Elizabeth Makombora & 7 Ors v Cephas Makombora & 4 Ors & The Master of High Court (Estate Late Lemani Makombora DR 962/09) & Harare Municipality, Director of Housing & Community Services

### Preamble
1
HH 452-18
HC 10510/17
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ELIZABETH MAKOMBORA

and

DORCAS MAKOMBORA

and

EASTER MAKOMBORA

and

EMMANUEL MAKOMBORA

and

GLADYS MAKOMBORA

and

MUNYARADZI MAKOMBORA

and

REGINA MAKOMBORA

and

FRICKS MAKOMBORA

versus

CEPHAS MAKOMBORA

and

WINA MAKOMBORA

and

MARIKISI MAKOMBORA

and

MILICIA MAKOMBORA

and

THE MASTER OF HIGH COURT

(ESTATE LATE LEMANI MAKOMBORA DR 962/09)

and

HARARE MUNICIPALITY, DIRECTOR OF HOUSING

& COMMUNITY SERVICES

HIGH COURT OF ZIMBABWE

MANGOTA J

HARARE, 24 November, 2017 and 27 July, 2018

Urgent Chamber Application

S. Manyangadze, for the applicants

O. Machuwaire, for the respondents

MANGOTA J: I heard this application on 24 November, 2017. I delivered an ex tempore judgment in which l granted the application as per the draft order.

On 31 May, 2018 the High Court registrar wrote advising that the respondents appealed my decision of 24 November, 2017. He stated that reasons for the same were requested. These are they:

The parties to this application are family members. The first applicant is the wife of the late Lemani Makombora. The second to the eighth applicants are his children and so are the first to the fourth respondents. The mentioned respondents are the late Lemani Makombora’s children with his late wife one Vedia Makombora.

At the centre of the parties’ dispute is a property which is known as stand number 8198-23rd Road, Glen View 8, Harare (“the property”). The property was allocated to the first to fourth respondents by the fifth respondent. He excluded the first to the eighth applicants from benefiting from the same. The beneficiaries of the property sold it to one Wellington Madzivire who paid the sum of $22 000 as purchase price for the same.

When the applicants discovered the sale of the property, they filed the current application through the urgent chamber book. They couched their draft order in the following terms:

“Terms of the draft order sought

That you show cause to this Honourable Court, why a final order should not be made 	in the following terms:

An interdict hereby issued against the 1st to 4th respondents against selling, House number 8198, Glen View 8, Harare pending the application for a declaratory order under case number HC 10123/17.

1st respondent be (sic) is hereby ordered to pay costs of suit on attorney client scale.

Interim relief granted

Pending the hearing of the application for a declaratory order under case number 10123/17 the 1st to 4th respondents be and are hereby stopped from selling and / or partaking cession in House number 8198, Glen View 8, Harare.”

HC 10123/17 is the applicants’ application for a declaratory order. They filed it on 30 October, 2017. They are moving the court to set aside the final distribution account which the fifth respondent confirmed. They allege that the confirmation of the estate late Lemani Makombora rested on fraudulent misrepresentations. They aver that incorrect information was placed before the fifth respondent when he confirmed the final distribution account which related to the estate of the late Lemani Makombora. They blame one Chokani Elias Makombora, the then executor dative of the estate who is now late, and the first to the fourth respondents for misinforming the fifth respondent.

The application, in essence, aims at interdicting the first to the fourth respondents from selling and, if already sold, transferring title in, the property to the purchaser pending the determination of HC 10123/17. The application is therefore anchored on the outcome of HC 10123/17.

The respondents opposed the application. They denied that the application was urgent. They confirmed that the first applicant was their step-mother. They also confirmed that the second to the eighth applicants were their siblings. They submitted that the application was overtaken by events. They said the property which is the subject of this application had already been sold to Wellington Madzivire. They insisted that the remedy which the applicants were seeking was coming too late as there was no estate to talk about. They moved the court to dismiss the application with costs.

Evidence which is filed of record shows that the applicants treated their case with the urgency which it deserved.  Their unchallenged statement is that they became aware that the estate of the late Lemani Makombora was registered and concluded on 24 October, 2017. They filed their application for a declaratory order on 30 October 2017. They filed this application on 9 November, 2017.

