Division of Estate Property re: Registration, Composition of Deceased Estate, Creditors Claims and Non-Estate Property

Appealed
SC27-08 : JOSHUA KADENGU and LAMECK KADENGU and ROSA KADENGU vs OLGA KADENGU and RICHARD CHIMBARI and MASTER OF THE HIGH COURT
Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

The late Job Bruno Kadengu died testate on 25 March 1990. His Will contained the following clauses:

“2. The expression 'Executors' or 'Executor' wherever used in this Will mean either Executors or Administrators or Trustees or any two or all of these offices as may be appropriate in the circumstances and in the context thereof and the term 'Executors' includes the singular and the term 'Executor' includes the plural.

5. My Executor shall take possession of all my property, whether movable or immovable, of whatsoever nature and sort, and wheresoever situate, and whether the same be in possession, reversion, remainder or expectancy, and, after paying thereout all my just debts and taxes payable by reason of my death, and the expenses of the administration of my Estate, then he shall pay and apply the same as hereinafter directed.

6. I hereby direct that my Executor shall purchase a house in the northern suburbs of Harare and I desire that such house be large enough and commodious enough, in the discretion of my Executor, to comfortably accommodate my wife, OLGA, and any dependent children born of me and my said wife who may survive me. I hereby give and bequeath to my said wife the said house as a special legacy. I further give and bequeath to my said wife, as a special legacy (or special legacies), all the household furniture and effects of which I may die possessed and effects of which may, at the time of my death, be situate in the residential property where my said wife and I may be living as at the date of my death. The legacies referred to in this paragraph shall be conditional upon my said wife, OLGA, surviving me for a period in excess of thirty (30) days.

7. I record that I own a certain farming property situate near Rusape. Provided that my mother shall survive me for a period in excess of (30) thirty days and provided that I still own the said farming property as at the date of my death, I hereby give as special legacies to my mother all the farming implements, livestock and other movables which may belong to me at my death and which may be situate on the said farm as at the date of my death. I further hereby give and bequeath to my said mother a life usufruct in respect of the said immovable farming property but subject to the provisions contained in the immediately subsequent paragraph hereof pertaining to my sister, ROSA CHIMAMBO. I direct that the dominium in the said farming property shall be assumed and taken by my Trustee appointed hereunder who shall deal with the same as directed hereunder.

9. After discharging my debts and taxes, and paying the legacies and providing for the aforesaid usufruct, and, generally dealing with my directives detailed hereinabove, my Executor shall sell and liquidate and turn into cash the entire balance of my Estate and my Executor shall hold the resultant monies in his own name as Trustee of a Trust Fund and he shall apply the income and capital thereof as hereinafter directed. The successor in office as Trustee of my Trust Fund shall be the Senior Partner for the time being of the said Messrs Gollop & Blank.

10. My Executor, as Trustee, in such manner as he shall, in his absolute discretion, from time to time think fit, pay and apply the income of my Trust fund to or for or towards, the benefit, maintenance, education, and advancement of my said wife, OLGA, my said mother and any and every child born of my union with my previous wife and any and every child born of my union with my said wife, OLGA, and, without derogating from the generality of the aforegoing, the following persons; viz.”

The appellants were among the persons listed under paragraph 10.

It is common cause that Gregory Slater who was appointed executor of the Will failed to complete the administration thereof before he fled the country on allegations of misappropriation of funds and that Messrs Gollop and Blank renounced their appointment as executors and trustees of the estate on 5 September 1997.

The assets of the estate were given as 4,000 shares in Paradise Park Motel (Pvt) Ltd and a certain piece of land in the district of Makoni called Alloa Farm.

The Master, in an attempt to speed up the administration of the estate, on 2 July 1999, appointed the second respondent as executor dative of the estate.

It seems that the second respondent was unable to remedy the problems left unresolved by Gregory Slater, and, on 28 September 2000, the first and the second appellants wrote to the Master complaining of the second respondent's inaction and his failure to wind up the estate in accordance with the wishes of the testator.

The letter did not achieve the desired result, and, on 24 March 2003, the appellants made an application to the High Court seeking the following order:

“IT IS ORDERED THAT:

1. The Trust which was to be set up in terms of Clause 9 of the Will be and is hereby abandoned.

2. The deceased's 4,000 shares in Paradise Park Motel (Pvt) Ltd shall be sold to the best advantage of the beneficiaries.

3. A large enough and commodious enough house shall be purchased for the first Respondent and her minor children from the proceeds of the sale of Paradise Park Motel (Pvt) Ltd. The Master of the High Court (the third respondent) shall determine whether the house which the estate shall be purchasing for the first respondent and her children is 'large enough and commodious enough'.

4. After purchasing the house described above for the first respondent and her children, the residue shall be equally distributed among the surviving beneficiaries. The shares of the beneficiaries who are outside the country or who are not part (sic) to these proceedings shall be…,. (illegible).

5. The immovable property, situate in Makoni District, namely, Alloa Farm, held under Deed of Transfer 7689/81 shall not be sold. It shall be retained as the family home to be registered in all beneficiaries names or to be registered in the name of the nominated beneficiary in trust for the rest of the beneficiaries.”

It was their contention that the intention of the testator, as expressed in clause 9 of the Will, could no longer be implemented because of the abdication of Gregory Slater and the renunciation by Gollop & Blank. They alleged that they could not agree on a suitable substitute, and, in any event, some of the beneficiaries could not be located while others were resident outside Zimbabwe.

On 23 July 2003 the appellants obtained a default judgment in the terms set out above. This order was, however, rescinded, by consent, and the matter was argued before the court a quo.

The second respondent, the executor dative, alleged that the estate was illiquid making it impossible for him to discharge his mandate. It was his view that the ownership of the 4,000 shares should be determined before the estate could be wound up.

The three issues argued by the parties before the court a quo were as follows:

1. Whether or not the estate can no longer be wound up in terms of the Will because some clauses have become irrelevant;

2. Whether or not the 4,000 shares in Paradise Park Motel (Pvt) Ltd form part of the deceased's estate; and

3. Whether or not Alloa Farm can still be dealt with in terms of the Will....,.

The court went on to decide the issues before it and found against the appellants on all three issues....,.

I turn to the final issue, which is whether the 4,000 shares in Paradise Park Motel (Pvt) Ltd form part of the deceased estate. The learned Judge dealt with the matter thus:

“The applicants referred to affidavits by the first respondent in which she stated that the shares belonged to the estate. They also attached the First Interim Liquidation and Distribution Account laid for inspection on 4 December 1992 and the subsequent First and Final Liquidation and Distribution Account of 1 November 1996 in which the shares are reflected as being assets belonging to the estate as proof that they are estate property.

In paragraph 13 of the Founding Affidavit, the applicants aver that the shares belong to the Estate.

In response, in her opposing affidavit, the first respondent averred that those shares in Paradise Park Motel (Pvt) Ltd had not been paid for at the time the testator died and that he never owned them. She then goes on to state that they never became part of the estate.

Apparently, the sellers of the shares invited interested beneficiaries to participate in Paradise Park Motel (Pvt) Ltd. None was interested save the first respondent who negotiated transfer to herself and who took transfer.

In their answering affidavit, the applicants insisted that the shares form part of the estate - no doubt on the basis of the earlier statements on oath to this effect by the first respondent.

The applicants did not dispute the averment that the letter of 23 April 2002, by Messrs Gill, Godlonton & Gerrans, was written in response to the one by their then erstwhile legal practitioners, Messrs Musunga & Associates, over the transfer of an immovable property associated with Paradise Park Motel (Pvt) Ltd. This letter, on page 74 of the record, indicated that the agreement referred to was entered into between Auto Export/Import (Pvt) Ltd and Auto Import/Export (Pvt) Ltd as purchaser and that transfer could only be effected to Paradise Park Motel (Pvt) Ltd and not the estate.

The applicants did not lay facts before this court on the status of Paradise Park Motel (Pvt) Ltd other than averments of the first respondent's sworn affidavit to the effect that that she would become co-director with the testamentary executor in this company which was part of her late husband's estate.

The letter from Gill, Godlonton & Gerrans seems to suggest that post-payments on the purchase price were paid by the first respondent.

There would be need to lead evidence on the true circumstances surrounding the shares in question.

It may very well be that the shares belong to the estate notwithstanding that in terms of section 104(1) of the Companies Act [Cap 24:03] the holder of a certificate duly signed and with the seal of the company is presumed to be the owner of the shares on a prima facie basis.

This, however, is an area where further evidence will be needed.

If so advised, it seems to me that this is an issue to be pursued by the second respondent with the Motel and the first respondent.

When the applicants brought the application, it must have been in their contemplation from the contents of the letter from Gill, Godlonton & Gerrans that a dispute of fact would arise on the question of shares. They did not cite the company. These factors are fatal to the present application. I would thus dismiss the request to hold that the 4,000 shares belong to the estate in the absence of further evidence.”

It appears to me that the dispute as to the ownership of the shares is bona fide and not merely illusory. In such a case, the onus is on the appellants to satisfy the court that the matter could be resolved on the affidavits without the risk of injustice to the other party: see Zimbabwe Bonded Fibreglass (Pvt) Ltd v Peech 1987 (2) ZLR 338 (S)…,.

This they failed to do.

I cannot fault the learned Judge for finding himself unable to resolve the dispute on the papers without hearing evidence. In choosing to proceed by way of court application the appellants, aware of the dispute of fact, took the risk of failing to discharge the onus on them to convince the court that the matter could be determined without calling evidence.

In the premises, I would uphold the decision of the learned Judge on this issue as well.

HH17-10 : TOMU NYANDORO vs ESTATE LATE PAULINO OLIVERIA MARTINS represented by the Executor and THE MASTER OF THE HIGH COURT and CHRISTOPHER MARTINS
Ruled By: CHITAKUNYE J

The applicant is a farmer. He claims to have been friends with Mr. Paulino Oliveria Martins, who died on the 2nd of September 2007 at Harare. The applicant claimed that in the course of their friendship he lent the late Paulino Oliveria Martins some money which he had reserved to buy an International Truck Horse ...

The applicant is a farmer. He claims to have been friends with Mr. Paulino Oliveria Martins, who died on the 2^nd of September 2007 at Harare. The applicant claimed that in the course of their friendship he lent the late Paulino Oliveria Martins some money which he had reserved to buy an International Truck Horse with. In exchange for the loan, Mr. Paulino Oliveria Martins was to import a similar truck for the applicant. As fate would have it, Mr. Paulino Oliveria Martins died before he had delivered the truck to the applicant.

The applicant said that when he made a claim for the truck, which had been imported in his name but not yet delivered to him, the executor rejected his claim. He therefore approached this court for an order that -

1. The first and second respondents be directed not to include the applicant's Nissan Diesel UD290 WF Horse into the estate of the late Paulino Oliveria Martins DR1308/07 estate.

2. The first and third respondents be directed to release the truck and all the relevant papers to the applicant to enable the applicant to forthwith register this truck into his name within seven days of the granting of this order.

3. Upon the first and third respondent's failure, the Deputy Sheriff be authorized to take the truck and sign all relevant papers to enable the applicant to register the truck into his name, and the extra costs incurred shall be on the first and third respondents' account, and handover the truck to the applicant.

4. That the first and third respondents' bear the costs of suit on an attorney and client scale and not those of the estate.

The applicant's case was that he was a friend to the late Paulino Oliveria Martins, who died on 2 September 2007. Prior to his death, Paulino Oliveria Martins had borrowed a sum of $5 billion dollars (Zimbabwean currency) from the applicant. In turn, Paulino Oliveria Martins was to import an International Truck Horse for the applicant as repayment for the loan.

When Paulino Oliveria Martins died he had not yet delivered the Horse.

When the applicant saw a notice of death duly published in the press he filed a claim with the executor for the truck. The applicant asserted that at the time of his death Paulino Oliveria Martins has begun the process of importing the truck for him. To confirm this, he attached a proforma invoice. The proforma invoice is in the applicant's name and address. He argued that that pro-forma invoice was the one used to purchase the truck he is claiming from the first respondent.

In response to the claim, the executor requested the Master of the High Court to convene a special meeting for purposes of discussing and validating the claims. That meeting was indeed held on 19 December 2007 at the Master of the High Court's office with the applicant and the executor in attendance.

On 8 January 2008, a Mr. Matore, of the Master of the High Court's office, wrote a letter to the applicant's legal practitioners, copied to the executor, indicating that he had accepted the applicant's claim, hence the 15-tonne truck be declared a non-estate property and be restored to the applicant since it was purchased for him by the late Paulino Oliveria Martins during his lifetime.

On 23 January 2008, the Master of the High Court, Mr. C. Nyatanga, wrote a letter to the applicant's legal practitioners nullifying Mr. Matore's letter of 8 January 2008 as being unprocedural.

Further correspondence between the applicant's legal practitioners and Mr. C.Nyatanga did not yield favourable results.

The applicant duly filed a solemn declaration purportedly in terms of section 47(1) of the Administration of Deceased Estates Act [Chapter 6:01]. In that declaration, he outlined the basis for his claim.

