Rights of Beneficiaries re: Claim of Beneficiaries to Occupy Immovable Property, Rights to Habitatio & Usufruct Rights

HH183-12 : ALEX CHIMHOWA and OTHERS vs JOYCE CHIMHOWA (nee MASUKWEDZA) and FREMUS EXECUTOR SERVICES (PVT) LTD (N.O.) and MASTER OF HIGH COURT (N.O.) and CITY OF HARARE (N.O.)
Ruled By: CHIWESHE JP

This is an application to review the actions of the second and third respondents with regards the distribution of the estate of the late Lloyd Chimhowa, who died intestate on 3 December 2007.At the time of his death, the deceased was married to the first respondent, Joyce Chimhowa, in terms ...

This is an application to review the actions of the second and third respondents with regards the distribution of the estate of the late Lloyd Chimhowa, who died intestate on 3 December 2007.

At the time of his death, the deceased was married to the first respondent, Joyce Chimhowa, in terms of the then Marriages Act [Chapter 37].

The parties initially contracted a customary law union. This union was subsequently solemnised on 14 June 1991. Up till then, the deceased was a widower, having been customarily married to Mary–Maria Mabwe in 1971. She died intestate in October 1987.

During the subsistence of this first marriage, the spouses acquired an immovable property known as House Number 7447, 6th Way, Glen View 7, Harare. The house was registered in the name of the deceased, Lloyd Chimhowa. The house was acquired in 1979. The spouses jointly contributed to the development of the Stand, including the construction of a dwelling house. Mary Maria died after completion of the house.

For one reason or another, her estate was neither registered nor administered as required by law. She was survived by her husband, Lloyd Chimhowa, and six children - the applicants in this matter.

The late Lloyd Chimhowa's second marriage to the first respondent was blessed with four children. The new family continued to reside at the house left behind by Mary Maria Mabwe. Also residing at the same address were the six children borne out of the deceased's marriage to Mary-Maria Mabwe.

When the late Lloyd Chimhowa died, the first respondent was appointed executor of the deceased estate. She did not last long in that appointment after the Master wrote to her accusing her of falsifying information in order to get authority to transfer estate assets into her name. For this, the Master threatened her with criminal prosecution.

Her appointment as executor was then revoked in favour of the second respondent.

The first respondent and the applicants were in bitter dispute as to the distribution of the matrimonial home. The parties eventually buried the hatchet and came to a mutually agreed distribution plan. It was agreed that the matrimonial home be jointly owned by the applicants, the first respondent, and her four children, in equal share. This agreement was referred to as 'the family tree”.

This agreement did not last long.

The first respondent opted out of it, and, in a letter addressed to the executor (the second respondent), dated 30 September 2008, she advised that she was resiling out of the agreement and demanded to be allocated what belonged to her and her biological children. She followed this with another letter dated 21 October 2009 in which she demanded to be allocated fifty per cent of the matrimonial home, with the other fifty per cent being allocated to the 6th applicant (Nyasha Masiyiwa Chimhowa) and her minor biological children.

On 4 August 2009, the executor submitted to the third respondent the first and final distribution account in terms of which it was proposed, inter alia, to award the immovable property (matrimonial home) No.7447–6th Way, Glen View 7, Harare, to the first respondent.

Despite the applicants' written objection to the distribution of the matrimonial home, the third respondent, the Master, confirmed the distribution, advising the applicants to seek review by this Honourable Court should they persist with their objections.

The applicants have proceeded accordingly by launching the present application. They contend as follows:

The third respondent did not take their objections into account, and, for that reason, he failed to apply his mind to the issues before him. Chief among the applicants reasons for objection was that the distribution did not take into account the fact that the matrimonial home also constituted part of their late mother's estate (Mary-Maria Mabwe's estate). This should have been taken into account in finalising the estate, they argue.

Secondly, the applicants were aggrieved, that, in compiling the inventory, the first respondent had left out the Rusape rural home, which their late father had specifically built for her. It is this rural home to which, in the opinion of the applicants, the first respondent would be entitled as she had not contributed to the acquisition and development of the Glen View matrimonial home.

It is further argued that the third respondent failed to recognise that he was essentially dealing with two estates. Maria-Mary Mabwe's estate, argue the applicants, would be entitled to fifty per cent of the matrimonial home. The balance of the value of the matrimonial home would have accrued to her late husband's estate. That is the value that the first respondent would have been entitled to.

The applicants admit that, at one stage, the first respondent had offered that they buy out her fifty per cent share. They were however unable to raise the amounts involved.

Further, the applicants aver, that, on a number of occasions, the first respondent had indicated that she wanted to sell the matrimonial property and that if she did so, the applicants, especially the 6th applicant (Nyasha Masiyiwa Chimhowa), who is disabled, would be greatly prejudiced.

For these reasons, the applicants seek an order setting aside the decision of the third respondent to award the matrimonial home to the first respondent. In its place, they seek the substitution of an order awarding the Rusape rural home to the first respondent with the applicants and the first respondent being jointly awarded the Glen View matrimonial home in equal share.

Alternatively, in the event that the matrimonial home is awarded to the first respondent, that the applicants, in particular the 6th applicant (Nyasha Masiyiwa Chimhowa), be granted the right to use the property and that the fourth respondent be directed to register a caveat against the property to prevent the first respondent from disposing of the property without the consent of the applicants.

The first respondent says she was initially amenable to sharing the immovable property with the applicants, but, because the applicants continually undermined her authority as mother, and also because there being ten people, the house was always overcrowded, she had changed her mind. She expected those of the applicants who had attained adulthood to move out.

They refused to so move out.

She said she had left out the rural home, in compiling the inventory, because although she regarded it as the family's rural home (Mary Maria Mabwe's hut is also situated there), she did not regard it as her matrimonial home as she hardly lived there, except for the odd weekend.

She denied that it was her intention to sell the matrimonial home in Glen View.

Above all, however, the first respondent argues that, at law, being the surviving spouse, she is entitled to the matrimonial home and that she is not obliged to co-own the matrimonial home with the applicants.

She also avers that had the estate of Mary-Maria Mabwe been registered it would have been handled under customary law and thus the house would have been excluded from her estate and awarded to her husband instead. It cannot therefore be argued that the house transcends two separate estates.

To that end, contends the first respondent, the Master's decision was sound at law and meets the justice of the case.

I believe, from the facts of this matter, that, the office of the Master followed the procedures outlined in terms of the Administration of Estates Act.

An edict meeting was held, attended by all stakeholders. When the first respondent failed to meet the required standards, the Master quickly intervened revoking her appointment as executor and replacing her with the second respondent. Various meetings were held among the parties with a view to getting them to agree on the way forward. They were unable to agree, and, naturally, the Master directed that the executor proceeds in terms of section 3A of the Deceased Estates Succession Act [Chapter 6.02].

