Edleen Matonhodze v Minister of Justice N.O. and Florence Mapuvire N.O. and Florence Mapuvire and Master of the High Court

### Preamble
1
HH 517-22
HC 2496/21
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EDLEEN MATONHODZE

versus

MINISTER OF JUSTICE N.O

and

FLORENCE MAPUVIRE N.O

and

FLORENCE MAPUVIRE

and

MASTER OF THE HIGH COURT

HICH COURT OF ZIMBABWE

MUCHAWA J

HARARE, 15 June & 29 July 2022

Opposed Matter

Mr M Chipetiwa, for the applicant

Mr M Mavhiringidze, for 2nd and 3rd respondents

No appearance for 1st and 4th respondents

MUCHAWA J: This is a court application for a declaratur in which the following order is sought;

“IT IS ORDERED THAT:

The application for a declaratory be and is hereby granted.

The certificate of heir issued in favour of  Frank Mapuvire on the 1st day of October 1990 by the Chibi Community Court be and is hereby declare null and void. (sic)

The transfer of property from the Estate of Frank Mapuvire to Florence Mapuvire be and is hereby declared null and void,

The shop commonly known as Chamahota Store, the house commonly known as stand No. 110 Chivi Township and the rural homestead situate at Chivi be declared the matrimonial property of the late Edward Gwainda Mapuvire and Nellie Mapuvire.

The applicant be declared the heir to the estate of Edward Mapuvire and Nellie Mapuvire.

The 2nd and 3rd respondents be and are hereby ordered to pay costs of suit.”

The brief background facts of this matter are that the late Edward Gwainda Mapuvire customarily married Nellie Mapuvire in 1960.  On 21 December 1963, they registered their marriage under general law as per marriage certificate on p 7 of the record.  There were three children born to this marriage, as follows;

Frank Mapuvire was born on 31 December 1960 and he died on 25 March 1997;

Florence Mapuvire was born on 17 March 1963 and died on 11 March 1996; and

Edleen Matonhodze who was born on 1 July 1965 and is the only surviving child and applicant in this matter.

Edward Gwainda Mapuvire died on 28 September 1989 whilst Nellie Mapuvire died sometime in 2012.  The late Frank Mapuvire was appointed heir to his father’s estate on 1 October 1990.  The late Frank Mapuvire is survived by a daughter, the third respondent.  She was appointed executrix dative to the estate of the late Edward Gwainda Mapuvire which was registered with the fourth respondent under DR 2667/15 after having been issued with letters of administration on 10 May 2016.  Nothing further was done in the winding up of the estate until the applicant made an application for the removal of the third respondent from being executor dative and the cancellation of the letters of administration issued by the fourth respondent in favour of the third respondent and that an independent executor be appointed. This application was granted under case HC 8083/19 on 11 May 2021.  This matter therefore pits the applicant who is the aunt against her niece, the third respondent.

The second respondent is cited in her official capacity as executor of the estate of the late Frank Mapuvire. Florence Mapuvire is also cited as third respondent, in her personal capacity. The fourth respondent is cited in his official capacity as the one charged with the administration of all deceased estates, including the ones in casu.  The first respondent is also cited in his official capacity.

The application is opposed and the second and third respondents raised points in limine which I heard the parties on and reserved my ruling. This is it.

Whether the annexures attached to the applicant’s answering affidavit should be expunged from the record.

The respondents objected to the applicant having annexed certain documents to her answering affidavit and argued that this was contrary to the rules, particularly r 227 of the High Court Rules, 1971, as new facts cannot be introduced by way of the answering affidavit. Mr Chipetiwa correctly conceded to this.  I proceeded to expunge the annexures on pp 33, 34 and 35 of record.

Whether the matter has prescribed

Mr Mavhiringidze submitted that the claim before me has prescribed in terms of s 15 (d) of the Prescription Act as read with s (2) thereof which defines what a debt is.  It was contended that a claim is covered as anything that can be sued for.  This application in which the applicant seeks a declaretur was said to be prescribed as the certificate of heir sought to be impugned was issued some thirty years ago.  It was argued on the strength of the cases of John Conradie Trust v The Federation of Kushanda Pre-Schools Trust & 3 ORS SC 12/17 that once prescription has run its course, the owner forfeits rights to his claim and the merits of the case do not arise and are irrelevant.  Reference was also made to the case of James v Katsiga & 3 ORS SC 36/07 to demonstrate that a person who had sat on his rights for 16 years without asserting them could not try to set aside the certificate of heirship as his claim had already been thrown out by the courts.

