CHITAKUNYE
J: On 9 April 2008 the two applicants
entered into an agreement of sale of stand number 2700 Glen Norah A Harare with the first
respondent. They paid the purchase price and had the stand ceded into their
names.
On
14 April 2008 the applicants gave notice to occupants of the property to vacate
the property so that they could take occupation.
The
occupants did not vacate. The applicants have thus approached this court for an
order for the eviction of the second respondent and all those claiming
occupation through him. The first respondent filed a purported notice of
opposition in which she in effect was in support of the eviction of the second
respondent and all those claiming occupation through him.
The
second respondent opposed the application and contended that the first
respondent had no lawful authority or right to sell the property in question.
The
basic facts were that the first respondent was married to the late Clement
Chitate. No children were born of their marriage. In 1975 or 1982 as this date
is disputed, she was chased away by the late Clement Chitate. She thereafter
never came back to live as husband and wife with Clement Chitate.
Clement
Chitate took on Evernice Rocky as wife and three children were born of this new
marriage. The second defendant was one of the children born of this marriage.
He was born in December 1985. The second respondent and his siblings have lived
at this property since birth.
On
14 May 1992 Clement Chitate died. Jeremiah Bernard Chitate was duly appointed
executor dative of the estate late Clement Chitate on 5 August 1993 in DR
272/93. Such letters of Administration in favour of Jeremiah Chitate were filed
on record and have not been revoked to this date.
On
7 April 2008 the first respondent who from her own affidavit was not aware that
the late Clement had remarried and sirred three children, was granted a
Certificate of Authority to effect transfer of house number 2700 Glen Norah A
to herself as the surviving spouse in terms of s 33 (b) of the Administration
of Estates Act [Cap 6:01] as amended in DR 209/08.
It
was then that on 9 April 2008, barely two days after obtaining the certificate
of authority, the first respondent purported to enter into an Agreement of sale
with the applicants.
It
is that agreement of sale that the applicants seek to enforce against the
second respondent and his siblings who are in occupation of house number 2700
Glen Norah A.
The
applicants and the first respondents did not refute the fact that Jeremiah
Chitate was duly appointed executor dative of the estate late Clement Chitate
in 1993 and that such appointment was never revoked. There was no assertion
that it was at the very least challenged.
No
irregularity with that appointment was alluded to. To this date that
appointment is valid and is a prior appointment to the first respondent's
purported appointment.
The
issue is what is the effect of the fist respondent's appointment on the prior
appointment.
It
is my view that the first respondent's purported appointment as executrix
cannot automatically invalidate the earlier appointment. The appointment of
Executor Dative is not revoked by a mere subsequent appointment of another
executor.
When
presented with the first respondent's purported certificate of authority the
Master of the High Court in his letter dated 22 July 2008 to the Director of
Housing and Community Services Harare wrote inter
alia that:
“… there is a
dispute regarding how Sipelile Moyo obtained the certificate of authority presented
to you. The said Sipelile misrepresented information in a bid to defraud
potential beneficiaries in this mater. As such I am revoking the certificate of
authority issued to her at the same (sic)
I am proceeding to report this matter to the police as my office is informed
that Sipelile proceeded to sale this property to unknown people.
Furthermore the
administration of Sipelile was overtaken by events as the estate was registered
way back in 1993 and an executor appointed. ..”
Clearly
of the two appointments the first respondent's was questionable.
The
applicants and the first respondent in the face of the above letter did not
deny that the first respondent's certificate of authority was subsequently
revoked.
It
may also be noted that the first respondent's papers are not properly signed.
The affidavit in opposition has a thumbprint and an 'x”. There is no
identification of whose thumb print and 'x' it is. Neither is there the
national identity number or some other identification mark peculiar to the first
respondent. Equally on the agreement of sale, whilst the two applicants, as
purchasers appended their signatures and additionally their national
identification numbers are endorsed, for the first respondent, it is only a
thumb print and an x without any identification as to whose thumb print it is.
The
above anomalies create doubts as to who the first respondent is in actual fact.
Further
doubts are created from her purported affidavit wherein she states that she was
chased away in 1982 whereas the City Council
document she tendered has an inscription to the effect that she was
chased away on 19 February 1975.
Having
conceded that she was chased away so many years ago, the first respondent could
not show that she was still the late Clement Chitate's wife by producing a
marriage certificate or copy thereof. Since it was her contention that their
marriage was registered and no divorce was ever granted, it was incumbent upon
her to show the subsistence of such a marriage.
The
City of Harare
note she tendered as proof of marriage, was highly inadequate. The law is quite
clear of the need to produce the marriage certificate or copy thereof obtained
from the relevant registrar of marriages. The note from the City of Harare only shows she was
at sometime in the past married to Clement Chitate, it does not confirm that
such marriage subsisted till Clement Chitate's death in 1992.
It
may also be noted that in terms of the law obtaining at the time of Clement
Chitate's death the first respondent would not have been awarded the
matrimonial home.
She
thus could not in the year 2008 claim to be entitled to something she was not
entitled to in terms of the law at the time of Clement Chitate's death. More so
as in this case where someone was duly appointed executor dative.
After
a careful analysis of the documents filed of record and hearing counsel, I am
of the view that the first respondent's purported certificate of authority was
void ab initio and as such she had no
title to pass. See F Katirawu v D Katirawu & Ors HH 58-07.
It
follows that the purported agreement of sale was a nullity. The applicants'
contention that they were innocent purchasers cannot give life to a nullity.
Accordingly
therefore the application is hereby dismissed with costs.
Matsanhura & Associates, applicants'
legal practitioners
Justice for Children
Trust, second respondent's legal practitioners
