Spiwe Chidawu (nee Shemunyoro) v Clever Mandizvidza N.O. (in his capacity as Executor Dative in Estate Late Oliver Mandishona Chidawu) & 4 Ors

### Preamble
1
HH 518-25
HCH 6867/22
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SPIWE CHIDAWU (NEE SHEMUNYORO)

versus

CLEVER MANDIZVIDZA N.O

(in his capacity as Executor Dative in Estate Late Oliver Mandishona Chidawu)

AND

MASTER OF THE HIGH COURT N.O

AND

ROPAFADZO SIBUSISO CHIDAWU

AND

DADIRAI MARTHA CHIDAWU

AND

MINDY MARIE CHIDAWU

(In her capacity as legal guardian of Isabelle Marie Chidawu and

Selah Olivia Chidawu, both minor children)

HIGH COURT OF ZIMBABWE

MAXWELL J

HARARE,26-27 March & 9 September 2025

Civil Trial

E Mubaiwa, for the plaintiff

T Mazikana, A S Ndlovu, for the 3rd defendant

No appearance for the 1st, 2nd, 4th and 5th defendants

MAXWELL J:  The plaintiff was married to the late Oliver Mandishona Chidawu (the deceased).  Third and fourth defendants are daughters of the plaintiff and the deceased.  Fifth defendant is the mother of the children of the late son of the plaintiff and the deceased.

The deceased met his demise on 19 July 2022.  He left a will in which he bequeathed to the third, fourth and fifth defendants 80% undivided share in a certain piece of land in the District of Salisbury, called subdivision K of subdivision D of Nthaba of Glen Lorne, otherwise known as 3A1 Highland Glen Road, Umwinsidale, Harare, (the property).  He also bequeathed a 20% share to the plaintiff.

The plaintiff was aggrieved.  On 12 October 2022 she issued out summons challenging the bequests.  She prayed for judgment in the following terms:

“1. Plaintiff is hereby declared the beneficial owner of an undivided half share in a certain piece of land in the District of Salisbury, called subdivision D of Nthaba of Glen Lorne, otherwise known as 3A1 Highland Glen Road, Umwinsidale, Harare.

2. It is further declared for the avoidance of doubt, that the Estate of the late Oliver Mandishona Chidawu is beneficial owner of only a half undivided half share in the immovable property in the District of Salisbury called Subdivision K of Subdivision D of Nthaba of Glen Lorne, otherwise known as 3A1 Highland Glen Road, Umwinsidale, Harare.

3. Clauses 3.1 to 3.5 of the Will settled by Oliver Mandishona Chidawu on 23 July 2021 are hereby set aside.

4. All entries and endorsements made by first and second defendants in inventories, registers or accounts recording more than a half undivided share interest in the above property in favour of the Estate of the Late Oliver Mandishona Chidawu are set aside.

5. First defendant shall pay costs of suit.”

Plaintiff’s claim concerned the validity of clauses 3.1 and 3.5 of the Will of the Late Oliver Mandishona Chidawu, (the deceased) more particularly its compliance with provisions of s 5(3)(a) of the Wills Act [Chapter 6:06] in that those provisions of the Will dispose or bequeath immovable property which vested in plaintiff in terms of the law which governed the property interests of plaintiff and the deceased at the time the will was settled.

