Marcus W. Rance v Obert Vundhla

### Preamble
1
HB 181.20
HC 96/19
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MARCUS W. RANCE

Versus

OBERT VUNDHLA

HIGH COURT OF ZIMBABWE

KABASA J

BULAWAYO 24 JULY AND 27 AUGUST 2020

Opposed Application

L Mpofu, for the applicant

Advocate Siziba, for the respondent

KABASA J: 	This is an application for rescission of judgment granted in case number HC 2150/07 and subsequently corrected in HC 1148/08.  The rescission is sought in terms of Rule 449 of the High Court Rules, 1971.

Rule 449 (1) (a) provides that:-

“The court or a judge may in addition to any other power it or he may have, mero motu or upon the application of any party affected, correct, rescind, or vary any judgment or order-

(a)	that was erroneously sought or erroneously granted in the absence of any party affected thereby....”

The applicant, as articulated in his founding affidavit, avers that the order granted in HC 2150/07 was erroneously granted as it was premised on an illegal transaction.

The background to the matter is this:  The applicant and Chasiso Valentine Mpofu are brothers whose mother Siphosakhe Sibanda died intestate on the 16th May 2004.  Siphosakhe was the owner of stand 8438 Nkulumane situated in Bulawayo.  One Admire Nyathi who is the applicant’s cousin is currently residing at this house.

The respondent allegedly bought this house from a Kumbirai Nemera, who is said to be the late Siphosakhe’s niece.  The sale was allegedly concluded through an oral agreement.  The respondent then instituted proceedings under case number HC 2150/07 against Kumbirai Nemera to compel her to effect transfer of the house to him.  The process therein was served through substituted service and the respondent subsequently obtained a default judgment.  The court order directed Kumbirai to transfer stand 8438 Nkulumane into her name and thereafter into respondent’s name, failing which the Deputy Sheriff was to sign the necessary papers to effect such transfer.  The respondent thereafter issued summons under case number HC 1857/09 seeking to evict Admire Nyathi from the house.

On 20th November 2018 the respondent again issued summons out of the Magistrates Court, under case number 7710/18 seeking the eviction of Admire Nyathi.  The particulars of claim made reference to the order granted under HC 2150/07 and HC 1148/08 as the basis for the respondent’s claim to stand 8438 Nkulumane.

The applicant who is based in South Africa avers that it was upon his visit to Zimbabwe in December 2018 that he was shown a copy of the summons by Admire.  The applicant then instructed counsel who perused the contents of HC 2150/07 and HC 1148/08.  This revealed that there was an extant court order which authorised the transfer of Siphosakhe’s immovable property into the respondent’s name.

The present application seeking to vacate the orders in HC 2150/07 and HC 1148/08 was then filed on 22nd January 2019.

The application was opposed by the respondent on the merits and he also took points in limine.

The opposing affidavit was deposed to by a Zazinhle Tshuma on behalf of the respondent who granted the deponent Power of Attorney to so act on his behalf.  The applicant also took a point in limine to the effect that there was no opposition to the application as the deponent to the opposing affidavit did not meet the standard in Rule 227 (4) (a) of the High Court Rules, 1971.  That being so because he has no personal knowledge of what he was deposing to and so could not swear to the truthfulness of the averments therein.

At the hearing of the matter, Advocate Siziba who argued the matter raised a number of points in limine which had not been specifically raised in the papers.

In his opposing affidavit the deponent had raised two preliminary points, the first being that the failure by the applicant to specify which sub rule of Rule 449 he was relying on was fatal to his application and the second flowing from the first point, being that there was an inordinate delay in bringing the application.  Reliance on Rule 449 was meant to avoid seeking condonation.  The application therefore ought to fail due to the inordinate delay.

At the hearing Advocate Siziba raised two more preliminary points.  These being that the applicant’s claim is predicated on his being a beneficiary to his late mother’s estate.  As such only an executor can represent a deceased estate.  Further, since the application relates to a deceased estate the provisions of Rule 248 have to be complied with.  Rule 248 requires that a Master’s report be prepared after such application is served on the Master.  This was not done and so the application ought to fail.

