This
matter was placed before me on the 25th
of May 2016 as an urgent application. I directed that the application
be served on all the respondents. I heard oral argument in chambers
on the 1st
of June 2016. At the end of the hearing I indicated that the matter
was not urgent. I struck off ...
This
matter was placed before me on the 25th
of May 2016 as an urgent application. I directed that the application
be served on all the respondents. I heard oral argument in chambers
on the 1st
of June 2016. At the end of the hearing I indicated that the matter
was not urgent. I struck off the matter from the roll. I have been
asked to provide reasons for my decision.
I
now proceed to do so.
The
parties in this matter are involved in an ugly dispute over the right
of inheritance relating to a property known as Stand 321 Emakhandeni
Township, Bulawayo. The application itself appears to be a simple
case for a spoliation order but a perusal of the record revealed that
the parties had appeared before the Assistant Master on the 26th
of
April 2016. The Assistant Master had prepared a detailed report which
was known by the parties….,.
The
relief sought by the applicant is in the following terms:
“Interim
Relief granted
Pending
the determination of this matter, the applicant is granted the
following relief;
1.
The application for spoliation order be and is hereby granted and the
respondents, jointly and severally, be and are hereby ordered to
restore the applicant into the premises at Number 3212 Emakhandeni,
Bulawayo within 24 hours upon being served with the provisional
order.
2.
In the event that the respondents fail to restore the applicant's
possession of Stand 3212 Emakhandeni in terms of paragraph 1 of this
interim order, the Deputy Sheriff be and is hereby directed to
proceed to 3212 Emakhandeni, Bulawayo with a locksmith to break
therein to restore occupation to the applicant.
3.
The 4th
respondent to do all in its power to ensure peaceful possession by
applicant pending a final order in this matter.
Terms
of final order sought
1.
Applicant be and is hereby restored into the premises of Stand Number
3212 Emakhandeni, Bulawayo.
2.
The 4th
respondent shall do all in their power to ensure that the applicant's
peaceful possession of Stand Number 3212 Emakhandeni is not disturbed
pending finalisation of the distribution of the Estate of the Late
Rejoice Ncube.
3.
The 1st
and 2nd
respondents be and are hereby ordered to pay costs of this
application on an attorney and client scale, jointly and severally,
the one paying the other being absolved.”
The
applicant avers, in her founding affidavit, that she was customarily
married to the late Rejoice Ncube who died at Bulawayo on 31 March
2016. The marriage was conducted in accordance with customary rites
sometime in April 2015. The applicant states, further, that she and
the deceased had been living together since April 2014 at House
Number 3212 Emakhandeni until the death of the deceased in March
2016. The applicant provided evidence of the customary marriage in
the form of a note which she said was the record of payment of
certain monies towards lobola. The applicant indicates that during
the deceased's lifetime she was never informed of the existence of
another wife by either the deceased himself or any of his relatives.
She first learnt that the deceased had another wife, Zanele Ndowa
(second respondent), at the deceased's funeral. The applicant
contends that she continued to reside at House Number 3212
Emakhandeni Township before and after the funeral. The applicant
further states that unbeknown to her, the second respondent opened a
file at the Assistant Master's office posing as the deceased's
wife on 4th
April 2016. The family members were later invited to the Assistant
Master's office on 26th
April 2016 where an Edict Meeting was held and Witness Socks Ncube
and Sihlesenkosi Ndlovu were chosen as the co-executors of the Estate
of the Late Rejoice Ncube. The applicant contends that on 13 May 2016
she was confronted by the second respondent and other relatives of
the deceased who told her to vacate House Number 3212 Emakhandeni
Township. The applicant argues that she was unlawfully despoiled of
her possession of the property and that she is entitled to an order
in terms of the draft order.
The
matter is strenuously opposed by the second respondent who gave a
very different picture of events surrounding this matter.
The
second respondent avers that the applicant was in fact not residing
at the disputed property at the time of his death. She stated that
prior to the death of the deceased she was living with the deceased
in South Africa. The deceased had been unwell since 2008 and the
second respondent indicates that during all that time she was taking
care of the deceased and paying his medical bills. As proof of these
assertions, the second respondent attached clinical notes from
clinics in Johannesburgh, South Africa. This court cannot, therefore,
discount the fact that the second respondent could have assisted the
deceased with his medical bills at the hour of need. The second
respondent adduced further proof that when House Number 3212
Emakhandeni Township was acquired she was recorded on the
“Application for Lease of Dwelling House” form as the deceased's
wife.
The
second respondent argued that the day the deceased died the applicant
was nowhere near the property in dispute. It is sad to note that when
the late Rejoice Ncube was brought from South Africa he was terribly
ill. When he arrived at 3212 Emakhandeni Township, the place he
considered his home, he found the property locked with no-one in
sight. A neighbour, one Doreen Sithole, who resides at 3211
Emakhandeni Township, who had seen events unfold, felt touched and
agreed to take the late Rejoice into her own home whilst the
relatives were searched for. Unfortunately, the deceased died in
Doreen Sithole's house before the relatives could arrive. It is now
not in dispute that when the deceased passed away the applicant was
at her rural home in Lupane. The applicant did not deny that the late
Rejoice Ncube died at Doreen Sithole's house.
