MAKONESE
J: The
plaintiff initiated proceedings by way of an Urgent Chamber
Application under case number HC1580/10 seeking an order interdicting
first and second defendants or any beneficiaries of second
defendant's Estate from disposing of the property known as Lot 1 A
of Gumtree held under Deed of Transfer number 1793/82 and Lot 3 of
Gumtree held under Deed of Transfer number 1326/82C (hereinafter
referred to as “the property”).
An
interim order was granted in this Honourable Court but its
confirmation was opposed by the defendants.
A
separate court Application was launched by the plaintiff under case
number HC1653/10 wherein she sought to be declared the sole surviving
spouse of the second defendant's estate.
That
court application was also opposed and eventually by court order
granted on 6 June 2012 it was ordered as follows:
“1.
The two applications pending before this Honourable court under cover
of case number HC1580/10 and HC1653/10 consolidated under cover of
case number HC150/11 be and are hereby converted into action
proceedings.
2.
The papers filed of record by the parties stand as pleadings in this
matter.
3.
The parties file their discovery affidavits, pre-trial conference
minutes and summaries of evidence within 7 days of this order.
4.
In the event of any party failing as directed in paragraph (3) above,
the party having complied be and is hereby granted leave to set the
matter down without giving notice, on the unopposed roll.
5.
Third respondent pay costs only if she opposed this application.”
The
parties consolidated the two applications in terms of the aforesaid
order and proceeded to set down the matter for trial. A joint
pre-trial conference memorandum of issues filed by the parties
reflects the issue for determination as follows:
1.
Whether or not plaintiff bought the immovable properties namely Lot
1A Gumtree held under Deed of Transfer number 1793/81 and Lot 3
Gumtree and is therefore entitled to them.
2.
Whether the third defendant is the surviving spouse and therefore the
lawful heir to the estate of the late Jubane James Jack.
It
was resolved and agreed at the pre-trial conference that the onus on
the first issue was on
the
plaintiff and the onus on the second issue was on the third
defendant.
Plaintiff's
Case
The
plaintiff gave evidence in support of her case. She testified that
she is ordinarily resident at 61 Queensbrooks, Slough in the United
Kingdom. She is a State Registered Nurse and also qualified as a
Mental Health Nurse.
She
was customarily married to the Late Jubane James Jack who died on 21
February 2006 in the United Kingdom.
Her
evidence was that the deceased and herself commenced living together
around December 1980 and formalized the union a year later in 1981
when her husband was customarily accepted as a son-in-law by her
family. At the same occasion she was accepted as a daughter in law by
members of the late Jubane James Jack's family.
The
plaintiff stated that at the time of their marriage the deceased was
working for National Railways of Zimbabwe and then based at Hwange.
The deceased disclosed to the plaintiff that he was once married to
the third defendant and that the marriage had broken down and he was
in the process of legally divorcing third defendant with whom he was
married in terms of the then Marriage Act, [Chapter
37].
She
was also informed that the third defendant had one child with the
deceased by the name Violet Jack.
At
the time plaintiff met the deceased the third defendant was not
living with him. They were on separation.
The
plaintiff stated that in or around 1981 she was looking for a
property to buy. She was advised that there was a plot for sale just
outside the city of Bulawayo. She said that she negotiated for the
purchase of the property, being Lot 1 A Gumtree and Lot 3 Gumtree,
situate in the District of Umguza.
The
property was registered in the names of the late Jubane James Jack
because she did not have a payslip and there was need to have a Bond
registered against the title deed for the payment of the balance.
She
paid an initial deposit of $3,000 and the balance was paid in monthly
instalments of $250. Payments were made at the offices of Messrs
Ben Baron and Partners.
She indicated that on certain occasions the late Jubane James Jack
would pay the instalments.
The
total purchase price for the property was $15,000.
The
second property being Lot 3 of Gumtree was sold for $10 000. A second
bond was registered over the property.
Plaintiff
testified that she received part of the deposit for the purchase of
the second property from a Mr Joshua Malinga.
After
the purchase of the two properties plaintiff said she left for the
United Kingdom in or around February 1999.
