MUTEMA J: The dispute in this case is centred on
intestate succession. The applicants are the offspring of the late Moses Muzonda,
who died intestate on 23 September, 1997. Richard John Chimbari of RJC Executor
Services (Pvt) Ltd was appointed executor dative of the deceased estate on 12
March, 2004 to wind up the estate which he did via a first and final
administration and distribution account on 23 April, 2004, which the Master of
this court approved on 20 August, 2004. The estate had only one asset, an
immovable property in the form of house number 5694 Unit J, Seke, Chitungwiza.
That house the executor awarded to the five applicants in equal shares of 1/5
each. It is from this house that the applicants desire the court to grant an
order for the eviction of the first respondent.
It must be
pointed out here that at the hearing I expunged the following documents from
the record - the first respondent's supplementary notice of opposition for
being filed after the applicants' answering affidavit had been filed without leave
of the court thereby breaching Order 32 r 235 and the applicants' supplementary
answering affidavit for not being stamped by the registrar and for not being
signed by the deponent as well as the commissioner of oaths.
The terse
averments by the applicants are as follows:
The first
respondent is a paternal aunt to the applicants. House number 5694 Unit J Seke,
Chitungwiza originally belonged to Lameck Usayiwevhu, their paternal
grandfather who died on 31 October, 1997. Because the grandfather had another
immovable property in Harare, he could not have the Seke house registered in
his name. He then arranged that the house in Seke be registered in his daughter
Annie Muzonda's name, to be transferred later into his son Moses Muzonda's
name. The grandfather's intention in this regard is corroborated by his "will"
dated 18 June, 1997 (annexure "E" to the first applicant's answering
affidavit). Although the document is not a valid will for want of being
witnessed by two witnesses (having been witnessed by only one), it shows or
reveals the grandfather's intention in para 2 whose English translation reads:
"2 the Seke house 5694 Unit J goes to Moses M Usayiwevhu, but must not be
sold." In keeping with the grandfather's original intention, his daughter Annie
Muzonda ceded the house to the applicants' father on 13 April, 1993. Annexure
"F" to the first applicant's answering affidavit is a cession form wherein
Annie Muzonda ceded stand 5694 Unit J to Moses Muzonda with the blessings of
the local authority. When Moses Muzonda died in September, 1997 the family
relatives arranged that the first respondent should stay in the contentious
house until the first applicant, who then was aged 16 years, attained majority
age. In 2001 the first applicant asked, the first respondent to cede vacuo possessio of the house to him.
However, the first respondent refused to do so, alleging that the house did not
belong to the applicants. The applicants then approached the Master who
proceeded to appoint an executor dative to administer the late Moses Muzonda's
estate. This process culminated in the executor awarding the house to the
applicants in equal shares as stated above. The house was subsequently
registered in the applicants' names. Thereafter the applicants again asked the
first respondent to give them vacant possession of the house but she refused
alleging that she was the owner.
On her part, the
first respondent's contention is that there was never an arrangement by
relatives for her to stay at the property in question. The property was
registered in her sister Annie Muzonda's name after it had been donated to her
by their late father. The applicants' father Moses Muzonda fraudulently
registered the property in his name. The dispute regarding ownership of the
property is still pending at the High Court due to the death of her sister
Annie Muzonda, who died on 27 October, 2005.
The matter is yet to be finalised once an
executor is appointed to administer Annie Muzonda's estate. She averred that
the applicants cannot inherit this property while the dependents of the late
Lameck Usayiwevhu are still alive. In her peroration, she averred that the
applicants adopted a wrong procedure since there are so many material disputes
of fact which cannot be resolved on the papers but via a trial.
From the
parties' respective heads of argument, four issues stand out for my resolution.
They are:
1. The
applicants' locus standi to evict the
first respondent from house number 5694 Unit J Seke;
2. Validity
of the cession of the property from Annie Muzonda to Moses Muzonda;
3. Whether
there is a matter regarding the property pending before the High Court; and
4. Whether
there are material disputes of fact needing resolution by way of trial.
I
will deal with the issues below:
Whether
there is a matter regarding the property pending before the High Court
In the first
respondent's opposing affidavit the averment regarding this issue is simply
that "the dispute regarding the property is pending at the High Court." No case
number pertaining to the matter is cited. It was only in the heads of argument
that "Case Number 12129/04" was alluded to. Therein the first respondent stated
that the "matter was dismissed on a technicality by the Honourable JUDGE HUNGWE
on 29 November 2004. The Honourable Judge ruled that the matter was not urgent
and Annie Muzonda was supposed to proceed by way of ordinary application. . She
subsequently died on 27 October 2005 without instituting the court application
proceedings."
