Elizabeth Aurthur v Christine Chakuposhiwa

### Preamble

1

HH 447– 2012

HC 910/12

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ELIZABETH AURTHUR

versus

CHRISTINE CHAKUPOSHIWA

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE, 13 and 14 November 2012 and 5 December 2012

A.Chambati, for the plaintiff

F. Chagadama, for the defendant

Civil Trial

MATHONSI J: The plaintiff is the only child of the defendant, the defendant’s only other progeny, AlbertinaAurthur, also a daughter, having passed away some time back leaving only the two parties after the defendant had divorced their father, who also passed away in 2010.

The plaintiff instituted proceedings against the defendant, her mother, seeking an order for the ejectment of the defendant from house number 9083 Paradise, Highfield Harare, where the parties reside with the plaintiff’s own child. She averred in her declaration that she is a member of the Highfield Housing Cooperative which she joined in 1989 at a time when she was only 17 years old. As she was a minor, she was assisted by her mother whose name was then entered by the management of the co-operative as the member because they did not allow minors to join the co-operative unassisted.

The co-operative later allocated house number 9083 Paradise Highfield Harare to the plaintiff, again in the name of the defendant.With time the relationship between the parties deteriorated owing to the defendant’s conduct of “terrorising” the plaintiff and her lodgers. As a result, she would want the defendant evicted aforesaid.

The action is contested by the defendant who averred in her plea that the plaintiff was never allocated the house in dispute but it is herself, the defendant, who is the owner of the house and that the plaintiff is working in cahoots with corrupt former executive members of the co-operative to try and take her house away. She denied terrorising the plaintiff insisting that it is the plaintiff who has been violent towards her.

At the pre-trial conference held before a judge two issues for trial were agreed, namely;-

Whether or not the plaintiff has any legal right over stand 9083 Paradise Highfield Harare.

Whether or not the plaintiff is entitled to an eviction order against the defendant.

In order to prove her case the plaintiff testified in court and called 2 more witnesses, namely Jonah Maraire and Kenneth Murerwa.

It was the plaintiff’s evidence that she is the rightful owner of the house in that she joined the co-operative at its inception in March 1989. She had completed her “O” level education in 1988, she produced a copy of her “O” level certificate from Highfield High School showing she sat for her examination in November 1988, and started selling roasted mealies as well as buying and selling fish from Lake Chivero.

When she approached the co-operative intending to join, the management observed she was young and demanded to know her age. When they discovered she was only 17 years old they told her that minors were not allowed to join the co-operative on their own as they needed to be assisted by their parents or guardians. They advised her to seek the assistance of her mother.

The plaintiff stated that she had returned home and requested her mother to represent her to which she agreed. She later returned to the offices of the co-operative in the company of her sister Albertina and the defendant. She was then allowed to join but the defendant’s name was entered in the register as the member. She paid the joining fee of ZW10-00 and the membership subscription fees of ZW100-00 a month although receipts were being issued in the name of the defendant as the registered member. When the houses were constructed, she says she was called by the treasurer of the co-operative, Jonah Maraire, who handed to her the keys to the house. Thereafter she moved into the house together with the defendant. The houses had been constructed using a loan obtained by the co-operative from Zimbabwe Building Society (ZBS) which was in the name of the co-operative. She is one of those beneficiaries who was issued with an account number at ZBS for repayment of the loan. She then commenced making payments into that account at ZBS and maintained the loan repayments until she eventually cleared the loan but not before she had fallen into arrears in 2000 resulting in Jonah Maraire calling, first the defendant, to impress upon her the need to clear the arrears.

The witness stated that when the defendant was advised of the arrears, she nonchalantly informed the co-operative authorities that she had no business paying the arrears as the house was not hers and that if the house was repossessed, she would gladly relocate to the farms where her cattle are kept. Maraire then called the plaintiff and advised her to approach ZBS’s mortgages manager, Mr Njanji to make a payment plan. She complied and then doubled up her effort to make money to clear the arrears, which she succeeded. The loan was cleared in 2003.

The plaintiff produced a bundle of receipts, exhibit 2, showing that between 1997 and 2003 payments were being made to ZBS as mortgage repayments. All the receipts have the plaintiff’s name as the person who was paying the loan. She stated that the defendant did not pay a single instalment, be it a loan repayment or membership subscriptions due to the co-operative.

She went on to say that at that time she was also a cross border trader engaged in extensive travelling between Zimbabwe, South Africa and Botswana to buy and sell wares. She used the proceeds to repay the ZBS loan and much later, to extent the house to a 9 roomed one which it is today. She also engaged in the business of supplying surf to tuckshops. She was making an average of ZW$150-00 from mealies and fish and ZW$2000-00 per month from cross border trading.

