Opposed
Court Application
MUTEMA
J: Kenneth
Sithole died at Bulawayo on 6 February, 2013. During his lifetime he
purchased from Rebecca Howes, a piece of land being Stand 15
Rangemore Township 3 of Lot G of Upper Rangemore, also known as Plot
15 Gramps Way, Rangemore (hereinafter referred to as the Plot).
Kenneth
Sithole's widow one Monica Sithole, with whom he contracted a civil
marriage, is the only surviving spouse with whom he had one issue
Nozipho Sithole now aged six years.
Kenneth
Sithole also left other children of whom the respondents herein are
some of them, from his previous marriage.
All
those children were majors at the time of his death.
Prior
to his death Kenneth Sithole, his widow and the minor child lived on
the Plot and none of the respondents lived there.
Following
his death the respondents and their families forced their way onto
the Plot and despoiled the widow and the minor child of it.
This
was before the applicant was appointed executor of the estate.
After
applicant was appointed executor on 15 October, 2013 the Assistant
Master of this Court and himself advised the respondents to move out
of the Plot so as to facilitate the smooth administration of the
estate.
That
advice fell on deaf ears.
The
respondents remained put disrupting the administration of the estate.
The surviving spouse has not been allowed back and the tenants on the
Plot have been forced to run away therefrom.
Due
to respondents unlawful conduct alluded to supra,
which conduct applicant deems interferes with the fulfillment of his
functions of administering and winding up the estate, applicant filed
this application seeking eviction of the respondents and all those
claiming occupation of the Plot through them, an interdict that
respondents be ordered not to set foot on the Plot and costs of suit.
The
application is opposed by both respondents who are brother and sister
respectively.
In
their imagined understanding of the applicable law to the dispute I
am constrained to quote in
extenso
the respondents supposed opposing affidavit which goes as follows:
“NOTICE
OF OPPOSITION OF THE DRAFT ORDER (undated)
We
Respondents above, do hereby oppose the Draft Order Application as
follows:
1.
That the Draft Order by the Executor is baseless and without the
Court Order to support it.
2.
That according to the local custom, it would be illegal to evict the
rightful heirs to the estate of their late father and mother.
3.
That we have the most valid title to the land after the death of our
parents since we also contributed financially to pay for it before
Applicant came to stay with the late or after our mother died.
4.
We pray that the Master of the High Court could look into the
Administration of this estate.
5.
The executor to this estate was biased and took sides with the
original applicant. Instead he disregarded his duty to settle this
estate the right way within the law of intestate succession.
6.
At the time of marriage, the late was critically ill raising
suspicion of marriage of convenience.
7.
We therefore pray to the Master of the High Court to appoint another
executor who will be able to settle this issue with justice.
8.
We also pray that the Honourable Court throw out Applicant's
Application and then consider the Administration of this Estate in
accordance with the laws and custom of the land and also grant us
ownership of this estate.”
The
document is signed by both respondents and a commissioner of oaths,
one P. Ndlovu.
It
is crystal clear from a reading of the purported opposing affidavit
that the respondents, in their layperson's understanding of the
general law of intestate succession, have no clue as to how it
operates.
Such
an estate is supposed to be administered in terms of the relevant
provisions of the Deceased Estates Succession Act [Chapter
6:02]
as read with the Administration of Estates Act [Chapter
6:01]
and not according to custom.
They
did not advert to the real issues raised by the applicant in their
opposing papers.
They
did not deny that Monica Sithole is the sole surviving spouse of the
late Kenneth Sithole.
They
did not deny that the widow and the minor child lived at the Plot
with the deceased at the time of his death.
They
also did not deny that themselves and all those claiming occupation
of the Plot through them were not living at the Plot at the time
Kenneth Sithole passed on.
Further,
they both did not deny forcing the widow from the Plot and that they
are obstructing the executor from fulfilling his duties of winding up
the estate by forcibly and arbitrarily occupying the Plot.
In
his oral submissions at the hearing of the application first
respondent made a bare denial of the allegation simply alleging that
the application is based on fabrication and that he never threw out
his step-mother from the Plot.
I
am not convinced that his denials are well founded.
If
he did not throw out his step-mother from the Plot, she would not
have left and I do not believe that the applicant would have launched
this application.
As
regards the allegation that he is frustrating the applicant in his
duties to administer the estate, first respondent said:
“It
is not very true that we are impending the work of the executor.”
The
ordinary grammatical meaning of this statement is clearly that there
is some impediment. He is not supposed to engender any amount of
impediment to the applicant however slight.
It
account is had to the tone of the opposing “affidavit” it is not
difficult to infer that both respondents are entirely inimical to the
widow benefitting from the estate and also to the applicant
administering this estate.
It
therefore must be true that they did and continue to do what the
applicant alleges.
The
second respondent, in her oral submissions was more comical.
She
said she went to stay at the Plot at the invitation of the widow and
when the latter told both of them to leave, they left and as it is
the applicant is executing his duties “nicely.”
Nothing
can be further from the truth.
If
that were so I do not think that the applicant would have approached
this court seeking the relief alluded to above. Also, the widow would
not have left the Plot.
In
view of the foregoing, I have no difficulty finding that applicant
has made a good case for the relief sought.
In
the result it is ordered as follows:
1.
The respondents and all those claiming occupation through them be and
are hereby ordered to vacate Plot 15, Gramps Way, forthwith failing
which the Sheriff or his lawful deputy is authorized to evict them.
2.
The respondents be and are hereby interdicted from setting foot on
the Plot.
3.
The respondents shall pay the costs of suit jointly and severally the
one paying the other to be absolved.
James,
Moyo-Majwabu and Nyoni,
applicant's legal practitioners
