IN
CHAMBERS
BHUNU
JA: This
is an application for condonation and extension of time within which
to note an appeal in terms of Rule 31(3) of the Supreme Court Rules
1964.
The
applicant is the widow of the late Chemayi Joseph Mtize. She is the
duly appointed executrix dative of his deceased estate.
The
first respondent, Damafalls (Pvt) Ltd is a duly registered company in
terms of the laws of Zimbabwe whereas the second respondent, the
Master of the High Court is cited in his official capacity. He is
responsible for the administration of deceased estates.
The
first respondent sued the applicant in the High Court alleging that
during his life time the deceased sold stand number 2699, Gwelo
Township to it. In consequence whereof it sought the following relief
against his deceased estate:
1.
An order for the setting aside by the second defendant of the
distribution of Stand 2699 Gwelo Township to the beneficiaries of the
estate Late Chemayi Joseph Mtize.
2.
An order for the transfer of Stand 2699 Gwelo Township from the
estate of the Late Chemayi Joseph Mtize to the plaintiff, failing
which the Deputy Sheriff Gweru be authorised to sign the transfer
documents.
3.
An order for the eviction of the first defendant from Stand 2699
Gwelo Township.
4.
An order for payment of US$2,800-00 together with a sum of US$400-00
per month from 1 December 2014 to date of eviction of first defendant
and all those claiming occupation in her name. Or alternatively an
order for payment to the plaintiff by the first defendant of the
value of the said property currently US$60,000-00.
5.
An order for payment of legal costs on an attorney client scale.
The
applicant unsuccessfully defended the respondent's suit in the
court a
quo
with judgment being given against her on 23 December 2015.
If
she intended to appeal against that judgment she had 15 days from the
date of judgment to note her appeal in terms of Rule 30 of the
Supreme Court Rules 1964.
She
however only approached this court on 26 February 2016 with this
application for condonation of late noting of appeal and extension of
time to file the appeal. By then she was 26 days out of time
excluding weekends and public holidays.
The
requirements for the application of this nature to succeed are well
known as outlined in the case of Kombayi
v Berkout
1988 (1) ZLR 53 (S). These are:
1.
The extent of the delay;
2.
The reasonableness of the explanation for the delay; and
3.
The prospects of success on appeal.
I
now proceed to consider the three requirements in sequence.
The
Extent and Reasonableness of the Explanation for Delay
The
judgment sought to be appealed against is dated 23 December 2015 but
was issued to the applicant on 25 January 2016.
Rule
30 of the Supreme Court Rules 1964 requires that where leave to
appeal is not necessary the aggrieved party must appeal to this court
within 15 days of the date of judgment.
The
applicant's explanation for delay is that despite frequent
enquiries with her erstwhile Legal Practitioners she was consistently
told that judgment was not yet ready. She only received notification
that the judgment was now ready for collection on 19 January 2016.
Her erstwhile Legal Practitioners did not receive the notification
timeously because the Law Firm had closed for the Christmas and New
Year holidays.
It
was her submission that when she received the letter advising her
that judgment was ready for collection, she promptly consulted her
current Legal Practitioners and made arrangements to travel from
Gweru to Harare to collect the judgment. She however only managed to
collect a copy of the judgment from the Registrar of the High Court
on 25 January 2016.
Having
received a copy of the judgment on the 25 January she only filed this
application on 23 February 2016 which is almost a month after receipt
of a copy of the judgment. Her explanation for this further delay is
that she was conferring with her current legal practitioners.
That
explanation is rather unsatisfactory but considering her indigent
state and the importance of this case to her and her family, it is
difficult to dismiss her explanation off-hand as being unreasonable.
I
take that view because her current legal practitioners are
representing her pro
amico
out
of their generosity and benevolence of their good heartedness.
In
the normal run of things I consider that it is difficult to find a
legal practitioner willing to offer his services for free within a
short space of time.
The
applicant presents a picture of an elderly unsophisticated widow,
desperately fighting to save her home with paltry resources and
scanty knowledge of the legal intricacies. Despite those impediments
she did not sit back doing nothing about this case. She fought tooth
and nail in search of justice in circumstances where she could not
afford legal representation. For that reason there is need to give
her the benefit of a reasonable doubt so as to consider and ventilate
her prospects of success on appeal on the merits.
Prospects
of success on Appeal
The
plaintiff relied on the evidence of four witnesses in the court a
quo,
comprising Martin Mataranyika, Edmore Samson, Priscilla Marume and
Ravheti Kaseke.
Martin
Mataranyika was the main witness for the plaintiff.
It
was his testimony that he was a business consultant with a company
called Millennial Insurance Company. The first respondent was the
principal shareholder whereas, the late Joseph Chemayi Mtize was one
of the executive Directors.
Sometime
in 2005 there was need to inject more capital in the company. He then
advised the executive directors to top up their nominal shareholding
in a board meeting to avoid their shareholding being diluted to zero
by the envisaged increase in capital.
The
late Chemayi Mtize who had no money offered to sell the disputed
property to the first respondent to raise funds to purchase more
shares.
He
is not privy to the contract of sale but he knows that the late Mtize
travelled to Gweru with a representative of the respondent company to
view the property. Following the trip to Gweru the late Mtize later
bought more shares from Millenial Insurance Company.
Edmore
Samson is the first respondent's Managing Director and a
shareholder in Millenial Insurance Company.
