Agnes Paradza v Brighton Paradza & 3 Ors & 4 Ors

HH 214-2011
                                                                         HC 9439/11
AGNES PARADZA
versus
BRIGHTON PARADZA
and
PEER PARADZA
and
ZANDA PARADZA
and
GILBERT MKWENA
THE OFFICER IN CHARGE
(CHITUNGWIZA POLICE STATION)
and
THE OFFICER COMMANDING
(CHITUNGWIZA POLICE STATION)
and
THE COMMISSIONER GENERAL
OF THE ZIMBABWE REPUBLIC POLICE
and
THE CO-MINISTERS OF HOME AFFAIRS



IN THE HIGH COURT OF ZIMBABWE
GUVAVA J
HARARE, 29 September 2011 & 7 October 2011

FAMILY LAW COURT
Urgent Chamber Application


N. Mugiya, for the Applicant
1st 2nd & 3rd Respondents in person
4th Respondent in default
P. Rusinga, for 5th to 8th Respondents

       GUVAVA J: This matter in my view highlights some of the glaring conflicts
between customary law and the general law. This matter presented itself before me in
chambers on a certificate of urgency in terms of r 244 of the High Court Rules 1971 as
amended. The applicant sought an order in the following terms:
       "TERMS OF FINAL ORDER SOUGHT
       That you show cause to this Honourable Court why a final order should not be
       made in the following terms:
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          1.       That first, second, third, fourth and fifth respondents be and are hereby
                   barred from evicting applicant from property known as house number
                   16351 Unit M Seke, Chitungwiza.

          2.       That first, second, third and fifth respondent are barred from visiting the
                   applicant at stand number 16351 Unit M Seke, Chitungwiza

          3.       The first, second, third and fourth respondents be ordered to return the
                   items listed on para 17 of the founding affidavit to the applicant.

          4.       The first, second, third, and fourth respondents pay costs on a higher
                   scale

INTERIM RELIEF GRANTED
Pending the confirmation of the final order sought, the applicant is granted the following
relief:
          1. That first, second, third and fourth respondents are ordered to reinstate or
             restore the applicant possession of house number 16351 Unit M, Chitungwiza
             and all the property listed in para 17 forthwith.

          2. That first, second and third respondents are interdicted from interfering with
             applicants peaceful possession of stand No 16351 Unit M Seke Chitungwiza.

          3. That should the first, second and third respondents fail to comply with para 1
             above, fourth and fifth respondents are ordered to restore applicants
             possession.

          4. Should the first, second, third and fourth respondents have taken occupation
             of stand No 16351 Unit M Seke Chitungwiza, that they be ordered to vacate
             the same forthwith."

          The facts giving rise to this matter are common cause and may be summarized as
follows. The applicant married the late Wilbert Paradza (the deceased) in terms of the
Marriages Act [Cap 5:11] on 4 December 2002. At the time of their marriage the
deceased was a widower aged 44 and the applicant was 19 years old. This marriage
followed the death of his first wife for whom applicant had worked as a maid. The
deceased and his first wife had three children. The first respondent in these proceedings is
the deceased's eldest child. On 15 May 2007 the deceased died and left an immoveable
property being house number16351 Unit M, Chitungwiza. He had acquired this property
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with his late wife but continued to reside there with the applicant as their matrimonial
home. Following the deceased's death the applicant continued to reside on the said
property. In 2007 the applicant proceeded to register the estate with the Master of the
High Court under reference DR601/07. The applicant was duly appointed executrix of the
deceased's estate. She has since filed a first and final distribution plan wherein she seeks
to be awarded the immoveable property as the deceased's surviving spouse. The
distribution plan has been approved by the master but his decision is being challenge by
the first respondent and his two sisters in case number HC3586/10. The matter is
presently pending in this court.
       In the middle of the night on 23 September 2011, the first, second and third
respondents arrived at the house in the company of three police officers from
Chitungwiza Police Station. They broke down the doors and removed the applicant
forcibly from her home together with her five day old baby. They alleged that she had
been unfaithful to her dead husband. The applicant was unceremoniously bundled into a
truck and driven to her rural home in Kanobvurunga Village, Chief Mutumba in
Madziwa. The applicant left behind some household goods which she had been using in
the home together with cash in the sum of US$450.00. The first to fourth respondent have
taken up residence at the property and will not allow the applicant to return.
       The application was vigorously opposed by the respondents. The fifth to eighth
respondents were represented by the Civil Division of the Attorney General's Office.
They stated that they were not aware of the actions of the police officers who had assisted
the respondents in removing the applicant. They stated that if indeed the police officers
had behaved in the manner described then they had acted outside the scope of their
duties. Mr Mugiya who was representing the applicants withdrew the claim as against the
fifth to eighth respondents in the light of this evidence. The first to third respondents
denied that they had forcibly removed the applicant from the house. It was their evidence
that they had been living amicably with the applicant. The situation changed when she
fell pregnant and matters came to a head when she gave birth to a baby boy and brought
him home. The respondents were at pains to explain that culturally they could not stay
with the applicant as she had brought into the family a child from another man. They
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stated that after holding a family meeting it was agreed that the applicant should be taken
to her parent’s home. It was the respondent's case that she went of her own free will and
was received by her family members. They were however adamant that the applicant
could not return back to the house. They denied that they had brought the police in order
to assist them in evicting the applicant. They stated that it was actually the applicant who
had called the police to assist her.
        The mandamus van spolie upon which the applicant relies is an extraordinary
remedy which is granted by the court in order to prevent self help and unlawfulness in a
civilized society. Its objective is without a doubt the protection of property. This principle
has been set out in a number of judgments of this court. It was set out succinctly in the
case of Nino Bonino v de Lange 1906 TS 122 where INNES CJ stated as follow:
        "it is a fundamental principle that no man is allowed to take the law into his own
        hands; no one is permitted to dispossess another forcibly or wrongfully and
        against his consent of the possession of property, whether moveable or
        immoveable. If he does so the court shall summarily restore the status quo ante,
        and will do that as a preliminary to ant enquiry or investigation into the merits of
        the dispute" (see also Dodhill (Pvt) Ltd & Anor v Min of Lands and Rural
        Resettlement & Anor 2009 (1) ZLR 182 (H)