In general, therefore, the Master and the second respondent cannot be faultered in the manner in which they handled this deceased estate. They were guided, ultimately, by the provisions of section 3A of the Deceased Estates Succession Act which provide that the surviving spouse of a person who dies wholly or partially intestate shall be entitled to receive, from the free residue of the estate, “the house or other domestic premises on which the spouses or the surviving spouse, as the case may be, lived immediately before the person's death and the household goods and effects which immediately before the person's death were used in relation to the house or domestic premises referred to in para (a), where such house, premises, goods and effects form part of the deceased person's estate.”

Section 68F(b)(i) of the Administration of Estates Act [Chapter 6:01], on the other hand, provides, in relation to the estates of persons who die intestate, as follows:

“…, where the deceased person is survived by one spouse and one or more children, the surviving spouse should get –

(i) Ownership of, or, if that is impracticable, a usufruct over the house in which the spouse lived at the time of the deceased person's death, together with all the household goods in that house.”

In reading the legislation governing deceased estates, in so far as the rights of surviving spouses are concerned, it is important to bear in mind the intention of the legislature, bearing in mind that this branch of the law has, in the last decade, been the subject of much debate and controversy.

A number of amendments have been brought to bear to this branch of the law.

The chief driver of this process has been the desire by the legislature to protect widows and minor children against the growing practice, by relatives of deceased persons, to plunder the matrimonial property acquired by the spouses during the subsistence of the marriage. Under this practice, which had become rampant, many widows were deprived of houses and family property, by marauding relatives, thus exposing the widows and their minor children to the vagaries of destitution.

In many cases, the culprit relatives would not have contributed anything in the acquisition of such immovable and movable properties, often the result of years of toil on the part of the deceased and the surviving spouse.

This is the mischief that the legislature sought to suppress in introducing provisions such as section 3A of the Deceased Estates Succession Act, section 68F of the Administration of Deceased Estates Act, and the Deceased Persons Family Maintenance Act [Chapter 6:03].

In my view, the legislature intended to protect, in the case of widows, that property acquired during the subsistence of their marriage to the deceased persons. This protection benefitted not just the widows but their minor children as well.

I do not perceive the legislature's intent to be to extend this protection and privilege to persons outside the marriage within which such property might have been acquired. To impute that kind of interpretation would lead to serious absurdities in the application of the law.

For example A marries B. They acquire jointly what may be termed matrimonial property. They have children. A, the husband, dies, and, in terms of the law, B, the wife and surviving spouse, is awarded the matrimonial property. Thereafter, B contracts another marriage with X, the second husband. She dies and X the second husband and surviving spouse, inherits the matrimonial property that B inherited from A, at the expense of A and B's children in that marriage.

Clearly, the children will have been disinherited of their parents' property.

They may, as a result, end up in the street, particularly if X sells the property and converts the proceeds to his own selfish ends.

In the result, the noble intention of Parliament, to keep the property within the family for the benefit of the surviving spouse and the children, will have been subverted.

During the course of hearing this application, an example was given of a surviving male spouse whose wife died leaving him to fend for their minor children. He was, in terms of the law, awarded the matrimonial house and movables. He retained the maid because it was in the interests of the children to keep them under the care of a person they were familiar with.

In time, a relationship developed between the maid and the widower, leading to marriage.

The widower dies and the maid, being the surviving spouse, is awarded the family's matrimonial home acquired during the subsistence of the first marriage - without the maid's contribution. Thereafter, the maid sells the matrimonial home, takes the money, deserts the deceased husband's children, and marries another man.

Again, in instances such as this example, the intention of the legislature is subverted.

For these reasons, I would conclude, that, the protection afforded surviving spouses is, in terms of inheritance, limited to those assets that were acquired during the course and subsistence of that spouse's marriage to the deceased person whose estate is under distribution.

In particular, surviving spouses cannot, by right, claim any right to matrimonial property acquired outside their own marriage.

To allow them to do so would lead to the absurdities alluded to above. It would be against public policy and conscience to deprive the children of deceased persons the common law right to inherit from their parents merely because, at some stage, the surviving parent had remarried.

If that had been what Parliament intended to do it would have expressly so provided.

I am satisfied that Parliament intended only the consequences I referred to earlier.

In my view, it is of paramount importance that the legislature revisits the relevant legislation in order that its intention be expressed in clearer terms than is presently the case.

In the result, I agree with the submissions made on behalf of the applicants vis a vis the distribution of the immovable property in this estate. I agree that it is impracticable and indeed undesirable that the first respondent be awarded property acquired before her marriage to the deceased, Lloyd Chimhowa. At the same time, I recognise the first respondent's right to live at this property, which, to all intents and purposes, is also her matrimonial home. Her four minor children, being dependants of the deceased person, also have the right to live with their mother at that property.

In the result, I order as follows:

(1) That, the immovable property commonly referred to as House No.7447–6th Way, Glen View 7, Harare be and is hereby awarded to the first to sixth applicants (Alex Chimhowa, Cleopas Chimhowa, Viola Chimhowa, Pauline Chimhowa, Edmore Chimhowa and Nyasha Masiyiwa Chimhowa) in equal shares.

(2) That, the first respondent be and is hereby granted a life usufruct over the said immovable property.

(3) That, the final order of the third respondent, given under DR15/08, Estate Late Lloyd Chimhowa, be and is hereby amended to the extent of paragraphs (1) and (2) above.

(4) That there be no order as to costs.

HH51-11 : MARYLOU PALALPAC MORTEN (NEE DACANAY) vs MARLENE DENISE KEMI MORTEN and TONY YOUNG and DANDARO HOME OWNERS ASSOCIATION
Ruled By: MAWADZE J

MERITS From the background facts of the matter I have outlined it is clear to my mind that relevant facts to this application are largely common cause. These facts are: (i) That the applicant is the surviving spouse of the late Baker Eddie Morten. When Baker Eddie Morten passed on 9 August 2010 the marriage between ...

MERITS

From the background facts of the matter I have outlined it is clear to my mind that relevant facts to this application are largely common cause. These facts are:

(i) That the applicant is the surviving spouse of the late Baker Eddie Morten. When Baker Eddie Morten passed on 9 August 2010 the marriage between the parties had not been dissolved by any competent court.

(ii) That the applicant had been residing in Flat 112 Dandaro Village, Borrowdale, Harare from 31 July 2010 and was only “evicted” from the flat on 20 January 2011 - after a period of 6 months.

(iii) That the applicant did not consent to vacate Flat 112 Dandaro Village, Borrowdale, Harare but was locked out by the first, second and third respondents in her absence.

(iv) That the first, second and third respondents did not seek and obtain an eviction order from the court before ejecting the applicant from Flat 112 Dandaro Village, Borrowdale, Harare.

It is incorrect to submit that HUNGWE J, in HC9293/10, ordered the eviction of the applicant. It follows, therefore, that it would not be tenable to argue that the applicant was lawfully evicted in accordance with an order by HUNGWE J in HC9293/10. The fact of the matter is that HUNGWE J, in HC9293/10, merely pronounced on the rights of the parties in relation to Flat 112 Dandaro Village, Borrowdale, Harare. HUNGWE J did not issue an order to evict the applicant and no such order was sought before him but the relief sought was an interdict.

