Langton Joel Munyaka v Lucas Pearson Munyaka and The Registrar of Deeds

### Preamble
1
HH 219-2013
HC 5282/05
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LANGTON JOEL MUNYAKA

versus

LUCAS PEARSON MUNYAKA

and

THE REGISTRAR OF DEEDS

HIGH COURT OF ZIMBABWE

GUVAVA J

HARARE, 7 September 2012 and 27 June 2013

Opposed Application

T Mpofu, for the applicant

R Gasa, for the first respondent

GUVAVA J: This application tells a story of two brothers who have been fighting over their father’s estate for over thirty years. The facts that are common cause may be summarised as follows:

The applicant and the first respondent are half-brothers as they have the same father but different mothers. Their father (“the deceased”) died intestate on 31 January 1976. Upon his death the deceased was the owner of a farm in Chesa, Mount Darwin and an immovable property known as house number 2633,117th Street New Highfield, Harare (“the Highfield house”). The applicant is the eldest male child in the family. He was appointed heir to the deceased’s estate and following the appointment, the farm was transferred into his name. When the applicant sought to transfer the Highfield house into his name the first respondent challenged the transfer. In 1984 under case number HC3290/84, the first respondent instituted proceedings against the applicant seeking to compel him to transfer the Highfield property into his name. A default judgment was granted by GIBSON J on 2 July 1986 against the applicant. The applicant sought an order setting aside the default judgment in case number HC 1092/92. The order was granted by consent by ROBINSON J. The order is however undated. The first respondent, relying on the original order obtained in case number HC3290/84, transferred the property into his name. In November 2007 CHATUKUTA J dealt with case number HC5282/05 and granted the application in favour of the applicant.  The order was rescinded in case number HC3985/09 in favour of the respondent. The applicant has sought on two occasions in case number HC 2421/10 and 3472/11 to set aside the order without success. The applicant has now reset down case number HC5282/05 seeking cancellation of the transfer of the Highfield property into the first respondent’s name on the basis that it was made pursuant to an order which had been set aside.

The first respondent has opposed the application on three main grounds. Firstly, he states that the property was properly transferred into his name because there was a family meeting which decided that they should share the inheritance with the applicant and gave him the Highfield house. Secondly, he denies that the applicant successfully set aside the original order granted to the respondent as it was undated and finally he submits that there are disputes of fact that should be determined by leading oral evidence.

It is common cause that the order that the applicant seeks to rely upon as having rescinded case number HC3290/84 was undated. It was argued by Mr Mpofu for the applicant that a court may properly refer to the original record in order to ascertain the true state of a case. This point was determined in the case of Mhungu v Mtine 1986 (2) ZLR 171.I am satisfied that this is indeed the true position in our law. A court record is a public document upon which any person including the court can refer to in order to ascertain what transpired in a case.

An examination of case number HC1092/92 shows that the following transpired:

The applicant instituted proceedings to set aside the order granted in default in case number HC 3290/04. By letter dated 17 August 1993 and filed of record the respondent’s legal practitioner agreed to have the order set aside. A consent paper was signed by both the applicant and the respondent and is duly filed of record. By letter dated 22 November 1993 Mr Mahlangu, who was the applicant’s legal practitioner at the time, wrote to the Registrar requesting the order in terms of the consent paper filed by the parties with proof of payment to uplift the order. An order which is signed but undated is in the record which captures the terms as set out in the consent paper.

It seems to me that in view of the background set out above, an order was indeed issued out of this court. It is not disputed that the order is signed by the Registrar. There is no averment in the papers before me that the signature was not made by the Registrar or that it  was forged. The respondent merely makes the averment that as the order is not dated it is therefore not an order of the court. The fact that the order itself is undated does not in my view nullify an order of the court. There must be other evidence that points to the fact that the order being relied upon was not issued from the court. In this case when one has regard to the background to how the order came about it becomes impossible to challenge the authenticity of the order. I am thus of the firm view that the order setting aside the order of GIBSON J is a valid order as it was granted by consent.

It is common cause that the applicant inherited the deceased’s property by virtue of his appointment as an heir to his late father’s estate. The deceased was an African and therefore his estate devolved according to the customs and usages of the tribe to which he belonged.  In terms of s 6 of the African Wills Act [Cap 108] (which was the law applicable at the time), where an African died without a Will his immoveable property devolved upon his heir in his individual capacity. In the case of Matombo v Matombo 1969 (3) SA 171 RAD BEADLE CJ (as he then was) held that in regard to intestate succession, the heir was a person who was entitled to inherit the deceased’s property. The applicant was the heir to his father’s estate as the eldest son of the deceased.

