CHITAKUNYE
J: The applicant is a female adult
resident in Marondera. The first respondent is a surviving spouse of the late Timothy
Musariri who died on 25 September 1994. The first respondent was married to the
late Timothy Musariri in terms of the African Marriages Act, (now Customary
Marriages Act, Chapter 5:07). The late Timothy Musariri was the registered
holder of interests and rights in the matrimonial home being house No. 7 Kasipiti Way,
Rujeko, Marondera.
The
second respondent is the son of the late Timothy Musariri and the first
respondent. At the time of Timothy Musariri's death he was a minor. The third
respondent is a duly constituted urban council.
On
4 August 2001, the applicant and the first respondent entered into an agreement
of sale of house number 7 Kasipiti
Way, Rujeko, Marondera. Upon payment of the
purchase price the applicant took occupation. It is not disputed that full
payment was made to the first respondent and that at some stage the first respondent
undertook to effect cession. No such cession has taken place. The applicant's
efforts to have the first respondent sign the necessary papers to effect
cession has met with resistance. As a result of the resistance in September
2005 the applicant filed a court application at Marondera Magistrates Court
seeking an order compelling the respondents to sign all necessary documents to
enable cession of house number 7 Kasipiti
Way, Rujeko, Marondera. The respondents opposed
the application. The application was not successful as the presiding magistrate
ruled that he had no jurisdiction to deal with the matter because the value of
the property exceeded his monetary jurisdiction. That judgment was delivered on
12 March 2007.
The
applicant thereafter approached this court for relief by way of a court
application. This application was filed on 29 June 2007.
In
the application the applicant seeks an order that the deputy sheriff ,
Marondera be authorized and directed to attend at the offices of the third
respondent to effect cession from the respondents to the applicant in respect
of the property in question. The first and second respondents opposed the
application.
From
the papers filed of record and submissions made in court most of the facts are
common cause. The facts that are common cause include the following: The first
respondent was married to the late Timothy Musariri in terms of the African
Marriages Act (supra). Timothy Musariri
died intestate in 1994. At the time of his death he left behind the first
respondent and their only child the second respondent. The second respondent
was a minor. In May 1995 the first respondent was appointed guardian to the
second respondent. On the same certificate of appointment the second respondent
was appointed heir to the estate late Timothy Musariri. The property in
question as deceased estate remained to be dealt with in terms of customary law.
At the time of Timothy Musariri's demise the law applicable was in terms of s 68(1)
of the Administration of Estates Act, Chapter 6:01 prior to amendment 6 of
1997. That s 68(1) provided that:
“ If any African
who has contracted a marriage according to African law or custom or who, being unmarried
, is the offspring of parents married
according to African law or custom, dies intestate his estate shall be administered and distributed
according to the customs and usages of the tribe or people to which he
belonged”.
In
casu there is no dispute that the deceased
was an African. His estate had to be dealt with in terms of customary law. The
appointment of the second respondent as heir entailed the inherited the property in question as his property. That
property became the second respondent's property as heir and the only child of
the late Timothy Musariri. (See Magaya
v Magaya 1999 (1)ZLR 100 (S)).
It
is not disputed that on 1 August 2001 the first respondent purported to sell
the property to the applicant. An agreement of sale was entered into between
the two parties. In furtherance of that purported sale the applicant paid the
full agreed purchase price to the first respondent, albeit in installments. The
first respondent in her notice of opposition did not deny receiving the full
purchase price. Indeed the purported agreement of sale document and other
documents showing how the payment was to be effected were tendered as annexures
to the application.
It
is further common cause that thereafter the applicant took occupation of the
property. It is not denied by the first respondent that after the applicant
made the payment and took occupation the applicant made effort to have cession
effected to no avail. Documents written in Shona and translated into English
for court's benefit show that from the time of the purported sale to the time
the applicant resorted to courts of law the applicant and the first respondent
were in contact over the issue of cession. Indeed on 4 June 2005 the parties
appended their respective signatures to a document tendered as annexure A and
titled “Acknowledgment of payment.” The main body of that document reads:
“ I Juliet
Musariri , residing at number 1632 Unit A do hereby acknowledge receipt of the
sum of three million two hundred thousand dollars = 3,200 000 = as rent from
August 2001- March 2002. I also consent and admit to go and have the ownership
changed from my name to Mrs Chingosho 47-035295 V 47
This day of 4 June
2005.”
