MTSHIYA
J: This is an opposed application where
the applicant seeks the following order:
“1. That the
first respondent be and hereby ordered to sign all the necessary documents
prepared by applicant's conveyancers to effect transfer of ownership in stand
111 Ridgemont Township of Stand 16A Ridgemont Township to Wilton Rensburg.
2.
That in the event that the first respondent refuses and
or neglects to sign such papers
within seven (7) days from service of the
order on him that the second respondent
be and is hereby authorized to sign all
the necessary documents prepared by
applicant's conveyancers to effect transfer of ownership
of stand 111 Ridgemont
Township
of Stand
16A Ridgemont Township
to Wilton
Rensburg.
3.
That the third respondent be and is authorized to
register such transfer of ownership.
4.
That the first respondent only pays the costs of suit
if he opposes the application”.
The
facts of the case are briefly these:
The applicant
alleges that in 1991, on the basis of a verbal agreement, he bought house
number 111 Johnstone Close, Ridgemont, Gweru, (the property) from Eliphanos
Shumba, now deceased. He also states
that in selling the property the late Eliphanos Shumba also acted on behalf of
his wife Sarah Shumba, also now deceased.
The property was sold for $140 000.00 (old Zimbabwean currency). The
applicant, through a number of payments, completed payment of the purchase
price and obtained title deeds from the late Eliphanos Shumba. He then took occupation of the property in
1992. Transfer of title in the property
was not effected until both Elphanos Shumba and his wife, Sarah Shumba died on
29 September 1994 and 13 December 1994 respectively. Initially Cecil Madondo was appointed
executor of the estate of both Elphanos and Sarah Shumba but was later replaced
by Marko Mavhurume who is the current executor and the first respondent in this
matter..
In January 2006, the applicant got
to know who the executor was. He then filed this application on 30 October 2006
seeking the relief quoted on the first page of this judgement.
I first heard this matter on 6
November 2001 and postponed it to 18 November 2009 for parties to file
supplementary heads of argument on why the court should condone non-compliance
with r 248 of the High Court Rules, 1971, which rule deals with deceased
estates. The rule provides that the application -
“shall be served
on the Master not less than ten days before the date of set down for his
consideration and for report by him if he
considers it necessary or the court requires
such a report”.
The above had
not been done and the respondent had raised the issue arguing that the
application was not properly before the court. An application was then made from the bar for
me to condone non-compliance. After listening to the application, I deemed it
necessary to direct the parties to file supplementary heads on the issue. The applicant filed the said supplementary
heads of argument on 12 November 2009 and the respondent also filed supplementary
heads of argument on 13 November 2009.
In his supplementary heads of
argument the applicant argued that since he had eventually served the Master
with the application on 10 November 2009 (i.e. four days after my directive for
supplementary heads), there was now substantial compliance with r 248. The respondent, in his supplementary heads of
argument, agreed with the applicant's submission. True, the said service was
effected on the Master without leave of the court but after noting that this
was a procedural technicality which did not prejudice any of the parties, I did
not take issue with same.
On 17 November 2009, after having
been served with the application, the Master filed his report which read as
follows:
“Though I am not
cited in these proceedings I hereby submit my report in terms of r 248 of the
High Court Rules of 1971 as amended.
It is my
submission that the estates of the late Eliphanos and Sarah Shumba who died
intestate are registered with me under DR 1290/05 and 1291/05 and the first
respondent is the appointed executrix dative.
I further submit that the immovable property that forms centre of
dispute is jointly owned by the late couple hence constitute part of their
estates. It would appear there are
material disputes to be determined. I
therefore submit that there is need for the court to determine whether the late
Eliphanos Shumba has the authority to sale the property in dispute without the
co-owners mandate/consent and whether there was an agreement of sale in
existence and or is valid. Generally
when jointly owned assets are sold there is need for joint owners to give their
consent.
I
have no further submissions to make and will abide by the court's ruling”.
On 18 November 2009, Mr
Kufaruwenga for the applicant, conceded that there were indeed material
disputes of facts in the case and as such the application route was not
proper. He then devoted his submission
to what I regarded as “an application to have the matter referred to trial”. He urged the court not to dismiss the matter
but to refer it to trial on the basis of the papers already before it. He said that the issue of material disputes
of fact had only surfaced upon the filing of Elton Shumba's affidavit on 03
June 2009. The said Elton Shumba is the
son of both deceased persons namely Elphanos Shumba and Sarah Shumba. He reasoned
that given the existence of a statement signed by the late Elphanos Shumba on
31 December 1991, the applicant could not have foreseen any problems in the
matter. He therefore urged the court to appreciate
the need for a speedy resolution of the matter and therefore refer the matter
to trial rather than dismiss it.
In response to Mr Kufaruwenga's 'application', Mr
Shekede for the respondent argued that the disputes of fact in the matter
were reasonably foreseable. This was more
so in the sense that in his founding affidavit the applicant stated that the
agreement was verbal. Furthermore, the
statement relied on by the applicant had documents referred to but not
attached. In addition to that, the respondent had also immediately raised the
issue of the late Sarah Shumba's consent to the agreement and the issue of prescription.
