Paul Chirimuuta v Priscilla Nyamande and Elector Chipo Chirimuuta and The Director of Housing and Community Services City Council and The Deputy Sheriff Harare

HH 10-2012
HC 11438-11


PAUL CHIRIMUUTA

versus

PRISCILLA NYAMANDE

and

ELECTOR CHIPO CHIRIMUUTA

and

THE DIRECTOR OF HOUSING AND COMMUNITY

SERVICES CITY COUNCIL

and

THE DEPUTY SHERIFF HARARE

HIGH COURT OF ZIMBABWE

DUBE J

HARARE, 20 December 2011 and 25 January 2012

Urgent Chamber Application

Mr Thondlana, for the applicant

Mr F Katsande, for the respondent

DUBE J:    This is an application for stay of execution. The terms of the interim order sought are as follows:

“1.	That the eviction of the applicant be and is hereby stayed; and

2.	In the event that the fourth respondent had proceeded with eviction before the hearing of this matter the fourth respondent be and is hereby ordered to restore possession of stand 372 Engineering, Highfield, Harare to the applicant.”

There is a long standing dispute between the parties over the ownership of house no 372 Engineering, Highfield. Applicant avers in his founding affidavit that the house belonged to Luka Meda, the applicant’s grandfather. Luka Meda died intestate in 1989 and his estate was registered with the Master of the High Court in 1994 under DR389/94. Applicant’s father, Raphael Chirimuuta was appointed executor dative of the estate and he was issued with Letters of Administration for purposes of effecting cession of the rights, title and interest in the house into his name. He died before effecting transfer of the house into his name in 2006. The second respondent is a sister to applicant’s father and is therefore an aunt to applicant. In 2008 the second respondent re-registered the estate at the Magistrates Court under DRH 591/08 without the knowledge of applicant. She was issued with letters of administration and was able to dispose of the house. She later sold the house to first respondent. Applicant only became aware of this development when he received a notice to vacate from first respondent in August 2010, which the applicant resisted. Second respondent later filed an application for eviction at the Harare Magistrates court in October 2010, but later withdrew the proceedings. She made another attempt to register the estate at the High Court under DR1556/10 in 2010, but did not pursue the administration of the estate.

Sometime in 2011 the second respondent filed another application for eviction at the High Court, Case number7218/11, which applicant opposed and the matter is still pending.

On 23 September the first respondent filed an application to evict the second respondent and those claiming through her from the house in Case No HC 8223/11. The applicant was not cited and was not aware of the application and hence did not oppose it. The second respondent did not oppose the application. A default judgment was granted on 5 October 2011. A notice of eviction was served on the applicant on 14 November 2011. He applies for stay of execution of this order pending an application for rescission which he has indicated he will file.

The applicant claims that he is a beneficiary of the estate of Luka Meda and is entitled to the house in dispute. He avers that the second respondent acquired ownership of the house fraudulently and later sold it. That although the first respondent was aware that the applicant had an interest in the house, she proceeded and made an application for his eviction without citing him in the matter or notifying him of the application. The applicant avers that he became aware of the eviction when he received a notice to vacate from the first respondent. He claims that the second respondent fraudulently registered Luka Meda’s estate and acquired ownership of the house and later sold it when she had no right to do so.

The application was opposed by the first and second respondents. They raised two points in limine. The first point was that the matter was not urgent as the applicant became aware of the sale in August 2010 and failed to take any action. The second point was that the applicant did not have the requisite locus standi to bring the application. On the merits, the respondents denied that the second respondent had acquired the property through fraud. They submitted that the second respondent was entitled to inherit her late father’s property and thereafter sell it

The court sought the views of the Master of the High court over the dispute relating to the registration of the estate. The Master of the High Court has compiled a report and has given the background of the matter. The Master’s views are that the reregistering of the estate was improper and un-procedural as second respondent was aware of the existence of the registration of the estate at the High Court in 1994 and took part in the administration of the estate and yet proceeded to re-register the estate at the Magistrates court. That as the house in dispute was awarded to the applicant’s late father, it should be inherited by his family comprising the surviving spouse and his children, who include the applicant.