On 25 April 2008, the executor wrote to the applicant advising that he was declining his claim for the 15-tonne truck on the basis of insufficient evidence. He asked the applicant to furnish sufficient information and proof of the claim within twenty-on days.

On 23 July 2008, the executor wrote to the applicant's legal practitioners...., indicating that the applicant's claim had not been accepted as the claim was vague and unsubstantiated.

It was after this rejection of his claims that the applicant filed the present application.

The first and third respondents opposed the application...,.

HH549-15 : ELSIE BHILA vs THE MASTER OF HIGH COURT and FREDDY CHMBARI NO and RATIDZO BHILA and KELVIN BHILA and KWATINI BHILA
Ruled By: MWAYERA J

Further, it is common knowledge that both the Houghton Park and Borrowdale houses fall into the estate of the deceased since these properties were registered solely in the name of the deceased.

HB91-10 : OSEFELUPILU MOYO (Nee SEDANGE) vs ESTER KELLY N.O. and ASSISTANT MASTER OF THE HIGH COURT
Ruled By: MATHONSI J

Counsel for the applicant argued that the winding up process should be nullified because the respondents ignored the applicant's claim to the estate made under Case No. HC394/07. There is a procedure to be followed when making a claim against an estate and it is provided for in Part III of the Administration of Estates ...

HH362-13 : THOMAS CHAURAYA vs PROGRESS MAKOKORO
Ruled By: MAWADZE J

The plaintiff, on 24 February 2011, issued summons out of this court seeking an order of sharing of the assets of the parties on the basis of the common law principle of unjust enrichment.In his declaration, the plaintiff stated that he entered into a customary law union with the defendant ...

The plaintiff, on 24 February 2011, issued summons out of this court seeking an order of sharing of the assets of the parties on the basis of the common law principle of unjust enrichment.

In his declaration, the plaintiff stated that he entered into a customary law union with the defendant which union was blessed with four children two of whom are minor children. At the time he contracted the union the plaintiff said he was already married to his first wife and it was also a customary law union.

The plaintiff stated that he acquired the immovable property in issue, known as Stand No. 2573 Kuwadzana 4 Harare, when he was married to his first wife and had not married the defendant. He said the immovable property is registered in the joint names of the plaintiff and his first wife.

It is the plaintiff's case that the customary union between him and the defendant has been since dissolved as per the customary rites. The plaintiff however contended that he would be unjustly enriched if the defendant does not receive any share in the immovable property, No. 2573 Kuwadzana 4 Harare (hereinafter the house or the property). The plaintiff states, in his declaration, that it is fair and equitable to award the defendant a 20% share of the open market value of the property, a figure he later amended before the commencement of the trial to 5% share.

In her plea, the defendant sought the distribution not only of the house but also of some movable property not stated in the plaintiff's declaration which include mainly household goods itemised in paragraph 2 of her plea.

While the defendant conceded that the house was acquired by the plaintiff and his first wife, she said, in her plea, that at the time she married the plaintiff the house only consisted of a core house of two rooms. The defendant said she contributed to the extensions and improvements made to the house which is now a 7-roomed house. In her plea, the defendant alleges direct contribution to the extension of the house by raising money from the sale of clothes which money was used to purchase the building materials. She said she bought clothes in Harare for resale to illegal gold panners in Shamva, Mazowe, Chikuti and Sanyati. She said the money she raised was specifically used to pay the builders, carpenters and purchasing building materials. In her plea, she said she also used to sell uniforms sewn by the plaintiff using the family sewing machine in Makonde area and used the profits in the same manner already explained. The defendant further stated, in her plea, that she indirectly contributed by taking delivery of the building materials bought when the plaintiff was at work, assisting the plaintiff in the purchasing of the building materials and for their safekeeping, and preparing food for the builders and carpenters.

The defendant said she further contributed in the construction of the plaintiff's rural home; firstly, in Muzarabani, where she cleared virgin land, moulded bricks, constructed a homestead, cattle and goat pens at the time the plaintiff was in full employment in Harare. The defendant said she performed the task when the family moved from Muzabani to Gumbura area, Makonde in Mashonaland West Province where she said they built a rural home which now remains the sole asset of the plaintiff. The defendant stated, in her plea, that it is just and equitable that the house or property in issue be sold all the proceeds shared equally.

It would seem the purpose for replication was lost to the plaintiff as he did not seek to respond to pertinent issues raised by the defendant in her plea. The need to do so became apparent during the trial.

In terms of the joint pre-trial conference minute adopted by the parties the following issues were deemed not to be in contention;

“1. ADMISSIONS

1.1 That Stand No.2573 Kuwadzana 4 Harare was acquired and jointly owned by the plaintiff and his late wife Maud Chauraya.

1.2 That the household effects be shared as follows:-

PLAINTIFF

1. 1 Sewing Machine.
2. Delivery bicycle.
3. 1 scotch cart.
4. 4 plate electric stove.
5. Spraying machine.

DEFENDANT

1. Mountain bicycle.
2. 1 sewing machine.
3. 2 plate stove.

1.3 That the defendant be awarded custody of the minor children.

1.4 Maintenance to be paid in accordance with the order of the Maintenance Court under case No. M637/09.”

The following issues were referred for determination at the trial;

“2. ISSUES

2.1 Whether or not the plaintiff has already given the defendant the household effects that were acquired during the subsistence of the marriage.

2.2 Whether or not the plaintiff sold any assets that were acquired during the subsistence of the marriage.

2.3 Whether or not the defendant is entitled to any share to the immovable property, Stand No.2573 Kuwadzana 4 Harare. If she is entitled to any share, what percentage.

2.4 Whether or not the refrigerator is part of matrimonial property. If yes, which party should be awarded the refrigerator.

2.5 Whether or not the building structure that stood on Number 2573 Kuwadzana 4 at the time the parties got married was a 2 roomed core house only.

2.6 Whether or not the 7 roomed house presently stands on Stand Number 2573 Kuwadzana 4 was the result of extensions effected during the subsistence of the marriage.

2.7 Whether or not the defendant set up the plaintiff's rural home in Makonde which now remains the sole property of the plaintiff.”

I should confess, from the onset, that I find it very confusing the manner the parties approached the pleadings in this matter. The exhortation made by MAKARAU JP…, in Feremba v Matika 2007 (1) ZLR 337 (H)…, seems to have escaped both parties during the pleadings, and, unfortunately, even at pre-trial conference stage.

I shall repeat the relevant poignant remark by MAKARAU JP…,:

“When General law is the correct choice, then a recognised cause of action must be pleaded. Such a cause of action may be unjust enrichment, a tacit universal partnership, or joint ownership. An averment merely to the effect that the parties were in an unregistered customary law union is not sufficient to found a cause of action at General Law.”

In casu, the cause of action is not properly pleaded especially by the plaintiff in the declaration.

The parties were in an unregistered customary law union which has since ended. This explains why an amendment was belatedly made to the declaration just before the trial when I had raised that point with the parties. While the exhortation I referred to by MAKARAU JP…, in Feremba v Matika 2007 (1) ZLR 337 (H) was mainly directed to trial magistrates, I believe all legal practitioners must also be wary of this important aspect.

In casu, when one pays regard to the joint pretrial conference minute the impression created is that the parties were in a registered marriage if one pays regard to not only the improper use of the word “marriage” but even issues relevant to admissions made in relation to custody of the children. The issues referred to trial are also couched in a manner suggestive of the fact that the sharing of the assets by the parties is in terms of section 7 of the Matrimonial Causes Act [Chapter 5:13]. This confusion arises from the fact that a proper cause of action had not been clearly pleaded and the issues arising therefrom properly articulated.

Be that as it may the plaintiff, with the consent of the defendant, amended the declaration in which it was clearly stated that the cause of action is unjust enrichment. This matter therefore proceeded on the clear understanding that the parties have nailed their colours on the mast of the concept of unjust enrichment. This also necessitated the changes the parties made in respect of the issues for determination. The issues which fall for determination, as I now perceive them, are as follows;

1. Whether or not the defendant contributed, directly or indirectly, to the improvements done on Stand No. 2573 Kuwadzana 4, Harare.

2. The state or stage the construction of House No.2753 Kuwadzana 4 Harare was when the plaintiff and the first defendant entered into the customary law union.

3. The nature of the share to the immovable property in issue each party is entitled to.

4. Which party should be awarded the refrigerator.

The issue relating to sharing of household goods was abandoned as it became clear that the defendant was awarded some “maoko” property at the dissolution of the union and that the parties further agreed to share of other assets as for paragraph 1.2 of the joint pre-trial conference minute.

The parties also abandoned item 2.2 which relates to whether the plaintiff sold any assets acquired during the subsistence of the union. It is not clear what issue was being raised therein. In fact, during the trial, the defendant attempted to raise the issue in a different context alleging that it is the defendant who disposed of assets and livestock at the rural home in Makonde.

The issue relating to the defendant's role in the setup of the rural home is only relevant in considering her indirect contribution to during the union and the share she is entitled to.

I now turn to the background facts of the matter.

The plaintiff is employed by Harare City Council in the Dry Cleaning Department. He has been so employed since 1974. The defendant, who is now 47 years old, has been, throughout the union, a full time housewife.

The plaintiff first entered into a customary law union with Maud Chauraya in 1977 and six (6) children were born out of this union. The union between the plaintiff and Maud Chauraya ended in 2006 when Maud Chauraya passed on. The plaintiff entered into a customary law union with the defendant in 1989, as per the defendant, or 1990 as per the plaintiff. Four (4) children were born out of this union two of which are still minors.

This means that from either 1989 or 1990 to 2006 the plaintiff was in a polygamous union with two wives - a period of about 17 years.

The union between the plaintiff and the defendant was formerly dissolved in 2009, after being in existence for a period of about 19 years. When the defendant entered into the union with the plaintiff she had two children from a previous relationship or relationships.

The acquisition of the immovable property, No.2573 Kuwadzana 4, Harare is not in issue. The plaintiff acquired the undeveloped Stand in 1984 with the assistance from his employers, the City of Harare. As per exhibit 1, the agreement of sale of this property is in the joint names of the plaintiff and his first wife, Maud Chauraya.

The first wife passed on in 2006 and her estate is still to be dealt with. This includes her interest in the property jointly registered in the plaintiff and her name. This informs the decision by both counsel for the plaintiff and counsel for the defendant that all what is available for distribution between the plaintiff and the defendant is the plaintiff's 50% share in the property.

I find nothing amiss in this approach. Whatever the award this court would make in respect of the property, the award relates to 50% of the value of that property not 100% of its value....,.

The circumstances of this case, and the parties, are such that I find no useful purpose to be served by giving either party the option to buy the other one out. Neither party has the means and capacity to raise any meaningful income in the foreseeable future. The only option would be to order the sale of the house as soon as possible and allow the parties to benefit immediately from such proceeds.

I shall order the valuation of the property and the award made to each party relates to 50% of the value of the property as the other 50% belongs to the estate of the late Maud Chauraya, the plaintiff's first wife.

HB191-11 : BENJAMIN SIBINDI vs NKOSILATHI MXOTSHWA and SAZINI MXOTSHWA and MNCEDISI MXOTSHWA and PHATHISANI MXOTSHWA and THABO MXOTSHWA and CITY OF BULAWAYO
Ruled By: KAMOCHA J

Thirdly, the respondents asserted that their father's estate was wound up on 10 January 2003 after publication was properly done in terms of the law. Benjamin Sibindi failed to lay a claim against this estate before it was wound up. He was, accordingly, barred in terms of section 45(3) of the Administration of Estates Act ...

Thirdly, the respondents asserted that their father's estate was wound up on 10 January 2003 after publication was properly done in terms of the law.

Benjamin Sibindi failed to lay a claim against this estate before it was wound up. He was, accordingly, barred in terms of section 45(3) of the Administration of Estates Act [Chapter 6:01]. Benjamin Sibindi does not dispute that he failed to lodge his claim with the executor within the specified period or thereafter.

Instead, Benjamin Sibindi, on 25 April 2006, filed a chamber application wherein he was granted the following order:-

1. The 1^st to 5^th respondent's exception and plea in bar filed on the 2^nd March 2004, under case number HC65/04, be and is hereby struck off for want of prosecution;

2. That 1^st to 5^th respondents be and are hereby ordered to file their plea on the merits to the main case within 10 days of service of this order upon them; and

3. The 1^st to 5^th respondents shall jointly and severally pay costs of this application on an attorney-client scale.”

The above application was made on the strength that the respondents had not prosecuted their exception and plea in bar for a period in excess of two years. Benjamin Sibindi felt that such an inordinate delay tended to prejudice him. It delayed the fair trial of the action.

Benjamin Sibindi was correct except that he was remiss in finalising the matter by way of a chamber application whereby the exception and plea in bar were struck out for want of prosecution.

His explanation that he was not aware of the process of the liquidation of the estate of the defendants' father estate is clearly unacceptable as proper publication was done. In the result, I would hold that the explanation and special plea in bar were well found and issue the following order.