In support of that claim the plaintiff produced a copy of her passport, exhibit 1, which shows that indeed she travelled very regularly from about 1995 until recently. A number of South African visas were also issued to her. It is that same passport which was once stolen from her by the defendant sometime in 2008 and this led to a quarrel between the parties as the defendant was denying having stolen it. After the intervention of Maraire and other relatives, the defendant produced the passport. To her mind, the defendant was jealous of her success as a cross border trader and wanted to frustrate her business.

The plaintiff testified that between 2000 and 2001, and without any input from the defendant, she was buying building material to extend the house. Again she produced proof of some of the purchases in the form of receipts and invoices which are exclusively in her name, exhibit 3. Using that material, she developed the house to its present state, aforesaid.

She told the court that when she joined the co-operative one CephasMarufu (defendant’s witness) was not there. She denied the claims by Power Chikonzo, another witness of the defendant, that she is in a love relationship with Maraire as a result of which the latter is helping her take the defendant’s house away. She also denied that she was at school when the co-operative was formed.

The plaintiff said that the reason why her name was not substituted for that of the defendant in the co-operative’s records when the house was allocated is because the management had resolved that all the amendments to the register would be made when title deeds are being processed. In fact it is common cause that the register contains names of deceased persons and has not been updated at all.

She went on to say that the defendant had become such a bad parent that she would chide her as a fool who paid for and developed a house which was not in her name. The defendant also ridiculed her saying that she did not accept her as a daughter as she would rather pick another daughter from the street than accept her. She stated that it is actually the defendant who started litigating against her when she instituted eviction proceedings against her at the magistrates court seeking her eviction from the house. She was forced to counter claim claiming ownership of the house. She produced the record of proceedings at the magistrates court, exhibit 5. That court denied jurisdiction and referred the parties to this court.

The defendant started fighting with her over collection of rent from lodgers insisting that as the registered owner of the house, she was entitled to collect the rent. The defendant has been collecting rent since 2010 to the exclusion of the plaintiff when all along, from the time that the house was allocated to her, the plaintiff had been receiving rent.

She stated that when she was attending school, it is her father who was paying school fees for her and was maintaining her as the defendant had no means to do so. Her father died in 2010.

The plaintiff was a tenacious witness who, although quite emotional because of the feud with her mother, gave her evidence very well in a simple and straight forward manner. Her evidence is very easy to follow. I find that she was a truthful witness and readily accept her evidence.

Jonah Maraire testified on behalf of the plaintiff. He is the treasurer of the co-operative, a position he says he has held since the inception of the co-operative in January 1989 when he was elected. He has also been doubling up as the administration officer who mans the offices of the co-operative. I must say that there appears to be a power struggle within the co-operative as another faction has emerged which also purports to be the elected executive committee of the co-operative. It is that faction which has come up in support of the defendant.

Maraire stated that when his committee was elected in January 1989, Samson Sithole was chairman, Mr Mubaiwa, the secretary, Kenneth Murerwa, the deputy secretary, although he has since assumed the post of secretary, and TC Mangoma was the accountant.

At that time the co-operative did not have a constitution, neither did it have by-laws and only operated by virtue of consultations between executives and weekly meetings of members. The plaintiff had attended a meeting of the co-operative indicating an intention to join. As she was a minor the witness, Sithole and Murerwa had discussed her situation and agreed that they would accept her as a member only when assisted by her parent or guardian. They advised her to bring her mother.

At the next meeting the plaintiff duly brought her mother and he, as treasurer, duly accepted and receipted her joining fee of $10-00 and month’s subscription of $100-00. He entered the defendant as a member and that transaction was approved, aforesaid, by other executive members. The plaintiff confided in them that she was in the business of selling roasted mealies as well as buying and selling fish.

Maraire went on to say that in 1995, the co-operative secured land for the construction of houses for its members. In 1996, they reached an agreement with ZBS for a loan to construct houses and in November 1996 the first batch of houses were allocated to members. In March 1997 they allocated 9083 Paradise Highfield, Harare to the plaintiff albeit in the name of the defendant. They did not allocate it in the name of the plaintiff who had then attained majority status, because they had resolved that all changes to the existing register would be done when title deeds were being processed. He however insisted that for all intents and purposes, the house belonged to the plaintiff.

He corroborated the evidence of the plaintiff regarding loan repayments to ZBS including the arrears which accumulated in year 2000. When he brought the arrears to the defendants’ attention, she had dissociated herself from the house, saying it belonged to the plaintiff who was responsible for the arrears and all other payments. Later he had advised the plaintiff to approach Mr Njanji with a payment plan and the arrears were cleared by the plaintiff.