He
confirmed Mataranyika's evidence that in 2015 there arose need to
raise Millenial Insurance Company's share capital. It then became
necessary for shareholders to increase their shareholding by
purchasing more shares in the company. He corroborated Mataranyika's
evidence to the effect that the late Mtize who had no money offered
to sell his house to the first respondent.
It
was his testimony that the first respondent then bought house Number
5 Cooper Road Southdowns being the disputed property. The property
was bought for $Z300,000,000 (three hundred million Zimbabwean
Dollars) payable in instalments from May 2005 to August 2005. The
agreement of sale was reduced to writing and signed by both parties.
The written agreement of sale has since been misplaced and the first
respondent' officials are still looking for it.
When
the purchase price was paid in full, the late Mtize handed over the
title deeds of the disputed property to the first respondent. He then
took a copy of the title deeds saying he was taking it to ZIMRA for
capital gains exemption since he was above the age of 60.
It
is common cause that the first respondent had possession of the
original title deeds of the disputed property which were produced in
evidence at the trial in the court a
quo.
It
is also not in dispute that the first respondent took peaceful and
undisturbed occupation of the property way back in 2005 soon after
payment of the purchase price in full as alleged.
Mrs
Mtize the executrix dative of the late Mtize's deceased estate
alleged without proof that the first respondent stole the title deeds
from the late Mtize's office while he was ill.
This
unfounded allegation was denied by both witnesses for the first
respondent, saying that Mtize's office was kept under lock and key
during the duration of his illness.
Despite
those serious allegations of theft of property of immense value, Mrs
Mtize did not bother to report the theft to the police.
Samson
testified that Mrs Mtize only emerged about 9 years later when she
invaded the property, forcibly took the keys and occupation of the
property.
Priscilla
Marume testified that at the material time she was employed as the
first respondent's accountant. It was her testimony that she signed
the agreement of sale as a witness in the presence of the late Mtize
and Samson. She was responsible for paying the purchase price in full
to the late Mtize.
It
was her evidence that she paid him the full purchase price starting
from 13 May 2005 to 22 August 2005.
Each
time she paid him he would sign on a petty cash voucher to
acknowledge receipt. She produced 3 cash voucher receipts dully
signed by the late Mtize. The amounts on the 3 petty vouchers add up
to a total of $Z300,000,000.00 (Three hundred million Zimbabwean
dollars).
She
denied that the first respondent ever managed the property on behalf
of the late Mtize as alleged by Mrs Mutize.
It
is common cause that Mrs Mtize in her first and final distribution
account in the estate of her late husband Mtize deliberately left out
the disputed property from the inventory.
According
to Samson's evidence when he approached Mrs Mtize seeking transfer
of the disputed property, she was surprised that the property had not
yet been transferred to the first respondent's name.
Upon
realising that the property was still registered in her husband's
name she refused to effect transfer and filed a supplementary
distribution account in which she included the disputed property in
the distribution inventory. The supplementary account was advertised
in the newspapers.
The
first respondent did not object because it did not see the
advertisement.
In
her evidence Mrs Mtize confirmed having deliberately left out the
disputed property from the first and final distribution account. She
also confirmed having included it in the supplementary account upon
realising that it was still registered in her late husband's name.
She explained that she initially left out the property from the
initial distribution account because she wanted to investigate
whether indeed the first respondent had purchased the disputed
property as alleged.
The
evidence on record however establishes that she carried out no such
investigations. She only decided to claim the property after being
approached for transfer and realising that it was still registered in
her late husband's name.
It
is only then that she started to question the validity of the sale.
She
alleged without proof that the first respondent was merely
administering the property on her late husband's behalf.
She
did not know the terms of that arrangement or the commission her
husband was paying to the first respondent. She first said Z$325
after contradicting herself under cross-examination she ended up
saying that she did not know.
Faced
with the totality of the evidence placed before her, the learned
judge in the court a
quo
weighed the credibility of witnesses and made material findings of
fact: She had this to say:
“Looking
at the evidence led before the court, I am inclined to find in favour
of the plaintiff that there was indeed a sale agreement involving the
late Mr Mtize's property in Gweru between the plaintiff and Mr
Mtize. I am convinced because the plaintiff's witnesses gave their
evidence very well and impressed the court as credible witnesses.
They were truthful and did not exaggerate their testimonies”.
The
learned judge in the court a
quo's
summation of evidence and analysis of the credibility of witnesses is
beyond reproach.
The
evidence clearly exposes Mrs Mtize as a desperate widow trying to
pounce on the delay in effecting transfer to hang onto property which
her husband sold during his life time.
The
late Mtize having validly sold his property during his life time, it
cannot form part of his deceased estate.
For
the foregoing reasons I consider that the judgment the applicant
seeks to appeal against is water tight and unassailable. As such,
there are no reasonable prospects of success on appeal.
Although
the first respondent has asked for costs at the punitive scale, these
are not warranted. The first respondent was in a way to blame by
delaying in seeking transfer.
It
is accordingly ordered:
1.
That the application for condonation of late noting of appeal and
extension of time within which to appeal to the Supreme Court be and
is hereby dismissed.
2.
That the applicant shall pay costs of this application at the
ordinary scale.
Honey
& Blanckenberg,
applicant's legal practitioners
Wilmot
& Bennett, first respondent's legal practitioners