It is ordered that:-

1. The 1^st, 2^nd, 3^rd, 4^th and 5^th defendants' exception and plea in bar against the plaintiff's claim be and are hereby upheld.

2. The plaintiff's claim under case number HC65/04 be and is hereby dismissed with costs on the ordinary scale.

HB99-14 : ELLEN MAJOLA vs BEKEZELA NYONI
Ruled By: MAKONESE J

The defendant admitted, under cross-examination, that when the late Njani Majola's estate was advertised calling upon debtors and creditors to submit their claims she did nothing about it. The defendant was subsequently aware that the property was transferred into the names of the plaintiff and yet she chose to sit back and do ...

HB17-16 : WINNIE MPOFU vs FLOPPA LEAH MLAVU a.k.a LEAH FLOPPHEL MLAVU and ESTER KELLI (N.O.) and THE ASSISTANT MASTER
Ruled By: MATHONSI J

No evidence was led on the third issue, namely, what assets constitute the estate of the deceased, which I therefore leave for the executor.

HB84-16 : PHILANI GAMA N.O. vs LUNGISANI MPOFU and PATRICIA PHIRI and MBALI NGWENYA and THE ADDITIONAL ASSISTANT MASTER N.O. and THE ASSISTANT MASTER, HIGH COURT OF ZIMBABWE, BULAWAYO N.O.
Ruled By: MATHONSI J

In this matter, two deceased estates, one for the late Mishack Nyathi and the other for the late Kuyibisa Masuku, who were married to each other on 4 November 1997 in terms of the Marriage Act [Chapter 5:11], are now fighting each other with the other respondents being mere casualties in a winding up ...

The late Kuyibisa Masuku died intestate in 1997 at a time that she was married to the late Mishack Nyathi aforesaid. Her estate was registered by the fifth respondent as DRB2249/97. The late Mishack Nyathi, who survived his wife was then issued with a certificate of authority by the fifth respondent, on 21 April 1998, in terms of the provisions of the Administration of Estates Act [Chapter 6:01], to administer and distribute his late wife's estate, and, in particular, to “deal with and take over House Number 2459 Cowdray Park, Bulawayo.”

Armed with the certificate of authority to take over the house, Mishack Nyathi must have thought that all was over. He did not proceed to take transfer of the house he had inherited in accordance with the law until nature caught up with him as well. He died intestate on 21 May 2005. His estate was registered by the fifth respondent as DRB No.802/05 and the present applicant was appointed executor of the estate.

Meanwhile, something strange was also happening at the fourth respondent's office; that is, the Additional Assistant Master, whose office is subservient to that of the fifth respondent.

15 years after the estate of the late Kuyibisa Masuku was registered and the late Mishack Nyathi inherited the estate as the surviving spouse, the first respondent approached the fourth respondent's office and purported to register that estate anew. The fourth respondent obliged and registered the estate as DRBY No.689/12. Unbeknown to the fourth respondent, not only had the estate been registered by the fifth respondent and the late Mishack Nyathi inherited it; the estate in question fell to be administered only by the fifth respondent and not the fourth respondent who deals only with estates governed by Customary Law because the deceased was married in terms of General Law.

The unfolding drama found expression in the appointment of the first respondent, the son of the late Kuyibisa Masuku, as the executor. He wasted no time in applying for, and obtaining, authority, in terms of section 120 of the Administration of Estates Act [Chapter 6:01], to sell Stand 2459 Cowdray Park, Bulawayo by private treaty - the same property which had devolved to the late Mishack Nyathi by authority of the fifth respondent fourteen years earlier.

The first respondent moved with indecent haste in appointing the second respondent as his agent with authority to dispose of the property and it was duly sold to the third respondent who immediately took transfer by Deed of Transfer number 174/2014, never mind that when that occurred, on 17 February 2014, the third respondent was only four years and three months old (according to the transfer deed she was born on 18 November 2009). Happily, one Qhelani Moyo has stepped in as legal guardian of that minor child to assist her in this litigation.

The applicant has now approached this court seeking a declaratur that the second registration of the estate, as DRBY659/12, is unlawful and therefore null and void…., and punitive costs against the first, second and third respondents.

It is those respondents who have opposed the application.

The first respondent says he was unaware that his mother's estate had been registered already when he sought to have it registered again. He, however, seeks to uphold its winding up and finalization by himself notwithstanding its prior registration and management. He then argues, extraneously, about the house having been purchased by his late mother, him being listed as one of the occupants, and being the beneficiary of the estate because his mother had married Mishack Nyathi 'on her death-bed' before “she died two weeks later.”

The other respondents followed in unison to chorus their support of the first respondent….,.

The applicant seeks a declaratory order which is a remedy provided for in section 14 of the High Court Act [Chapter 7:06] in terms of which this court may, at the instance of any interested party, inquire into and determine any existing, future or contingent right or obligation. In interpreting section 14 of the High Court Act [Chapter 7:06], GUBBAY CJ pronounced as follows in Munn Publishing (Pvt) Ltd v ZBC 1994 (1) ZLR 337 (S)…,.:

“The condition precedent to the grant of a declaratory order is that the applicant must be an interested person, in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court. See United Watch and Diamond Co (Pty) Ltd and Others v Disa Hotels and Another 1972 (4) SA 409 (C) at 415 in fine; Milani and Another v South Africa Medical and Dental Council and Another 1990 (1) SA 899 (T) at 902G-H. The interest must relate to an existing, future or contingent right. The court will not decide abstract, academic or hypothetical questions unrelated to such interest. See Anglo-Transvaal Collieries Ltd v SA Mutual Life Assurance Soc 1977 (3) SA 631 (T) at 635G-H. But the existence of an actual dispute between persons interested is not a statutory requirement to an exercise by the court of jurisdiction. See Exp Nell 1963 (1) SA 754 (A) at 759H-760A. Nor does the availability of another remedy render the grant of a declaratory order incompetent. See Gelcon Investments (Pvt) Ltd v Adair Properties (Pvt) Ltd 1969 (2) RLR 120 (G) at 128A–B; 1969 (3) SA 142 (R) at 144D-F.

This, then, is the first stage in the determination by the court.

At the second stage of the inquiry, it is incumbent upon the court to decide whether or not the case in question is a proper one for the exercise of its discretion under s14. What constitutes a proper case was considered by WILLIAMSON J in Adbro Investment Co Ltd v Minister of the Interior and Others 1961 (3) SA 283 (T) at 285B–C to be one which, generally speaking, showed that –

'despite the fact that no consequential relief is being claimed or perhaps could be claimed in the proceedings, yet nevertheless justice or convenience demands that a declaration be made, for instance as to the existence of or as to the nature of a legal right claimed by the applicant or of a legal obligation said to be due by a respondent. I think that a proper case for a purely declaratory order is not made out if the result is merely a decision on a matter which is really of merely academic interest to the applicant. I feel that some tangible and justifiable advantage in relation to the applicant's position with reference to an existing, future or contingent legal right or obligation must appear to flow from the grant of the declaratory order sought.'

See also Reinecke v Incorporated General Insurance Ltd 1974 (2) SA 84 (A) at 93D-H.”

See also Bulawayo Bottlers (Pvt) Ltd v Minister of Labour, Manpower Planning and Social Welfare and Others 1988 (2) ZLR 129 (H); Johnsen v AFC 1995 (1) ZLR 65 (H).

The applicant is the executor of the estate late Mishack Nyathi, an estate which, in law, inherited from the estate of the late Kuyibisa Masuku, the latter having pre-deceased her husband. He therefore is an interested person who could be prejudicially affected. It is an interest relating to an existing right. The first stage of the inquiry is therefore answered in the affirmative.

The second stage of the inquiry is whether this is a case in which the court has to exercise its discretion reposed by section 14 of the High Court Act [Chapter 7:06].

What has happened here is that the surviving spouse registered the estate of his wife during his lifetime and probably complied with all the requirements for winding up hence the decision by the fifth respondent to grant him leave to take transfer of the house belonging to the estate. The estate fell to be administered in accordance with the law under the process initiated by its registration in 1997. If the first respondent had a claim against the estate he had to make it under that process. He could not wait several years and then purport to initiate a winding up process of his own because his step-father had passed on.

It was incompetent.

That position is confirmed by the Master's report submitted in terms of Rule 248 of the High Court of Zimbabwe Rules, 1971. He has reported that:

“Estate late Kuyibisa Masuku is registered with my office under DRB2249/97 whilst estate late Mishack Nyathi is also registered with my office under DRB802/05. A perusal of the file shows that (in the) estate late Kuyibisa Masuku there was a will which was nullified by an existence of a marriage certificate. It therefore means that the estate was supposed to be dealt with intestate. On the 21^st of April 1998 my office issued a certificate of authority in favour of Mishack Nyathi who was the surviving spouse. See annexure 'A'. The deceased's husband took time to change ownership of the said property until he also died. On the other hand, estate Kuyibisa was also registered at Tredgold Magistrate(s) Court under DRBY689/12. The estate was done and finalized, consent to transfer were (sic) issued by the Magistrates Court which necessitated the transfer of the property. The executor, then Mr Lungisane Mpofu, applied for section 120 authority and he was given. Since the estate late Kuyibisa Masuku had a will and the two were also married in terms of Marriage Act [Chapter 37], (sic) the estate was indeed supposed to be registered at my office. The certificate of authority produced by my office was for the purpose of transferring the property to the surviving spouse Matthew (sic) Nyathi…,. I therefore believe that the double registration of the estate was only meant to confuse the system, and, as such, I submit that I will have no objection to the order sought.”…,.

The fact that Mishack Nyathi survived his wife, Kuyibisa Masuku, triggered the application of section 3A of the Deceased Estates Succession Act [Chapter 6:02] as well as the provisions of section 3 of the Administration of Estates Act [Chapter 6:01]. He was entitled to inherit her estate - and did inherit.

See Chaumba v Chaumba 2002 (2) ZLR 51 (S)…,.; Nyathi and Another v Ncube and Others HB123-11; Mpofu v Mlavu and Others HB17-16.

When the first respondent purported to inherit House Number 2459 Cowdray Park, Bulawayo and to wind up the estate of his late mother he was engaging in futility. The estate had already been dealt with and the house in question had already been inherited. The purported registration of the estate, inheritance by the first respondent and everything else that flowed from it was a nullity. There was no longer an estate to be dealt with that way. The often cited seminal remarks of LORD DENNING in Macfoy v United Africa Co Ltd [1961] 3 ALL ER 1169 (PC)…, are apposite:

“If an act is void, then it is, in law, a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, although it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

And so will the purported sale and transfer of the house to the third respondent collapse as well. That conclusion is consistent with the pronouncement of the Supreme Court in Standard Chartered Bank Zimbabwe Ltd v Matsika 1997 (2) ZLR 389 (S)…, that;

“A cardinal principle of the common law is expressed in the aphorism: 'nemo exproprio dolo consequitur actionem' which translates: no one maintains an action arising out of his own wrong. Complementary to this principle is another which stipulates: 'nemo ex suo delicto meliorem suam conditionem facere potest' which means: no one can make his better by his own misdeed.”

That is what the first respondent did…,. In the result, it is ordered that;

1. It is declared that the purported registration of the estate late Kuyibisa Masuku by the first respondent at the office of the fourth respondent, as DRBY689/12, was unlawful and therefore null and void.

HH93-11 : ELIZABETH KAMANGA vs ESTATE LATE BUTE CHIKONDO (represented by Oswald Bute Chikondo as executor) and MERCY CHIKONDO and CITY OF HARARE and MASTER OF THE HIGH COURT
Ruled By: GUVAVA J

The Master of the High Court stated, in his report, that the registration of the estates of the late Bute Chikondo and Benhilda Chikondo was irregular as the estates where put under one reference number.

HH77-15 : JONASI DONDO N.O. vs MAGNA MUGANHIRI and RICKY KANDEMWA and MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS
Ruled By: TSANGA J

A party who clandestinely re-registers…, an estate without the formal removal of the first executor cannot hope to excuse their illegal act on the basis of surrounding circumstances relating to the administration.

HH94-15 : STELLA HAPAGUTI vs CECIL MADONDO (as Executor Dative in the Estate of the Late EXISTO FRANCIS HAPAGUTI) and MASTER OF THE HIGH COURT
Ruled By: CHITAKUNYE J

In terms of the Administration of Estates Act, an executor is required to consider the value of all property, goods and effects, movable and immovable, of whatever kind belonging to the estate which he has been appointed to administer. The net estate the executor is to distribute, in terms of section 68F(2)(b) of the Administration ...

HH198-16 : TANIA ROCHE (as Curator Bonis of Anita Bruk-Jackson) vs IAN MIDDLETON (as Testamentary Executor to Estate Late Chester Bruk-Jackson) and THE MASTER OF THE HIGH COURT
Ruled By: CHITAKUNYE J

In clause 1, the applicant seeks that the property known as No. 8 in the building known as St. James Terrace, St. James, Cape Town, South Africa be excluded from the estate of the deceased. As already alluded to, that property is governed by a joint Will that the deceased and Anita June Bruk-Jackson executed. Clause 1 ...

