Showa Moyo v M Chikwana N.O. and Estate Late Pilate Moyo and Deputy Master and Beitbridge Town Council and Twiggle Moyo

### Preamble
1
HB 185.19
HC 1644/17
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SHOWA MOYO

Versus

M CHIKWANA N.O

AND

ESTATE LATE PILATE MOYO

AND

DEPUTY MASTER

AND

BEITBRIDGE TOWN COUNCIL

AND

TWIGGLE MOYO

IN THE HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO  10, 16 OCTOBER & 5 DECEMBER 2019

Civil Trial

G Nyathi, for the Plaintiff

K Ngwenya, for the 5th Defendant

MOYO J:	Plaintiff issued summons claiming:

a)	An order that 1st Defendant in his capacity as the Executor in the estate of Pilate Moyo be ordered to transfer stand 1255 Dulibadzimu Township Beitbridge into the names of Plaintiff within 10 days of service of this order on 1st Defendant.

b)	An order that should 1st Defendant fail to comply with (a) above, the Sheriff of Zimbabwe or his deputy be authorized to sign all the transfer papers in 1st Defendant’s stead in order to effect transfer of stand 1255 Dulibadzimu Township Beitbridge to the Plaintiff.

c)	An order that 2nd Defendant pays the costs of suit.

The summons was later amended to include 5th Defendant who filed a plea in

opposition of Plaintiff’s claim.

In her declaration Plaintiff averred that she had been married to the late Pilate Moyo, that they divorced by consent and that upon divorce an order was made by consent that each party retains as its sole and absolute property, that which is in its possession.  Plaintiff averred that stand 1255 was and is still in her possession.  She now seeks transfer of that stand into her name by virtue of the court order granted at the Magistrates court at divorce.  5th Defendant, who is the wife that married the late Pilate Moyo after he had been divorced from the Plaintiff, avers in her plea that she denies that Plaintiff was in possession of the house being the subject matter of this dispute at the time the divorce was finalized.  She further avers that the customary law court had no jurisdiction to redistribute the immovable property.  She avers that the property was never redistributed to the Plaintiff and should devolve according to the laws of intestate succession as it is registered in the name of Pilate Moyo.

At the trial, the Plaintiff gave evidence on her marriage to the late Pilate Moyo, how they acquired stand 1255 Dulibadzimu Township Beitbridge and that she lived there all her life, first with Pilate Moyo her husband, who then transferred to Bulawayo to work there and he lived in Suburbs.  With time they had marital problems causing Pilate Moyo to live with the 5th Defendant as husband and wife in Suburbs Bulawayo, while she lived in Beitbridge.  The property in Suburbs was provided by the late Pilate Moyo’s employer.  It would appear the late Pilate Moyo then sired children with the Defendant as they lived in Suburbs as husband and wife.  Plaintiff avers that the late Pilate Moyo then stopped coming to Beitbridge except when he wanted to see their children or was passing through on his way to South Africa.  She then filed for divorce.  While she lived in Beitbridge and the late Pilate Moyo lived in Bulawayo, she avers that in 2012 at the time she filed for divorce the parties had long been estranged.  They then divorced at the Magistrate’s court customary law as they had a registered customary law marriage.  At divorce, they obtained an order by consent, that each party retains what they possessed at the material time.

Defendant averred that it is not correct that Pilate Moyo was not in possession or did not live in the Beitbridge home.  She said he only stayed in Suburbs as an employer provided accommodation.  She said the late Pilate Moyo would go to Beitbridge when he was off duty.  She said the late Pilate Moyo even gave the Plaintiff notice to vacate the house after divorce and that the late Pilate Moyo was in possession of the property since it was registered in his name.  She said Plaintiff only lived in the house because the late Pilate Moyo was away at work.  She said she does not agree that the house be transferred into the Plaintiff’s name because it is the deceased’s house and she (herself) is the surviving spouse.  She said she was never at court when the marriage was dissolved but that she was told what was said or what the parties agreed by the deceased.  She said she fell in love with the deceased in 2006.  She said she understood the order of the customary law court, to say that each party retains what is in their names.  She said she started living with the late Pilate Moyo as husband and wife in 2006 and they both stayed in Suburbs.