The fact of the matter is that the judgment by HUNGWE J, in HC9293/10, did not, in my view, allow the respondents to evict the applicant without a valid court order to that effect.

The next issue to consider, therefore, is whether the respondents acted upon any other lawful basis when they evicted the applicant on 20 January 2011.

Section 10 of the Deceased Persons Family Maintenance Act [Chapter 6:03] provides as follows:-

“10 Protection of deceased person's family and property.

(1) Notwithstanding any law, including customary law, when any person dies, any surviving spouse or child of such person, shall, subject to section eleven have the following rights -

(a) The right to occupy any immovable property which the deceased had the right to occupy and which such surviving spouse or child was ordinarily occupying immediately before the death of the deceased.

(b) …,.

(d) …,.”

In terms of section 10(2)of the Deceased Persons Family Maintenance Act [Chapter 6:03] non-compliance with the provisions of section 10(1) of the Deceased Persons Family Maintenance Act [Chapter 6:03] invites criminal sanctions.

As already stated, the applicant is Baker Eddy Morten's surviving spouse and Baker Eddy Morten owned Flat 112 Dandaro Village, Borrowdale, Harare. It is common cause the applicant was occupying Flat 112 Dandaro Village, Borrowdale, Harare immediately before the death of the deceased. The applicant, therefore, is protected in terms of section 10 of the Deceased Persons Family Maintenance Act [Chapter 6:03] subject to section 11 of the Deceased Persons Family Maintenance Act [Chapter 6:03]. Section 11 of the Deceased Persons Family Maintenance Act [Chapter 6:03] states:

“11 Restrictions on exercise of the rights conferred by section ten

The rights conferred by section ten shall -

(a) Not derogate from or prejudice in any way the rights of the mortgagor or, landlord, creditor or any other person whomsoever which existed prior to the date of the death of the deceased person. …,.

(b) Terminate upon completion of the administration of that portion of the deceased estate to which those rights relates.

(c) Be subject to the requirement that the surviving spouse or child concerned shall occupy or use the property in question without detriment, or neglect, reasonable wear and tear being excepted.”

Counsel for the second and third respondents, in argument, submitted that the applicant's right to occupy Flat 112 Dandaro Village, Borrowdale, Harare is subject to the exception in section 11(a) of the Deceased Persons Family Maintenance Act [Chapter 6:03].

I associate myself with that view and I believe the effect of the Dandaro Constitution and the Notarial Deed of Servitude on the applicant's right to occupy Flat 112 Dandaro Village, Borrowdale, Harare were issues ably dealt with by HUNGWE J in HC9293/10.

The gravaman of the matter is whether the respondents acted within the confines of the law when they ejected the applicant.

The legal requirements for the relief sought by the applicant are well laid out in the case of Chisveto v Minister of Local Government and Town Planning 1984 (1) ZLR 248…,.;

“It is a well-recognised principle that in spoliation proceedings it need only be proved that the applicant was in possession of something and that there was forcible or wrongful interference with his possession of that thing…, that spoliatus ante omnia restituendus est…,. Lawful possession does not enter into it. The purpose of the mandament van spolie is to preserve law and order and to discourage persons from taking the law into their own hands. To give effect to these objectives, it is necessary for status quo ante to be restored until such time as a competent court of law assesses the relative merits of claims of each party. Thus, it is my view that the lawfulness or otherwise of applicant's possession of the property in question does not fall for consideration at all.”

I am satisfied that the applicant has proved both factual possession and wrongful dispossession in respect of Flat 112 Dandaro Village, Borrowdale, Harare. Even if one was to assume that the applicant's right to occupation of Flat 112 Dandaro Village, Borrowdale, Harare is as per HUNGWE J's judgment (I share similar views) in HC9293/10 I do not believe that the respondents were entitled to eject her from the flat without following the due process of the law. The provisions of the Dandaro Constitution and the Notarial Deed of Servitude deal with the applicant's right to habitatio and cannot be elevated to the status of a court order authorising the eviction of the applicant. I associate myself with the incisive views expressed by the Chief Justice CHIDYAUSIKU in the matter of Commercial Farmers Union and Ors v Minister of Lands and Rural Resettlement and Ors SC31-10…,:

“The holders of offer letters, permits or land settlement leases (one may read to include Dandaro Constitution, the Notarial Deed of Servitude and Letters of Administration) are not entitled, as a matter of law, to self-help. They should seek to enforce their right of occupation through the courts…,.”

I am therefore satisfied that the applicant is entitled, prima facie, to the interim order she seeks. Accordingly, I make the following order:-

1. That pending the return date the respondents be and are hereby ordered to restore vacant possession and occupation of Flat 112 Dandaro Village, Borrowdale, Harare to the applicant with immediate effect.

2. This provisional order shall be served on all respondents in terms of the Rules of this Honourable Court.

Appealed
SC103-21 : IRENE MHLANGA vs MIKE MHLANGA
Ruled By: GWAUNZA DCJ, MATHONSI JA and CHITAKUNYE AJA

On 18 May 2021, at the conclusion of the hearing of this appeal, we dismissed the appeal with costs. We indicated that our reasons will follow in due course. These are the reasons.

This is an appeal against the whole judgment of the High Court handed down on 23 July 2020 as judgment Number HH485-20 in which the court a quo ordered the eviction of the appellant and all those claiming occupation through her from House Number 1138, Section 3, Kambuzuma, Harare.

BACKGROUND

The respondent issued summons seeking the eviction of the appellant and all those claiming occupation through her from House Number 1138 Section 3, Kambuzuma, Harare.

In his summons and declaration, the respondent averred, that, he is the owner of the house in question by virtue of Deed of Transfer No.3302/94. He further explained that the appellant was one of his late father's three wives and she is staying at the property despite having her own house as provided to her by her late husband.

Of his late father's three wives, one resided in a house she was left in by his father in Section 5, Kambuzuma, his mother and the appellant were left residing in the house in question in Section 3, Kambuzuma.

The respondent's late father, Mwaoneka Isaac Mhlanga, had a plan to provide all his wives with their own houses.

The property in issue was for the first wife, the respondent's mother. The third wife had a house provided for her in Kambuzuma Section 5, through a co-operative, and, to the appellant, the deceased had arranged that she joins a housing co-operative in Mabvuku in 1989 as a result of which she was allocated Stand Number 10700 in New Mabvuku.

The respondent's father, however, passed on in 1993 before he could build a house in Mabvuku for the appellant. Nonetheless, the co-operative had since built a house for her which she is renting out.

The appellant refused to move out of the house in Section 3, Kambuzuma where she is occupying four of the six rooms.

In her plea, the appellant confirmed that indeed the respondent inherited the house from the deceased estate of his late father as an heir.

She, however, contended that as heir, he has an obligation to provide her with alternative accommodation.

She further contended that no house was acquired for her in New Mabvuku; the house actually belongs to the cooperative as payments for the house were made by her daughter as she was incapacitated to do so.

She further indicated, that, she only uses three rooms and this arrangement was sanctioned by the Master of the High Court at an edict meeting held in 1994, wherein it was ruled that the appellant and the respondent's mother should continue staying at the house.