In my view this matter is urgent. The applicant has himself treated this matter with urgency. He has asserted his rights and has not delayed in seeking his remedy. He has defended every effort made to evict him from the house. The applicant alleges that he is on the brink of being evicted from the house based on an estate that was irregularly registered resulting in the second respondent being able to own a house she was not entitled to and based on an order fraudulently acquired. If this application is not granted, the applicant will suffer irreparable harm as by the time he gets redress through the normal channels, the house may have been disposed of. The applicant also states that he has nowhere to go. The balance of convenience favours him. The first respondent can recover her money from the second respondent.

The respondents failed to serve the application for eviction under HC 8223/11 on him when they knew that he had an interest in the matter. Applicant has an interest in the house in issue and that right emanates from his late father’s rights in the house and applicant therefore has a prima facie right to stay in the house. In order for a litigant to show that he has locus standi in a matter, he must show that he has a direct and substantial interest in the right which is the subject matter of litigation and in the outcome of such litigation and not in merely a financial interest which is only an indirect interest in such litigation, see SA Optomeric Association v Frames Unlimited 1985 (3) SA100. Applicant clearly derives such interest from his father who inherited the house from the estate of his own late father. The fact that the father did not manage to register the house into his name is neither here nor there. When the estate was registered in 1994, Customary Law applied. The law recognised the eldest son as the heir and capable of inheriting property. That is the basis upon which applicant’s father was appointed heir. Letters of administration having been issued, the property was supposed to pass into his father’s estate on his death and that process finalised. Applicant’s father died in 2006. The law has changed. Amendment No 6 of 1997 amended of the Administration of Estates Act [Cap 6; 01] and introduced the concept of beneficiaries in s 68. Those entitled to inherit in this case in terms of this section are the surviving spouse and the children of the deceased. Applicant is still entitled to inherit the house as this property forms part of his father’s estate.

The Master’s report is clear that there was a double registration of the estate of the late Luka Meda resulting in second respondent acquiring ownership of the house, selling it and an injustice occurring.

It is trite that a judgment obtained by fraud can be reversed at the instance of an interested party. See, Childerly Estate Store v Standard Bank of SA 1924 OPD163,

Makings v Makings 19589(1) SA 338, for that proposition.

Applicant intends to apply for rescission of judgment of the judgment under HC 8223/11.  The applicant does have justification for applying for rescission of judgement in that matter although he was not a party to the proceedings because he has a substantial interest in the matter and has reasonable prospects of success. That application does have legal foundation.

The interests of justice demand that justice be done in this case. As expressly stated in Cohen v Cohen 1979(3) SA 420:

“Execution is a process of the court and the court has inherent power to control its own process subject to the Rules of Court. Circumstances can arise where a stay of execution as sought here should be granted on the basis of real and substantial justice. Thus, where injustice would otherwise be caused, the court has the power and would generally speaking, grant relief.”

Applicant’s complaint that there has not been transparency in the manner in which the order for eviction was acquired has merit. This coupled with the fact that the estate was not properly handled calls for the intervention of the court. An order for stay of execution, will prevent any injustice occurring. The court is satisfied that special circumstances exist warranting the relief sought and has the power to remedy the situation.

Execution cannot, in these circumstances proceed.

In the result, it is ordered as follows:

Pending determination of this matter on the return day, the following relief is granted,

1   That the eviction of the applicant be and is hereby stayed.

2   In the event that the fourth respondent had proceeded with eviction before the hearing of this matter, the fourth respondent be and is hereby ordered to restore possession of stand 372 Engineering, Highfield, Harare to applicant.

3	That the applicant files an application for rescission of the judgment granted in HC 8223/11 within ten days of him becoming aware of this order.

4    Costs shall be costs in the cause.

Thondhlanga & Associates, applicant’s legal practitioners

FM Katsande & Partners, respondent’s legal practitioners

.