The
second respondent argued that she worked tirelessly over the years to
purchase the property in question and furnished the house.
I
do not, however, propose to dwell on the merits of the matter as it
has not been established that the matter is urgent.
I
now deal with the Master's Report. The Assistant Master prepared a
detailed report regarding this matter. The report is dated 31 May
2016. I reproduce the entire report as it encapsulates the background
to this urgent application. It is in the following terms:
“Master's
Report
The
estate of the late Rejoice Ncube is registered with my office under
DRB357/16. This is an estate where people try to fight for
inheritance. On numerous occasions, complaints have been forwarded to
my office by the purported potential beneficiaries. There has been a
series of fights by the two camps, namely, the applicant's camp and
the 2nd
respondent's camp.
On
the 26th
of April 2016, my office convened a special meeting to address the
problems which were affecting this estate.
On
the 26th
of April 2016, my office convened an edict meeting and dual
executors, namely, Witness Ncube and Sihlesenkosi Ndlovu, were
nominated. The nominated two were advised to produce waivers and Bond
of Security and AMHC 5. It is after this meeting that the parties
became violent to the extent that there were issues as to;
(a)
Who must be at the property left by the deceased.
(b)
What must be done to the household goods.
(c)
Who is the surviving spouse.
On
the 12th
of May 2016 I dealt with the matter and advised my officer that:
(a)
All the parties must vacate from the property.
(b)
That each one to get her household goods.
(c)
The property be rented out until executors are appointed and rentals
to be paid into the Guardian's Fund.
My
office did take a neutral stance and made a decision based on the
information which was supplied by the parties. The office's
position is that when the deceased died no-one was staying at the
property. The deceased used to stay in South Africa and the said
property cannot be the applicant's matrimonial home. The deceased
died in the hands of some other people not the applicant, as such,
the appointed executors will dig deeper into the matter and find the
actual position.
I
hereby attached the minutes of the meeting which was held by my
office (sic).
According to the minutes, Mr D Ncube confirmed that the applicant was
in her rural homestead at the time the deceased died.
In
terms of paragraph 9 of the applicant's founding affidavit, the
applicant purports to have been staying at House Number 3212
Emakhandeni Township with the deceased which is clearly a lie. The
deceased used to stay in South Africa with 2nd
Respondent and we are advised it is a friend of the deceased who
brought him to Zimbabwe when he was ill.
The
basis of this application is that it was the applicant's
matrimonial home which applicant has failed to prove. I believe my
office have the capacity to deal with such an issue especially after
the appointment of neutral executors (sic).
It
is my humble submission that the decision by my office on the 12th
of May is the best way to go. Since it gives the parties to prove
their cases to the executor and if there are any problem then my
office will solve (sic). The application before the court therefore
must fail since it is without merit and the executor be allowed to do
their work without delay.
However,
should the Honourable Court decide otherwise, I will abide by its
decision.
Additional
Master of the High Court – Bulawayo”
This
urgent application was filed on the 24th
of
May 2016. This application was filed with full knowledge that the
Master of the High Court had directed that the property should remain
vacant owing to the violent disputes between the parties.
The
issue that I raised with the applicant's legal practitioner is
whether given the background of the matter it should be treated as
urgent.
The
applicant conceded that she was aware of the meeting by the Master of
the High Court of the 26th
April 2016. She, however, did not have the report of the meeting. The
minutes of the meeting show that relatives from both camps made their
views known at the meeting. From the 26th
April 2016 up to the filing of the application the applicant knew of
the Master's position in the matter. No explanation is given as to
why the matter was not brought earlier. It is not clear when the
perceived urgency arose. The certificate of urgency does not specify
when urgency arose save to state that the applicant has been
despoiled
of possession.
The
applicant has not been candid with the court….,.
The
matter was heard by the Master on 26th
April 2016 and some interim measures were put in place. It is clear
from the Master of the High Court's Report that when the meeting
was convened the primary consideration was to achieve fairness in
this matter and to protect and safeguard the interests of the
parties.
I
am acutely aware that I am not in any way bound by the report by the
Master of
the High Court.
While the court is generally not bound by a Master's Report, the
court is normally guided by such a report as regards the surrounding
circumstances of the case which would have been gathered prior to the
court making any determination on applications brought before the
court. It cannot escape my notice, however, that the urgency
purported in this matter has not been established.
It
is my view that the applicant failed to establish urgency as
contemplated by the Rules.
In
the result, it is ordered as follows:
1.
The matter is not urgent.
2.
The matter is struck off the roll.
3.
Each party to bear its own costs.
