Evelyne Chikono v David Mahewu and the Executor of Estate Late M Chikono – B Ndlovu N.O

### Preamble
1
HB 115.20
HC 1669/18
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EVELYNE CHIKONO

Versus

DAVID MAHEWU

And

THE EXECUTOR OF ESTATE LATE

M CHIKONO – B NDLOVU N.O

IN THE HIGH COURT OF ZIMBABWE

MABHIKWA J

BULAWAYO 2 OCTOBER 2019 AND 11 JUNE 2020

Opposed Application

E Ndlovu, for the applicant

Ms M Busayi, for the 1st respondent

MABHIKWA J:	The applicant filed this application in terms of Order 32 Rule 226 of the High Court Rules 1971.  I must say that the rule relates to the making of any application of whatever nature.  In paragraphs 4 and 10 of her founding affidavit, applicant states  that the application seeks to have a document, or an alleged agreement between “the Chikono family” and David Mahewu, be declared null and void in so far as it purports to vest rights of ownerhip of No. 7 Fernspruit Township of Essexvale Estate, Umzingwane District to 1st respondent (David Mahewu).  It is in that regard, an application for a declarator.  For that reason, save for instance where the court deems necessary and in the interests of justice, this judgement will deal specifically with the issue of the document in question and avoid making pronouncements and dwelling so much on other arguments which in my view both parties are guilty of “smuggling” into this application, yet they are really matters for another day at a different forum.

Starting with common cause facts, the brief history of this matter is as follows;

It is not in dispute that the property in issue is No 7 Fernspruit Township of Essexvale Estate, situate in the district of Umzingwane.

It is not in dispute that the said property is registered in the name of the late Mhethusare Chikono, ownership having passed to him by Deed of Transfer dated 20th June 1988.

It is not in dispute that the applicant, Evelyne Chikono is the widow and surviving spouse of the late Mhethusare Chikono.

It is common cause also that the 1st respondent (David Mahewu) was an employee of the late Mr. Neil Stone (Stone Senior).  The late Mr. Mhethusare Chikono was also an employee of Neil Stone but also a partner of him in gold mining ventures.

It follows that it is not in dispute that both Messrs Neil Stone and Mhethusare Chikono were already deceased at the time the alleged agreement or document subject of this application was allegedly executed and of course at the time this application was filed.

It is not in dispute there is a second Mr. Stone, Michael Christopher Stone (Stone Junior), a son to the late Mr Neil Stone.  Stone Junior is alive and largely irrelevant in this application.

As already stated above, the dispute in this matter is on the document allegedly signed by members of the Chikono family and David Mahewu.  The issue is whether it should be declared null and void and for what purpose.  It should be noted right from the onset, that this judgement will deliberately omit use of the term “unlawful” in reference to the said document as this court believes the lawfulness or otherwise of the document is an argument for another day before a different court.

Applicant in short averred that she is the surviving spouse of the late M Chikono who owned No. 7, Fernspruit Township of Essexvale until his death.  She further averred that to her knowledge, her husband never sold or alienated that property in any way.  In any event, she alleged that the husband would have consulted or advised her since that property was family property.  She averred also that her late husband was into gold mining and operated in partnership with a Mr. Stone, presumably the late Mr. Neil Stone according to the papers.  This Mr. Stone was some sort of Co-director in the Partnership with her late husband in their mining or commercial activities.  She however did not pry into the minute details and legal niceties of those activities.  According to her, after her husband’s death, Mr. Stone and the company kept promising to pass her husband’s share and dues in the company ventures.  Mr. Stone would ask her, as the person who had taken over her husband’s position, to sign certain documents.  She would not query or scrutinize the documents as most were routine, especially at the time she was mourning her husband.   On 28, November 2009, which was around the time Mr. Stone would ask her to sign documents, Mr. Stone came and asked her to sign papers that would enable her to receive her husband’s share or profits in the mining venture.  He also said he had a special request that she allows Mr. David Mahewu to reside temporarily at the farm to avoid employee accommodation costs.  He said it has been necessary to consult her to accept that arrangement.  The whole arrangement appeared to make sense as explained by Mr. Stone, especially as a temporary arrangement.