The
deceased and the plaintiff had three children, namely Neville
Thamsanqa Jack (born on 26 October 1981, Brian Bekithemba Jack (born
on 3 October 1985) and Denise Thembeka Jack (born on 18 January
1990).
The
deceased and the children relocated to the United Kingdom in December
1999 where they remained until the demise of the deceased in 2006.
It
was the plaintiff's evidence that problems started in June 2010
when she received a message on facebook from Violet Jack (her
husband's only child out of his marriage with third defendant),
advising her that she and her mother were going to be the
beneficiaries in the estate of the late Jubane James Jack.
In
July 2010 the plaintiff travelled to Zimbabwe to attend the funeral
of her sister, Faith Mazaiwana. Whilst at the funeral she was alerted
that the property at Gumtree had been put up for sale.
The
plaintiff filed an urgent Chamber Application for an order
interdicting the Executor of the Estate of late Jubane James Jack and
third defendant from disposing of the immovable properties being Lot
1A of Gumtree and Lot 3 of Gumtree, in the District of Umguza.
The
Registrar of Deeds and the Master of the High Court were cited in
those proceedings as nominal respondents.
Upon
the granting of the Provisional Order the confirmation of such order
was resisted by third defendant. A subsequent Court Application under
case number HC1653/10 was filed by the plaintiff.
Both
applications have now been consolidated.
The
plaintiff abandoned her claim that she be declared the sole surviving
spouse in the Estate Late Jubane James Jack when it became apparent
that third defendant was still legally married to deceased at the
time of his death.
In
summary the plaintiff avers that the property in dispute belongs to
her for these reasons:
(a)
She bought the property using her own funds. She saved the money
whilst she was working in the United Kingdom and she was responsible
for the repayments on the mortgage bonds.
(b)
The deceased did not contribute anything towards the purchase of
these properties.
(c)
The third defendant never set a foot on these properties and never
contributed towards their purchase, directly or indirectly.
(d)
The property never belonged to the Estate Late Jubane James Jack
inpsite of the property being registered in the names of the
deceased.
The
plaintiff's evidence is difficult to accept.
The
plaintiff was unable to adequately explain why the property was
registered in the names of Jubane James Jack and not in their joint
names if indeed they had acquired the property together.
It
is inconceivable that the deceased who was then employed by the
National Railways of Zimbabwe would have contributed nothing
whatsoever towards the purchase of the property.
At
the time plaintiff commenced living with the deceased she was well
aware third defendant was still legally married to him. She was aware
that divorce proceedings had not been instituted.
Plaintiff
would not have invested all her entire life savings in a property
registered in the names of a man married to another woman.
The
plaintiff claims that all her documents proving the purchase of the
property were lost or destroyed.
The
court must therefore, according to the plaintiff believe her version
of events on her mere say so.
Under
cross examination, when a direct question was put to her as to why
the property was registered in the names of the deceased, plaintiff's
response was that she was heavily pregnant at the time and she did
not possess a payslip.
She
could not say for certain who signed the agreement of sale. However,
she could not deny that the agreement of sale was signed by the
deceased who eventually had his names on the title deed.
Plaintiff
conceded that at the time of the death of the deceased the legal
owner of the property was reflected on the title deed as Jubane James
Jack, although she insisted that she was the financier.
It
is my view that the evidence of the plaintiff was not convincing.
She
did not strike as a credible witness. She failed to produce a single
document to prove that the funds used to pay for the property were
raised from her savings. Her initial attempt to claim to be the sole
surviving spouse of the late Jubane James Jack puts her in very bad
light.
There
can be no other conclusion except that her intention was to mislead
the court.
The
second and only witness for the plaintiff was Flora Dhliwayo a sister
to the plaintiff.
Her
evidence was largely unhelpful to the court. She repeated that the
plaintiff had through her own endeavours purchased the property in
dispute. She averred that she had gone to view the property with her
sister before its purchase. She however played no further part in the
transaction. She did not witness the signing of the agreement of sale
between the seller and the purchaser. She informed the court that the
reason the property was registered in the names of the deceased was
because the plaintiff was pregnant at the time and further plaintiff
was not employed at the time.