HH217-17 : NAISON SEKERAMAYI and OTHERS vs MASTER OF HIGH COURT and PROVINCIAL MAGISTRATE, HARARE and EASTER DZWOWA and YARADZO MUNANGATI MANONGWA (Executrix Dative in Estate Lovemore Sekeramayi)
Ruled By: ZHOU J

The deceased died at Maseru, Lesotho, on 4 June 2014. His estate was registered with the office of the first respondent under DR892/14….,. The fifth respondent then proceeded to register the same estate of the deceased in the Magistrates Court under DRH1009/14. It is not clear how that registration took place.

View Appeal
HH314-16 : AS SCHOOL and CSS SCHOOL and SET COLLEGE and GST SCHOOL and SC COLLEGE and CB SCHOOL vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

In 27 LAWSA 'Things' cited by counsel for the appellants in his written heads of argument PROFESSOR Van Der MERWE states, inter alia,…, the following enlightening description of and distinction between corporeal and incorporeal property in these terms: “When signifying a legal object, the word 'property' refers to everything which is susceptible of pecuniary evaluation, that is, everything which has ...

SC20-19 : GRACE SHURO vs MOLLY CHIURAISE and CITY OF MASVINGO
Ruled By: GARWE JA, HLATSHWAYO JA and BHUNU JA

The real issue that fell for determination, in my view, was whether the property in question was correctly included as part of the deceased estate of the late Walter Style Matumba.

View Appeal
HH113-06 : JOSHUA KADENGU and LAMECK KADENGU and ROSA KADENGU vs OLGA KADENGU (In her personal capacity and as guardian of her two minor children) and RICHARD CHIMBARU and MASTER OF THE HIGH COURT
Ruled By: KUDYA J

On 24 March 2003, three of the beneficiaries of the estate of the late Job Bruno Kadengu filed this application seeking the variation of certain clauses of the Last Will and Testament of the testator.

The application was served on the respondents on 2nd April 2003, 17 April 2003, and 16 March 2005 respectively.

The first respondent opposed the application on 18 August 2003 while the second respondent did so on 1st September 2003.

The testator died testate on 25 March 1990. He executed his 9-paged Will on 20 February 1990. It contains 20 clauses.

One Gregory Slater of Gollop and Blank legal practitioners of Harare was appointed the executor testamentary and was issued with Letters of Administration by the Master on 14 June 1990 in line with clause 3 of the Will.

Gregory Slater attempted to administer the estate DR No.665/90, but, by 30 September 1998 he had not finished doing so. He fled the country under allegations of misappropriation of funds.

Messrs Gollop and Blank proceeded to renounce their appointment as executors of and trustees to the estate on 5 September 1997.

The Master then appointed the second respondent as Executor Dative on 2nd July 1999.

The new executor failed to remedy the problems that Gregory Slater left unresolved. By 28 September 2000 the first and second applicants, together with Martin Kadengu, another beneficiary, wrote to the Master complaining of the inaction of the second respondent and his resultant failure in winding up the estate in accordance with the wishes of the testator.

The desired result was not achieved.

The applicants instituted the present application in the belief that:-

“This estate can no longer be wound up in terms of the Will as some of the clauses have become irrelevant with the passage of time whilst others have been overtaken by events.”

They referred to Clause 9 which dealt with the formation of a Trust whose trustee was to be senior partner in the law firm of Messrs Gollop & Blank which law firm had renounced their appointment as trustees and executors even before the Trust had been formed.

They pointed out that the beneficiaries had not, and could not, agree on a suitable substitute.

In any event, to them, the Trust would not achieve its intended purpose as some of the beneficiaries could not be located while others had left Zimbabwe.

They sought the dispensation of the formation of the Trust and the liquidation of the estate in a way consistent with the overall intention of the testator that a commodious enough house be purchased for the first respondent and the residue be shared equally to all the deceased's children.

The only assets belonging to the estate were given as 4,000 shares in Paradise Park Motel (Pvt) Ltd and certain piece of land situate in the district of Makoni called Alloa Farm.

They therefore prayed for the disposal of the 4,000 shares in Paradise Park Motel (Pvt) Ltd by private treaty, and that Clause 6 of the Will be implemented for “a large enough and commodious enough house be purchased for first respondent in the Northern suburbs of Harare” from the proceeds and that the residue be shared equally amongst the beneficiaries.

They further prayed for the registration of Alloa Farm, in the names of all the beneficiaries, as a family home which would not be sold and that costs be borne by the Estate in the event of the first and second respondents did not oppose the application.

On 23rd July 2003, a default judgment was entered by this court. It was ordered that:-

1. The Trust which was to be set up in terms of Clause 9 of the Will be and is hereby abandoned.

2. The deceased's 4,000 shares in the Paradise Park Motel (Pvt) Ltd shall be sold to the best advantage of the beneficiaries.

3. “A large enough and commodious enough” house shall be purchased for the first respondent and her minor children from the proceeds of the sale of the Paradise Park Motel (Pvt) Ltd. The Master of the High Court (3rd respondent) shall determine whether or not the house which the estate shall be purchasing for the first respondent and her children is large enough and commodious enough.

4. After purchasing the house described above for the first respondent and her children, the residue shall be equally distributed among the surviving beneficiaries. The shares of beneficiaries who are outside the country or who are not part of these proceedings shall be deposited with the Master of the High Court.

5. The immovable property situate in Makoni District, namely, Alloa Farm, held under Deed of Transfer 7689/81 shall not be sold. It shall be retained as a family home to be registered in all the beneficiaries' names or to be registered in the name of the nominated beneficiary in trust for the rent of the beneficiaries.

6. The costs of this application shall be borne by the estate.

Both parties were agreed that this order was rescinded by consent.

The first respondent, in her opposition, averred that the Will was valid and effectual and that the second respondent be afforded the opportunity to administer it and give effect to the deceased's wishes. She averred that improper conduct by Gregory Slater, or delays and inaction by the second respondent, were not recognized grounds for setting aside the Will.

She further averred that the shares in Paradise Park Motel did not belong to the estate as the deceased had not paid for them at the time of his demise. An open invitation was extended to those beneficiaries willing to participate in the purchase of these shares to do so but only the first defendant responded positively.

She produced a letter written to the applicant's then legal practitioners, of 23 April 2002, which indicated that a dispute existed as to the ownership of the shares.

Further, she averred that Alloa Farm be dealt with in terms of the Will.

The second respondent, on the other hand, in his opposition, noted that the estate was illiquid and this hampered his ability to discharge his mandate. He believed that the issue of the ownership of the 4,000 shares be determined first before the estate could be wound up.

Three issues were argued before me. These are:-

1....,.

2. Whether or not the 4,000 shares in Paradise Park Motel (Pvt) Ltd form part of the deceased's estate....,.

The last issue for determination revolves on the ownership of the 4,000 shares in Paradise Park Motel (Pvt) Ltd; that is, whether these shares are part of the deceased's estate.

The applicants referred to affidavits by the first respondent in which she stated that the shares belonged to the Estate.

They also attached the First Interim Liquidation and Distribution Account laid for inspection on 4 December 1992 and the subsequent First and Final Liquidation and Distribution Account of 1st November 1996 in which the shares are reflected as being assets belonging to the estate as proof that they are estate property.

In paragraph 13 of the Founding Affidavit, the applicants aver that the shares belong to the Estate.

In response, in her opposing affidavit, the first respondent averred that those shares in Paradise Park Motel (Pvt) Ltd had not been paid for at the time the testator died and that he never owned them. She then goes on to state that they never became part of the estate.

Apparently, the sellers of the shares invited interested beneficiaries to participate in Paradise Park Motel (Pvt) Ltd. None was interested save the first respondent who negotiated transfer to herself and who took transfer.

In their answering affidavit, the applicants insisted that the shares form part of the Estate - no doubt on the basis of the earlier statements on oath to this effect by the first respondent.

The applicants did not dispute the averment that the letter of 23 April 2002 by Messrs Gill, Godlonton and Gerrans was written in response to the one by their then erstwhile legal practitioners Messrs Musunga and Associates over the transfer of an immovable property associated with Paradise Park Motel (Pvt) Ltd.

This letter, on page 74 of the record, indicated that the agreement referred to was entered into between Auto Export/Import (Pvt) Ltd and Auto Import/Export (Pvt) Ltd as purchaser and that transfer could only be effected to Paradise Park Motel (Pvt) Ltd and not the Estate.

The applicants did not lay facts before this court on the status of Paradise Park Motel (Pvt) Ltd other than averments of the first respondent's sworn affidavit to the effect that that she would become co-director with the testamentary executor in this company which was part of her late husband's estate.

The letter from Gill, Godlonton and Gerrans seems to suggest that post payments of the purchase price were paid by the first respondent.

There would be need to lead evidence on the true circumstances surrounding the shares in question.

It may very well be that the shares belong to the estate notwithstanding that in terms of section 104(1) of the Companies Act [Chapter 24:03] the holder of a certificate duly signed and with the seal of the company is presumed to be the owner of the shares on a prima facie basis.

This, however, is an area where further evidence will be needed.

If so advised, it seems to me that this is an issue to be pursued by the second respondent with the Motel and the first respondent.

When the applicants brought the application it must have been in their contemplation, from the contents of the letter from Gill, Godlonton and Gerrans, that a dispute of fact would arise on the question of shares.

They did not cite the company.

These factors are fatal to the present application.

I would thus dismiss the request to hold that the 4,000 shares belong to the estate in the absence of further evidence.

HH551-15 : W AND D CONSULTANTS (PRIVATE) LIMITED vs SEAN THOMAS NIELSON DORAN
Ruled By: DUBE J

In Liquidators Union D Rhodesia Wholesalers Ltd v Brown Co 1922 AD 549…, KOTZE JA made the following remarks;“While an ordinary arrest of property under the Roman-Dutch Law gives no preference, an arrest effected on property in execution of a judgment creates a pignus praetorium or ...

In Liquidators Union & D Rhodesia Wholesalers Ltd v Brown & Co 1922 AD 549…, KOTZE JA made the following remarks;

“While an ordinary arrest of property under the Roman-Dutch Law gives no preference, an arrest effected on property in execution of a judgment creates a pignus praetorium or to speak more correctly a pignus judiciale, over such property. The effect of such a judicial arrest is that the goods attached are thereby placed in the hands or custody of the officer of the court. They pass out of the estate of the judgment debtor so that in the event of the debtor's insolvency the curator of the latter's estate cannot claim to have the property attached delivered up to him to be dealt with in the distribution of the insolvent's estate.”

A similar approach was adopted in Maphosa and Anor v Cock and Others 1997 (2) ZLR 314 (HC) where the court, following on Liquidators Union & D Rhodesia Wholesalers Ltd v Brown & Co 1922 AD 549, held that in such an instance, the property could not be dealt with by the company as if it had not been attached. See also Simpson v Klein NO and Others 1987 (1) SA 405 (W).

In HERBSTEIN and Van WINSEN, Civil Practice of the Superior Courts in South Africa, 3ed state…,;

“A judgment creditor is entitled to attach and have sold in execution the property of his debtor notwithstanding that a third party has a personal right against such a debtor to the ownership or possession of such property which right arose prior to the attachment or even the judgment creditor's cause of action and of which the judgment creditor had notice when the attachment was made. An attachment in execution creates a judicial mortgage or pignus judici here are exceptions to this rule.”...,.

Where a property has been placed under judicial arrest, it falls into the hands and control of the Sheriff. It ceases to be part of the debtors' estate.

It cannot be dealt with in any manner not sanctioned by the Sheriff.

The previous owner and debtor are not at liberty to deal with the property as if it has not been attached. The debtor, at that moment, ceases to have any right to deal with the property in any manner not sanctioned or directed by the Sheriff. The debtor cannot deal with the property at his whims. To do so would be to defeat the judicial process underway.

HB03-15 : LUBECK INVESTMENTS (PVT) LTD t/a HIGHER LEARNING CENTRE vs BESTER DUNDUZA
Ruled By: TAKUVA J

This is an application for summary judgment in terms of Order 10 Rule 64 of the High Court Rules, 1971.

The background facts are as follows:

The applicant, plaintiff at the time, issued summons under HC880/09 against one Richard Dunduza (1st defendant) now deceased and one Tafara Chikati (2nd defendant), seeking payment from the defendants the sum of ZAR351,784 (three hundred and fifty one thousand seven hundred and eighty four South African Rands). The applicant subsequently obtained the following order in his favour:

“1. The first defendant shall pay the sum of ZAR351,784 (Three hundred and fifty one thousand seven hundred and eighty four South African Rands) to the plaintiff.

2. The first defendant shall pay interest on the above sum at the prescribed rate from 1st March 2009 to date of full and final payment.

3. The first defendant shall pay costs of suit on an attorney/client scale.”

This order was granted on 29 April 2010, and, shortly thereafter, on 7 May 2010, the applicant obtained a writ of execution against the first defendant, one Richard Dunduza's immovable property, being Stand Number 9469 Nkulumane, Bulawayo for the recovery of the sum mentioned above.