I propose to consider all the points in limine notwithstanding the fact that counsel for the applicant appeared to have abandoned the preliminary point relating to the deponent of the opposing affidavit. This is a matter relating to the admissibility of evidence. As such “...admissibility of evidence is a question of law and not of judicial discretion. Evidence is admissible either under the rules of common law or under statute. Hearsay evidence is no exception. Once an item of evidence constitutes hearsay, it must be sanctioned by statute or the common law to be admissible. If it does not, it remains inadmissible as a matter of law and stands to be rejected by the court even if not specifically objected to by the opposing party”( Mokhosi and 15 Others v Justice Charles Hungwe and 5 Others [2019]LSHC 9)

In casu, Zazinhle Tshuma deposed to an affidavit wherein he said:-

“The respondent in this matter is my principal and have read and understood the applicant’s founding affidavit and have been advised, and accept that I have to respond as follows:-----------”

Rule 227 (4) (a) provides that:-

“An affidavit filed with a written application –

(a)	shall be made by the applicant or respondent, as the case may be, or by a person who can swear to the facts or averments set out therein.”

Zazinhle Tshuma cannot swear to the facts as he clearly exhibited that he has no personal knowledge of the facts he was deposing to.  He all but accepts that he is acting as the respondent’s mouthpiece and all he deposed to is as per the respondent’s ‘instruction’.  Zazinhle derived the authority to do so by virtue of a Special Power of Attorney granted to him by the respondent.

In Jean Hiltunen v Osmo Juhani Hiltumen HH 99/08 MAKARAU JP (as she then was) held that the deponent to the founding affidavit who had acted by virtue of a Power of Attorney had no personal knowledge of what she averred in the entire founding affidavit.

‘She either believes what she is saying to be correct or she has been informed and verily believe it to be correct.”

After citing several South African cases (Pounta’s Trustee v Lahanas 1924 WLD 67, Grant – Dalton v Win and Others 1923 WLD 150 and Levin v Saidman 1930 WLD 256) the learned judge agreed with the South African authorities that “.... unless it is in urgent interlocutory applications, hearsay evidence remains inadmissible in affidavits.  While I have not been able to find any local cases where the Pounta’s and Levin’s cases have been cited and directly applied in Zimbabwe, it seems to me that the two decisions correctly state the practice of this court, albeit one that has to some extent been amended by the relaxation to the rule against hearsay evidence provided in section 27 of the Civil Evidence Act (Chapter 8:01), making first hand hearsay evidence admissible on conditions. Section 27 (1) of the Civil Evidence Act provides:

“Subject to this section evidence of a statement made by any person, whether orally or in writing or otherwise, shall be admissible in civil proceedings as evidence of any fact mentioned or disclosed in the statements, if direct oral evidence by that person of that fact would be admissible in those proceedings.”

The learned judge proceeded to articulate the circumstances under which first hand hearsay would be admissible.  She had this to say:-

“For first hand hearsay to be admissible under the Act, the evidence must be about a statement made orally or in writing by another person.  The person who made the statement must in my view be identified and it must appear from the nature of the evidence that the contents of the statement would have been admissible from the mouth of that person were he or she present and testifying.”

In casu the deponent’s averments are attributed to the respondent, the source of the statement was therefore identified and had the respondent testified in person such evidence would have been admissible.  That being so because it is not opinion evidence which would be inadmissible except if coming from an expert.  It is also not based on hearsay for it to be deemed second or third hand hearsay.

The authority the deponent has is from a Special Power of Attorney and specifically with regards to the litigation in respect of stand number 8438 Nkulumane which the respondent has personal knowledge of.  Whilst it is not stated why the respondent did not himself depose to the opposing affidavit, it is my considered view that the provisions of section 27 (1) of the Civil Evidence Act apply in casu.

This being first hand hearsay it follows that the opposing affidavit is properly before the court.  There is therefore opposition to the application.

This point in limine is therefore dismissed.

I turn now to the rest of the points in limine

The applicant’s application, as articulated in his founding affidavit makes it clear that it is in terms of Rule 449 (1) (a).  There is specific mention of a desire to vacate a judgment that was erroneously granted.

The taking of this point in limine is merely an emphasis of form over substance.  This probably explains why Advocate Siziba appeared to have abandoned it.  It has no merit and I do not intend to unduly exercise my mind on it.  It is accordingly dismissed.

The next point relates to the bringing of the application in terms of Rule 449.  Rule 449 does not stipulate time lines within which such applications should be brought unlike Rule 63.