The
plaintiff's witness did not assist the plaintiff's case in any
meaningful way.
The
Defendant's Case
The
defendant gave evidence and did not call any witnesses in support of
her case. She testified that on 22 September 1972 she was married to
the late Jubane James Jack in terms of the Marriage Act [Chapter
37]
(as it was called then).
The
defendant said that when they were married they moved into a house
belonging to the National Railways in Thorngroove. Between 1974 and
1980 they were living at West Sommerton, Bulawyo. She stated that her
husband was posted to various places of work around the country and
outside Zimbabwe. The late Jubane James Jack fathered eight children
from different mothers. She had one child with the deceased, Violet
Jack (born in 1978).
Defendant's
evidence was essentially that the property in Gumtree were purchased
by the late Jubane James Jack.
He
raised the funds to acquire the property through a loan raised
through his employer. The balance was secured by a mortgage bond
registered over the property.
She
said by virtue of their marriage and as his legal wife she was a
beneficiary in the estate of her husband as a surviving spouse.
She
firmly advised the court that she was always aware of the illicit
relationship between her husband and the plaintiff.
Her
version was that the plaintiff stole her husband and persuaded him to
move over to the United Kingdom with him.
The
deceased never went through the divorce proceedings because he was
aware that they would have to share the property at Gumtree.
Defendant
further stated that when her late husband indicated that he wished to
divorce her he reminded him of their type of their marriage and that
they would have to sell the immovable property and share the
proceeds.
The
defendant informed the court that the deceased never commenced the
divorce proceedings until he met his death.
Defendant
said she registered the Estate of the late Jubane James Jack under
DRB773/06. A First and Final Liquidation and Distribution Account was
filed with the Master of the High Court as follows:
“FIRST
AND FINAL LIQUIDATION AND DISTRIBUTION ACCOUNT IN THE ESTATE OF THE
LATE JAMES JUBANE JACK WHO DIED AT JOHN RADCLIFFE, OXFORD RADCLIFFE
HOSPITAL, UNITED KINGDOM ON THE 21ST
FEBRUARY 2006
DRB
773/06
LIQUIDATION
ACCOUNT
ASSETS
$US
IMMOVABLE
PROPERTY
1.
Certain piece of land being lot 1A Gumtree Situate in the District of
Bulawayo measuring 2,7323
hectares $50,000-00
2.
Certain piece of land being Umguza 100 Acre Lot 3 situate in the
District of Bulawayo measuring 40,4684 hectares $25,000-00
MOVABLE
PROPERTY
1.
Household goods and effects $ 1,000-00
2.
Five (5) herd of cattle $ 500-00
3.
Grinding Mill $ 100-00
TOTAL
ASSETS $76,600-00
ADMINISTRATION
EXPENSES
12.
ADVERTISING DEBTORS AND CREDITORS
(a)
Chronicle: see attachment
(b)
Government: see attachment
ADVERTISING
THIS ACCOUNT
(a)
Chronicle $10.00
(b)
Government gazette $ 5.00
13.
MASTER'S
FEES
4%
on $76,600-00 $3,064.00
Edict
fees see attached statement
TOTAL
LIABILITIES $
6,372.80
Balance
to Distribution $70,227.20
$76,600-00
DISTRIBUTION
ACCOUNT
Balance
brought down to Distribution Account $70,227.20
Assets
awarded in terms of Deceased Succession Act [Chapter 6:02] Section 3A
TO
CLEMENTINE JACK
1.
1/9 share of certain piece of land being lot 1A Gumtree Situate in
the District of Bulawayo measuring 2,7323 hectares $5,555.56
2.
1/9 share of certain piece of land being Umguza 100 Acre Lot 3
situate in the District of Bulawayo measuring 40,4684 Hectares
$2,777.78
3.
Five (5) herd of cattle $ 55.56
4.
Grinding mill $ 11.11
TO
DANISO JACK
1.