The
document is thereon signed by the first respondent and the applicant and their
respective witnesses.
It
is apparent that it was upon failure of this undertaking by the first
respondent to have cession effected that the applicant decided to approach
courts of law for relief.
The applicant's
position as portrayed above is clear. She wants the first respondent to perform
her side of the transaction.
The
respondents' opposition as deposed to by the second respondent was to the
effect that the first respondent had no right to sell the property, as in terms
of customary law, that property belonged to the heir, who in this case was the
second respondent. As the second respondent was a minor, the first respondent
even as guardian could not sell the property without obtaining the Master's
consent to sale in terms of s 120 of the Administration of Estates Act.
It
was not disputed that the property was registered in the name of Timothy Musariri
and so upon his demise and in terms of the legal position then obtaining, the
property devolved to the heir in his personal capacity.
The
applicant contended that the first respondent as surviving spouse had a claim
to the estate and that claim together with her appointment as guardian to the
second respondent entitled her to sell the property.
The
major issue may be viewed as whether or not the first respondent as guardian to
the second respondent could validly sell the first respondent's property as she
purported to do; or did her appointment as guardian bestow on her the powers to
deal with the property as she deemed fit?
Section
91 of the Administration of Estates Act prohibits alienation of immovable
property by curator or tutor. The section states that:
“No tutor, either
testamentary or dative, and no curator, either nominate or dative, or curator bonis shall sell, alienate or mortgage
any immovable property belonging to any minor or forming part of any estate under
the guardianship of such tutor or curator, unless the High Court or any judge
thereof has authorized such sale, alienation or mortgage or unless the person
by whom any such tutor testamentary or curator nominate has been appointed has
directed such sale, alienation or mortgage to be made.”
In
casu it is common cause the first respondent
did not get the authority of the High Court or any judge of the High Court.
Further on s 122
of the same Act states that:
“In cases where minor heirs are interested in
property inherited from the estate of any deceased person the Master may apply
through the chamber book to a judge for authority for the lease, mortgage, sale
or other disposition of such property, and the judge may make such order as in
the circumstance he considers advisable.”
This was not
done at all. It may also be observed that the first respondent did not seek or obtain
the Master's consent to sale as required by s 120 of the Act.
In
as far as it is conceded that the first respondent did not comply with the provisions
of the Act as stated above it follows that the purported sale was a nullity. The
first respondent had nothing to sell. That property belonged to a minor.
The
applicant's plea became more of moral persuasion which unfortunately cannot override
the legal position. The applicant's recourse can only be against the first respondent
for having misled her that she could validly sell a minor's property in those
circumstances.
The
respondents' contention that the matter was prescribed was without basis. Clearly
on 4 June 2005 the first respondent acknowledged her obligations and under took
to make good her side of the contract. In September of that year court process
was started in the magistrate's court. When that was dismissed for lack of jurisdiction
the present application was launched.
The
respondents' contention that the matter was res
judicata was also ill conceived. The judgment from the Magistrates' Court
is clear that the presiding magistrate's reason for dismissal was that he ruled
that the value of the property exceeded his monetary jurisdiction. This is what
he said:
“What I have
stated above as regards the status of the contract I have just said it in passing
(sic) but not making a determination.
Having said all this, the application is hereby dismissed for want of
jurisdiction.”
Clearly
therefore the matter is not res judicata.
Though
both sides prayed for costs on the higher scale in the event of the decision
being in their favor I am of the view that taking into account the circumstances
of the case it may not be appropriate to award costs on a higher scale. Costs
will be awarded on the general scale.
Accordingly the
application is hereby dismissed with costs.
Mufuka & Associates, plaintiff's legal practitioners
I F G Musimbe & Partners, first and second respondents' legal practitioners