The applicant had ignored all that and persisted with the application route. He therefore urged the court to dismiss the
application.
Given
the concession made by the applicant I see no need to deal with applicant's
submissions prior to the concession. All
I can do is to reinforce the fact that apart from the Master's Report, the
respondent had already, in the opposing affidavit (i.e affidavits of Cecil
Madondo and Elton Shumba), raised the issues that finally led to the concession
The
disputes of fact which were already before the applicant were correctly,
summarized in the respondent's heads of argument as follows:
“In applying the law to the facts of this
matter, it is clear that there are material disputes of fact in this matter
which cannot be resolved on the papers.
First and foremost, the applicant seeks to rely on an oral Agreement of
Sale in which he alleges that some of the receipts for the payments are missing
and that some payments were in cash, see paras 6-9 of the founding
affidavit. There is also a dispute of
fact on whether or not the late Mrs Sarah Shumba consented to the sale of the
immovable property since it is common cause that she was a co-owner. The applicant also did not shed any light on
the actual terms of the alleged oral Agreement of Sale with regards to the
dates when payments should have been made and the date when transfer was
due. In any event and given the fact
that the applicant and the late Mr Elphanos Shumba were friends and there was
mutual trust between them, it is possible that the payments which appear in Annexures
'A to C' to the court application could have been for other business
transactions. This Honourable Court is
referred to the supplementary affidavit deposed to by Elton Shumba and the
concession by the applicant that there was mutual trust in para 9 of the
founding affidavit and para 5 of his
answering affidavit. There is also a
dispute of fact with regards to the issue of differences in the signature of
the late Mr Elphanos Shumba, see the notice of opposition and the supplementary
affidavit deposed by Elton Shumba”
Given the above and the contents of
the Master's report, I am unable to be persuaded that the applicant could not
have foreseen the potential areas of dispute when he filed this application.
There was a clear call for retreating from the application procedure. The
applicant refused to retreat.
In Excombatants Security Company v
Midlands State University, HH 80-06 MAKARAU J (as she then was) had this to
say regarding proceedings by way of application:
“It further
presents itself clearly to me that application procedure is inappropriate to
allege and prove a disputed oral agreement as a resolution of the matter on the
basis of the affidavits, will lead to an injustice as the advantages inherent
in a trial will be lost to the court”
I
fully agree with the above observation.
The applicant has correctly conceded
that a wrong procedure was followed in seeking the relief indicated at page 1
of this judgment. Mr Kufaruwenga, for
the applicant, has as a consequence, urged the court that, in the use of its
discretion, it should not dismiss the application but refer the matter to trial
on the basis of the papers already filed.
As already indicated, the respondent
has called for the dismissal of the application on the ground that it was quite
obvious that disputes of fact would arise and that the applicant should have
foreseen that eventuality and therefore the need to change course. I agree with
the respondent's admission.
In agreeing with the respondent, I
fully associate myself with the authorities cited in the heads of argument dealing
with this issue. I cannot do any better but reproduce here below the relevant
passages in the respondent's written submissions. The submissions state, in
part:
In
the case of Tamarillo (Pty)
Ltd v B N Aitken (Pty) Ltd 1982 (1) SA 398 (AD)
at 430 G-H, MILLER JC/CJ said the
following:
“A litigant is
entitled to seek relief by way of Notice of Motion. If he has reason to believe that fats
essential to the success of his claim will probably be disputed, he chooses
that procedural form at his peril, for the court in the exercise of its
discretion, might decide neither to refer the matter for trial nor to direct
that oral evidence on the disputed facts be placed before it, but to dismiss
the application”.
Similarly,
CENTLIVRES CJ said the following in the case of Adbro Investments Company Limited v Minister of the Interior 1956 (3) SA (AD) at 350 a:
“Where the
facts are in dispute the court has a discretion as to the future course of the
proceedings. It may dismiss the
application with costs or order the parties to go to trial or order oral evidence
in terms of any rule of Court. The first
course may be adopted when the applicant should have realized when launching
his application that a serious dispute of fact was bound to develop.”
The above case authorities, in my
view, endorse the sentiments of MAKARAU J: (as she then was) in Ex-combatants
Security Company, supra.
In, casu, it was clear from the onset that serious disputes of fact would
arise.
In
my view therefore, the facts of this case dictate that the correct use of my
discretion should be to dismiss the application with costs. It is clear to me that the applicant, who
enjoyed legal representation from the time of filing the application, should
have foreseen that disputes of facts would arise. This was not only upon
receipt of the opposing affidavit, but upon preparation of his own founding
affidavit. He knew he was relying on an
oral agreement signed between himself and a deceased person. That alone, in my
view, was enough to indicate to the
applicant that there were potential
disputes of fact. The argument that the potential disputes were not foreseen
does not accord with common sense at all.
Accordingly I order as follows:
The
application is dismissed with costs.
Dzimba, Jaravaza & Associates, applicant's legal practitioners
Wintertons, respondent's legal practitioners