1/9 share of certain piece of land being lot 1A Gumtree Situate in
the District of Bulawayo measuring 2,7323 hectares $5,555.56
2.
1/9 share of certain piece of land being Umguza 100 Acre Lot 3
situate in the District of Bulawayo measuring 40,4684 Hectares
$2,777.78
3.
Five (5) herd of cattle $ 55.56
4.
Grinding mill $ 11.11
TO
CHIPO JACK
1.
1/9 share of certain piece of land being lot 1A Gumtree Situate in
the District of Bulawayo measuring 2,7323 hectares $5,555.56
2.
1/9 share of certain piece of land being Umguza 100 Acre Lot 3
situate in the District of Bulawayo measuring 40,4684 Hectares
$2,777.78
3.
Five (5) herd of cattle $ 55.56
4.
Grinding mill $ 11.11
TO
VUYISILE PATRICK JACK
1.
1/9 share of certain piece of land being lot 1A Gumtree Situate in
the District of Bulawayo measuring 2,7323 hectares $5,555.56
2.
1/9 share of certain piece of land being Umguza 100 Acre Lot 3
situate in the District of Bulawayo measuring 40,4684 Hectares
$2,777.78
3.
Five (5) herd of cattle $ 55.56
4.
Grinding mill $ 11.11
TO
VIOLATE JACK
1.
1/9 share of certain piece of land being lot 1A Gumtree Situate in
the District of Bulawayo measuring 2,7323 hectares $5,555.56
2.
1/9 share of certain piece of land being Umguza 100 Acre Lot 3
situate in the District of Bulawayo measuring 40,4684 Hectares
$2,777.78
3.
Five (5) herd of cattle $ 55.56
4.
Grinding mill $ 11.11
TO
THAMSANQA JACK
1.
1/9 share of certain piece of land being lot 1A Gumtree Situate in
the District of Bulawayo measuring 2,7323 hectares $5,555.56
2.
1/9 share of certain piece of land being Umguza 100 Acre Lot 3
situate in the District of Bulawayo measuring 40,4684 Hectares
$2,777.78
3.
Five (5) herd of cattle $ 55.56
4.
Grinding mill $ 11.11
TO
BRIAN JACK
1.
1/9 share of certain piece of land being lot 1A Gumtree Situate in
the District of Bulawayo measuring 2,7323 hectares $5,555.56
2.
1/9 share of certain piece of land being Umguza 100 Acre Lot 3
situate in the District of Bulawayo measuring 40,4684 Hectares
$2,777.78
3.
Five (5) herd of cattle $ 55.56
4.
Grinding mill $ 11.11
TO
GUGU JACK
1.
1/9 share of certain piece of land being lot 1A Gumtree Situate in
the District of Bulawayo measuring 2,7323 hectares $5,555.56
2.
1/9 share of certain piece of land being Umguza 100 Acre Lot 3
situate in the District of Bulawayo measuring 40,4684 Hectares
$2,777.78
3.
Five (5) herd of cattle $ 55.56
4.
Grinding mill $ 11.11
TO
DENNIS JACK
1.
1/9 share of certain piece of land being lot 1A Gumtree Situate in
the District of Bulawayo measuring 2,7323 hectares $5,555.56
2.
1/9 share of certain piece of land being Umguza 100 Acre Lot 3
situate in the District of Bulawayo measuring 40,4684 Hectares
$2,777.78
3.
Five (5) herd of cattle $ 55.56
4.
Grinding mill $ 11.11
$70,227.00
Cash
contribution to avoid sale of assets $ 6,372.00
$76,600-00
EXECUTORS
CERTIFICATE
I,
Bongani Ndlovu, hereby certify to the best of my knowledge and belief
that the foregoing accounts are true and correct, that there are no
further assets and that no liability exists in respect of income tax.
Dated
at Bulawayo this day 28th
day of January 2010.
FOR
ESTATE LATE JAMES JUBANE JACK AKA JUBANE JAMES JACK
________________________________
EXECUTOR
DATIVE”
What
can be gleaned from a perusal of the Distribution account is that the
defendant took into account all of the deceased's children,
including the plaintiff's children.