Mararire stated that the processing of title deeds for the houses has been stalled as a result of squabbles within the co-operative after some members swindled them of US$33964 and then sought to oust the executive committee. He stated that the defendant’s witness,CephasMarufu, is an ordinary member who was not in office at the time the plaintiff joined and at the time the house was allocated.

He denied that the defendant joined the co-operative in her personal capacity through a friend who paid for her as that would not be possible at all. He added that bye-laws were only drafted in 1991 after the plaintiff had joined.

On the accusation that he had proposed love to the defendant, the witness, who had brought his wife to court, wondered why the defendant had not approached his wife with a complaint. To him, the defendant is lying to discredit him as a witness.

Jonah Maraire also gave his evidence very well, was not shaken under cross examination and is indeed a fountain of information regarding the activities of the co-operative from the very beginning. Although efforts were made to discredit him, he maintained his story and struck me as a truthful old man. I accept his evidence without hesitation.

Kenneth Murerwa, who was the deputy secretary of the co-operative at its formation in 1989, also gave evidence on behalf of the plaintiff. He corroborateed the evidence of Maraire in all material respects. In particular, he confirmed that he and other committee members are the ones who suggested to the plaintiff that she uses her mother to register as a member and that when the co-operative was formed there were no bye laws which were to be drafted at a later stage.

He added that CephasMarufu was not a member at that stage as he only joined in 1994 when bye laws were then in existence, they having been approved in 1992.

Again this witness gave his evidence well, in a dignified and calm way. I have no reason to doubt him.

The defendant also gave evidence and called two more witnesses, namely Power Chikonzo and CephasMarufu to support her case.

The defendant was quick to qualify his evidence from the very beginning by saying that she is not educated, although there was nothing in her evidence attesting to that factor. She stated that she divorced the plaintiff’s husband in 1984 when the plaintiff was in grade 7. Although she was given custody of the children, she did not claim maintenance from their father, electing to soldier alone in looking after them

It was her evidence that she did not personally join the co-operative. This was done by a friend of hers, one Lucia Maibisa, who has since died. It is Maibisa who came to her as she was minding her own business, and told her that she and others had formed a housing co-operative. She had taken the trouble, quite uninvited, to join the co-operative and pay the joining fee on her behalf. She gave her a receipt of $10-00 which the defendant produced as an exhibit, exhibit 6. It does not bear the heading of Highfield Housing Association or the co-operative. She stated that she later refunded Maibisa the $10-00.

The defendant stated that the monthly subscription were initially $100-00 but were later adjusted to another figure she could not recall. She however only paid $100-00 as monthly subscription. It is herself who paid and not the plaintiff. She produced a bundle of receipts exhibit 7, which receipts show varying figures. She said the figures varied depending on the month when payment was made. When it was drawn to her attention that some of the receipts had nothing to do with co-operative business, eg a receipt in the name of Delcion Fashions, she was quick to say that it was misfiled.

The defendant also had difficulties explaining receipts that were issued by Paradise Security Co-operative which she also relies upon.

She produced further documents issued by City of Harare as proof that its her name which is registered with the municipality, exhibits 11 to 15. She stated that on those records, she registered the plaintiff only as her daughter because she had no right of ownership over the house.

The defendant stated that she is the one who made the loan repayments to ZBS although she has never been to that bank, she having sent the plaintiff as her child to go and pay on her behalf. She explained that the reason she never went there to pay is because she is unable to write and could not complete the deposit slip.

She denied that the plaintiff used her own money to pay to ZBS insisting that at all times it was her money, the defendant, that she used. She insisted that the plaintiff has never generated any income, she having been a dependant of hers throughout. Up to now she continues to fend for the plaintiff and her child because the plaintiff only sits at home doing nothing.

On the plaintiff’s numerous trips to neighbouring countries, the defendant insisted that although the plaintiff did travel, she does know what she was going to do there because the plaintiff was never involved in any cross border trading, never brought anything back for resale except for a single carton of bar soap, a single carton of cooking oil and colgate which she took to her ZAOGA church.

On the accusation that she had stolen the plaintiff’ passport, the defendant admitted having taken the passport. Her explanation being that she was worried that the defendant would die in a foreign country as she was behaving strangely and fighting with her. She insisted that she is the one who funded the plaintiff’s business of supplying surf to tuckshops and the plaintiff used the proceeds to buy a French Door, 2 window frames for the dining room and 2 window frames for the bedroom which material was used to extend the house.