The issue that was agreed as being that for determination at the PTC was:

“Whether house number 1255 Dulibadzimu Township Beitbridge registered in the name of the late Pilate Moyo should be transferred into the Plaintiff’s name”

This issue, I explained at the trial that it has summarized the issues which in terms of the pleadings are the basis of the Plaintiff’s claim which is the divorce order at the customary law court which ordered that each party retains what is in their possession.  The primary question therefore is, per the issues raised in the summons declaration and plea, whether Plaintiff was awarded house number 1255 Dulibadzimu, Beitbridge by the customary law court by virtue of being in possession of same?   This issue conversely applies to the late Pilate Moyo in that was 1255 Dulibadzimu Township Beitbridge awarded to him by virtue of him being in possession thereof?  In essence the question that should be answered per the pleadings in order to settle the issue referred to trial is who was in possession of the stand 1255 Dulibadzimu, was it Plaintiff or Pilate Moyo at the material time?  There is a second legal question raised in the 5th Defendant’s plea which relates to whether the customary law court had jurisdiction to deal with the immovable property.

I will tackle the issues as follows:

It is common cause that in 2012 when the parties divorced, they lived separately, with Plaintiff living in Beitbridge and the late Pilate Moyo living in Suburbs in Bulawayo with the 5th Defendant as husband and wife.  It would appear by the time they divorced, these parties were now estranged per the evidence of both parties.   Plaintiff says the late abandoned her and now lived with his new found wife causing her to file for divorce and 5th Defendant also says she lived with the late Pilate Moyo as husband and wife in Suburbs since 2006.  It is common cause that the divorce was initiated by the Plaintiff and it was by consent.  The order of the court was tendered and marked exhibit 2.  It reads as follows:

“By consent, it is ordered that:-

a)	A decree of divorce is hereby granted.

b)	The property of the parties be shared in terms of paragraph 8 which reads as follows:-

That upon the granting of the divorce each party retains as his/her sole and exclusive property that which is in his/her possession.

c)	Each party bears their own costs..”

This divorce was by consent.  These parties knew that they lived apart for them to have sought such a court order by consent.  If the parties lived together and commonly possessed or used property it follows that they would not have sought such a court order in my view.  To seek such a court order in itself supports the notion or the Plaintiff’s assertion that they now led separate lives.  If they led separate lives then they knew, who possessed what.  They appreciated the effect of the court order in my view.  It follows therefore that if Plaintiff lived in Beitbridge and Defendant lived in Bulawayo, the Plaintiff possessed the Beitbridge property at the material time.  The court order was not crafted in the best of ways as the court I believe just granted what was sought, but I hold the view that the order should be interpreted and applied as it is because it remains extant.  The question therefore per the court is who was in possession of stand 1255 at the material time and the answer from the facts in the court record clearly shows that it was the Plaintiff.  I hold the view that per the divorce order, possession being the physical retention, or control of an asset, the only logical conclusion is that the spouse who occupied the house was the one in possession.

I then proceed to assess the issue of whether the customary law court had no jurisdiction to handle the issue of the immovable property.  Unfortunately the submission on lack of jurisdiction is not fully ventilated in the closing submissions so that the court appreciates the basis for such an assertion vis-à-vis the provisions of section 11 (1) (iv) of the Magistrate’s court Act which specifically gives the Magistrate’s court jurisdiction to divide, apportion and distribute assets whether movable or immovable.  I doubt if, the court has jurisdiction only when the property is specifically listed as submitted by 5th Defendant’s counsel that there was no claim for the distribution of stand 1255 Dulibadzimu.  There was a claim for a decree of divorce together with the distribution of assets but the distribution was to be granted as sought by the parties, that is to say, each party retains what is in their possession, including immovable property if any in my view.  I do not hold the view that an order that says each party retains what is in their possession necessarily excludes immovable property whose possession at the material time can be determined.  I accordingly hold that a case has been made by the Plaintiff on a balance of probabilities, for the relief that she seeks and I accordingly make the following order:-

a)	That first Defendant in his capacity as the Executor of the estate of the late Pilate Moyo be and is hereby ordered to transfer house number 1255 Dulivadzimu Township Beitbridge into the names of the Plaintiff failing which the Sheriff or his Deputy be and is hereby authorized to sign all the transfer papers in relation there to in order to effect the transfer of stand 1255

Dulivadzimu Township Beitbridge into Plaintiff’s names.

b)	That 5th Defendant pays the costs of suit.

Sansole and Senda, plaintiff’s legal practitioners

T.J Mabhikwa and Partners, 5th defendant’s legal practitioners