Applicant avers also that she was surprised when in dealing with her husband’s estate, she came across a claim wherein Mahewu claims that in terms of Annexture “B” he is the owner of No. 7 Fernspruit, Essexvale, and that the property should thus be passed to him.  She says that surprisingly, 2nd respondent who is the Executor of her late husband’s estate has warmed up to Mahewu’s claim and has indicated that he accepts the claim and whoever is agrieved should approach the courts.  It is for that reason that she instructed counsel to approach this court and seek the relief she prays for.

In opposition, the 1st respondent raised three (3) points in limine.

The first point was that applicant has not provided an address for service which is within the jurisdiction of this court.  Secondly, 1st respondent averred that there is a clear dispute of fact in this matter, which makes an application an inappropriate method to seek relief.  Thirdly, 1st respondent averred that the order sought is not a declaratur because there is no justifiable advantage in relation to the applicant’s position with reference to an existing right which appears to flow from the grant of the order sought.

On the 1st preliminary point applicant’s counsel explained that indeed by oversight, the initial papers did not have an address within the required radius from the court room but sought to be condoned as that oversight had long been rectified.  Applicant was dully condoned in terms of Rule 4C of the Court rules.

I dismissed the 2nd point that there was “clear dispute of fact”.  Over and over again 1st respondent put that statement without elaboration.  He did not exactly show what he meant to be a dispute of fact.  Somewhere in the opposing affidavit one would surmise that the history of the matter he narrated as leading to the application is what he meant to be a “dispute of fact.” However, that history had in fact nothing to do with the application at hand.  On the 3rd point, 1st respondent apparently took too narrow a view of an application for a declarator and declaratory order.

See (1)	 Mpukuta v Motor Insurance Pool and Others 2012 (1) ZLR 192

(2) Milan and Another v SA Medical and Dental Council and Another 1990 (1)SA

899T

(3) Mnondo Residents’ Association v Moyo and Others HH 66-07

(4) Mann Publishing (Pvt) Ltd v ZBC – 1994 (1) ZLR 337 (S)

That point too was dismissed.

What purports to be 1st respondent’s opposing affidavit is in fact written in a mixture of the 1st and 2nd person speech making it appear unorthodox and awkward.  The applicant also raised an issue that the purported opposing affidavit is not signed by 1st respondent before a Commissioner of Oaths.  This court noted however that the copy filed with the court was in fact signed by both 1st respondent and the Commissioner of Oaths.  Further the mixture of the 1st and 2nd person speech in the affidavit cannot be held to be fatal to the extent that it can then be said that 1st respondent has no papers or opposition before the court.

In short, the 1st respondent opposes the application on the basis that the applicant has “jumped the gun” by filing this application with the High Court instead of “walking along and then cross the river when he comes to it.” In essence this argument means that applicant should have waited for the executor to continue with the execution, administration and distribution of the late Chikono’s estate with the Master of the High Court.  If the Master accepted the document as an agreement of “sale” or “swap”, then she would object in terms of section 52 of the Administration of Estates Act (Chapter 6: 01) .  Whilst that argument may be true on the one hand, and perhaps in the majority of cases; it may be quite intriguing in the circumstances of this case.  The Executor Dative’s Report attached to the 1st respondent’s opposing papers gave a different direction.  The report is clear that the Executor Dative says he has heard the parties who were both legally represented by their lawyers.  The report goes on to state that “particular attention was given to the memorandum of the agreement signed between the Chikono family and the Mahewu family.”  The Executor also states that in his capacity as Executor, he believes that the document is valid, and would proceed to draw the first and final liquidation account “in terms of the document.”  It is not shown whether the document in issue was done before or after the appointment of the Executor and why it was done with a person who was not the executor of the estate in the first place.  Why the rush.

Finally in the last paragraph of the report the Executor states that any party that is not satisfied by his decision to accept “the document” as valid is free to challenge the decision in the courts and that he would abide by any decisions made by the courts.

I take note of the fact that in the last paragraph, the Executor, unwittingly perhaps, uses the term “we”.  The use of that term in the circumstances may have also rattled applicant’s feathers and the executor would better be advised to avoid using terms that may be interpreted to mean that he is an interested party and not impartial as insinuated somewhere in the application.  But the point is that in casu, the executor’s position was that he has made his decision on the issue of the document accepting it as valid for the purpose of distributing the estate of course and that whoever is agrieved should challenge the decision in the courts.  He would accept the court’s decision and then move forward with the administration of the estate.  In the light of that direction by the executor, the applicant cannot be held to be entirely wrong.  1st respondent’s arguments on “jumping the gun” completely overlooks this point and direction by the Executor.