In her declaration, plaintiff stated that she was married to the deceased out of community of property until their marriage was terminated by the death of Oliver Mandishona Chidawu (the deceased) on 19 July 2022.  She stated that during the subsistence of their marriage, the parties entered into a tacit universal partnership agreement for the purpose of acquiring movable and immovable properties for their equal and undivided joint benefit.  In performance of the agreement plaintiff made financial, proprietary and other useful contributions to the partnership which were used to acquire and develop a certain of land in the District of Salisbury, called subdivision K of subdivision D of Nthaba of Glen Lorne, otherwise known as 3A1 Highland Glen Road, Umwinsidale, Harare (the property) as an asset of the partnership.  It was agreed between the parties that the parties would beneficially hold equal undivided half share in the property and despite that the property would be registered in the name of the deceased but only as a nominal holder on behalf of the partnership.  Contrary to and in beach of that agreement, the deceased treated the property as exclusively his and purported to bequeath it to third, fourth and fifth defendants in a manner which exceeds his undivided share in the property through clauses 3.1 to 3.5 of the Will.  The said clauses purport to bequeath to third, fourth and fifth defendants a total of 80% undivided share in the property and 20% to the plaintiff, effectively divesting her of 30% undivided share in the property.  She further stated that her financial, proprietary and other useful contributions towards the acquisition and development of the property enriched the deceased to the extent of an undivided half share in the property in that the deceased retained exclusive registered title thereof but did not compensate plaintiff of her contribution.  She stated that the deceased’s enrichment was without cause and has unjustly impoverished her.

The Master filed a report in which he stated that the deceased had two Wills executed in 1992 and 2021 respectively.  The 1992 Will was not accepted as it was invalidated by the later Will.  He expressed the view that the testator had the right to bequeath assets deemed to be in his personal name.

First, third and fourth defendants entered appearance to defend and in their pleas, they disputed the existence of a tacit universal partnership.  They also disputed that deceased was unjustly enriched.  They asserted that the Will is valid for all intents and purposes and that the deceased exercised his freedom of testation properly so.  Further, that the property was registered in the name of the deceased alone as it was solely owned by him as part of his out of community of property estate.  They prayed that the claim be dismissed as it is without legal basis.

On 28 October 2022 the fourth defendant filed a consent to judgment.  The parties exchanged pleadings.  A pre-trial conference was held.  The following issues were referred to trial.

Whether there was a tacit universal partnership agreement between the plaintiff and the Late Oliver Mandishona Chidawu?

Whether the plaintiff made any contributions, financially or otherwise, towards the acquisition of No 3A1Highland Glen Road, Umwinsidale, Harare?

Whether plaintiff is the owner of an undivided half-share in the property known as 3A1 Highland Glen Road, Unwinsidale, Harare?

In the alternative, whether or not the Late Oliver Mandishona Chidawu was unjustly enriched by the plaintiff’s contributions?

At the hearing of the matter there was no appearance by and for fourth and fifth defendants.  Counsel for the plaintiff prayed for a default judgment against them.  it was granted.  Counsel for the plaintiff further pointed out that the first defendant withdrew his plea and notice of appearance to defend and had indicated in the Joint Pre-Trial Conference Minute that he does not wish to participate in the proceedings.  Mr Mubaiwa submitted that the non-participation by the first defendant entities the plaintiff to the relief in para(s) 1 and 2 of the prayer.  He prayed for the granting of an order in terms of para(s) 1 and 2 of the prayer.  The order was granted.

Only the third defendant was left to participate in the proceedings.  Mr Mubaiwa submitted that third defendant is a stranger to the arrangement between the spouses, does not know anything about it and is not entitled to protest an agreement which she is not privy to.  The matter was adjourned to the following day.  At the resumption of the matter Mr Mubaiwa applied for the correction of the order that had been issued the previous day.  He submitted that instead of setting aside clauses 3.1 to 3.5 of the Will settled by the deceased on 23 July 2021, the order should reflect that those clauses shall not apply to the plaintiff’s undivided half-share.  He submitted that the order does not affect the third defendant.

The application was opposed.  It was submitted for the third defendant that what Mr Mubaiwa was seeking was to pre-empt the court’s final decision in a manner that is prejudicial to the third defendant.  Further, that the proposed correction would be tantamount to he court amending the will for plaintiff’s benefit and that plaintiff would have been granted her claim without evidence and without the third defendant being heard.