In essence, her argument was premised on the belief, that, as a surviving spouse to the respondent's late father, she is entitled to continue staying at the property and can only be removed if the respondent provides her with alternative accommodation.

The issues for trial were identified as follows:

(i) Whether or not the respondent still has an obligation to provide the appellant with accommodation, when the appellant now has her own house;

(ii) Whether or not the appellant joined the housing co-operative in Mabvuku at the instigation of the plaintiff's father; and

(iii) Whether or not the appellant should pay arrear rentals, holding over damages, and costs on a higher scale.

The parties agreed on the following admissions:

(i) That the respondent had inherited House Number 1138 Section 3, Kambuzuma in his own right in May 1994;

(ii) That the respondent had provided the appellant with accommodation from 1994 to the date of summons - a period of 21 years;

(iii) That, the appellant had joined a housing co-operative in Mabvuku while her husband was still alive; and

(iv) That the appellant was allocated House No.10700 in New Mabvuku in 2005 and is now a landlady.

At the hearing, the respondent abandoned his claims for arrear rental and holding over damages, but persisted with the claim for eviction.

Each party called one witness as most of the facts were common cause.

It was common cause, that, the New Mabvuku house, though still in the name of Kugarika Kushinga Co-operative, had, for all intents and purposes, become the appellant's house.

In this regard, the appellant conceded, that, one of her children occupies part of the house whilst she leases out the other part. She, as the 'landlady' is in receipt of monthly rentals in that regard.

She also confirmed, that, all payments to the co-operative and to the City of Harare are made in her name as the owner.

Despite the above concessions on her entitlement to the New Mabvuku house, the appellant insisted that the respondent must still provide her with alternative accommodation whilst she leases out her New Mabvuku house for profit.

Upon analysis of the evidence and the law on the subject matter, the court a quo held, that, for the appellant to insist that she continues to reside in the respondent's house unless she is provided with alternative accommodation by the heir, when she clearly has her own accommodation, would result in an absurd situation in which she will remain at the property in question interfering with the respondent's enjoyment of his real rights.

It will mean, that, for pre 1st November 1997 estates under customary law, of which there are still many, when the law of inheritance was changed to do away with the all-powerful heir, even those dependants who have a house or houses of their own would still insist that the heir should still provide them with alternative accommodation.

In the circumstances of this case, the court a quo granted an order for the eviction of the appellant from the property.

Aggrieved by that decision, the appellant noted this appeal on four grounds.

GROUNDS OF APPEAL

1. The court a quo erred in finding, that, under customary law, an heir only had a duty to look after his late father's wife where such wife had no other suitable accommodation.

2. Further, the court a quo erred in finding, that, the appellant interfered with the respondent's real rights if she remained in occupation of the immovable property inherited from her late husband by the respondent in his capacity as an heir.

3. Furthermore, the court a quo erred in suggesting, that, the respondent's obligation to look after the appellant subsisted only until the deceased estate had been wound up and not for good.

4. The court a quo further erred in ordering the eviction of the appellant from her matrimonial home after correctly finding that the respondent, as heir, had not offered her alternative accommodation.

RELIEF SOUGHT

(a) That the appeal be allowed with costs.

(b) That the judgment of the court a quo be set aside and that the following order be made in its place;

“The plaintiff's claim for eviction of Defendant from House No.113B Section 3 Kambuzuma, Harare be and is hereby dismissed with costs.”

ISSUE FOR DETERMINATION

I am of the view that only one issue commends for determination. That is:

Whether or not the court a quo erred and misdirected itself by ordering the eviction of the appellant from House Number 1138 Section 3, Kambuzuma without the provision of an alternative accommodation

In motivating the appeal, the appellant's counsel submitted, that, despite the appellant now owning her own house, she remained a dependant under customary law and the respondent must provide her with alternative accommodation if he is to evict her from the property in question.

Counsel's submissions were for the perpetual dependence syndrome under the guise of customary law oblivious of the developments away from that dependence syndrome for the emancipation and empowerment of women and in tandem with the constitutional principles on gender equality.

Whilst the customary law position is appreciated, it is absurd to expect that the respondent should continue providing her with accommodation when she now has her own house whose acquisition started when her late husband was still alive.

Going by her own contention, that, as a customary law wife, she was unable to act on her own, it would mean that her joining the housing co-operative was with the arrangement or blessing of her husband in order that she would have her own house.

It is trite, that, developments in the field of the Law of Succession have been for gender equality and emancipation of women from the tag of perpetual dependants.

Now that the appellant has been empowered and has a house of her own, it is absurd and contrary to modern developments that she should cling onto being considered a perpetual dependent who has to be provided for by an heir to her late husband's estate.

This perpetual dependence syndrome is anathema to modern society where the drive is for gender equality.

In any case, the appellant admitted, that, for more than twenty–one (21) years since her husband's death the respondent has provided her with accommodation.

Before she was given occupation of the New Mabvuku property, the respondent had never asked her to vacate the property in question.

Clearly, in my view, the respondent has played his part and it is only proper that the appellant vacates the property that she acknowledges now belongs to the respondent.

The duty to provide for dependents must be premised on the needs of the dependant.

Where a dependant has his/her own suitable accommodation they should not insist on being treated as dependants or minors as the appellant's counsel argued.

The turning point in this case is the fact that the appellant has suitable alternative accommodation of her own.

The cases that the appellant's counsel sought to rely on pertained to dependants who had no alternative accommodation of their own hence the heirs were enjoined to provide alternative accommodation.

In Kusema v Shamwa 2003 (1) ZLR 395 (H)…, MAKARAU J…, stated as follows -

“Generally, the rights of widows, at customary law, to support and accommodation by the heir of their late husband's estate has been long recognised by these Courts. In this regard, I refer to the case of Masango v Masango SC66-86 (an unreported judgment), where, at p3 of the cyclostyled judgment, BECK JA had this to say -

'In the absence of making it possible for the appellant to find such alternative accommodation for herself and her children as would be reasonable in all the circumstances, I do not consider that the respondent is entitled to insist upon their eviction from what is admittedly now his house. To order their eviction, without suitable alternative provision having been made for their shelter, would be tantamount to sanctioning an avoidance by the respondent of his customary law obligation to care for his father's wife and children.'”

The customary law position, to provide accommodation to a widow, must thus be read in conjunction with her dependence on the late husband for shelter.

Where she has suitable accommodation of her own, surely, treating her as a perpetual dependent who still needed to be provided with accommodation is untenable.

It is trite, that, a dependant is such because they do not have their own accommodation or means of surviving hence have to depend on others for provisions, but, when they become emancipated and have their own houses they are no longer dependants.

In the case of Vareta v Vareta 1992 (2) ZLR 1, the court, in dealing with the issue of provision of accommodation for dependants held, inter alia, that, although the applicant had a duty, under customary law, to support his father's dependants, this duty did not necessarily include a duty to provide accommodation for those dependants, especially if there was a separate home in the communal lands where the dependants could live.

