CHITAKUNYE
J: The applicant applied for condonation
for the late noting of the application in case number HC 2575/09. In HC 2575/09
the applicant applied for what she termed as declarator.
In
essence she seeks:
- the nullification of the first and second respondents
distribution of estate of the late Ronnie Taurai Chipendo in terms of s 68 F (2)(h) of the Administration
of Estates Act [Cap 6:01]
- the nullification of the agreement of sale entered
into between the first respondent as executor of the estate of late Ronnie
Chipendo and the third respondent in respect of house number 2 Umuguza
close Wilmington
Park, Cranborne.
- the setting aside of the subsequent sale from the
third respondent to fourth respondent of the same property and that the
property reverts back to the estate late Ronnie Chipendo.
- that the Registrar of Deeds reverses the right, title
and interest from the fourth respondent's name into the estate of the late
Ronnie Taurai Chipendo
- That the estate of late R T Chipendo be redistributed
in terms of s 68 F (2)(d) and s 8 of the Administration of Estates Act;
and
- That the second respondent be ordered to reconvene a
meeting with all interested parties for distribution of the said estate in
terms of the order.
HC
2575/09 was only filed with the court on 12 June 2009 whereas the estate in
question was finalized in the year 2003.
It
is in the light of the above period of delay from when the final distribution
account was done and the estate wound up to when the applicant sought to
reverse all steps that had been taken on the estate by the executor that the
applicant made this application for condonation.
Though
in her heads of argument she indicated that this is not an application for
review but an application for a declarator and so the eight weeks rule did not
apply, she was less than convincing in this regard. The decisions and
administrative actionsshe seeks to be set aside were completed in 2003.
The
relief she seeks is clearly one to be sought in review proceedings. In her
founding affidavit she clearly exhibits her dissatisfaction with the manner in
which the estate was administered and wishes that to be set aside. She is not
just seeking a declaration of her rights.
It
is apparent that she ought to have brought these proceedings for review within
eight weeks of her becoming aware of the decisions she now seeks to be set
aside.
From
the papers filed of record in this case and other cases referred to there in,
it is apparent that the decisions and actions the applicant wishes. to have set
aside were brought to her attention more than eight weeks before. she made her
application in HC 2575/09.
In
an application for condonation, the court considers the following factors:
- The degree of non-compliance.
- The explanation for the delay for failure to comply.
- The importance of the case..
- The prospects of success.
- The respondent's interests in the finality of hisjudgment.
- The convenience of the court.
- The avoidance of unnecessary delay in the
administration of justice.
See MAVANGIRA J
in Nyakambangwe v Jaggers Trader (Pvt) Ltd HH 146-03 p 2.
The
delay being common cause the real issue is the explanation for the delay. The
applicant in para 14 of her founding affidavit to the application states that
it was only in 2007 that she became aware of the fact that the estate had been
wound up and the distribution. on the basis that there was no surviving spouse of
the deceased hence it was sold in order to have proceeds shared to the children
of the deceased. She became aware of this when there was a court action to
evict her son Killean Chipendo from the property in question.
Thereafter
she made frantic efforts to find out why she had been excluded. Those efforts
lasted from 2007 to 2009 when she lodged HC 2575/09.
On
examining that explanation and other documents filed in this case HC 2655/05
and HC 2575/09, it is apparent that the applicant was not being candid with court.
Indeed
in their responses first respondent and fourth respondent referred to the fact
that the applicant was aware of the winding up of the estate as way back as
2003 and that in 2006 persons in occupation of the property in question were
evicted by the Deputy Sheriff as per Deputy Sheriff's return of service Killian
Chipendo her son was the one in occupation and others claiming occupation
through him.
Upon
being so evicted Killian unlawfully re-took occupation.
On
26 February 2008 in HC 2951/07 another court order for Killian Chipendo and all
those claiming occupation through him was issued. The eviction was executed on
26 August 2008 by the Deputy Sheriff when Killian could not vacate the property
on his own. If during all these evictions the applicant had been in occupation
surely she would have been adversely affected and would have been prompted to
act and protect her interests.
I
am not satisfied with the explanation for the delay in bringing this application.
Another
aspect of concern are the prospects of success of the application HC 2575/08.
Where the prospects of success are high and injustice is therefore likely to be
done if the applicant was not granted condonation court may be persuaded to grant
the order.
In
casu, the prospects of success are
almost non existent. .
A
careful analysis of the case shows that the applicant in her founding
affidavit, contradicts herself in material aspects.
For
instance, the main thrust of her case was that she was. married to the late
Ronnie Chipendo and such marriage subsisted till his death. For some reasons
which she does not know she was left out of the late R T Chipendo's estate. She
denied that she was ever divorced. Regarding documents she said she discovered
in her frantic efforts which showed that their marriage had been dissolved, she
virtually referred to them as forgeries and not reflective of the truth. She
went so far as to cast aspersions on judicial officers who after checking in their
official records confirmed the fact that the marriage was dissolved. The
applicant's stance was dealt a severe blow by her own documents in case HC
10148/01
In
that case she was the plaintiff and M Hungwe the executor, in the estate of
late R Chipendo was the defendant.
In
her declaration in HC 10148/01 at p 40 of HC 2575/09 she clearly indicated in
para 1 that ”the plaintiff is Lizzie
Chipendo, a former wife of the late Ronnie Chipendo who passed away on 27
January 1999”.
In
para 2 thereof she stated that “I married the late Chipendo in 1969 in terms of
the customary law and the marriage was
solemnized in terms of the Customary Marriages Act in 1986. The marriage was
dissolved in the Magistrates' court, Harare
under case number 406/91 I beg leave of this honourable court to incorporate
the pleadings therein”.
In
para 5 she went on to say that there was an agreement between the late R
Chipendo and the plaintiff that since the parties minor children were in the
custody of the late R Chipendo, then no property would be distributed at that
stage, the property having been in use by the minor children.
It
was in furtherance of this agreement that she now sued the defendant and the.
executor for half of the value of house
number 2 Umuguza Close, Wilmington Park Cranborne, Harare that half share she
put at $800 000-00.
These
summons were issued on 24 October 2001. It is apparent that as of that date the
applicant was aware that she was not the surviving spouse and that M Hungwe was
appointed executor. She was thus merely claiming a share per her alleged
agreement at the time of divorce.
With
such revelation from her own papers, papers she authored without duress or
undue influence, she cannot surely be taken seriously when she now denies that
her marriage was ever dissolved.
When
this was brought to her attention in the respondent's opposing affidavit, she
chose not to reply.
In
the light of the above I am satisfied that there are no prospects of success.
The
respondents desire for finality to the matter is evident as clearly the applicant
is hoping for the impossible.
She
cannot on the one hand confess that her marriage was dissolved at the
magistrates' court and even file the pleadings thereof and at the same time be
heard to deny that the marriage was ever dissolved and that some documents
purporting to be divorce papers are not genuine.
The
application for condonation cannot succeed.
The application for condonation is
hereby dismissed with no order as to costs.
Legal Aid Directorate, applicant's legal practitioners
Hungwe & Partners,
1st respondent's legal practitioners
Gill, Godlonton & Gerrans, 4th respondent's legal practitioners
