Jeophrey Gohwa v Tserai Ntuli and Others

### Preamble
1
HB 124/25
HCB 1138
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JEOPHREY GOHWA

And

TSERAI NTULI (in her capacity as executrix dative of estate late Phenias Gohwa)

And

FLORA MOYO

And

MARY JOICE GOHWA

And

LEARNMORE GOHWA

And

MASTER OF THE HIGH COURT NO.

IN THE HIGH COURT OF ZIMBABWE

NDUNA J

BULAWAYO 12 JUNE 2025

Mr Madzimbamuto for the Applicant

Mr K Dewa for the 1st, 2nd, 3rd and 4th Respondent

NDUNA J: The active parties to this matter were all born of one person; the late Phenias Gohwa. These are the applicant, and 1st, 2nd, 3rd, and 4th Respondents. There is a dispute among them that concerns the ownership of a house that belonged to their late father during his life time. The applicant alleges that his late father pronounced during his life time that the said house was to evolve into the applicant’s estate upon the death of the said father. According to him, this was confirmed by the 2nd, 3rd and 4th respondents who deposed to some affidavits declaring the ownership of the house. The affidavits were deposed to on 20th of February 2003.

On 16th March 2024, and there around, the late Mr Gohwa’s children deposed to some affidavits in which they alleged that they were withdrawing the declaration that they made on 20th February 2003. The affidavit of one Tserai Gohwa has more details to the issue. It appears she had not written any affidavit in pursuant to what was written by the other children. Thereafter, on or around that same time, all those who had written affidavits affirming the applicant as having been given the house wrote one sentence affidavit to the effect that;

“I revoke the affidavit which I signed on 20th February 2003 which I also signed”

Thereafter, the estate was registered and administered.

It is note worthy that this registration of the estate was not done with the applicant being advised.

It is on this basis that the applicant has approached the court seeking the setting aside of the withdrawal affidavits. The applicant has proceeded in terms of the High Court Act [Chapter 7:06]’s section 14. It reads as follows: -

14 High Court may determine future or contingent rights

The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.

The first respondent has proceeded to argue on the basis of the Wills Act [Chapter 6:06]. He refers to section 8(6) of the Act. What is clear is that the provision does not apply here. Section 8 addresses issues to do with the making of wills. Therefore, it is only in cases where the concern is the making of wills. It would be improper to drag the subsection to address an issue which is concerned with estate. It could have been understood to be seeking to be of a general application if the proviso was a stand-alone provision.

What is very clear is that most of the parties deposed an affidavit in 2003 by which they affirmed the donation of the house to the applicant. That is 22 years ago. That donation was done by the late Gohwa personally according to evidence of the affidavits. What was to be done during the edict meeting was then to simply give effect of that position. If the position was to be challenged, then it should have been proceeded with as such rather than to act in the manner the respondents did.

It is noted that one can revoke his or her affidavit. But some conditions have to be met.

The party revoking the affidavit must depose to another affidavit. In this new affidavit, the deponent states the reasons for withdrawing or revoking their previous affidavit.

Therefore, it is clear that the revocation affidavits have no details at all. They simply state that the deponent is revoking his or her affidavit. The respondents should not have further done their revocation behind the back of the applicant. It is a requirement that the party who is to be affected by the revocation must be made aware of such revocation. Now the applicant had to dig deep into the documents as he searched for the details of the estate. That is when he came across the case details. It was at that stage that he noted that there were some revocations as reflected on the affidavits. As a person who is affected by the withdrawal, the applicant had a right to be made aware of the affidavits and their intended use. He was already in the country when the affidavits were used. The applicant has taken issue with the validity of the withdrawal affidavits. He alleges that they do not show the full names of the commissioner of oaths who administered the oaths. A close look at he affidavits shows that the are names of the commissioner of oaths embedded in the stamps. There are difficulties in reading the names but one can eventually read them. It suffices to state that whilst a finding is made to the validity of the affidavits, they have no effect on the matter. It remains improper for the respondent to have insufficiently and secretly evoke their affidavits.

It is for this reason that I grant the application as prayed for as follows: -

The application succeeds

The revocation of affidavits initially deposed in 2003 by the 2nd, 3rd, and 4th Respondents through a set of new affidavits deposed in June 2024 be and is hereby declared unlawful and accordingly set aside

Consequently the 1st Respondent is ordered to accept the initial affidavits deposed to by the 2nd, to the 4th Respondents in 2003 which form part of the Deceased Estate record

Consequently, the decision by the 5th Respondent to accept the revocation of the initial affidavits and refusal to have the new affidavits expunged from the record be and is hereby set aside

1st to 4th Respondents to pay costs on an attorney and client scale jointly and severally one paying the other to be absolved.

Kajokoto & Company, applicant’s legal practitioners

Liberty Mcijo Associates, respondents’ legal practitioners