The important aspect to consider is the availability of suitable accommodation elsewhere for the dependants.

In casu, it is common cause, that, by 2005, the appellant had a house to her name which she has since been letting out for profit. It was never her argument that that house was not suitable. The availability of this house meant that the appellant could no longer be considered as a dependant of the heir for accommodation.

The court a quo alluded to sections 10 and 11 of the Deceased Persons Family Maintenance Act [Chapter 6:03] to buttress the point, that, the provision of support and accommodation has to come to an end at some point.

The court a quo can therefore not be faulted for granting the order for eviction, as, clearly, the appellant had suitable accommodation of her own. The issue of dependence on the heir for accommodation had to come to an end.

DISPOSITION

The appeal has no merit. It was accordingly dismissed with costs.

HB25-15 : DORCAS MHLANGA vs BENJAMIN PHAKATSHANE
Ruled By: MUTEMA J and MOYO J

The late Addison Mhlanga was of Malawian extraction who came and naturalized himself in Zimbabwe.

He married one Dinah Ndlovu but did not have children. The two then adopted Esther Ncube (nee Nkala) as their child. Dinah Ndlovu pre-deceased Addison Mhlanga. Addison Mhlanga died intestate on 22 September 2003 at age 85 years.

He owned Stand Number 49257 otherwise known as Block 26/919 Mpopoma Township, Bulawayo.

The adopted child, Esther Ncube (nee Nkala), died on 19 November 2012 leaving three children, viz Sibonile Ncube, Zanele Ncube and Sikhangele Ncube.

At an edict meeting before the Additional Assistant Master, on 19 March 2013, Esther's relatives agreed that the respondent be appointed executor dative to administer the estate of the late Addison Mhlanga.

Apparently, the respondent is related to the late Addison Mhlanga's late wife, Dinah Ndlovu, the latter having been the respondent's maternal aunt.

Ordinarily, the sole asset of Addison Mhlanga's deceased estate, viz the Mpopoma house alluded to supra, was set to devolve upon Esther's estate, which, in turn, was set to be inherited by Esther's three daughters mentioned above.

Following an advertisement in the Chronicle Newspaper and the Government Gazette of Addison Mhlanga's estate by the respondent, the appellant, out of the blue, and having changed the surname on her birth certificate from Nkhulambe to read Mhlanga on 7 May 2013, lodged an application, on 10 May 2013, in the Magistrates Court Bulawayo to have an edict meeting for the appointment of herself as heir to Addison Mhlanga's estate claiming to be the sole surviving daughter to Addison Mhlanga.

The application was dismissed, and, dissatisfied with the outcome, the appellant lodged the current appeal before this court. Two main grounds of appeal were raised and they are these:

“1. The learned magistrate erred at law in dismissing appellant's claim when -

1.1 There was evidence to the effect that the deceased, Addison Mhlanga, disclosed, during his lifetime, that appellant was his daughter.

1.2 The appellant had a birth certificate showing that the deceased Addison Mhlanga's father (sic).

1.3 The deceased, at the time of his death, had allowed the appellant to reside at his house and she continues to do so now.

1.4 The now deceased, Esther Nkala, did not reside at the said house – 26/919 Mpopoma, Bulawayo after the death of Addison Mhlanga.

1.5 Appellant's lobola was paid to the deceased, Addison Mhlanga, during his lifetime.

2. The learned magistrate also erred at law in accepting, that, the late Esther Nkala's children were entitled to inherit from the late Addison Mhlanga's estate because Esther Nkala was his adopted daughter when no document was produced to prove that she was and had been adopted.”

The appellant's prayer is that she be declared the late Addison Mhlanga's daughter and that the late Esther Nkala's children are not entitled to inherit from the late Addison Mhlanga's estate.

I will deal with the grounds of appeal hereunder seriatum....,.

THAT ADDISON MHLANGA, AT THE TIME OF DEATH, HAD ALLOWED APPELLANT TO RESIDE AT HIS HOUSE AND SHE CONTINUES TO SO DO

This ground of appeal should not detain us for it is devoid of merit, whether standing alone or in conjunction with any other ground.

It was common cause that the late Addison Mhlanga regarded the appellant's father, Kenneth Nkhulambe, as a brother, and, when the latter divorced and remarried, Addison Mhlanga, out of pity for the appellant, took it upon himself to take the appellant and her siblings in.

He even moved them to Gwanda.

One cannot, with success, abuse pity by equating it to proof of paternity.

The appellant herself stated that Esther told her that she only took a few pots from Mhlanga's estate because she did not want to have the house and allowed the appellant to continue staying there.

This, however, cannot mean that such a scenario amounts to an indication of proof of paternity!

THAT THE LATE ESTHER NKALA DID NOT RESIDE AT THE MPOPOMA HOUSE AFTER THE DEATH OF ADDISON MHLANGA

That, either standing alone or read in conjunction with any other ground of appeal, proves nothing pertaining to the paternity being sought by the appellant.

Over and above the finding in the preceding ground, it is not disputed that there were tenants at the house and that Esther was married, staying at her husband's place.

View Appeal
HH485-20 : MIKE MHLANGA vs IRENE MHLANGA
Ruled By: CHIRAWU-MUGOMBA J

This matter falls squarely in the realm of the law of succession in Zimbabwe. The background is as follows:

On the 24th of January 2014, the plaintiff issued summons against the defendant seeking the following relief:

(a) Eviction of the defendant, and all those claiming through her, from House Number 1138 Section 3, Kambuzuma, Harare.

(b) Payment of arrear rentals amounting to $17,280 for four rooms over a period of six years.

(c) Holding-over damages at $240 per month from date of summons to date of eviction.

(d) Costs on a higher scale if defendant opposes, otherwise normal costs.

In his summons and declaration, the plaintiff made the following averments:

He is the owner of the Kambuzuma house (the property) by virtue of Deed of Transfer No. 3302/94. The defendant was a wife to the plaintiff's late father and she is staying at the property despite having her own house as provided to her by her late husband.

The plaintiff's father had three wives, who include the plaintiff's mother, the defendant, and another wife who stays in section 5 Kambuzuma.

The plaintiff's late father had a plan to provide all his wives with their own houses. The property in issue was for the first wife. The third wife had a house provided for her in Kambuzuma, and, to the defendant, he arranged that she joins a housing co-operative in Mabvuku, and, as a result, she was allocated Stand number 10700 in New Mabvuku.

The plaintiff's father passed on before he could build a house in Mabvuku for the defendant. Nonetheless, the cooperative has since built a house for her which she is renting out.

She has refused to move out of the Kambuzuma property. She is occupying four out of six rooms.

In her plea, the defendant averred as follows:

The plaintiff inherited the house from the deceased estate of his late father as an heir and thus he has an obligation to provide her with alternative accommodation. No house was acquired for her in Mabvuku. That house belongs to the co-operative and payments were made since 2002 by the defendant's daughter. The defendant only uses three rooms, and this arrangement has been sanctioned by the Master of the High Court.