In my view, the applicant was right in seeking a declaratory order, not on the whole estate and its arguments, but only on the document referred to by the Executor so that he knows how to proceed with it.  If applicant had not acted, I am certain that she would have been accused by the Executor and more so by the same 1st respondent, of having acquiesced and not taken action when the need to act arose and even after being directed by the Executor to do so.  In my view also, the1st respondent’s argument is completely different from the letter and spirit of the Executor’s Report on that point.

There is also argument on the issue of material disputes of fact.  Regrettably in my view, the 1st respondent gives what he calls “the genesis of the dispute” which stemmed from two properties which allegedly exchanged hands, but whose transfer was not affected timeously.  However as already stated elsewhere in this judgement twice or so elsewhere in his papers, 1st respondent claims to have acquired the property in issue from the late Mr. Stone.  At paragraph 7.2 and paragraph 5 (b) of his opposing affidavit, he states that;

“It is common cause between the applicant and the 1st respondent that the property in question, being No. 7 Fernspruit Township of Essexvale Estate. (Esigodini property) was awarded to the 1st respondent by the late Stone, in recognition of his services.”

But on the other hand, 1st respondent also states that the late Mr. Stone had bought property in Zvishavane, being No. 58 Zeederberg Block, Zvishavane and agreed to exchange it with the late Methusare Chikono’s Esigodini property but both Stone and Chikono died before transfer of the Esigodini property could be effected by the 1st respondent.  Applicant has disputed these claims

A look at the Annexture “A”, (the Title Deeds to the Esigodini property in issue) shows that No 7 Fernspruit Township of Essexvale was never owned by Neil Stone.  At the time of transfer in 1988, Methusare Chikono received Title from one Donald Dube who himself had probably received Title from one Joseph Vivian Ransford.  Francis Farguson Slaven of Messrs Coghlan and Welsh legal practitioners was the conveyancer.  It follows that Neil Stone could not have donated to 1st respondent property that did not belong to him.  There is no mention of Neil Stone anywhere on the Deed of Transfer.

Secondly, the document subject of this application was done after the deaths of both Stone and Chikono.  For lack of many words, it is difficult to describe the document as an “agreement” of any kind.  Ultimately, it is clear that Neil Stone could not have donated to David Mahewu the Esigodini property.  He never owned it.  On the other hand if one were to accept that there was a “swap deal” as Counsel for 1st respondent continued to argue, then who were the parties?  Stone and Chikono, the people who should have concluded the “swap” deal were dead.   Therefore, it is not them.  Is the “swap deal” then between 1st respondent and the late Stone?, or between the 1st respondent and the late Methusare Chikono? or between 1st respondent and the “Chikono family”? or between the “Mahewu family” and the “Chikono family”?  In the circumstances and in all the scenarios, there could be no deal or agreement in the absence of an Executor and Administrator in the estate of the late Methusare Chikono, who in any event could only go to that extent with the concurrence of the Master of the High Court, and, only after the late Chikono’s estate, and in fact both estates having been legally wound up.  The document itself, does not answer the questions above.