When rescission is being sought in terms of Rule 63, the applicant must bring the application within a month after he has had knowledge of the judgment and he is deemed to have had such knowledge within 2 days after the date thereof.

This does not mean that a Rule 449 application can be brought years later without so much as an explanation as to why it was not brought within a reasonable time.

Advocate Siziba relied on MATHONSI J‘s (as he then was) judgment in Harold Manyame and Another v Emily Karimazondo and 10 Others HH 750-15 for the proposition that an application under Rule 449 must be brought within a reasonable time.

It is important to note however that the facts in the Manyame case (supra) markedly differ with those in casu.  The applicants in the Manyame case were seeking the rescission of a judgment 13 years later when the first applicant had become aware of the court order immediately after it was granted and had filed an application for rescission which was not prosecuted.  They then sought to seek the same relief 4 years later without explaining what became of the first application and what was happening in the 4 years they took to bring a similar application.

The learned judge concluded by saying:-

“Rule 449 is silent on the time frame within which an application made under it should be brought but that does not mean that a party relying on that rule is at liberty, without more, to come to court anytime seeking a rescission of judgment.  The application should be made within a reasonable time after knowledge of the offending judgment.  In my view 4 years is not a reasonable time.”

The applicant in casu explained that he is based in South Africa and although in 2009 his cousin, Admire, had advised him of visits by members of the CID over the fraudulent sale of the house to several buyers there was no mention of the existence of the court order he now seeks to vacate by way of rescission.

It was only in December 2018, 29th to be exact, when the applicant came to Zimbabwe, that he became aware of the summons for eviction which made reference to the orders in HC 2150/07 and HC 1148/08

There is nothing to controvert this assertion and whilst it may be said the applicant should have taken more interest in 2009, the fact stands that he was not aware of the court orders.  This application was filed on 22nd January 2019 and it cannot be said the applicant did not act with haste to seek the vacation of the offending court order.

The suggestion that the applicant must have known of the litigation that resulted in the order he seeks to vacate because the plea filed in case number 1770/18 makes averments similar to those in applicant’s founding affidavit fails to appreciate that the applicant and Admire are not strangers. They are cousins and Admire has been staying at the contentious immovable property as far back as 2009, if not earlier. It therefore cannot be said Admire could only have known the details contained in his plea from the applicant, which equally means the applicant has known for a long time about the litigation. Such an inference cannot be correct in the circumstances, especially in light of the applicant’s explanation of how he came to know of the order in HC2170/07. HC1148/08 only sought to correct an error in the stand number which had been cited as 8483 instead of 8438.

The applicant therefore explained that which without an explanation would be deemed an inordinate and unreasonable delay.  It therefore cannot be said, as was the case in the Manyame case (supra) that the applicant, “without more”, seeks to approach the court to rescind a court order granted almost 10 years ago.

This point in limine is therefore without merit and must equally fail.

The next point is on locus standi.  The applicant is the biological son of the late Siphosakhe Sibanda.  The law regards him and his brother as the beneficiaries to their mother’s estate.

Section 68 of the Administration of Estates Act, Chapter 6:01 defines a beneficiary as:-

(a) 	“a surviving spouse or child of the deceased person.”

The deceased was a widow as per the death certificate filed of record.  It follows therefore that her two sons are the beneficiaries to her estate.

Advocate Siziba cited KUDYA J’s judgment in Nyandoro and Another v Nyandoro and 3 Others HH 89-2008 as authority for the position that the only person who can represent a deceased estate is an executor.

The applicant stated that the estate was never registered until recently.  As at the time of the sale of the immovable property the estate was not registered.  Advocate Siziba was not able to state with certainty that the estate was registered and an executor duly appointed.  HC 2150/07 does not have any document as proof that the estate was registered. I requested for the record from Archives and the contents show that the respondent was not sure of the registration of the estate or the nature of the relationship between Kumbirai and the deceased. Kumbirai was also cited in her personal capacity and not as an executrix of the estate. There is reference to a possible fraud by Kumbirai and the respondent was seeking an alternative of damages in the event that it was shown that Kumbirai had fraudulently sold the house.  The mere reference to ‘estate late Siphosakhe Sibanda’ in HC 2150/07 does not mean the estate was registered. All indications point to the fact that this estate was not registered and accords with Mr.Mpofu’s submission that “on our part it was common cause that the estate was not registered”

The applicant therefore derives the authority to bring this application by virtue of him being the son to the late Siphosakhe and therefore a beneficiary of his mother’s estate.  This endows him with locus standi to assert a right and protect his and by extension his brother’s interests.