At an edict meeting held in 1994, it was ruled, that, the defendant and the plaintiff's mother should continue staying at the house. As a surviving spouse, the defendant can continue staying at the property. If the plaintiff wants the defendant to leave, he has to provide the defendant with alternative accommodation. The defendant's stay is legal and she is not liable to pay damages to the plaintiff.

The joint pre-trial conference minute reflects the following as the issues:

1. Whether or not the plaintiff still has an obligation to provide the defendant with accommodation, when the defendant now has her own house?

2. Whether or not the defendant joined the housing co-operative in Mabvuku at the instigation of the plaintiff's father?

3. Should the defendant pay arrear rentals, holding over damages, and costs on a higher scale?

The admissions were recorded as follows:

1. The plaintiff inherited House Number 1138 Section 3 Kambuzuma in his own right in May 1994.

2. The plaintiff provided the defendant with accommodation from 1994 to date - a period of 21 years.

3. The defendant joined a housing co-operative in Mabvuku while her husband was still alive.

4. The defendant was allocated House No.10700 in New Mabvuku in 2005 and is now a landlady.

The trial itself was very short.

The plaintiff's evidence-in-chief was through his mother, Efradia Mhlanga, acting through a power of attorney, since the plaintiff is based in the United Kingdom.

She told the court that the plaintiff is her son. When her husband passed away, in 1997, the plaintiff was appointed heir to the deceased estate.

In support, she produced Letters of Administration dated the 15th of November 1994. The letters indicate that one Richard Chimbari was appointed executor dative in the estate of the late Mwaoneka Isaac Mhlanga.

The defendant was married to the late Mwaoneka Isaac Mhlanga but she was never at any point chased away.

The plaintiff now sought eviction of the defendant since he was a registered owner. In support, a copy of title deeds of the property in the name of the plaintiff were produced.

The defendant now stays in Seke, and, if the court authorises her eviction, she can leave end of August.

Under cross examination, the plaintiff's Efradia Mhlanga stated, that, the defendant has a house in Seke that she built on her own though she did not have any proof.

She also stated, that, the defendant started staying at the Kambuzuma property when their husband was still alive though she did not know the exact date but it was in the 1990s.

The plaintiff's legal practitioner confirmed that the claim for arrear rentals and holding over damages was no longer being pursued.

On her part, the defendant told the court, that, the plaintiff is her step-son. She married her late husband in 1991 in terms of the then African Marriages Act [Chapter 238]. She however started staying with him in 1980 at the property. Since then, she has not stayed at any other place.

Her husband left her at the property and she has nowhere to go.

Her husband considered that, at that time, their children were young.

She implored the court to have mercy on her. Seke is her home where she was born. The plaintiff had a duty to provide her with alternative accommodation.

Her house in Mabvuku was paid for by her child. When she joined the co-operative, in 1988, she was young and was working. She denied that it was her late husband who encouraged her to join the cooperative. The house was still in the name of the co-operative.

In support of her contention, the defendant produced a rates statement from the City of Harare which indicates the name of the ratepayer as Kugarika Kushinga Co-operative.

Under cross examination, she conceded, that, although one of her children is staying at the property, all payments to the cooperative, and to the City of Harare, are made in her name.

From the pleadings and the evidence led, the following is common cause:

1. The plaintiff has real rights in the property through registration of title in his name as the heir to the deceased estate of his late father.

2. The defendant has been resident at the property since her marriage to the deceased.

3. The defendant owns a property in Mabvuku.

4. The plaintiff has not offered the defendant alternative accommodation.

In my view, the legal issue that arises is this - does the plaintiff have the duty to provide the defendant with alternative accommodation?

The Law

The legislature has made provisions for the immediate protection of the family of a deceased person upon death. The first layer of protection is through the provisions of the Deceased Persons Family Maintenance Act [Chapter 6:03] – specifically section 10 that reads as follows:

“10 Protection of deceased person's family and property

(1) Notwithstanding any law, including customary law, to the contrary, when any person dies, any surviving spouse or child of such person, shall, subject to section eleven, have the following rights —

(a) The right to occupy any immovable property which the deceased had the right to occupy and which such surviving spouse or child was ordinarily occupying immediately before the death of the deceased;

(b) The right to use any household goods and effects, implements, tools, vehicles or other things which immediately before the death of the deceased the surviving spouse or child was using in relation to such immovable property;

(c) The right to use and employ any animals which immediately before the death of the deceased were depastured or kept on such immovable property;

(d) To an extent that is reasonable for the support of such surviving spouse or child, the right to any crops which immediately before the death of the deceased were growing or being produced on such immovable property.

(2) Any person who does an act with the intention of depriving any other person of any right, or interferes with any other person's right, that has accrued to that other person in terms of subsection (1) shall be guilty of an offence and liable to a fine not exceeding level six or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.

(3) A court convicting a person of an offence in terms of subsection (1) may order the convicted person, or any other person, to restore any property or pay any money which he has unlawfully acquired to the person entitled thereto in terms of subsection (1) or to any other person specified by the court, and any such order shall have the same effect and may be executed in the same manner as if the order had been made in a civil action instituted in the court.”

In other words, at death, the salient features of the protection afforded is as follows:

(a) The protection is afforded to all persons, be it under general or customary law.

(b) A surviving spouse or child is entitled to remain in occupation of an immovable property that they were staying in immediately before death provided that the deceased was staying with them or the deceased had a right to occupy such property. This means if there is another property that the deceased was not occupying, but had a right to occupy, the surviving spouse or child can also occupy such property if they were staying there immediately before death of the deceased.

(c) The surviving spouse or child have a right to use tools and household goods, including motor vehicles, that they were using immediately before death.

(d) They also have a right to use animals and have a right to any crops that were available to them immediately before death.

These protectionist rights are taken very seriously such that any infringement is a criminal offence (section 10(2) of the Deceased Persons Family Maintenance Act).

These rights, however, are not in perpetuity.

They “terminate upon completion of the administration of that portion of the deceased estate to which those rights relate;” see section 11(b) of the Deceased Persons Family Maintenance Act.

During the era of the 'heir' an additional duty was placed on him (given that the male primogeniture rule was predominant) to look after the dependants of the deceased. He could not evict them without providing alternative accommodation.

Although a dependant was not defined, guidance could be gleaned from the definition in section 2 as follows:

“'dependant', in relation to a deceased, means —

(a) A surviving spouse;

(b) A divorced spouse, who, at the time of the deceased's death, was entitled to the payment of maintenance by the deceased in terms of an order of court;

(c) A minor child;

(d) A major child who is, by reason of some mental or physical disability, incapable of maintaining himself and who was being maintained by the deceased at the time of his death;

(e) Parent who was being maintained by the deceased at the time of his death;

(f) Any other person who -

(i) Was being maintained by the deceased at the time of his death.”

Registration of property bestows real rights that are enforceable against the whole world. In Takafuma v Takafuma 1994 (2) ZLR 103 (S)…, McNALLY JA had this to say:

“The registration of rights in immovable property in terms of the Deeds and Registries Act [Chapter 139] (now [Chapter 20:05]) is not a mere form nor is it simply a device to confound creditors or the tax authorities - it is a matter of substance. It conveys real rights upon those in whose name the property is registered.”