The applicant’s appointment as heir followed a meeting on 13 October 1976 at Mount Darwin District Commissioner’s offices. The meeting was amongst the deceased’s siblings, wives and major children. Although it is not stated in the papers the purpose of the meeting would have been to identify the heir of the deceased in accordance with their customs. In Matombo v Matombo (supra) it was held that where there is a dispute expert evidence would have to be called to determine the customary heir according to the customs and usages of the tribe in question. There is no averment that there was a dispute that the applicant was the heir of the deceased estate in this matter.

In the case of Magaya v Magaya 1999 (1) ZLR 100 (SC) the court had reason to examine the concept of inheritance of property under African customary law. MUCHECHETERE JA quoted with approval Bennet in his book entitled “Human Rights and African Customary Law under the South African Constitution” where he stated at page 126 as follows:

“In customary law succession is intestate, universal and onerous. Upon the death of the family head his oldest son ( if the deceased had more than one wife, it would normally be the oldest son of the first wife) succeeds to the status of the deceased. Emphasis on the term status implies that an heir inherits not only the deceased’s property but also his responsibilities....”

It is quite apparent from the above quote that the heir inherits all the property of the deceased. It was however conceded in the judgment that some of the deceased’s property may be distributed or divided amongst various relatives and acquaintances of the deceased. However it is clear from the judgment that any such distribution may only be done with the approval and consent of the heir. (emphasis is my own) In this case the applicant who is the heir has not approved or consented to the distribution and therefore the issue does not arise.

The respondent seeks to rely on a re-distribution agreement entered into by the family members after the applicant was appointed heir. The respondent submitted that there were disputes of fact in relation to how the deceased’s property was to be distributed in relation to the redistribution agreement and argues that the matter should thus be referred to trial so that these issues can be ventilated in oral evidence.

As a general rule in motion proceedings the courts are enjoined to take a robust approach to disputes of fact and to resolve the issues at hand despite any apparent conflict. See Masukusa v National Foods Ltd & Anor 1983 (1) ZLR 232 (S) at 235 A. Thus the first enquiry is to ascertain whether or not there are material disputes of fact in a matter before it. In the case of Supa Plant Investments (Pvt) Ltd v Chidavaenzi 2009 (2) ZLR 132 (H) at 136 MAKARAU JP (as she then was) observed as follows:

“A material dispute of facts arises when facts alleged by the applicant are disputed and traversed by the respondent in such a manner as to leave the court with no ready answer to the dispute between the parties in the absence of further evidence”.

It is therefore apparent from the above that the mere allegation of possible disputes of fact is not conclusive of its existence. The papers must show that they are disputes of fact and that they are incapable of resolution without the leading of viva voice evidence.

In the case before me I was however not satisfied that the respondent had established that there are such disputes of fact. In any event I take the view that if such disputes are present, they can be resolved by taking a robust approach of the matter. This matter has been pending before the courts for a very long time and it seems to me that such matters must be brought to finality. I am also of the view to me that the respondent reliance on the redistribution agreement is not particularly material to the resolution of this matter. The redistribution agreement was made on 20 October 2001. This was twenty five years after the appointment of the applicant as the heir. In my view the deceased’s estate was awarded at the stage when the applicant was appointed heir. In my view the claim by the respondent that there is a dispute of fact which warrants a referral to trial would have been more credible had the re- distribution agreement been done at the time that applicant was appointed heir. In any event according to the case of Magaya v Magaya (supra) the distribution must be done with the approval and consent of the heir. It is not something that can be forced upon him by relatives. Thus even if the redistribution agreement did seek to award the Highfield property to the respondent (which point was vehemently denied by the applicant) it would not take the respondent’s case any further as it would only serve to highlight what the members of the family thought 25 years after the applicant had been appointed heir.

Accordingly I make the following order:

The transfer of stand No 2633, New Highfield, Harare into the first respondent’s name on 4 August 2005 be and is hereby declared null and void.

The second respondent be and is hereby ordered to cancel the Deed of Transfer No 6887/2005 in the name of the first respondent and to restore the original title in  to the name of the applicant.

The first respondent shall pay the costs of this application.

V S Nyangulu & Associates, applicant’s legal practitioners

Gasa, Nyamadzawo & Associates, 1st respondent’s legal practitioners