Furthermore, Mr Mavhiringidze sought to rely on s 4 of the Prescription Act, in arguing that acquisitive prescription was applicable as 30 years had run from 1990 to 2021 and the applicant had no legal basis to seek a declaratur.  It was stated that the late Frank Mapuvire and his successors in title had openly possessed the Chamahota store for an uninterrupted period of thirty years. The court was urged to uphold the principle of finality to litigation and avoid the clogging of the court with stale matters.

Mr Chipetiwa submitted that the law does not say that a nullity can prescribe because a nullity is a nullity and cannot be sanitized. It was averred that Frank Mapuvire was never in possession for thirty years and reliance was placed on s 6(1) (c) of the Prescription Act which provides for when prescription is delayed.  This was said to include when a person dies and there is no executor. In this case Frank Mapuvire died on 25 March 1997 and his estate was only registered in 2018.  The period from 2018 to 2021 was said to fall far too short of the thirty years required in order to found acquisitive prescription.

Mr Chipetiwa objected to Mr Mavhiringidze bringing the question of prescription in terms of s 15 (d) on prescription of debts for the first time in oral submissions.  It was submitted that it is unfair to only raise this for the first time in oral submissions as the point is not backed by the affidavit on record.  It was further submitted that as the certificate of heir is a nullity, the court cannot condone what was done and uphold prescription in respect of a nullity.

Mr Mavhiringidze submitted that a point of law can be raised at any time and backed this up with the authority from Allied Bank Limited v Caleb Dengu & Anor SC 52/16.  I am not sure why he pointed the court to this authority as it does not assist his case. See the below quotation;

“Although it is trite that a point of law can be raised at any stage during proceedings that does not mean that the point of law can be raised anyhow. In order for one to raise a point of law validly at any stage, notice must be given to the other party of the intention to raise the point. There must be a formal way of raising the point.”

In the case of Austerlands (Pvt) Ltd v Trade and Investments Bank & ORS SC 92/ 05.  The Honourable chidyausiku CJ stated as follows;

“The principles applicable to the raising of a point of law for the first time on appeal were succinctly set out by KRIEGLER J in the case of Donelly v Barclays National Bank Ltd 1990 (1) SA 375 at 380H-381B, where the learned judge had this to say:

“Secondly, it is clearly a wholly new line of defence now being taken.   It was not mentioned in the summary judgment proceedings nor in the plea.   It was never referred to in evidence or argument at the trial.   Its mere novelty, of course, is no ground per se for rejecting it.   However, generally speaking, a Court of Appeal will not entertain a point not raised in the court below and especially one not raised on the pleadings in the court below.   In this regard I need do no more than to refer to Herbstein & Van Winsen The Civil Practice of the Superior Courts in South Africa 3 ed at 736-737.   In principle, a Court of Appeal is disinclined to allow a point to be raised for the first time before it.   Generally it will decline to do so unless –

(1)	the point is covered by the pleadings;

(2)	there would be no unfairness to the other party;

(3)	the facts are common cause or well-nigh incontrovertible; and

(4)	there is no ground for thinking that other or further evidence would have been produced that could have affected the point.

See Cole v Government of the Union of South Africa 1910 AD 263; Van Ryn Wine and Spirit Co v Chandos Bar 1928 TPD 417 at 421; and Paddock Motors (Pty) Ltd v Igesund 1976 (3) SA 16 (A) at 23.”

Though this matter is not an appeal, I believe the same principles are applicable. The point of prescription is covered in the pleadings, albeit for acquisitive prescription only.  The facts on which it is based are common cause and there is no basis for thinking that other evidence would need to be produced that could have affected the point.  There would therefore be no unfairness to the other party and I will proceed to consider both points.