From this
peroration by the first respondent, it goes without quarrel that if the matter
was dismissed (whether on a technicality or otherwise) and the proper
application has not been instituted to date, then there is no such case pending
before the court. Even if I were minded to assume for a moment that the alleged
defence of lis alibi pendens exists
in casu, given that the court has a
discretion as to whether or not to uphold the defence, it seems to me that on
the facts of this case, there is every reason to exercise that discretion and
ignore the existence of another dispute for the sake of equity and convenience.
See Mhungu v Mtindi 1986 (2) ZLR 171 (SC); Geldenhuys
v Kotze 1964 (2) SA 167. It would, in
my view, be quite unconscionable to uphold such a defence where a matter has
not been prosecuted for close to eight years with no sign as to when it is
likely to be proceeded with.
Validity
of the Cession of the Property from Annie Muzonda to Moses Muzonda
The contention
here is that Moses Muzonda fraudulently registered the property in question in
his name without Annie Muzonda's knowledge who later sought legal recourse
against her brother. Fraud should not only be pleaded but must be proven. In
the instant case apart from the first respondent's bald allegation of fraud
there is no iota of evidence that the deed of cession was fraudulently
acquired. There is no allegation that Annie Muzonda's signature which appears
on it was forged. Although the document titled "will" is not a valid will for
want of signatures of two witnesses that document's relevant paragraph pertaining to the testator's
intention or wish regarding the house in issue does buttress the applicants'
assertion that their grandfather bequeathed the house to their father. This
also corroborates the validity of the cession from Annie Muzonda to Moses
Muzonda. The cession involved a third party who is the secretary of the board
of the municipality who would not have approved it if there was fraud. There is
a presumption of regularity. The cession is accordingly found to be valid.
The
applicants' locus standi to evict the
first respondent from the house
The contention
by the first respondent in this regard is that since the house in question
formed part of the late Moses Muzonda's deceased estate, and nowhere is it
stated that that estate has been wound up, it is only the executor Richard John
Chimbari and not the beneficiaries who has the locus standi in judicio to sue.
I must confess
that I was at sea as regards the basis of this argument given that annexure "C"
to the first applicant's founding affidavit is clear and unequivocal. This is
the first and final distribution account in terms of which the executor awarded
the house to the applicants herein in equal shares of 1/5 share each. The
master approved the account on 20 August, 2004. Once the account was approved
the executor became functus officio.
The first respondent was therefore digging in the ashes in contending that it
is the executor and not the beneficiaries who has the locus standi to bring this application. It is accordingly clear as
day follows night that the applicants do have the locus to institute these proceedings.
Whether
there are material disputes of fact needing resolution by way of trial
From the papers
filed of record as well as the oral submissions by the first respondent there
is nowhere where the alleged material disputes of fact are specified. The
authors Herbstein and Van Winsen in The
Civil Practice of the Superior Courts in South Africa 3rd ed at
p 61 state that it is trite that the court, can only entertain proceedings on
motion where there is no genuine dispute of fact. At p 62 the authors state
that the determination of the question whether a real and genuine dispute of
fact exists is a question of fact for the court to decide. The respondent's
allegation of the existence of such a dispute is not conclusive.
In Peterson v Cuthbert & Company Limited 1945 AD 420 at 428, it was held that
in every case the court must examine the alleged dispute of fact and see
whether in truth there is a real issue of fact which cannot be satisfactorily
determined without the aid of oral evidence because if this were not done the
respondent might be able to raise fictitious issues of fact and thus delay the
hearing of the matter to the prejudice of the applicant.
In Supa Plant Investments (Pvt) Ltd
v Edgar Chidavaenzi HH 92/09 at p 4
MAKARAU J (as she then was) stated:
"A
material dispute of fact arises when such material facts put by the applicant
are disputed and traversed by the respondent in such a manner as to leave the
court with no ready answer to the dispute between the parties in the absence of
further evidence."
This is not the
position in casu. The nearest the
first respondent went in her endeavour to raise any material disputes of fact
was to allude to the three issues enumerated supra which I have already determined on the papers in favour of
the applicants. These did not require any oral or further evidence for their
determination. They did not even require me to adopt a robust approach in
determining them. In the event, no material disputes of fact exist.
In the result,
the application be and is granted in terms of the draft order as follows:
IT IS ORDERED
THAT:
1. The
first respondent give vacant possession of house number 5694 Unit J, Seke,
Chitungwiza to the applicants within three (3) months of the date of this
order;
2. Failure
to comply with para 1 above, the second respondent evict the first respondent
and all those claiming occupation through her, from house number 5694 Unit J,
Seke, Chitungwiza and hand the house over to the applicants; and
3. The
first respondent shall pay costs of this application.
Pundu
& Company, applicants' legal practitioners
Hangazha
& Charamba, 1st respondent's legal
practitioners