The
totality of the defendant's evidence was that she was married to
the late Jubane James Jack, such marriage being monogamous. She
established that at the time the late Jubane James Jack died, she was
the surviving spouse at law. She asserted that she was entitled to
inherit from the deceased estate. She contended that in spite of
their separation the property was acquired by the parties during the
marriage.
Her
evidence was that her late husband secured a loan from the National
Railways of Zimbabwe.
She
stuck to her evidence that the plaintiff could not inherit the
property in dispute because she was not the surviving spouse and in
any event she could not prove that she used her own funds to purchase
the property.
From
the defendant's testimony her version remained uncontroverted.
It
cannot be denied that if she was the lawful surviving spouse of the
deceased she would ordinarily be entitled to inherit the immovable
property in dispute. The defendant went further to show that the
property was shared amongst all the children of the deceased
including herself. It is my view that her attitude clearly shows that
she did not seek to deprive all the lawful beneficiaries to the
estate. She did not seek to allocate the property to herself to the
exclusion of the children of the deceased.
The
Legal Position
I
have already set out the disputed and undisputed facts of the matter.
I must now examine the law on the subject.
I
have shown that the plaintiff failed to prove that she purchased the
property in question. If she did contribute directly towards the
purchase of the property, she failed on a balance of probabilities to
show that she made any financial contributions. Nothing was placed
before the court by way of evidence to show that plaintiff purchased
the property except her mere say so.
In
the case of Sibanda
v Sibanda
and Another
2002 (1) ZLR 622 (H) SMITH J, stated at page 626 as follows:
“since
I have found that Josephine was not aware, in March 1994, that Joseph
was a married man, that means that their 'marriage' is in fact a
putative marriage.”
The
judge held in that case that the plaintiff was only entitled to what
was a fair share in the matrimonial estate. She was not entitled to a
half share.
The
matter went on appeal to the Supreme Court and in Sibanda
and Another
v Sibanda
2005 (1) ZLR 97 (S), the appeal court upheld the decision of the High
Court. The Supreme Court agreed with the lower court that where a man
enters into a marriage with another woman whilst a previous
monogamous marriage subsisted, the second marriage is a nullity.
The
court, however acknowledged that it was the correct approach to take
into consideration the contribution of the “wife” in order to
determine what amounts to an equitable distribution of matrimonial
property.
See
also Makovah
v Makovah
1998 (2) ZLR 82 (S).
In
casu,
however, the court is not being called upon to determine what is an
equitable distribution of matrimonial property. The court is also not
called to consider the direct or financial contributions of the
plaintiff, in the second “marriage,” which was undoubtedly a
nullity.
The
plaintiff in this action is claiming Lot 1A and Lot 3 Gumtree,
alleging that she purchased the said property using her own funds.
I
have already concluded that the plaintiff's evidence shows falls
short of proving that she purchased the property. If anything the
totality of the evidence shows that the late Jubane James Jack had a
substantial part to play in the acquisition of the said property.
In
my view the said property remained matrimonial property up to the
time of the decease's death.
The
property therefore quite clearly fell for distribution in the estate
of the deceased.
I
am satisfied that on the evidence led the third defendant managed to
prove that she is the surviving spouse of the estate of the late
Jubane James Jack and therefore the lawful heir to his estate.
I
must observe that where a party cohabits with a married man or woman
with full knowledge of the existence of a prior marriage, he or she
takes a calculated risk when they acquire property together. In the
event of either party's death the property automatically falls into
the estate of the deceased. The beneficiaries of such estate have
valid and lawful claims against the deceased estate. A surviving
spouse who produces proof of marriage with the deceased will have a
prima
facie
claim as a beneficiary in the estate.
In
the result, I am not satisfied that plaintiff succeeded in proving
her case on a balance of probabilities.
It
is accordingly ordered as follows:
The
plaintiff's claim is hereby dismissed with costs.
Dube-Banda,
Nzarayapenga and Partners,
plaintiff's legal practitioners
Zimbabwe
Women Lawyers Association,
defendant's legal practitioners
