first wife from claiming a share in the property.
The
witness could not explain why the late Harold Nhliziyo had not
re-transferred the property into his names after the divorce with his
first wife.
In
summary the first plaintiff's evidence was centred on what she said
she was told by the late Harold Nhliziyo.
Her
oral testimony is not consistent with the averments in her
declaration.
An
assessment of her evidence clearly shows that she hinged her claims
on what she says she was advised by Harold Nhliziyo.
There
is a reasonable possibility that she was misled by the late Harold
Nhliziyo.
There
would be no reason why Harold would have failed to regularise the
ownership of the house from 1993 up to 2011 when he met his death. He
had two children with the first plaintiff in 1998 and 2002 and he
would have had ample time to ensure that his two children with the
first plaintiff were adequately catered for upon his death.
I
must observe that first plaintiff did concede that she inherited a
rural home with a seven roomed house at Filabusi. Her late husband
also left behind eighteen head of cattle, a motor vehicle and some
household goods and effects at the said rural homestead.
It
is my view therefore, that on the evidence led and placed before the
court, at the close of the plaintiff's case, there is no evidence
upon which a reasonable court may find for the first plaintiff.
The
case of Savana
Maisiri and Shalati Maisiri
vs Abisha
Maisva and Norton Town Council
HH35/07, is relevant.
The
test to be applied in an application for absolution from the instance
was well set out in the case of Lourenco
v Raja
Dry Clerners and Steam Laundry (Pvt) Ltd
1984 (2) ZLR 151 and Munhuwa
v Mhukahuru
Bus Service (Pvt) Ltd
1994 (2) ZLR 382.
In
the case of Cathrine
Chiwawa
vs Apostolos
Mutzuris
HH7/09, the learned MAKARAU JP, stated at page 4 of the cyclostyled
judgment as follows:
“At
this stage I wish to point out that I agree with the observation by
Advocate Zhou that at this stage in the trial, I may not make
recourse to any findings I may have made on the credibility of the
plaintiff as a witness. I also cannot determine the application
for absolution on the basis of probabilities as I cannot justly
arrive at these without hearing the other side. I take the view that
the exercise I have to undertake at this stage is to simply but
critically analyze the evidence adduced by the plaintiff and
assess whether on the basis of such, without passing a judgment on
whether I believe it or not, I can make a reasonable mistake and pass
judgment in her favour.”
In
applying the above test there is no doubt in my mind that the first
plaintiff departed from the assertions in her declaration.
The
totality of her evidence is that she placed reliance on what he was
told by her late husband.
Even
assuming that what her late husband told was proved to be true there
would still be a gap in the evidence in that there is no explanation
given as to why the late Harold Nhliziyo did not transfer title in
the property back into his names following the divorce with his first
wife.
Before
marrying the first plaintiff, the late Harold Nhliziyo even married a
second wife who predeceased him.
If
the late Harold Nhliziyo intended to bequeath the rights, title and
interest in the property to his children with the first plaintiff he
had all the time to do so.
I
am not satisfied that the first plaintiff has established a prima
facie
case. The application for absolution from the instance has merit.
I
accordingly order as follows:
1.
First defendant is absolved from the instance.
2.
The first plaintiff shall bear the costs of suit.
Mcijo,
Dube and Partners,
plaintiff's legal practitioners
Dube-Tachiona
and Tsvangirai,
1st
defendant's legal practitioners