The Deputy Sheriff has mandated Bulawayo Real Estate to sell the property by private treaty. The property was advertised and interested parties were referred to view the property.

The respondent, who is the spouse of Richard Dunduza, and is in occupation of the house, has been frustrating efforts by prospective buyers to view the property. Prospective buyers were insulted and threatened with violence by the respondent and those occupying the property through her.

The applicant, having failed to obtain satisfaction from the order obtained under HC880/09 issued summons for eviction of the respondent under HC1841/13. The respondent entered appearance to defend and the applicant then filed this application.

As pointed out in my introductory remarks, the basis of the application is Order 10 Rule 64 which states:

“64. Application for summary judgment

1. Where the defendant has entered appearance to a summons, the plaintiff may, at any time before a pre-trial conference is held, make a court application in terms of this Rule for the court to enter summary judgment for what is claimed in the summons and costs.”

The applicant in casu had contended that the respondent has no bona fide defence in case number HC1841/13 in that the order under HC880/09 is a lawful order granted on the merits of the matter.

The issue, therefore, is whether or not the respondent has a bona fide defence: see Van Hoogstraten v James & Ors 2010 (1) ZLR 608 (H); Jena v Nechipote 1986 (1) ZLR 29 (S); and Mapuranyanga v Sheriff of the High Court & Ors 2003 (1) ZLR 235 (S).

A reading of the respondent's notice of opposition reveals the following defences:

1....,.

2....,.

3. That the property in question is part of the deceased estate and therefore any claims should be made via the Master of the High Court....,.

(iii) The third proposed line of defence lacks bona fides in that the property was attached before the respondent's husband died; therefore, it is clearly excluded from the husband's estate.

HB18-15 : JULIET NHLIZIYO (N.O.) and ESTATE LATE HAROLD NHLIZIYO vs NOKUTHULA MOYO and ESTER KELLI (N.O.) and ESTATE LATE PREECE NHLIZIYO and ASSISTANT MASTER (N.O.) and CITY OF BULAWAYO
Ruled By: MAKONESE J

This is an application for absolution from the instance.

The first defendant contends that at the close of the plaintiff's case the court should find that the first plaintiff has hopelessly failed to place any evidence before the court upon which a reasonable court may find for the first plaintiff.

A joint pre-trial conference memorandum signed and filed by the parties sets out the issues for determination as follows:

1. Whether or not House Number 8566 Pumula East Township, Bulawayo, registered in the names of the late Preece Nhliziyo should be declared as being owned by the estate of the late Harold Nhliziyo.

2. Whether or not Thembelani Adrian Nhliziyo should be declared the only beneficiary in the Estate of the Late Preece Nhliziyo and House Number 8566 Pumula East Township, Bulawayo, must be transferred into his names.

3. Whether or not the first plaintiff, and all those claiming occupation through her, should vacate House Number 8566 Pumula East Township, Bulawayo, fourteen days after the order is served on her.

4 Whether or not the first plaintiff should pay holdover damages (rentals) in the sum of US$250 calculated from the date she issued summons to date of her eviction.

The first plaintiff avers, in her declaration, that she is the Executrix Dative in the estate of the late Harold Nhliziyo in terms of Letters of Administration dated 22 March 2011. The second plaintiff is the estate of the late Harold Nhliziyo who died at Bulawayo on 17 December 2010.

The first defendant is cited in her capacity as the guardian of Thembelani Adrian Nhliziyo, a minor child and beneficiary in the Estate of the Late Preece Nhliziyo (the third defendant).

The first plaintiff further avers that the late Harold Nhliziyo was married to three different women before his demise. His first marriage ended in divorce and his second wife pre-deceased him.

At the time of his death, he was married to the first plaintiff.

It is not in dispute that on 14 February 1986 the late Harold Nhliziyo purchased, from the City of Bulawayo, Stand 8566 Pumula East, Bulawayo. The first plaintiff alleges, in her declaration, that, after his divorce with his first wife the late Harold Nhliziyo transferred Stand 8566 Pumula East, Bulawayo into the names of his late son, Preece Nhliziyo.

She avers, further, that, it was the intention of the former, that, upon his death, the property be inherited by Preece Nhliziyo and his siblings. Preece Nhliziyo died in 2004, before his father died, and his estate was registered in 2007.

It is the first plaintiff's case, that, the late Harold Nhliziyo failed to effect a change of ownership of the property back into his names before he died.

The first plaintiff also contends, that, the first defendant was once married to the late Preece Nhliziyo before she abandoned him when he became critically ill.

It is the plaintiff's case that Preece Nhliziyo was never ordinarily resident at the property in dispute and that the first defendant has no right to the property.

At the heart of the plaintiff's case was the assertion that the house belongs to the estate of the late Harold Nhliziyo and not the estate of the late Preece Nhliziyo.

The property was “provisionally” registered in the name of Preece Nhliziyo to prevent Harold Nhliziyo's first wife from laying a claim in the property in divorce proceedings.

This was the first plaintiff's position. She said her version was largely based on what she was told by Harold Nhliziyo before he died.

The first plaintiff gave evidence.

She largely abandoned her case as set out in the declaration.

It emerged, from her evidence, that, it was not true that Harold Nhliziyo had transferred Stand 8566 Pumula East, Bulawayo into the names of Preece Nhliziyo after his divorce with his first wife. The first plaintiff admitted that that the property was transferred into Preece's names before the divorce.

It was also established that the first plaintiff was only married to Harold Nhliziyo in 2005.

She had two children with the late Harold Nhliziyo, namely, Ashley Nhliziyo (born in 1998) and Andila Nhliziyo (born in 2002).

The house in dispute was registered into the names of Preece Nhliziyo in 1993.

It is therefore not possible for Harold Nhliziyo to have intended the unborn children to benefit from the said property.

In any event, when the house was transferred into the names of Preece Nhliziyo, the late Harold Nhliziyo had not even met the first plaintiff.

Her claim, that her late husband had told her that he was making provision for children who were not born, does not make sense and the plaintiff failed to explain that discrepancy.

Under re-examination by her legal practitioner, she was asked to explain why her husband transferred the house into the names of Preece Nhliziyo. She said her husband had told her that he had a problem pertaining to divorce.

When the first plaintiff led evidence, she gave the impression, that, at the time the property was transferred into Preece Nhliziyo's names, he was a school-going child who had no means of income. This was refuted by the first plaintiff's own witness, Mandleni Nhliziyo, who testified, that, at the material time, Preece Nhliziyo was already in his late twenties.

The first plaintiff's witnesses, Jack Nhliziyo and Mandleni Nhliziyo, were extremely unhelpful to the court.

Their evidence was vague and of little assistance to the plaintiff's case.

Jack Nhliziyo stated that he was a brother to the late Harold Nhliziyo. He informed the court that he was staying in Gwanda at the relevant time. He would visit his brother, in Bulawayo, from time to time. He said his brother told him certain things, but that sometimes he would not. He testified, that, sometime in 1993 he approached the late Harold Nhliziyo at Edgars, Bulawayo where he was employed. His late brother confided that he had a problem with his wife. He indicated that he would use his child, Preece, to protect his property from distribution in a pending divorce.

Jack Nhliziyo said he did not have any further information on the house in dispute save for that discussion he had with his late brother.

The second witness for the first plaintiff was Mandleni Nhliziyo.

The witness told the court that he knew the property being 8566 Pumula East, Bulawayo to belong to the late Harold Nhliziyo. He stated, that, on a certain day, he saw papers at the late Harold Nhliziyo's house bearing the names Preece Nhliziyo. He said upon enquiry with the late Harold Nhliziyo he was advised that the property had been transferred into Preece Nhliziyo's names for the sole purpose of preventing the first wife from claiming a share in the property.

The witness could not explain why the late Harold Nhliziyo had not re-transferred the property into his names after the divorce with his first wife.

In summary, the first plaintiff's evidence was centred on what she said she was told by the late Harold Nhliziyo.

Her oral testimony is not consistent with the averments in her declaration.

An assessment of her evidence clearly shows that she hinged her claims on what she says she was advised by Harold Nhliziyo.

There is a reasonable possibility that she was misled by the late Harold Nhliziyo.

There would be no reason why Harold Nhliziyo would have failed to regularise the ownership of the house from 1993 up to 2011 when he met his death. He had two children with the first plaintiff, in 1998 and 2002, and he would have had ample time to ensure that his two children with the first plaintiff were adequately catered for upon his death.

I must observe, that, the first plaintiff did concede that she inherited a rural home with a seven-roomed house at Filabusi. Her late husband also left behind eighteen head of cattle, a motor vehicle, and some household goods and effects at the said rural homestead.

It is my view, therefore, that, on the evidence led and placed before the court, at the close of the plaintiff's case, there is no evidence upon which a reasonable court may find for the first plaintiff.

The case of Savana Maisiri and Shalati Maisiri v Abisha Maisva and Norton Town Council HH35-07 is relevant.

The test to be applied in an application for absolution from the instance was well set out in the case of Lourenco v Raja Dry Cleaners and Steam Laundry (Pvt) Ltd 1984 (2) ZLR 151 and Munhuwa v Mhukahuru Bus Service (Pvt) Ltd 1994 (2) ZLR 382.

In the case of Cathrine Chiwawa v Apostolos Mutzuris HH07-09, the learned MAKARAU JP stated…, as follows:

“At this stage, I wish to point out, that, I agree with the observation by Advocate Zhou, that, at this stage in the trial, I may not make recourse to any findings I may have made on the credibility of the plaintiff as a witness. I also cannot determine the application for absolution on the basis of probabilities as I cannot justly arrive at these without hearing the other side. I take the view that the exercise I have to undertake at this stage is to simply but critically analyze the evidence adduced by the plaintiff and assess whether, on the basis of such, without passing a judgment on whether I believe it or not, I can make a reasonable mistake and pass judgment in her favour.”

In applying the above test, there is no doubt in my mind that the first plaintiff departed from the assertions in her declaration.

The totality of her evidence is that she placed reliance on what he was told by her late husband.

Even assuming that what her late husband told her was proved to be true, there would still be a gap in the evidence in that there is no explanation given as to why the late Harold Nhliziyo did not transfer title in the property back into his names following the divorce with his first wife.

Before marrying the first plaintiff, the late Harold Nhliziyo even married a second wife who predeceased him.

If the late Harold Nhliziyo intended to bequeath the rights, title and interest in the property to his children with the first plaintiff he had all the time to do so.

I am not satisfied that the first plaintiff has established a prima facie case. The application for absolution from the instance has merit.

I accordingly order as follows:

1. The first defendant is absolved from the instance.

2. The first plaintiff shall bear the costs of suit.

HB27-15 : MONICA DHLIWAYO vs BONGANI NDLOVU (as Executor Dative estate Late Jubane James Jack) and ESTATE LATE JUBANE JAMES JACK and CLEMENTINE JACK and DEPUTY MASTER OF THE HIGH COURT
Ruled By: MAKONESE J

The plaintiff initiated proceedings by way of an Urgent Chamber Application under case number HC1580/10 seeking an order interdicting the first and second defendants, or any beneficiaries of the second defendant's estate, from disposing of the property known as Lot 1 A of Gumtree held under Deed of Transfer number 1793/82 and Lot 3 of Gumtree held under Deed of Transfer number 1326/82C (hereinafter referred to as “the property”).

An interim order was granted in this Honourable Court but its confirmation was opposed by the defendants.

A separate court application was launched by the plaintiff, under case number HC1653/10, wherein she sought to be declared the sole surviving spouse of the second defendant's estate.

That court application was also opposed, and, eventually, by court order granted on 6 June 2012 it was ordered as follows:

“1. The two applications pending before this Honourable court under cover of case number HC1580/10 and HC1653/10 consolidated under cover of case number HC150/11 be and are hereby converted into action proceedings.

2. The papers filed of record by the parties stand as pleadings in this matter.

3. The parties file their discovery affidavits, pre-trial conference minutes, and summaries of evidence within 7 days of this order.

4. In the event of any party failing as directed in paragraph (3) above, the party having complied be and is hereby granted leave to set the matter down, without giving notice, on the unopposed roll.

5. Third respondent pay costs only if she opposed this application.”

The parties consolidated the two applications in terms of the aforesaid order and proceeded to set down the matter for trial.

A joint pre-trial conference memorandum of issues filed by the parties reflects the issues for determination as follows:

1. Whether or not plaintiff bought the immovable properties, namely, Lot 1A Gumtree held under Deed of Transfer number 1793/81 and Lot 3 Gumtree and is therefore entitled to them.

2. Whether the third defendant is the surviving spouse and therefore the lawful heir to the estate of the late Jubane James Jack.

It was resolved and agreed, at the pretrial conference, that, the onus on the first issue was on
the plaintiff and the onus on the second issue was on the third defendant.

Plaintiff's Case

The plaintiff gave evidence in support of her case. She testified, that, she is ordinarily resident at 61 Queensbrooks, Slough in the United Kingdom. She is a State Registered Nurse and also qualified as a Mental Health Nurse.