It matters not, in my view, that Valentine was not joined to the application.  The applicant’s desire is to have the property in question accounted for in his late mother’s estate and once that is done, all beneficiaries, if there be more, will then be accounted for.

This point in limine equally lacks merit and must equally fail.

So too is the point on the purpose of Rule 449.  Contrary to Advocate Siziba’s argument that Rule 449 is meant to correct procedural errors made by the court, the purpose extends to correction of more than just procedural or technical errors.

In Chitiyo NO v Chiguba and 2 Others HH 92-18 CHIWESHE JP had this to say with regards to Rule 449 applications:-

“In applications of this nature, in order to succeed, the applicant need not show that he has a bona fide defence.   – it is sufficient if he established that the order sought to be rescinded was erroneously sought and granted in the absence of a party who had a substantial interest in the matter.”

In Tiriboyi v Jani and Another HH 117-2004 MAKARAU J (as she then was) articulated the purpose of Rule 449 thus:-

“The purpose of Rule 449 appears to me to enable the court to revisit its orders and judgments to correct or set aside its orders and judgments given in error and where to allow such to stand on the excuse that the court is functus officio would result in an injustice and will destroy the very basis upon which the justice system rests.  It is an exception to the general rule, and must be resorted to only for the purposes of correcting an injustice that cannot be corrected in any other way.”

The import of the applicant’s application is that had the court which granted the order he seeks to vacate been aware that the estate of his late mother had not been registered and that Kumbirai Nemera was not a beneficiary or an executrix of that estate, it would not have granted the order which effectively robbed the beneficiaries of the late Siphosakhe of their inheritance.  It is therefore not based on the argument that he was not joined to the proceedings in HC 2150/07 and so seeks rescission so he can be so joined.  If that was so then it could be argued that the non-joinder was not an error of the court as “it is not the duty of the court to go looking for all potential respondents in suits brought before it,” per MAKARAU J in the Chitiyo case (supra)

I am therefore persuaded by Mr Mpofu’s argument that a Rule 449 rescission allows the court to go to the substance of the matter in considering whether the order was granted in error or not.  It is not merely meant to correct technicalities.

Just like the other points in limine before it, this point in limine also lacks merit and must equally fail.

The last point is on the Master’s report provided for in Rule 248 of the High Court Rules, 1977.

Rule 248 provides that:-

(1) 	“In the case of any application in connection with-

(a)	the estate of a deceased person ... a copy of the application shall be served on the Master not less than ten days before the date of set down for his consideration, and for report by him if he considers it necessary or the court requires such a report.”

It is my considered view that this rule envisages a situation where the estate has been registered.  If there is no such registration what is it that the Master will base his report on?  The Master becomes seized with an estate of a deceased person upon the registration of such estate.  Without such registration the Master will be none the wiser as to the existence of such an estate.

It is not disputed the process in HC 2150/07 and HC 1148/08 was served through substituted service.  A litigant can only resort to such upon the grant of an application authorising such a method of service.  Such application can only be granted upon the applicant satisfying the court that service of the process cannot be effected in any of the ways provided for in the rules because the respondent or defendant’s whereabouts are unknown.  This does not speak to an estate which was registered resulting in the appointment of an executor who then acquired Section 120 authority from the Master to dispose of the immovable property.

The foregoing goes to buttress the applicant’s averment that the estate of his late mother was not registered.  The issue of the Master’s report does not therefore arise.

This point in limine also lacks merit and must also fail.

I must say the court ought to have asked the parties to address it on merits to avoid the unfortunate and regrettable situation that is now inevitable with the dismissal of the points in limine.

Had the parties addressed the court on the merits notwithstanding the fact that the points in limine would have disposed of the matter had they been upheld, the court would have proceeded to move to the merits and dispose of the matter once and for all.

This the court is now handicapped from doing because the parties only addressed it on the points in limine and ended there.

Much as this turn of events is regretted, there is not much point in crying over spilt milk.  The parties will now have to argue the matter on the merits.

In the result, I make the following order:-

1.	The points in limine be and are hereby dismissed.

2.	Costs shall be in the cause.

Malinga & Mpofu, applicant’s legal practitioners

Messrs Shenje and Company, respondent’s legal practitioners