The defendant however insisted that, despite these purchases by the plaintiff, she single handedly financed the extension of the house to 9 rooms which it is today. On the receipts produced by the plaintiff for the building material which are in the plaintiff’s name, she stated that she is the one who gave the plaintiff money to buy and she had the receipts issued in her own name.

The defendant stated that the bad blood between herself and the plaintiff started in 2001 when they fought. Thereafter the plaintiff was always assaulting her accusing her of having goblins. She however was still able to send the plaintiff to make the loan repayments throughout and to purchase the building material.

She went onto say that she is the one who paid the plaintiff’s school fees and funded her dress making course at the Polytechnic. When she briefly got married, she had demanded to be given her lobola but her father refused to give her anything. She is therefore surprised that the plaintiff now wants to rob her of her house.

The defendant confirmed having sued the plaintiff for eviction for 2 reasons, the firstbeing that she is now over 18 years and secondly that the plaintiff was beating her up.

On her relationship with Maraire she insisted that he is fighting against her because she turned down his love proposal. She stated that after Maraire proposed to her she had kept this a secret because she respected Maraire and never told anyone about it. However her witnesses, told the court that they were informed by the defendant about the proposal.

The defendant was a hopeless witness whose evidence is incoherent, does not make sense and is impossible to follow. Not only is what she said improbable, it is out rightly false. For instance, it is virtually impossible that a friend could have joined the co-operative on her behalf without even producing her particulars.

The plaintiff had problems explaining her own exhibits. Without even beginning to explain her source of income, other than to say she sold wares, she would like the court to believe that she was magnanimous enough not to require any assistance from her former husband to look after her children and that she did that on her own.

The defendant would also want the court to believe that respectable and the truthful executive members of the co-operative like Maraire and Murerwa would just connive with her own daughter and claim that she had assisted her daughter to join the co-operative. She then comes up with this bizarre story of Maraire having proposed to her upon a realisation that there is no reason for the witness to lie against her.

She admitted that she never visited ZBS throughout, in fact under cross examination she said she took a walk to the place once just to see where it is although she has forgotten the street, and that she never personally made a single payment at that bank, but she still insists that all the loan repayments were made by her. She insists that, although she and the plaintiff were at each other’s throats, she still religiously sent the plaintiff to make the repayments and indeed to purchase the building material. Its just all incredible.

In my view, the defendant was an extremely unreliable and untruthful witness. I reject her testimony in its entirely as a tissue of lies.

If the defendant was an unreliable and untruthful witness, her 2 witnesses were comic to say the least: Examples will do. Power Chikonzo, the chairman of the rival executive committee maintained that he joined the co-operative in 1997 at a time when the plaintiff was still attending school. When it was brought to his attention that the plaintiff completed O’ Level in 1988, Chikonzo said the reason he insists she was at school is because he “was supplied that information by the defendant.”

Although the defendant had insisted that he kept Maraire’s proposal a secret, Chikonzo maintained that she had told them about it. This is the same witness who strongly disputed that the co-operative was formed in 1989 insisting it was formed in 1987 even when that fact is common cause.

CephasMarufu made a complete fool of himself that counsel for the defendant, after attempting to impeach him and then changing her mind, simply abandoned leading him in evidence in chief.

Marufu, who was jittery and lacking in confidence, readily stated that he was confused before asking to be excused from testifying.

He then sought refuge under the claim that his memory was affected by a motor vehicle accident.

Apart from the fact that these 2 witnesses are clearly unreliable and showed signs of being coached by the defendant, it was always going to be difficult for them because at the time the plaintiff allegedly joined and indeed when allocations of houses were made they were not part of management. Their evidence is therefore of no probative value. When measured against the evidence of Maraire and Murerwa, who were in office at all times, nothing can be gained from Chikonzo and Marufu.

I therefore come to the conclusion that the plaintiff has, on a balance of probabilities, proved her case on the 2 issues for trial. Clearly, the defendant’s name was entered on the records of the co-operative and all other house records because she was assisting the plaintiff. The plaintiff therefore has a legal right over the house.

To the extent that the defendant has been shown to be dishonest and is now appropriating rentals from lodgers thereby creating friction between the parties, it is no longer possible for the parties to co-exist. They are a danger to each other. I must also add, for completeness, that both the co-operative and the City of Harare must substitute the name of the plaintiff in all records relating to the house.

Accordingly, I make the following order, that

The plaintiff is the lawful owner of HouseNo. 9083 Paradise Highfield, Harare and all house records must be altered to reflect that fact.

The defendant and all those claiming through her should be ejected from the said house.

The defendant shall bear the costs of suit.

Chambati and Mataka Attorneys, plaintiff’s legal practitioners

Legal Resources Foundation – Harare, defendant’s legal practitioner