In my view, the acquisition of real rights and the expected duty of the heir reveals the tension between general law and customary law of inheritance.

The immediate question is: does the duty to provide alternative accommodation end upon the acquisition of title and does it apply to even those dependants who have accommodation already?

Application of the law to the facts

The two witnesses, that is, the plaintiff's mother and the defendant in person, appeared to be very simple women who did not appreciate the legal nature of the dispute.

The plaintiff's mother is also very elderly and it did not help matters that the legal practitioner also seemed unsure of what evidence to elicit from her. The defendant's legal practitioner also seemed to be unsure of what questions to put to her. As a result, the entire trial took about one and a half hours.

The saving grace is that the question before the court was more legal than factual.

In casu, the plaintiff has acquired real rights in the property.

The causa of the title is reflected in the title deeds as “…, the undermentionend property has been awarded to MIKE MHLANGA heir in terms of the African Customary Law.”

Whilst it is accepted, that, as heir, the plaintiff has a duty to look after his late father's dependants (the defendant is one such dependant), in my view, that duty only applies in instances in which the defendant has no other suitable accommodation.

In the Masango case (supra), the court considered that there was no other accommodation available for the widow and the dependants. The property in Mupururu has been gutted by fire and the house in Kambuzuma that was the deceased's was the only available property. The court also rejected the submission that the widow and the dependants move to Rusape to live with the deceased's senior wife and other relatives that they had never lived with before. The atmosphere in Rusape was one of animosity and that place could not qualify as alternative accommodation.

In casu, the facts are distinguishable in that the defendant does have alternative accommodation in Mabvuku.

Whether she acquired this property through the assistance of her deceased husband is neither here nor there. The fact, also, that her child paid for the property does not assist her case since she admitted that the house is in her name at the co-operative and that all payments are made in her name.

If she moves to stay there, the atmosphere is not likely to be one of animosity since it will be with her own child.

In my view, insisting, as the defendant did, that, she be provided with alternative accommodation when she clearly has her own accommodation will result in an absurd situation in which she will remain at the property whilst interfering with the plaintiff's real rights.

It will mean, that, for pre 1st of November 1997 estates under customary law, of which there are still many, when the law of inheritance was changed to do away with the all-powerful heir, even those dependants who have a house of their own or houses, will still insist that the heir should still provide alternative accommodation.

The plaintiff has been prevented, since the 23rd of May 1994 when he acquired title, to deal with the property as he sees fit.

I am fortified, in my view, that, even in terms of the Deceased Persons Family Maintenance Act, particularly section 11(b), any protectionist rights must come to an end.

The defendant did not show that the estate is still active.

If anything, the causa, again, in the title deeds, refers to a first and final liquidation and distribution account. This means, that, the estate of the late Isaac Mwaoneka Mhlanga was fully wound up, and, consequently, the defendant cannot insist on staying at the property for good.

Having abandoned the claim for arrear rentals and holding over damages, the plaintiff is entitled to an order for eviction of the defendant from the property.

Costs are at the discretion of the court.

In my view, the defendant has unnecessarily put the plaintiff out of pocket by clinging onto a defence that is not legally sustainable.

DISPOSITION

It is ordered that:

1. Judgment with costs is granted in favour of the plaintiff for the eviction of the defendant and all those claiming title through her from House Number 1138 Section 3, Kambuzuma, Harare.

2. The defendant and all those claiming title through her are ordered to vacate the premises described in paragraph (1) above within 14 days of the date of this order; failure of which the Sheriff of the High Court be and is hereby empowered to effect the eviction.

HB40-15 : BONGANI NDLOVU (as Executor Dative, Estate Late Kenneth Sithole) vs HOWARD SITHOLE and MELODY SITHOLE
Ruled By: MUTEMA J

Kenneth Sithole died at Bulawayo on 6 February 2013. During his lifetime, he purchased, from Rebecca Howes, a piece of land, being Stand 15 Rangemore Township 3 of Lot G of Upper Rangemore, also known as Plot 15 Gramps Way, Rangemore (hereinafter referred to as the Plot).

Kenneth Sithole's widow, one Monica Sithole, with whom he contracted a civil marriage, is the only surviving spouse with whom he had one issue, Nozipho Sithole, now aged six years.

Kenneth Sithole also left other children, of whom the respondents herein are some of them, from his previous marriage.

All those children were majors at the time of his death.

Prior to his death, Kenneth Sithole, his widow, and the minor child lived on the Plot and none of the respondents lived there.

Following his death, the respondents and their families forced their way onto the Plot and despoiled the widow and the minor child of it.

This was before the applicant was appointed executor of the estate.

After the applicant was appointed executor, on 15 October 2013, the Assistant Master of this Court and himself advised the respondents to move out of the Plot so as to facilitate the smooth administration of the estate.

That advice fell on deaf ears.

The respondents remained put disrupting the administration of the estate. The surviving spouse has not been allowed back and the tenants on the Plot have been forced to run away therefrom.

Due to respondents unlawful conduct alluded to supra, which conduct the applicant deems interferes with the fulfillment of his functions of administering and winding up the estate, the applicant filed this application seeking eviction of the respondents and all those claiming occupation of the Plot through them, an interdict that the respondents be ordered not to set foot on the Plot, and costs of suit.

The application is opposed by both respondents who are brother and sister respectively.

In their imagined understanding of the applicable law to the dispute, I am constrained to quote in extenso the respondents supposed opposing affidavit which goes as follows:

“NOTICE OF OPPOSITION OF THE DRAFT ORDER (undated)

We Respondents above, do hereby oppose the Draft Order Application as follows:

1. That the Draft Order by the Executor is baseless and without the Court Order to support it.

2. That according to the local custom, it would be illegal to evict the rightful heirs to the estate of their late father and mother.

3. That we have the most valid title to the land after the death of our parents since we also contributed financially to pay for it before Applicant came to stay with the late or after our mother died.

4. We pray that the Master of the High Court could look into the Administration of this estate.

5. The executor to this estate was biased and took sides with the original applicant. Instead, he disregarded his duty to settle this estate the right way within the law of intestate succession.

6. At the time of marriage, the late was critically ill raising suspicion of marriage of convenience.

7. We therefore pray to the Master of the High Court to appoint another executor who will be able to settle this issue with justice.

8. We also pray that the Honourable Court throw out Applicant's Application and then consider the Administration of this Estate in accordance with the laws and custom of the land and also grant us ownership of this estate.”

The document is signed by both respondents and a Commissioner of Oaths, one P. Ndlovu.

It is crystal clear from a reading of the purported opposing affidavit that the respondents, in their layperson's understanding of the general law of intestate succession, have no clue as to how it operates.

Such an estate is supposed to be administered in terms of the relevant provisions of the Deceased Estates Succession Act [Chapter 6:02] as read with the Administration of Estates Act [Chapter 6:01] and not according to custom.

They did not advert to the real issues raised by the applicant in their opposing papers.

They did not deny that Monica Sithole is the sole surviving spouse of the late Kenneth Sithole.

