Marian Katsande (nee Mandizvidza) v Fadzai Katsande (In her capacity as Executrix Dative to Estate late Tongai Katsande) and Fungai Katsande and Master of the High Court of Zimbabwe N.O

### Preamble
1
HH 249-13
HC 3315/12
MARIAN KATSANDE (NEE MANDIZVIDZA)
versus
---------


==============================

MARIAN KATSANDE (NEE MANDIZVIDZA)
versus
FADZAI KATSANDE (In her capacity as Executrix Dative to Estate late Tongai Katsande)
and
FUNGAI KATSANDE
and
MASTER OF THE HIGH COURT OF ZIMBABWE N.O

HIGH COURT OF ZIMBABWE
CHITAKUNYE J
HARARE, 22 August 2013

Application for joinder

S Ushewekunze, for applicant
F.M. Katsande, for first respondent
No appearance for 2nd and 3rd respondents.

CHITAKUNYE J: The applicant is married to second respondent in terms of the Marriages Act [Cap 5:11]. Their marriage is apparently on the rocks. The first respondent was married to the late Tongai Katsande who was second respondent’s brother. The third respondent is cited in his official capacity as the property involved is registered in the name of the late Tongai Katsande.

In the year 2010 the second respondent issued summons for a decree of divorce and other ancillary relief against the applicant in case number HC 2340/10. In the declaration he listed Stand 14478, Zengeza 3, Chitungwiza as part of the parties’ matrimonial property acquired during the subsistence of the marriage and thus subject to distribution in terms of the Matrimonial Causes Act [Cap 5:13]. Later on the second respondent sought to exclude that particular property contending that it was not matrimonial property but belonged to his late brother Tongai Katsande’s estate.

In the meantime the applicant in response to the summons had made a counter claim in which she also included Stand 14478 Zengeza 3, Chitungwiza as part of the matrimonial property. Despite the second applicant’s effort to exclude the property the applicant has insisted that it is matrimonial property.

It was when faced with the above that applicant approached this court seeking to join first respondent in her capacity as Executrix Dative to Estate late Tongai Katsande and the
 Master of the High Court in his capacity as the officer charged with overseeing the administration of deceased estates.

The first respondent opposed the application. In her opposition the first respondent contended that the main matter HC 2340/10 has nothing to do with her and her late husband. She further contended that the property in question is registered in her late husband’s name and so should not be dragged into the divorce action between the applicant and second respondent.

Rule 87(2) of the High Court Rules, 1971 states that:—

“At any stage of the proceedings in any cause or matter the court may on such terms as it thinks just and either of its own motion or on application—

(a) ………………………

(b) order any person who ought to have been joined as a party or whose presence before the court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, to be added as a party;”

In *Macey’s Supermarket and Bottle Store (Greencroft) (Pvt) Ltd v Edwards 1964* RLR 13 (SR) HATHORN J held that:

“Any party who has a direct and substantial interest in proceedings must be joined.”

In *Marais & Another v Pongola Sugar Milling Co. & Ors 1961(2) SA 698(N)*, a two-tier approach was formulated in the determination of a joinder as follows:—

“(1) that a party must have a direct and substantial interest in the issues raised in the proceedings before the court; and that

(2) his rights may be affected by the judgement of the court.”

The issue sought to be determined is whether Stand 14478 Zengeza 3, Chitungwiza should be distributed as the applicant’s and the second respondent’s joint matrimonial property upon dissolution of their marriage and, if so, in what ratio.

It is common cause that the property in question is registered in the name of the late Tongai Katsande. In the main case HC 2340/10 that property was referred to as the parties’ matrimonial property by both second respondent and applicant.

In another case No 172/10 at Chitungwiza Magistrates’ Court second respondent sued Angeline Maturure for several sums of money connected to the property in question which he claimed was his house.
 Indeed one such claim reads: -

“Payment of US 150 per month rent for the defendant’s occupation of plaintiff’s occupation of plaintiff’s house being 14478 Zengeza 3, Chitungwiza from January 2010 to date of vacation.”

Such assertions can only lend credence to applicant’s argument that the house is in fact matrimonial property. The issue as to whether that property is matrimonial property is thus before these courts for determination.

It is clear that the first applicant has a direct and substantial interest in that issue. His rights as the person in whose name the property is registered and who also claims to be owner by virtue of such registration may be affected by court’s decision. It is only proper and in the interest of justice that the first respondent be joined.

The first respondent’s opposition was clearly ill-advised and detrimental to the interests of the estate late Tongai Katsande.

The contention that the applicant’s claim is prescribed is a mere clutch at a straw. If that property is found to be matrimonial property there is no way prescription would come in.

The third respondent did not oppose the application to be joined and so will be so joined.

Accordingly it is hereby ordered that:-

1. The first and third respondents be and are hereby joined as second and third defendants respectively in case number HC 2340/10.

2. The first and third respondents are hereby granted leave to enter appearance to defend in HC 2340/10 within 10 days from the date of this judgment.

3. Should they enter or fail to enter appearance to defend the matter is to proceed in terms of the rules in respect of other pleadings.

4. Costs shall follow costs in the main cause HC 2340/10

Machinga and Partners, applicant’s legal practitioners
F. M. Katsande & Partners, first respondent’s legal practitioners


HH 249-13
HC 3315/12
--- END OCR FALLBACK ---