CHITAKUNYE
J: The applicant is a farmer. He claims
to have been friends with Mr Paulino Oliveria Martins who died on the 2
September 2007 at Harare.
The applicant claimed that in the course of their friendship he lent the late P
O Martins some money which he had reserved to buy an international truck horse
with. In exchange for the loan Mr P O Martins was to import a similar truck for
the applicant. As fate would have it Mr P O 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
respondents' failure the deputy sheriff be authorized to take the truck and to
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 P O Martins who died on
2September 2007. Prior to his death P O Martins had borrowed a sum of $5
billion dollars (Zimbabwean currency) from the applicant. In turn P O Martins
was to import an International Truck horse for the applicant as repayment for
the loan.
When
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 Martins had
began the process of importing the truck for him. To confirm this he attached a
pro-forma invoice. The pro-forma 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's office with
the applicant and the executor in attendance.
On
8 January 2008 a Mr Matore of the Master'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 ton truck be declared a non-estate
property and be restored to the applicant since it was purchased for him by the
late P O 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. Nyatanga did
not yield favorable results.
The
applicant duly filed a solemn declaration purportedly in terms of s 47(1) of
the Administration of Deceased Estates Act [Cap
6:01].
In
that declaration he out lined the basis for his claim. He also attached a copy
of the pro-forma invoice from Nissan Diesel South Africa
(Pvtt) Ltd in his name and a supporting affidavit from Edmore Musandiriri.
On
25 April 2008 the executor wrote to 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 one days.
On
23 July 2008 the executor wrote to the applicant's then legal practitioners
Chingeya-Mandizira 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. The
applicant duly filed answering affidavit in response to the opposing papers on
9 April 2009.
The
applicant's heads of argument were filed on 3 June 2009 and served on the
respondents' legal practitioners on that same date. In terms of r 238 of the
High Court Rules the respondents were required to file their heads of arguments
not more than ten days after being served with the applicant's heads of
arguments. The respondents did not file their heads of arguments within the ten
day period. The respondents were thus barred. For the respondents to be heard
on the merits they had to apply for the upliftment of the bar. This the
respondents did not do. On 13 October 2009 when the matter was set down for
hearing Mr Uriri appeared for the respondents. As the bar was still operating
against the respondents and no application for its upliftment had been made Mr Uriri
applied for a postponement of the hearing so that he could attend to the issue
of the upliftment of the bar. Leave was granted for the respondents to file an
application for the upliftment of the bar within five days from that date.
On
13 November 2009 the case was again set down for hearing. On this occasion Mr Takaindisa appeared for the respondents.
As had been the case with Mr Uriri he indicated that he had just been briefed.
As no application for the upliftment of the bar had been made he found himself
gagged. The most he could say was that the instructing legal practitioners had
not been forthcoming with the reasons for the delay in filing heads of
arguments hence no application for the upliftment of the bar could be made.
It
was in these circumstances that Mr Mushonga
applied for judgment as the respondents were in default. He however urged court
to consider the application on the merits.
In
as far as the respondents were barred and thus could not be heard on the
merits, it is my view that any judgment will be in the same vein as a judgment
granted in the absence of the other party.
In
Christopher Zvinavashe v Nobuhle Ndlovu SC 40/06 at p 4 of the
cyclostyled judgment GWAUNZA JA opined that:
“The defining
feature or essence of a judgment granted after a party fails to appear is the 'default'
of the absent party, that is his failure to do what he ought to have done.”
In
casu the respondents failed to file
their heads of arguments within ten days after they had been served with
applicant's heads of arguments. The respondents further failed to apply for the
upliftment of the bar and so effectively the respondents could not be heard.
I
am of the view that no case has been made to consider the application on the
merits. I will thus grant a default judgment as follows:
It is hereby ordered that:
1. The first and second respondents be and
are hereby directed not to include the Nissan Diesel UD 290 WF Horse into the
estate of the late Paulino Oliveria Martins DR 1308/07.
2. The first and third respondents be and
are hereby directed to release the Nissan Diesel UD WF 290 Horse and all the
relevant papers to the applicant to enable the applicant to forthwith register
the vehicle into his name within seven (7) days of the granting of this court order.
3.
Upon the first and third respondents
failure the Deputy Sheriff be and is hereby authorized to take the said vehicle
and to sign all relevant papers to enable the applicant to register the vehicle
and handover the vehicle to the applicant.
4. The first and third respondents shall bear the costs of suit.
Mushonga Mutsvairo & Associates, applicant's legal
practitioners.
Chivhinge &
Company, 1st & 3rd
respondents' legal practitioners.