I dismissed the application as I was not convinced that the facts of the matter warranted resorting to r 29(1)(b) of S.I 202/21 or alternatively the common law to correct a patent error in the order issued.  I observed that a patent error is where the decision does not reflect the intention of the judicial officer pronouncing it and that the correction is so that the true intention of the presiding judge is reflected.  I was of the   view that the plaintiff realized a mistake in her own pleadings and wanted to alter the prayer she sought before the court.  I found that there was no patent error.  I also pointed out that r 29 of S.I 202/2021was not put there to rescue litigants who would have drafted their pleadings wrongly.  It is trite that a litigant is entitled to what he/she prays for if the court is satisfied that it is warranted.

The matter was adjourned to the following day.  At the commencement of the hearing, counsel for third defendant applied for the rescission of the orders as they affected the third defendant as a beneficiary of the Will.  Mr Ndlovu submitted that the orders were erroneously sought and granted as the relief is not severable amongst the defendants.  He submitted that the attempt by the plaintiff to have the orders amended is a concession of the error.  He further submitted that the application is being made on the basis of the common law.

In opposing the application for rescission, Mr Mubaiwa submitted that neither r 29(1)(a) of S.I 202/2021 nor the common law are available to the third defendant as rescission is sought by a party who was not in court when relief was granted.  He further indicated that third defendant had defended the order the previous day when an application for its correction had been made.  And also, that having defended the order, she submitted to its validity and competence and therefore cannot turn around and seek to challenge it.  Mr Mubaiwa submitted that the fact that third defendant regrets her decision not to challenge the granting of the order is not a basis for rescission under common law or r 29 of S.I 202/2021.

In reply Mr Ndlovu disputed that third defendant had consented to or affirmed the order as correct.  He stated that third defendant was not afforded an opportunity to respond as the issue was targeted at fourth and fifth defendants.

The court takes into account whether good and sufficient cause has been shown to set aside a judgment.  The factors taken into account in determining whether “good and sufficient cause” has been established have been discussed in a number of cases.  See Songore v Olivine Industries (Pvt) Ltd 1988(2) ZLR 210 and Zinondo v CAFCA Limited SC 64/17.

The authorities show that the test for “good and sufficient” cause involves the establishment of the following factors:

The explanation of the default and whether it is reasonable;

The bona fides of the application to rescind the judgment;

The bona fides on the defence on the merits of the case which carries some prospect of success.

It is trite that each case is dealt with on its own facts.  Considering the first factor, the question is whether or not third defendant was in default.  It is common cause that the third defendant’s legal practitioner was in court.  However, counsel for applicant’s approach was that the orders asked for where against the fourth and fifth defendants.  Counsel for third defendant had no mandate to speak on behalf of the fourth and fifth defendants.  The hearing therefore proceeded without the third defendant being heard.  I am therefore satisfied that the explanation given for the failure by counsel for third defendant to object to the orders sought is reasonable.

I am also persuaded that the application was being made in good faith.  The clauses that were set aside contain what third defendant would receive as a beneficiary.  The value of her benefit is affected by the order that has been made.  It is common cause that she was not heard before that was done.  As submitted for third defendant the attempt to amend the order granted is testimony of the fact that there is an error in the order.  The submission by Mr Ndlovu that the order is not severable amongst the defendants was not controverted.  The effect is that third defendant was not afforded an opportunity to be heard and must therefore have that opportunity.

In view of the attempt to amend the order granted, I am of the view that prospects of success are not questionable.  I am cognizant of the fact that the matter arises out of a deceased estate.  Such matters are always emotive and it is prudent not to dispose of them on technicalities.  To prevent a perceived miscarriage of justice and allow the third defendant her day in court, all the orders granted at the commencement of the matter be and are hereby rescinded.  Fourth and fifth defendants remain barred.

The matter is to be set down for hearing on the merits.

Maxwell J:……………………….

Hogwe/Nyengedza, plaintiff’s legal practitioners

Mhishi Nkomo Legal Practice, first defendant’s legal practitioners

Lunga Mazikana Attorneys, third defendant’s legal practitioners

Willmott & Bennet, fifth defendant’s legal practitioners