At the close of argument, I directed counsel for the applicant to file case authority per MATHONSI J, (as he then was) which counsel had submitted was a case that would certainly decide the issue of the disputed document.  I had also directed the counsel for the 1st respondent to make available the Master’s Report and the full record of proceedings as held at the Master’s office.  I had so directed because she had submitted in argument that whilst applicant now feigned ignorance of a donation of the Esigodini property to David Mahewu and/or of a “swap deal”, the Master’s Report would show otherwise.  Counsel had also argued that records would show that the Chikono family are now in occupation of the Zvishavane property which was subject of a “swap deal.”  This court did not receive both the Master’s Report and the alleged record of proceedings.  Mr. Dube on the other hand, provided the court with the case of Lungisani Moyo v Musiyiwa Nyamukonda and Another HB 41/18 (HC 2198/15) which the court indeed found to be incisive.  Applicant and 1st respondent in that matter were husband and wife having been married in terms of the Marriage Act (Chapter 5:11),  They jointly owned No. 6860 Nkulumane, Subdivision A of Valley Field, Bulawayo.  The applicant had moved to England in 2002 and worked there, whilst the husband remained in Zimbabwe.  She had single handedly bought the contested property but still had it registered in both their names in terms of the Deed of Transfer No. 1239/2006.  She was still resident in England when her helper informed her that the 1st respondent was trying to sell the house to a third party.  She applicant filed an application seeking an order declaring null and void a sale agreement concluded between the two respondents on 23 May 2012 in respect of the house.  Despite being served with the application the husband shyed away from the proceedings.  The 2nd respondent filed opposition, insisting that at the time the sale was concluded, the applicant had been notified by her husband about the sale and had agreed and gave her husband authority to sell the house even though she was outside Zimbabwe.  The learned Judge reiterated the law on ownership and pointed out that;

“It is settled in our jurisdiction that ownership in immovable property is held by way of a Deed of Transfer in the name of the person who owns the immovable property as provided for in the Deeds Registries Act (Chapter 20:05).   Registration of rights in immovable property is a matter of substance as it conveys real rights upon those in whose names the property is registered, which rights have been described as “the sum total of all the possible rights in a thing.”

The purported agreement of sale showed the applicant and her husband as the sellers whilst 2nd respondent was the purchaser.  However, the “agreement” was only signed by the two respondents.  The applicant had not signed it.  Real rights cannot be alienated by anyone other than their holder.  The learned Judge also went on to state that;

“Indeed our law protects the right of an owner to vindicate his or her property as a matter of policy against even an innocent purchaser, whose only defence against a vindicatory action is estoppels;.”

He went further to comment;

“A sale agreement, which is generally referred to as a contract of purchase and sale, is first and foremost a contract.  Therefore, all the features of a contract must exist before a valid sale can come into being.  The principal feature of a contract is that there must be consensus between the parties.  It is often said that the parties must be at consensus ad idem.”

I must hasten to say that from the papers before me and throughout argument, the court could discern apprehension from both parties.  On the one hand, applicant seemed apprehensive that the 1st respondent, buoyed by the 2nd respondent (Executor)’s attitude and acceptance of the document as valid, would want her not to make the application and the matter could be taken to the Master of the High Court as already settled especially considering the executor’s directive in his report referred to above.  Maybe, her apprehension is understandable.  On the other hand, the 1st respondent seemed apprehensive that applicant intends to use this order, if granted in her favour, to shut him out prematurely from claiming against the estate of the late Mhethusare Chikono, especially if granted in the manner prayed for in paragraph 1 of the Draft Order as opposed to the prayer in the founding affidavit (paragraph 10) as well as paragraph 2 of the draft order.  Again his apprehension too is understandable.

I re-iterate herein that this judgement is not about the rest of the arguments as to whether there was a donation or not or whether there were family gatherings or not, those are matters for a different forum on another day.  This judgement is only on the legality of the purported memorandum of agreement in issue.  It is a hand scribbled piece of paper, which this court has failed to describe as an agreement of any kind.  It is much worse than the agreement of sale in Lungisani Moyo v Nyamukonda and Another (supra).  Just as MATHONSI J considered in that case;

“In any event all may well be academic in that in this case the applicant seeks an order declaring an agreement purportedly concluded by three people including herself as null and void.”

In casu, I consider that the court cannot be party to, or encourage improper dealings in estate property done outside the confines of the law.  The 1st respondent should have waited so that he makes a proper claim against the estate instead of rushing to ask an unsophisticated old woman to sign a document on behalf of a dead husband in order to hand it to an Executor.

The court has also considered the question of costs in that this was a matter in effect driven and set in motion by the Executor’s report.

In the result, it is ordered that;

The memorandum of agreement signed on 28 November 2009, by four (4) “witnesses” in respect of “Subdivision 58 Zeederberg, Zvishavane” and Plot 7 Fernspruit Esigodini” is hereby declared null and void.

There shall be no order as to costs.

Mabundu & Ndlovu Law Chambers, applicant’s legal practitioners

Ndove and Associates, 1st respondent’s legal practitioners