Opposed
Application
MOYO
J: This
is an opposed application for summary judgment wherein the applicant
seeks the following relief:
“(1)
That summary judgment be and is hereby granted in favour of applicant
against respondent in the following terms:
(a)
respondent and all those claiming occupation through him be and are
hereby ordered to vacate house number F90 Mzilikazi, Bulawayo.
(b)
The agreement of sale of house number F90 Mzilikazi, Bulawayo,
entered into between applicant and one Berthi Moyo on the 13th
December 2013 be and is hereby confirmed.
(c)
Costs of suit at an attorney and client scale.”
The
background of this matter is that applicant is the executor
testamentary of the estate of the late Alice Nkala. In winding up the
estate, applicant has sold the immovable property which is the
subject matter of these proceedings, namely stand F90 Mzilikazi to
one Berthi Moyo.
Respondent
is a son to the late Alice Moyo and also a beneficiary of her estate.
Respondent
claimed the sum of $8,000-00 for improvements made to the immovable
property in question. He was granted such an order and was also
ordered to clear all municipal bills relating to the property.
Respondent
through its legal practitioners of record, offered to purchase the
aforenamed immovable. This was however not reduced to writing.
On
7 June 2013 correspondence was sent to respondent's legal
practitioners enquiring if indeed respondent intended to buy out the
other beneficiaries in which case he was invited to come and make a
payment.
Respondent
never replied to such correspondence.
On
7 August 2013, applicant wrote another letter inviting the respondent
to respond to their earlier correspondence.
On
29 October 2013, applicant wrote yet another letter to respondent
wherein he was advised that applicant was proceeding to sell the
property as respondent had failed to come forward with payment, nor
respond to the previous correspondence.
On
9 December 2013, applicant through Sapphire Real Estate proceeded to
sell the house to one Berthi Moyo.
On
3 February 2014 applicant advised respondent through a letter that
the house had been sold.
Respondent
did not even bother responding to the applicant's letter.
On
17 March 2014, respondent wrote a letter responding to applicant's
letter dated 29 October 2013. Respondent alleged that he had
transferred $8,157-53 for the purchase of the house.
This
transfer was done without the assent of applicant's legal
practitioners.
On
25 March 2014 respondent wrote a letter to applicant advising that he
would not vacate the house neither did he recognize the sale to
Berthi Moyo.
In
his plea defendant (respondent) avers that the purported sale was
unlawful as it was not done in accordance with the law. He further
avers that the beneficiaries were not consulted on the sale neither
did they assent to it.
The
Remedy of Summary Judgment at Law
Summary
judgment is a drastic remedy as it negates a fundamental principle in
the administration of justice, the audi
alteram partem
rule.
Refer to the case of Shingadia
vs
Shingadia
1966 RLR 285.
In
Rex
v
Rhodesia Investments Trust Pvt Ltd
1957 R & N, 723 it was held that for a defendant to defeat an
applicant for summary judgment he must allege facts which if he can
succeed in proving them at trial, would entitle him to succeed in his
defence.
In
Hughes
vs
Lotleit
1985 (2) ZLR 179, it was held that summary judgment will only be
granted where plaintiff has made out a cause of action to which the
defendant has no possible defence.
In
Jena
vs
Nechipote
1986 (1) ZLR 29 it was held that all the defendant has to establish
in order to succeed in having an application for summary judgment
dismissed is that “there is a mere possibility of success.”
In
this case the defendant is challenging the validity of the sale by
applicant to Berthi Moyo as it contravenes section 120 of the
Administration of Estates Act [Chapter
6:01].
Section
120 of the Administration of Estates Act (supra)
provides as follows:
“If,
after due enquiry, the Master is of the opinion that it would be to
the advantage of persons interested in the estate to sell any
property belonging to such estate, otherwise than by way of public
auction, he may, if the will of the deceased contains no provision to
the contrary, grant, the necessary authority to the executor so to
act.”
Section
120 of the Administration of Estates Act has been held in certain
cases to be peremptory especially in testate estates like the one
before me.
I
find that the estate is testate for the simple reason that the
Letters of Administration state that applicant is an executor
testamentary meaning that she was appointed so in terms of a will
left by the deceased.
Such
an opinion is made in the case of Songore
vs
Gweme and two others
HH90/08.
The
validity or otherwise of the sale to Berthi Moyo by the applicant
without obtaining the Master's consent, is a contestable point in
my view.
It
cannot be held that the defendant has failed to raise a defence that
could possibly be true in these circumstances. This court cannot shut
the door on the defendant in such circumstances.
In
the result the application for summary judgment is dismissed with
costs.
Lazarus
and Sarif,
applicant's legal practitioners
Cheda
and Partners,
respondent's legal practitioners