        It is thus apparent from the above that the question of lawfulness of the possession
of the property does not fall into consideration when such an application is made. The
court is merely concerned with a two pronged enquiry which is:
        1. Whether the applicant was in peaceful possession of the property
        2. Whether the applicant was unlawfully dispossessed.
        From the facts of this case it is clear that the applicant was in undisturbed
possession of the property until the night in question. The first and second respondents
confirmed this position as they say they were staying amicably with the applicant as she
was their step mother. The first respondent submitted in his opposing affidavit that the
applicant was not entitled to the property as it had been acquired by their parents prior to
her marriage to their father. In my view however that argument has no bearing in an
application such as the one before me. Her right to inherit the property is an issue which
is already before this court and will be determined by that court. I am satisfied that the
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applicant has met the first part of the enquiry and I move on to deal with the
dispossession.
       From the papers that have been filed before me there appears to be a dispute as to
whether or not the applicant was removed forcibly or left of her own accord. The
applicant submits that she was forced into a motor vehicle and driven away without her
consent. The first respondent submits that after the meeting the applicant agreed to go to
her parent's home as she had had a child with another man. He denied that they came in
the company of police officers to evict the applicant. He alleges that she is the one who
called the police in order to get assistance.      The second respondent submitted that
culturally they acted in a proper manner as they were obliged to return the applicant to
her parents in view of the birth of the baby.
       It seems to me that the dispute raised in the papers can properly be resolve on the
papers. It is quite apparent from the papers that the birth of a baby by the applicant long
after the demise of her husband has generated considerable emotion in the deceased's
family. The meeting that was held that night could not have been an amicable one. Even
if I were to accept the first respondents version that it was the applicant who called the
police to the house it paints a very vivid picture which shows that there was enough
acrimony to entitle applicant to feel threatened enough to have called them in for
assistance. She obviously did not want to leave.        This is further confirmed by the
promptness with which the applicant has filed this application. In my view all these
factors point to the inevitable conclusion that the applicant was removed against her will.
       The facts of the matter before me, in my view, bring to the fore the conflict
between general law and customary law. On the one hand, the general law principles as
set out in the cases cited above are very clear with regards to applications for spoliation.
It is quite apparent on these facts that the applicant was despoiled of her possession of the
house she was residing in. On the other hand the respondents can barely restrain
themselves as they are of the view that the applicant should not remain in the deceased's
house as she now has a child from another man. They argue that their actions were not to
despoil the applicant but were in accordance with customary law.
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        It is however clear from the papers that the matter which has been brought before
me falls squarely under general law. The applicant was married to the deceased in terms
of the Marriages Act [Cap 5:11]. In determining the succession rights in this case the
principles that will govern are obviously general law principles. I can find no basis upon
which customary law would apply in this case.
       The applicant stated that she had also been despoiled of some household goods
and money in the sum of $450.00. The first respondent filed a supporting affidavit of one
Angella Joromani who stated that she had bought the fridge from the applicant. This
evidence was not seriously challenged by the applicants counsel and I therefore find that
the fridge was indeed sold by the applicant. The claim for US$450.00 was not pursued
with any vigor by the applicant. Apart from the bald averment in the papers there is no
evidence where the money was kept or whether it was no longer where she had left it. In
view of the first respondent's submission that the applicant would not have so much
money as he was providing for her upkeep which was not disputed by the applicant, I
find that the applicant has not established that she was in possession of this amount.
       In the result I find that the applicant has established a prima facie case and is
entitled to the interim relief that she seeks. I therefore make the following order:
       Pending the confirmation of the final order sought, the applicant is granted the
following relief;
       1. That first, second, third and fourth respondents are hereby ordered to reinstate
           or restore the applicant’s possession to stand number 16351 Unit M,
           Chitungwiza forthwith.
       2. The first, second, third and fourth respondents are hereby ordered to restore to
           the applicant’s possession forthwith the following property: room divider,
           kitchen unit, four piece set of sofas, coffee table, dining table and 24 inch
           colour TV.
       3. That the first, second, third and fourth respondent be and are hereby
           interdicted from interfering with applicants peaceful possession of stand
           number 16351 Unit M Seke Chitungwiza.
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       4. That should the first, second, third and fourth respondents fail to comply with
           paras 1 and 2 of this order the Deputy Sheriff is hereby authorized to restore
           applicant’s possession.
       5. Should the first, second, third and fourth respondents have taken occupation
           of stand number 16351 Unit M, Seke, Chitungwiza they are ordered to vacate
           the property forthwith.




Mupindu & Mugiya Law Chambers, applicant’s legal practitioners
Civil Division of the Attorney General's Office, 5th to 8th respondents’ legal practitioners