An application which is filed twelve (12) working days after discovery of what has transpired cannot be said to fall into the realms of what is often referred  to as self-created urgency. Such an application falls outside what Chatikobo J described in Kuvarega v Registrar General & Anor 1988 (1) ZLR 188. It is well in sync with Rule 244 of the High Court Rules, 1971.

What makes this application more urgent than otherwise is the fact that the first to the fourth respondents sold the property to Wellington Madzivire. Their statement on the mater confirms the apprehension of the applicants. It stands to good reason as well as logic that transfer of title in the property be interfered with pending the hearing and determination of HC 10123/17. It would be difficult, if not impossible, for the applicants to reverse the course of events once title has changed hands.

That the executor and the first to the fourth respondents acted dishonestly in their handling of the estate of the late Lemani Makombora requires little, if any, debate. They did not place all the evidence before the fifth respondent when they moved him to confirm the final distribution account. They, for their unknown reasons, excluded the applicants from benefiting out of the late Lemani Makombora’s estate. If they had placed all the information before the fifth respondent, as they should have done, the probabilities are that he would not have confirmed the final distribution account. He would, in other words, have insisted that the applicants be included as beneficiaries of the estate.

Once it is accepted, as it should, that the first applicant is the surviving spouse of the late Lemani Makombora and the second to the eighth applicants are his children, they all have a prima facie right to his estate. They cannot, and should not, be excluded from the same. They should, in other words, benefit together with the first to the fourth respondents.

The applicant’s case is that of an interim interdict the granting or refusal of which was aptly described by Smith J in Beadi v Boadi & Anor, 1992 (2) ZLR 22 (H) at 24 F-G. The learned judge cited with approval the remarks of Hoelms JA who in Eriksen Motors (Welkom) Ltd v Protea Motors & Anor, 1973 (3) SA 685 (A) at 691 said:

“In exercising its discretion the court weighs, inter alia, the prejudice to the applicant, if the 	interdict is withheld, against the prejudice to the respondent if it is granted. This is 	sometimes called the balance of convenience.”

I am pleased to associate myself wholly with the above cited words. They bring out the discretion which l have; the discretion which I am enjoined to exercise my mind upon judiciously. It is my considered view that it is in the interests of justice that the temporary interdict be granted. My views in the mentioned regard find support from the fact that the applicants who have a prima facie right to the estate of the late Lemani Makombora would be irreparably prejudiced if l withhold the interdict. They would be deprived of a benefit which, on the face of it, is due to them. The respondents will suffer a temporary setback. They will not proceed with the transfer of the property until HC 10123/17 has been heard and determined. Where it is decided against the applicants, the respondents will have every right to consummate their sale of the property to the purchaser. Justice demands that the applicants must have their day in court. The balance of convenience favours their case.

I observe and mention in passing that the Memorandum of Agreement of Assignment through which the sixth respondent conferred title in the property to the first to fourth respondents is defective. Only two of them signed it as assignees of their late father’s house. The other two did not. That is contrary to the fifth respondent’s final distribution account in which the property was inherited by all the four respondents.

I observe and mention in passing, further, that the Memorandum of Agreement of Sale of the property is also defective. It was signed by the first to the fourth respondents when only two of them signed as assignees to the same. The other two were, by virtue of them not having signed as assignees, unable to lawfully sell the property to anyone. There was, in my view, no sale which took place given the stated set of circumstances.

The above observed matters will be for the parties to deal with at a later stage. I mention them in passing as observed matters and no more than that. Their net effect is to place the parties’ case to the status quo ante the cession of the property to the first to fourth respondents by sixth respondent. That operates to the advantage of the applicants. They will, therefore, be at liberty to approach the fifth respondent with a request to him to appoint a new e xecutor who will administer the estate of the late Lemani Makombora with all the beneficiaries of the same being properly represented.

The applicants proved their case on a balance of probabilities. The application is, in the premise, granted as prayed.

Manyangadze Law Practice, applicants’ legal practitioners

Obedience Machuwaire Attorneys at Law, 1st to 4th respondents’ legal practitioners