She was customarily married to the late Jubane James Jack who died on 21 February 2006 in the United Kingdom.

Her evidence was that the deceased and herself commenced living together around December 1980 and formalized the union a year later in 1981 when her husband was customarily accepted as a son-in-law by her family. At the same occasion, she was accepted as a daughter in law by members of the late Jubane James Jack's family.

The plaintiff stated, that, at the time of their marriage, the deceased was working for National Railways of Zimbabwe and then based at Hwange. The deceased disclosed to the plaintiff that he was once married to the third defendant and that the marriage had broken down and he was in the process of legally divorcing the third defendant with whom he was married in terms of the then Marriage Act [Chapter 37].

She was also informed, that, the third defendant had one child with the deceased by the name Violet Jack.

At the time the plaintiff met the deceased, the third defendant was not living with him. They were on separation.

The plaintiff stated, that, in or around 1981 she was looking for a property to buy. She was advised that there was a plot for sale just outside the city of Bulawayo. She said that she negotiated for the purchase of the property, being Lot 1 A Gumtree and Lot 3 Gumtree, situate in the District of Umguza.

The property was registered in the names of the late Jubane James Jack because she did not have a payslip and there was need to have a Bond registered against the title deed for the payment of the balance.

She paid an initial deposit of $3,000 and the balance was paid in monthly instalments of $250. Payments were made at the offices of Messrs Ben Baron and Partners. She indicated, that, on certain occasions, the late Jubane James Jack would pay the instalments.

The total purchase price for the property was $15,000.

The second property, being Lot 3 of Gumtree was sold for $10,000. A second bond was registered over the property.

The plaintiff testified, that, she received part of the deposit for the purchase of the second property from a Mr Joshua Malinga.

After the purchase of the two properties, the plaintiff said she left for the United Kingdom in or around February 1999.

The deceased and the plaintiff had three children, namely, Neville Thamsanqa Jack (born on 26 October 1981, Brian Bekithemba Jack (born on 3 October 1985) and Denise Thembeka Jack (born on 18 January 1990).

The deceased and the children relocated to the United Kingdom in December 1999 where they remained until the demise of the deceased in 2006.

It was the plaintiff's evidence, that, problems started in June 2010 when she received a message on Facebook, from Violet Jack (her husband's only child out of his marriage with the third defendant), advising her that she and her mother were going to be the beneficiaries in the estate of the late Jubane James Jack.

In July 2010, the plaintiff travelled to Zimbabwe to attend the funeral of her sister, Faith Mazaiwana. Whilst at the funeral, she was alerted that the property at Gumtree had been put up for sale.

The plaintiff filed an urgent Chamber Application for an order interdicting the executor of the Estate of late Jubane James Jack and the third defendant from disposing of the immovable properties, being Lot 1A of Gumtree and Lot 3 of Gumtree in the District of Umguza.

The Registrar of Deeds and the Master of the High Court were cited, in those proceedings, as nominal respondents.

Upon the granting of the Provisional Order, the confirmation of such order was resisted by the third defendant. A subsequent court application, under case number HC1653/10, was filed by the plaintiff.

Both applications have now been consolidated.

The plaintiff abandoned her claim that she be declared the sole surviving spouse in the Estate Late Jubane James Jack when it became apparent that the third defendant was still legally married to the deceased at the time of his death.

In summary, the plaintiff avers, that, the property in dispute belongs to her for these reasons:

(a) She bought the property using her own funds. She saved the money whilst she was working in the United Kingdom and she was responsible for the repayments on the mortgage bonds.

(b) The deceased did not contribute anything towards the purchase of these properties.

(c) The third defendant never set a foot on these properties and never contributed towards their purchase -, directly or indirectly.

(d) The property never belonged to the Estate Late Jubane James Jack inspite of the property being registered in the names of the deceased.

The plaintiff's evidence is difficult to accept.

The plaintiff was unable to adequately explain why the property was registered in the names of Jubane James Jack and not in their joint names if indeed they had acquired the property together.

It is inconceivable that the deceased who was then employed by the National Railways of Zimbabwe would have contributed nothing whatsoever towards the purchase of the property.

At the time the plaintiff commenced living with the deceased, she was well aware the third defendant was still legally married to him. She was aware that divorce proceedings had not been instituted.

The plaintiff would not have invested all her entire life savings in a property registered in the names of a man married to another woman.

The plaintiff claims that all her documents proving the purchase of the property were lost or destroyed.

The court must, therefore, according to the plaintiff, believe her version of events on her mere say so.

Under cross examination, when a direct question was put to her as to why the property was registered in the names of the deceased, the plaintiff's response was that she was heavily pregnant at the time and she did not possess a payslip.

She could not say for certain who signed the agreement of sale. However, she could not deny that the agreement of sale was signed by the deceased who eventually had his names on the title deed.

The plaintiff conceded, that, at the time of the death of the deceased, the legal owner of the property was reflected on the title deed as Jubane James Jack, although she insisted that she was the financier.

It is my view, that, the evidence of the plaintiff was not convincing. She did not strike as a credible witness.

She failed to produce a single document to prove that the funds used to pay for the property were raised from her savings. Her initial attempt to claim to be the sole surviving spouse of the late Jubane James Jack puts her in very bad light.

There can be no other conclusion except that her intention was to mislead the court.

The second and only witness for the plaintiff was Flora Dhliwayo, a sister to the plaintiff.

Her evidence was largely unhelpful to the court. She repeated that the plaintiff had, through her own endeavours, purchased the property in dispute. She averred, that, she had gone to view the property with her sister before its purchase. She however played no further part in the transaction. She did not witness the signing of the agreement of sale between the seller and the purchaser. She informed the court, that, the reason the property was registered in the names of the deceased was because the plaintiff was pregnant at the time, and, further, the plaintiff was not employed at the time.

The plaintiff's witness did not assist the plaintiff's case in any meaningful way.

The Defendant's Case

The defendant gave evidence and did not call any witnesses in support of her case. She testified, that, on 22 September 1972 she was married to the late Jubane James Jack in terms of the Marriage Act [Chapter 37] (as it was called then).

The defendant said, that, when they were married, they moved into a house belonging to the National Railways in Thorngroove. Between 1974 and 1980 they were living at West Sommerton, Bulawyo. She stated, that, her husband was posted to various places of work around the country and outside Zimbabwe. The late Jubane James Jack fathered eight children from different mothers. She had one child with the deceased, Violet Jack (born in 1978).

The defendant's evidence was essentially, that, the properties in Gumtree were purchased by the late Jubane James Jack.

He raised the funds to acquire the property through a loan raised through his employer. The balance was secured by a mortgage bond registered over the property.

She said by virtue of their marriage, and as his legal wife, she was a beneficiary in the estate of her husband as a surviving spouse.

She firmly advised the court that she was always aware of the illicit relationship between her husband and the plaintiff.

Her version was that the plaintiff stole her husband and persuaded him to move over to the United Kingdom with her.

The deceased never went through the divorce proceedings because he was aware that they would have to share the property at Gumtree.

The defendant further stated, that, when her late husband indicated that he wished to divorce her she reminded him of their type of their marriage and that they would have to sell the immovable property and share the proceeds.

The defendant informed the court that the deceased never commenced the divorce proceedings until he met his death.

The defendant said she registered the Estate of the late Jubane James Jack under DRB773/06. A First and Final Liquidation and Distribution Account was filed with the Master of the High Court as follows:

“FIRST AND FINAL LIQUIDATION AND DISTRIBUTION ACCOUNT IN THE ESTATE OF THE LATE JAMES JUBANE JACK WHO DIED AT JOHN RADCLIFFE, OXFORD RADCLIFFE HOSPITAL, UNITED KINGDOM ON THE 21ST FEBRUARY 2006

DRB 773/06
LIQUIDATION ACCOUNT

ASSETS $US

IMMOVABLE PROPERTY

1. Certain piece of land being lot 1A Gumtree Situate in the District of Bulawayo measuring 2,7323 hectares $50,000

2. Certain piece of land being Umguza 100 Acre Lot 3 situate in the District of Bulawayo measuring 40,4684 hectares $25,000

MOVABLE PROPERTY

1. Household goods and effects $ 1,000

2. Five (5) herd of cattle $ 500

3. Grinding Mill $ 100

TOTAL ASSETS $76,600

ADMINISTRATION EXPENSES

12. ADVERTISING DEBTORS AND CREDITORS

(a) Chronicle: see attachment
(b) Government: see attachment

ADVERTISING THIS ACCOUNT

(a) Chronicle $10

(b) Government gazette $ 5

13. MASTER'S FEES

4% on $76,600 $3,064

Edict fees: see attached statement

TOTAL LIABILITIES $ 6,372-80

Balance to Distribution $70,227.20

$76,600-00

DISTRIBUTION ACCOUNT

Balance brought down to Distribution Account $70,227.20

Assets awarded in terms of Deceased Succession Act [Chapter 6:02] Section 3A:

TO CLEMENTINE JACK

1. 1/9 share of certain piece of land being lot 1A Gumtree Situate in the District of Bulawayo measuring 2,7323 hectares $5,555.56

2. 1/9 share of certain piece of land being Umguza 100 Acre Lot 3 situate in the District of Bulawayo measuring 40,4684 hectares $2,777.78

3. Five (5) herd of cattle $ 55.56

4. Grinding mill $ 11.11

TO DANISO JACK

1. 1/9 share of certain piece of land being lot 1A Gumtree Situate in the District of Bulawayo measuring 2,7323 hectares $5,555.56
2. 1/9 share of certain piece of land being Umguza 100 Acre Lot 3 situate in the District of Bulawayo measuring 40,4684 hectares $2,777.78
3. Five (5) herd of cattle $ 55.56
4. Grinding mill $ 11.11

TO CHIPO JACK

TO VUYISILE PATRICK JACK

TO VIOLATE JACK

TO THAMSANQA JACK

TO BRIAN JACK

TO GUGU JACK

TO DENNIS JACK

$70,227.00

Cash contribution to avoid sale of assets $ 6,372.00

$76,600.00

EXECUTORS CERTIFICATE

I, Bongani Ndlovu, hereby certify to the best of my knowledge and belief that the foregoing accounts are true and correct, that there are no further assets and that no liability exists in respect of income tax.

Dated at Bulawayo this day 28th day of January 2010.

FOR ESTATE LATE JAMES JUBANE JACK AKA JUBANE JAMES JACK

________________________________
EXECUTOR DATIVE”

What can be gleaned from a perusal of the Distribution Account is that the defendant took into account all of the deceased's children - including the plaintiff's children.

The totality of the defendant's evidence was that she was married to the late Jubane James Jack, such marriage being monogamous. She established, that, at the time the late Jubane James Jack died, she was the surviving spouse at law. She asserted that she was entitled to inherit from the deceased estate. She contended that in spite of their separation, the property was acquired by the parties during the marriage.

Her evidence was that her late husband secured a loan from the National Railways of Zimbabwe.

She stuck to her evidence, that, the plaintiff could not inherit the property in dispute because she was not the surviving spouse, and, in any event, she could not prove that she used her own funds to purchase the property.

From the defendant's testimony, her version remained uncontroverted.

It cannot be denied, that, if she was the lawful surviving spouse of the deceased, she would ordinarily be entitled to inherit the immovable property in dispute. The defendant went further to show, that, the property was shared amongst all the children of the deceased - including herself. It is my view, that, her attitude clearly shows that she did not seek to deprive all the lawful beneficiaries to the estate. She did not seek to allocate the property to herself to the exclusion of the children of the deceased.

The Legal Position

I have already set out the disputed and undisputed facts of the matter. I must now examine the law on the subject.

I have shown, that, the plaintiff failed to prove that she purchased the property in question. If she did contribute directly towards the purchase of the property, she failed, on a balance of probabilities, to show that she made any financial contributions. Nothing was placed before the court by way of evidence to show that the plaintiff purchased the property except her mere say so.

In the case of Sibanda v Sibanda and Another 2002 (1) ZLR 622 (H) SMITH J stated…, as follows:

“Since I have found that Josephine was not aware, in March 1994, that Joseph was a married man, that means that their 'marriage' is in fact a putative marriage.”

The judge held, in that case, that, the plaintiff was only entitled to what was a fair share in the matrimonial estate. She was not entitled to a half share.

The matter went on appeal to the Supreme Court, and, in Sibanda and Another v Sibanda 2005 (1) ZLR 97 (S), the Appeal Court upheld the decision of the High Court. The Supreme Court agreed with the lower court, that, where a man enters into a marriage with another woman whilst a previous monogamous marriage subsisted, the second marriage is a nullity.

The court, however acknowledged, that, it was the correct approach to take into consideration the contribution of the 'wife' in order to determine what amounts to an equitable distribution of matrimonial property.

See also Makovah v Makovah 1998 (2) ZLR 82 (S).

In casu, however, the court is not being called upon to determine what is an equitable distribution of matrimonial property. The court is also not called to consider the direct or financial contributions of the plaintiff, in the second 'marriage' which was undoubtedly a nullity.