They did not deny that the widow and the minor child lived at the Plot with the deceased at the time of his death.

They also did not deny that themselves and all those claiming occupation of the Plot through them were not living at the Plot at the time Kenneth Sithole passed on.

Further, they both did not deny forcing the widow from the Plot and that they are obstructing the executor from fulfilling his duties of winding up the estate by forcibly and arbitrarily occupying the Plot.

In his oral submissions at the hearing of the application, the first respondent made a bare denial of the allegation simply alleging that the application is based on fabrication and that he never threw out his step-mother from the Plot.

I am not convinced that his denials are well founded.

If he did not throw out his step-mother from the Plot, she would not have left and I do not believe that the applicant would have launched this application.

As regards the allegation that he is frustrating the applicant in his duties to administer the estate, the first respondent said:

“It is not very true that we are impending the work of the executor.”

The ordinary grammatical meaning of this statement is clearly that there is some impediment.

He is not supposed to engender any amount of impediment to the applicant - however slight.

If account is had to the tone of the opposing “affidavit” it is not difficult to infer that both respondents are entirely inimical to the widow benefitting from the estate and also to the applicant administering this estate.

It therefore must be true that they did and continue to do what the applicant alleges.

The second respondent, in her oral submissions, was more comical.

She said she went to stay at the Plot at the invitation of the widow and when the latter told both of them to leave, they left, and, as it is, the applicant is executing his duties “nicely.”

Nothing can be further from the truth.

If that were so, I do not think that the applicant would have approached this court seeking the relief alluded to above. Also, the widow would not have left the Plot.

In view of the foregoing, I have no difficulty finding that the applicant has made a good case for the relief sought.

In the result, it is ordered as follows:

1. The respondents and all those claiming occupation through them be and are hereby ordered to vacate Plot 15, Gramps Way, forthwith failing which the Sheriff or his lawful deputy is authorized to evict them.

2. The respondents be and are hereby interdicted from setting foot on the Plot.

3. The respondents shall pay the costs of suit jointly and severally the one paying the other to be absolved.

HH420-15 : BRIGHTON MBERI vs SAVIOUS MBEWE and NORTON TOWN COUNCIL
Ruled By: MAFUSIRE J

In his application, the applicant said his claim was for “specific performance” against the second respondent. This was in respect of an immovable property, a house in one of the high density suburbs administered by the second respondent.At the end of the hearing I dismissed the application with costs and ...

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Law Portal
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Rights of Beneficiaries re: Claim of Beneficiaries to Occupy Immovable Property, Rights to Habitatio & Usufruct Rights

HH183-12 : ALEX CHIMHOWA and OTHERS vs JOYCE CHIMHOWA (nee MASUKWEDZA) and FREMUS EXECUTOR SERVICES (PVT) LTD (N.O.) and MASTER OF HIGH COURT (N.O.) and CITY OF HARARE (N.O.)
Ruled By: CHIWESHE JP

HH51-11 : MARYLOU PALALPAC MORTEN (NEE DACANAY) vs MARLENE DENISE KEMI MORTEN and TONY YOUNG and DANDARO HOME OWNERS ASSOCIATION
Ruled By: MAWADZE J

Appealed
SC103-21 : IRENE MHLANGA vs MIKE MHLANGA
Ruled By: GWAUNZA DCJ, MATHONSI JA and CHITAKUNYE AJA

HB25-15 : DORCAS MHLANGA vs BENJAMIN PHAKATSHANE
Ruled By: MUTEMA J and MOYO J

View Appeal
HH485-20 : MIKE MHLANGA vs IRENE MHLANGA
Ruled By: CHIRAWU-MUGOMBA J

HB40-15 : BONGANI NDLOVU (as Executor Dative, Estate Late Kenneth Sithole) vs HOWARD SITHOLE and MELODY SITHOLE
Ruled By: MUTEMA J

HH420-15 : BRIGHTON MBERI vs SAVIOUS MBEWE and NORTON TOWN COUNCIL
Ruled By: MAFUSIRE J

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Law Portal Zimbabwe

Rights of Beneficiaries re: Claim of Beneficiaries to Occupy Immovable Property, Rights to Habitatio & Usufruct Rights

HH183-12 : ALEX CHIMHOWA and OTHERS vs JOYCE CHIMHOWA (nee MASUKWEDZA) and FREMUS EXECUTOR SERVICES (PVT) LTD (N.O.) and MASTER OF HIGH COURT (N.O.) and CITY OF HARARE (N.O.) Ruled By: CHIWESHE JP

HH51-11 : MARYLOU PALALPAC MORTEN (NEE DACANAY) vs MARLENE DENISE KEMI MORTEN and TONY YOUNG and DANDARO HOME OWNERS ASSOCIATION Ruled By: MAWADZE J

Appealed SC103-21 : IRENE MHLANGA vs MIKE MHLANGA Ruled By: GWAUNZA DCJ, MATHONSI JA and CHITAKUNYE AJA

HB25-15 : DORCAS MHLANGA vs BENJAMIN PHAKATSHANE Ruled By: MUTEMA J and MOYO J

View Appeal HH485-20 : MIKE MHLANGA vs IRENE MHLANGA Ruled By: CHIRAWU-MUGOMBA J

HB40-15 : BONGANI NDLOVU (as Executor Dative, Estate Late Kenneth Sithole) vs HOWARD SITHOLE and MELODY SITHOLE Ruled By: MUTEMA J

HH420-15 : BRIGHTON MBERI vs SAVIOUS MBEWE and NORTON TOWN COUNCIL Ruled By: MAFUSIRE J

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Law Portal
Zimbabwe

HH183-12 : ALEX CHIMHOWA and OTHERS vs JOYCE CHIMHOWA (nee MASUKWEDZA) and FREMUS EXECUTOR SERVICES (PVT) LTD (N.O.) and MASTER OF HIGH COURT (N.O.) and CITY OF HARARE (N.O.)
Ruled By: CHIWESHE JP

HH51-11 : MARYLOU PALALPAC MORTEN (NEE DACANAY) vs MARLENE DENISE KEMI MORTEN and TONY YOUNG and DANDARO HOME OWNERS ASSOCIATION
Ruled By: MAWADZE J

Appealed
SC103-21 : IRENE MHLANGA vs MIKE MHLANGA
Ruled By: GWAUNZA DCJ, MATHONSI JA and CHITAKUNYE AJA

HB25-15 : DORCAS MHLANGA vs BENJAMIN PHAKATSHANE
Ruled By: MUTEMA J and MOYO J

View Appeal
HH485-20 : MIKE MHLANGA vs IRENE MHLANGA
Ruled By: CHIRAWU-MUGOMBA J

HB40-15 : BONGANI NDLOVU (as Executor Dative, Estate Late Kenneth Sithole) vs HOWARD SITHOLE and MELODY SITHOLE
Ruled By: MUTEMA J

HH420-15 : BRIGHTON MBERI vs SAVIOUS MBEWE and NORTON TOWN COUNCIL
Ruled By: MAFUSIRE J