The plaintiff in this action is claiming Lot 1A and Lot 3 Gumtree, alleging that she purchased the said property using her own funds.

I have already concluded that the plaintiff's evidence falls short of proving that she purchased the property. If anything, the totality of the evidence shows, that, the late Jubane James Jack had a substantial part to play in the acquisition of the said property.

In my view, the said property remained matrimonial property up to the time of the decease's death.

The property therefore quite clearly fell for distribution in the estate of the deceased.

I am satisfied, that, on the evidence led, the third defendant managed to prove that she is the surviving spouse of the estate of the late Jubane James Jack, and, therefore, the lawful heir to his estate.

I must observe, that, where a party cohabits with a married man or woman with full knowledge of the existence of a prior marriage, he or she takes a calculated risk when they acquire property together. In the event of either party's death, the property automatically falls into the estate of the deceased. The beneficiaries of such estate have valid and lawful claims against the deceased estate. A surviving spouse who produces proof of marriage with the deceased will have a prima facie claim as a beneficiary in the estate.

In the result, I am not satisfied that the plaintiff succeeded in proving her case on a balance of probabilities.

It is accordingly ordered as follows:

The plaintiff's claim is hereby dismissed with costs.

View Appeal
HH85-21 : JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE vs PATRICIA DARANGWA and MASTER OF THE HIGH COURT OF ZIMBABWE (N.O.)
Ruled By: CHIRAWU-MUGOMBA J

Although, at law, a company is a separate legal persona, a deceased's shareholding in a company constitutes an asset.

SC21-18 : EASTER MZITE (as Executrix Dative Estate Late Chemayi Joseph Mtize) vs DAMAFALLS INVESTMENTS (PVT) LTD and MASTER OF THE HIGH COURT
Ruled By: BHUNU JA

This is an application for condonation and extension of time within which to note an appeal in terms of Rule 31(3) of the Supreme Court Rules 1964.

The applicant is the widow of the late Chemayi Joseph Mtize. She is the duly appointed executrix dative of his deceased estate.

The first respondent, Damafalls (Pvt) Ltd, is a duly registered company in terms of the laws of Zimbabwe, whereas the second respondent, the Master of the High Court, is cited in his official capacity. He is responsible for the administration of deceased estates.

The first respondent sued the applicant in the High Court alleging that during his life time the deceased sold Stand Number 2699, Gwelo Township to it. In consequence whereof, it sought the following relief against his deceased estate:

1. An order for the setting aside by the second defendant of the distribution of Stand 2699 Gwelo Township to the beneficiaries of the estate late Chemayi Joseph Mtize.

2. An order for the transfer of Stand 2699 Gwelo Township from the estate of the Late Chemayi Joseph Mtize to the plaintiff, failing which the Deputy Sheriff Gweru be authorised to sign the transfer documents.

3. An order for the eviction of the first defendant from Stand 2699 Gwelo Township.

4. An order for payment of US$2,800 together with a sum of US$400 per month from 1 December 2014 to date of eviction of first defendant and all those claiming occupation in her name; or, alternatively, an order for payment to the plaintiff by the first defendant of the value of the said property currently US$60,000.

5. An order for payment of legal costs on an attorney client scale.

The applicant unsuccessfully defended the respondent's suit in the court a quo with judgment being given against her on 23 December 2015.

If she intended to appeal against that judgment she had 15 days from the date of judgment to note her appeal in terms of Rule 30 of the Supreme Court Rules 1964.

She however only approached this court on 26 February 2016 with this application for condonation of late noting of appeal and extension of time to file the appeal. By then, she was 26 days out of time excluding weekends and public holidays.

The requirements for the application of this nature to succeed are well known as outlined in the case of Kombayi v Berkout 1988 (1) ZLR 53 (S). These are:

1. The extent of the delay;

2. The reasonableness of the explanation for the delay; and

3. The prospects of success on appeal.

I now proceed to consider the three requirements in sequence....,.

Prospects of success on Appeal

The plaintiff relied on the evidence of four witnesses in the court a quo, comprising Martin Mataranyika, Edmore Samson, Priscilla Marume, and Ravheti Kaseke.

Martin Mataranyika was the main witness for the plaintiff.

It was his testimony, that, he was a business consultant with a company called Millennial Insurance Company. The first respondent was the principal shareholder whereas, the late Joseph Chemayi Mtize was one of the executive Directors.

Sometime in 2005 there was need to inject more capital in the company. He then advised the executive directors to top up their nominal shareholding in a Board meeting to avoid their shareholding being diluted to zero by the envisaged increase in capital.

The late Chemayi Mtize, who had no money, offered to sell the disputed property to the first respondent to raise funds to purchase more shares.

He is not privy to the contract of sale but he knows that the late Chemayi Mtize travelled to Gweru with a representative of the respondent company to view the property. Following the trip to Gweru, the late Mtize later bought more shares from Millenial Insurance Company.

Edmore Samson is the first respondent's Managing Director and a shareholder in Millenial Insurance Company.

He confirmed Martin Mataranyika's evidence, that, in 2015, there arose need to raise Millenial Insurance Company's share capital. It then became necessary for shareholders to increase their shareholding by purchasing more shares in the company. He corroborated Mataranyika's evidence to the effect that the late Mtize, who had no money, offered to sell his house to the first respondent.

It was his testimony, that, the first respondent then bought house Number 5 Cooper Road Southdowns, being the disputed property. The property was bought for $Z300,000,000 (three hundred million Zimbabwean Dollars) payable in instalments from May 2005 to August 2005.

The Agreement of Sale was reduced to writing and signed by both parties.

The written Agreement of Sale has since been misplaced and the first respondent's officials are still looking for it.

When the purchase price was paid in full, the late Mtize handed over the title deeds of the disputed property to the first respondent. He then took a copy of the title deeds saying he was taking it to ZIMRA for capital gains exemption since he was above the age of 60.

It is common cause, that, the first respondent had possession of the original title deeds of the disputed property which were produced in evidence at the trial in the court a quo.

It is also not in dispute that the first respondent took peaceful and undisturbed occupation of the property way back in 2005 soon after payment of the purchase price in full as alleged.

Mrs Mtize, the executrix dative of the late Mtize's deceased estate, alleged, without proof, that, the first respondent stole the title deeds from the late Mtize's office while he was ill.

This unfounded allegation was denied by both witnesses for the first respondent, saying that Mtize's office was kept under lock and key during the duration of his illness.

Despite those serious allegations of theft of property of immense value, Mrs Mtize did not bother to report the theft to the police.

Edmore Samson testified, that, Mrs Mtize only emerged about nine (9) years later when she invaded the property, forcibly took the keys and occupation of the property.

Priscilla Marume testified, that, at the material time, she was employed as the first respondent's Accountant. It was her testimony, that, she signed the Agreement of Sale as a witness in the presence of the late Mtize and Edmore Samson. She was responsible for paying the purchase price in full to the late Mtize.

It was her evidence that she paid him the full purchase price starting from 13 May 2005 to 22 August 2005.

Each time she paid him he would sign on a petty cash voucher to acknowledge receipt. She produced three (3) cash voucher receipts duly signed by the late Mtize. The amounts on the three (3) petty vouchers add up to a total of $Z300,000,000 (three hundred million Zimbabwean dollars).

She denied that the first respondent ever managed the property on behalf of the late Mtize as alleged by Mrs Mutize.

It is common cause, that, Mrs Mtize, in her first and final distribution account in the estate of her late husband, Chemayi Mtize, deliberately left out the disputed property from the inventory.

According to Edmore Samson's evidence, when he approached Mrs Mtize seeking transfer of the disputed property, she was surprised that the property had not yet been transferred to the first respondent's name.

Upon realising that the property was still registered in her husband's name, she refused to effect transfer and filed a supplementary distribution account in which she included the disputed property in the distribution inventory. The supplementary account was advertised in the newspapers.

The first respondent did not object because it did not see the advertisement.

In her evidence, Mrs Mtize confirmed having deliberately left out the disputed property from the first and final distribution account.

She also confirmed having included it in the supplementary account upon realising that it was still registered in her late husband's name.

She explained that she initially left out the property from the initial distribution account because she wanted to investigate whether indeed the first respondent had purchased the disputed property as alleged.

The evidence on record, however, establishes, that, she carried out no such investigations.

She only decided to claim the property after being approached for transfer and realizing that it was still registered in her late husband's name.

It is only then that she started to question the validity of the sale.

She alleged, without proof, that, the first respondent was merely administering the property on her late husband's behalf.

She did not know the terms of that arrangement or the commission her husband was paying to the first respondent. She first said Z$325, after contradicting herself under cross-examination, she ended up saying that she did not know.

Faced with the totality of the evidence placed before her, the learned judge in the court a quo weighed the credibility of witnesses and made material findings of fact: She had this to say:

“Looking at the evidence led before the court, I am inclined to find in favour of the plaintiff that there was indeed a sale agreement involving the late Mr Mtize's property in Gweru between the plaintiff and Mr Mtize. I am convinced because the plaintiff's witnesses gave their evidence very well and impressed the court as credible witnesses. They were truthful and did not exaggerate their testimonies.”

The learned judge in the court a quo's summation of evidence and analysis of the credibility of witnesses is beyond reproach.

The evidence clearly exposes Mrs Mtize as a desperate widow trying to pounce on the delay in effecting transfer to hang onto property which her husband sold during his lifetime.

The late Mtize, having validly sold his property during his life time, it cannot form part of his deceased estate.

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Law Portal
Zimbabwe

Division of Estate Property re: Registration, Composition of Deceased Estate, Creditors Claims and Non-Estate Property

Appealed
SC27-08 : JOSHUA KADENGU and LAMECK KADENGU and ROSA KADENGU vs OLGA KADENGU and RICHARD CHIMBARI and MASTER OF THE HIGH COURT
Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

HH17-10 : TOMU NYANDORO vs ESTATE LATE PAULINO OLIVERIA MARTINS represented by the Executor and THE MASTER OF THE HIGH COURT and CHRISTOPHER MARTINS
Ruled By: CHITAKUNYE J

HH549-15 : ELSIE BHILA vs THE MASTER OF HIGH COURT and FREDDY CHMBARI NO and RATIDZO BHILA and KELVIN BHILA and KWATINI BHILA
Ruled By: MWAYERA J

HB91-10 : OSEFELUPILU MOYO (Nee SEDANGE) vs ESTER KELLY N.O. and ASSISTANT MASTER OF THE HIGH COURT
Ruled By: MATHONSI J

HH362-13 : THOMAS CHAURAYA vs PROGRESS MAKOKORO
Ruled By: MAWADZE J

HB191-11 : BENJAMIN SIBINDI vs NKOSILATHI MXOTSHWA and SAZINI MXOTSHWA and MNCEDISI MXOTSHWA and PHATHISANI MXOTSHWA and THABO MXOTSHWA and CITY OF BULAWAYO
Ruled By: KAMOCHA J

HB99-14 : ELLEN MAJOLA vs BEKEZELA NYONI
Ruled By: MAKONESE J

HB17-16 : WINNIE MPOFU vs FLOPPA LEAH MLAVU a.k.a LEAH FLOPPHEL MLAVU and ESTER KELLI (N.O.) and THE ASSISTANT MASTER
Ruled By: MATHONSI J

HB84-16 : PHILANI GAMA N.O. vs LUNGISANI MPOFU and PATRICIA PHIRI and MBALI NGWENYA and THE ADDITIONAL ASSISTANT MASTER N.O. and THE ASSISTANT MASTER, HIGH COURT OF ZIMBABWE, BULAWAYO N.O.
Ruled By: MATHONSI J

HH93-11 : ELIZABETH KAMANGA vs ESTATE LATE BUTE CHIKONDO (represented by Oswald Bute Chikondo as executor) and MERCY CHIKONDO and CITY OF HARARE and MASTER OF THE HIGH COURT
Ruled By: GUVAVA J

HH77-15 : JONASI DONDO N.O. vs MAGNA MUGANHIRI and RICKY KANDEMWA and MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS
Ruled By: TSANGA J

HH94-15 : STELLA HAPAGUTI vs CECIL MADONDO (as Executor Dative in the Estate of the Late EXISTO FRANCIS HAPAGUTI) and MASTER OF THE HIGH COURT
Ruled By: CHITAKUNYE J

HH198-16 : TANIA ROCHE (as Curator Bonis of Anita Bruk-Jackson) vs IAN MIDDLETON (as Testamentary Executor to Estate Late Chester Bruk-Jackson) and THE MASTER OF THE HIGH COURT
Ruled By: CHITAKUNYE J

HH217-17 : NAISON SEKERAMAYI and OTHERS vs MASTER OF HIGH COURT and PROVINCIAL MAGISTRATE, HARARE and EASTER DZWOWA and YARADZO MUNANGATI MANONGWA (Executrix Dative in Estate Lovemore Sekeramayi)
Ruled By: ZHOU J

View Appeal
HH314-16 : AS SCHOOL and CSS SCHOOL and SET COLLEGE and GST SCHOOL and SC COLLEGE and CB SCHOOL vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

SC20-19 : GRACE SHURO vs MOLLY CHIURAISE and CITY OF MASVINGO
Ruled By: GARWE JA, HLATSHWAYO JA and BHUNU JA

View Appeal
HH113-06 : JOSHUA KADENGU and LAMECK KADENGU and ROSA KADENGU vs OLGA KADENGU (In her personal capacity and as guardian of her two minor children) and RICHARD CHIMBARU and MASTER OF THE HIGH COURT
Ruled By: KUDYA J

HH551-15 : W AND D CONSULTANTS (PRIVATE) LIMITED vs SEAN THOMAS NIELSON DORAN
Ruled By: DUBE J

HB03-15 : LUBECK INVESTMENTS (PVT) LTD t/a HIGHER LEARNING CENTRE vs BESTER DUNDUZA
Ruled By: TAKUVA J

HB18-15 : JULIET NHLIZIYO (N.O.) and ESTATE LATE HAROLD NHLIZIYO vs NOKUTHULA MOYO and ESTER KELLI (N.O.) and ESTATE LATE PREECE NHLIZIYO and ASSISTANT MASTER (N.O.) and CITY OF BULAWAYO
Ruled By: MAKONESE J

HB27-15 : MONICA DHLIWAYO vs BONGANI NDLOVU (as Executor Dative estate Late Jubane James Jack) and ESTATE LATE JUBANE JAMES JACK and CLEMENTINE JACK and DEPUTY MASTER OF THE HIGH COURT
Ruled By: MAKONESE J

View Appeal
HH85-21 : JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE vs PATRICIA DARANGWA and MASTER OF THE HIGH COURT OF ZIMBABWE (N.O.)
Ruled By: CHIRAWU-MUGOMBA J

SC21-18 : EASTER MZITE (as Executrix Dative Estate Late Chemayi Joseph Mtize) vs DAMAFALLS INVESTMENTS (PVT) LTD and MASTER OF THE HIGH COURT
Ruled By: BHUNU JA

Categories

Law Portal Zimbabwe

Division of Estate Property re: Registration, Composition of Deceased Estate, Creditors Claims and Non-Estate Property

Appealed SC27-08 : JOSHUA KADENGU and LAMECK KADENGU and ROSA KADENGU vs OLGA KADENGU and RICHARD CHIMBARI and MASTER OF THE HIGH COURT Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

HH17-10 : TOMU NYANDORO vs ESTATE LATE PAULINO OLIVERIA MARTINS represented by the Executor and THE MASTER OF THE HIGH COURT and CHRISTOPHER MARTINS Ruled By: CHITAKUNYE J

HH549-15 : ELSIE BHILA vs THE MASTER OF HIGH COURT and FREDDY CHMBARI NO and RATIDZO BHILA and KELVIN BHILA and KWATINI BHILA Ruled By: MWAYERA J

HB91-10 : OSEFELUPILU MOYO (Nee SEDANGE) vs ESTER KELLY N.O. and ASSISTANT MASTER OF THE HIGH COURT Ruled By: MATHONSI J

HH362-13 : THOMAS CHAURAYA vs PROGRESS MAKOKORO Ruled By: MAWADZE J

HB191-11 : BENJAMIN SIBINDI vs NKOSILATHI MXOTSHWA and SAZINI MXOTSHWA and MNCEDISI MXOTSHWA and PHATHISANI MXOTSHWA and THABO MXOTSHWA and CITY OF BULAWAYO Ruled By: KAMOCHA J

HB99-14 : ELLEN MAJOLA vs BEKEZELA NYONI Ruled By: MAKONESE J

HB17-16 : WINNIE MPOFU vs FLOPPA LEAH MLAVU a.k.a LEAH FLOPPHEL MLAVU and ESTER KELLI (N.O.) and THE ASSISTANT MASTER Ruled By: MATHONSI J

HB84-16 : PHILANI GAMA N.O. vs LUNGISANI MPOFU and PATRICIA PHIRI and MBALI NGWENYA and THE ADDITIONAL ASSISTANT MASTER N.O. and THE ASSISTANT MASTER, HIGH COURT OF ZIMBABWE, BULAWAYO N.O. Ruled By: MATHONSI J

HH93-11 : ELIZABETH KAMANGA vs ESTATE LATE BUTE CHIKONDO (represented by Oswald Bute Chikondo as executor) and MERCY CHIKONDO and CITY OF HARARE and MASTER OF THE HIGH COURT Ruled By: GUVAVA J

HH77-15 : JONASI DONDO N.O. vs MAGNA MUGANHIRI and RICKY KANDEMWA and MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS Ruled By: TSANGA J

HH94-15 : STELLA HAPAGUTI vs CECIL MADONDO (as Executor Dative in the Estate of the Late EXISTO FRANCIS HAPAGUTI) and MASTER OF THE HIGH COURT Ruled By: CHITAKUNYE J

HH198-16 : TANIA ROCHE (as Curator Bonis of Anita Bruk-Jackson) vs IAN MIDDLETON (as Testamentary Executor to Estate Late Chester Bruk-Jackson) and THE MASTER OF THE HIGH COURT Ruled By: CHITAKUNYE J

HH217-17 : NAISON SEKERAMAYI and OTHERS vs MASTER OF HIGH COURT and PROVINCIAL MAGISTRATE, HARARE and EASTER DZWOWA and YARADZO MUNANGATI MANONGWA (Executrix Dative in Estate Lovemore Sekeramayi) Ruled By: ZHOU J

View Appeal HH314-16 : AS SCHOOL and CSS SCHOOL and SET COLLEGE and GST SCHOOL and SC COLLEGE and CB SCHOOL vs ZIMBABWE REVENUE AUTHORITY Ruled By: KUDYA J

SC20-19 : GRACE SHURO vs MOLLY CHIURAISE and CITY OF MASVINGO Ruled By: GARWE JA, HLATSHWAYO JA and BHUNU JA

View Appeal HH113-06 : JOSHUA KADENGU and LAMECK KADENGU and ROSA KADENGU vs OLGA KADENGU (In her personal capacity and as guardian of her two minor children) and RICHARD CHIMBARU and MASTER OF THE HIGH COURT Ruled By: KUDYA J

HH551-15 : W AND D CONSULTANTS (PRIVATE) LIMITED vs SEAN THOMAS NIELSON DORAN Ruled By: DUBE J

HB03-15 : LUBECK INVESTMENTS (PVT) LTD t/a HIGHER LEARNING CENTRE vs BESTER DUNDUZA Ruled By: TAKUVA J

HB18-15 : JULIET NHLIZIYO (N.O.) and ESTATE LATE HAROLD NHLIZIYO vs NOKUTHULA MOYO and ESTER KELLI (N.O.) and ESTATE LATE PREECE NHLIZIYO and ASSISTANT MASTER (N.O.) and CITY OF BULAWAYO Ruled By: MAKONESE J

HB27-15 : MONICA DHLIWAYO vs BONGANI NDLOVU (as Executor Dative estate Late Jubane James Jack) and ESTATE LATE JUBANE JAMES JACK and CLEMENTINE JACK and DEPUTY MASTER OF THE HIGH COURT Ruled By: MAKONESE J

View Appeal HH85-21 : JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE vs PATRICIA DARANGWA and MASTER OF THE HIGH COURT OF ZIMBABWE (N.O.) Ruled By: CHIRAWU-MUGOMBA J

SC21-18 : EASTER MZITE (as Executrix Dative Estate Late Chemayi Joseph Mtize) vs DAMAFALLS INVESTMENTS (PVT) LTD and MASTER OF THE HIGH COURT Ruled By: BHUNU JA

Categories

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Law Portal
Zimbabwe

Appealed
SC27-08 : JOSHUA KADENGU and LAMECK KADENGU and ROSA KADENGU vs OLGA KADENGU and RICHARD CHIMBARI and MASTER OF THE HIGH COURT
Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

HH17-10 : TOMU NYANDORO vs ESTATE LATE PAULINO OLIVERIA MARTINS represented by the Executor and THE MASTER OF THE HIGH COURT and CHRISTOPHER MARTINS
Ruled By: CHITAKUNYE J

HH549-15 : ELSIE BHILA vs THE MASTER OF HIGH COURT and FREDDY CHMBARI NO and RATIDZO BHILA and KELVIN BHILA and KWATINI BHILA
Ruled By: MWAYERA J

HB91-10 : OSEFELUPILU MOYO (Nee SEDANGE) vs ESTER KELLY N.O. and ASSISTANT MASTER OF THE HIGH COURT
Ruled By: MATHONSI J

HH362-13 : THOMAS CHAURAYA vs PROGRESS MAKOKORO
Ruled By: MAWADZE J

HB191-11 : BENJAMIN SIBINDI vs NKOSILATHI MXOTSHWA and SAZINI MXOTSHWA and MNCEDISI MXOTSHWA and PHATHISANI MXOTSHWA and THABO MXOTSHWA and CITY OF BULAWAYO
Ruled By: KAMOCHA J

HB99-14 : ELLEN MAJOLA vs BEKEZELA NYONI
Ruled By: MAKONESE J

HB17-16 : WINNIE MPOFU vs FLOPPA LEAH MLAVU a.k.a LEAH FLOPPHEL MLAVU and ESTER KELLI (N.O.) and THE ASSISTANT MASTER
Ruled By: MATHONSI J

HB84-16 : PHILANI GAMA N.O. vs LUNGISANI MPOFU and PATRICIA PHIRI and MBALI NGWENYA and THE ADDITIONAL ASSISTANT MASTER N.O. and THE ASSISTANT MASTER, HIGH COURT OF ZIMBABWE, BULAWAYO N.O.
Ruled By: MATHONSI J

HH93-11 : ELIZABETH KAMANGA vs ESTATE LATE BUTE CHIKONDO (represented by Oswald Bute Chikondo as executor) and MERCY CHIKONDO and CITY OF HARARE and MASTER OF THE HIGH COURT
Ruled By: GUVAVA J

HH77-15 : JONASI DONDO N.O. vs MAGNA MUGANHIRI and RICKY KANDEMWA and MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS
Ruled By: TSANGA J

HH94-15 : STELLA HAPAGUTI vs CECIL MADONDO (as Executor Dative in the Estate of the Late EXISTO FRANCIS HAPAGUTI) and MASTER OF THE HIGH COURT
Ruled By: CHITAKUNYE J

HH198-16 : TANIA ROCHE (as Curator Bonis of Anita Bruk-Jackson) vs IAN MIDDLETON (as Testamentary Executor to Estate Late Chester Bruk-Jackson) and THE MASTER OF THE HIGH COURT
Ruled By: CHITAKUNYE J

HH217-17 : NAISON SEKERAMAYI and OTHERS vs MASTER OF HIGH COURT and PROVINCIAL MAGISTRATE, HARARE and EASTER DZWOWA and YARADZO MUNANGATI MANONGWA (Executrix Dative in Estate Lovemore Sekeramayi)
Ruled By: ZHOU J

View Appeal
HH314-16 : AS SCHOOL and CSS SCHOOL and SET COLLEGE and GST SCHOOL and SC COLLEGE and CB SCHOOL vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

SC20-19 : GRACE SHURO vs MOLLY CHIURAISE and CITY OF MASVINGO
Ruled By: GARWE JA, HLATSHWAYO JA and BHUNU JA

View Appeal
HH113-06 : JOSHUA KADENGU and LAMECK KADENGU and ROSA KADENGU vs OLGA KADENGU (In her personal capacity and as guardian of her two minor children) and RICHARD CHIMBARU and MASTER OF THE HIGH COURT
Ruled By: KUDYA J

HH551-15 : W AND D CONSULTANTS (PRIVATE) LIMITED vs SEAN THOMAS NIELSON DORAN
Ruled By: DUBE J

HB03-15 : LUBECK INVESTMENTS (PVT) LTD t/a HIGHER LEARNING CENTRE vs BESTER DUNDUZA
Ruled By: TAKUVA J

HB18-15 : JULIET NHLIZIYO (N.O.) and ESTATE LATE HAROLD NHLIZIYO vs NOKUTHULA MOYO and ESTER KELLI (N.O.) and ESTATE LATE PREECE NHLIZIYO and ASSISTANT MASTER (N.O.) and CITY OF BULAWAYO
Ruled By: MAKONESE J

HB27-15 : MONICA DHLIWAYO vs BONGANI NDLOVU (as Executor Dative estate Late Jubane James Jack) and ESTATE LATE JUBANE JAMES JACK and CLEMENTINE JACK and DEPUTY MASTER OF THE HIGH COURT
Ruled By: MAKONESE J

View Appeal
HH85-21 : JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE vs PATRICIA DARANGWA and MASTER OF THE HIGH COURT OF ZIMBABWE (N.O.)
Ruled By: CHIRAWU-MUGOMBA J

SC21-18 : EASTER MZITE (as Executrix Dative Estate Late Chemayi Joseph Mtize) vs DAMAFALLS INVESTMENTS (PVT) LTD and MASTER OF THE HIGH COURT
Ruled By: BHUNU JA