The Prescription Act is also in favour of the court dealing with this question of prescription because in the proviso to s 20, it is provided that a court may allow prescription to be raised at any stage of the proceedings.

I start with acquisitive prescription.  The Prescription Act provides as follows in s 4.

“Acquisition of things by prescription

Subject to this Part and Part V, a person shall by prescription become the owner of a thing which he has possessed openly and as if he were the owner thereof for—

(a) an uninterrupted period of thirty years; or

(b) a period which, together with any periods for which such thing was so possessed by his predecessors in title, constitutes an uninterrupted period of thirty years.”

Section 6 provides for instances when prescription is delayed and in ss 1 (c), it is clear that the death of a person delays the running of prescription if a person in favour of whom prescription is running is deceased and an executor of the estate has not yet been appointed.  Mr Chipetiwa was therefore right in saying that Frank Mapuvire did not hold the property for an uninterrupted period of thirty years so as to have the second and third respondents successfully raise the point of acquisitive prescription. See below;

“When completion of prescription delayed

(1) If—

(c) the person against whom or in favour of whom the prescription is running is deceased and an executor of the estate in question has not yet been appointed;”

There is therefore no merit on the point of acquisitive prescription.

The Prescription Act defines a debt in s 2 as follows; “debt”, without limiting the meaning of the term, includes anything which may be sued for or claimed by reason of an obligation arising from statute, contract, delict or otherwise.”

S 15(d) pointed to by Mr Mavhiringidze provides as follows;

“Periods of prescription of debts

The period of prescription of a debt shall be—

(d) except where any enactment provides otherwise, three years, in the case of any other debt.”

The first question to be determined therefore is whether the appointment of Frank Mapuvire as heir in 1990 was anything which could be sued for or claimed by reason of an obligation arising from statute, contract, delict or otherwise.

In the case of Ndlovu v Ndlovu & Anor 2013 (1) ZLR 110, the Honourable ndou J dealt with a case on all fours as this one.  Therein the applicant sought a declaratory order to the effect that the purported sale of his house to the first defendant was unlawful and void and for an order restoring possession of the house to him.  The application was made well over three years after the first defendant had taken possession of the house and the issue was whether the claim had prescribed in terms of the Prescription Act.

The Honourable ndou J distinguished between a debt as defined in s 2 of the Prescription Act and public rights.  His reasoning which I fully associate with went as follows

“The point worth noting in this definition of “debt’ is that the suit or claim must be “by reason of obligation” on the part of the debtor arising from the stated bases.  In my view, a declaratory order is a remedy to secure the public interest of certainty or correct legal position.  Such a remedy cannot prescribe – Oertel NNO v Director of Local Government 1981 (4) SA 491 (T) at 492.  In this case the court held –

“Public rights are excluded from the operation of the Prescription Act … and “debt” in the Act must be necessarily restricted to such claims as arisen in the field of private law.  Whilst every debt encompasses an obligation not every obligation constitutes a debt for the purposes of the Prescription Act.”

Further the claim is based on the fact that sale is null and void ab initio.  As stated by Lord Dennington in MacFoy v United Africa Co. Ltd (1961) ALL ER 1169 (PC) at 1172 –

“If an act is void, then it is in law a nullity.  It is not only bad, but incurably bad.  There is no need for an order of the court to set it aside.  It is automatically null and void without much ado, though it is convenient to have the court declare it to be so … you cannot put something on nothing and expect it to stay there.  It will collapse …” – Ngani v Mbanje & Anor 1987 (2) ZLR 111 (SC) at 115E – F.”

The claim in casu is based on the alleged nullity which is the appointment of Frank Matonhodze as heir in 1990.  This declaratory order is a remedy to secure the public interest of certainty or the correct legal position regarding whether the appointment of an heir for a person married in terms of the general law was a nullity.  I believe that such a matter cannot prescribe. This is the kind of “debt” which would be excluded from the operation of s 15 of the Prescription Act.

I therefore find no merit in the point in limine on prescription in terms of s 15 of the Prescription Act.

Whether there are material disputes of fact in this matter necessitating referral to trial

Mr Mavhiringidze pointed to four areas in which there are material disputes of fact.  The first is that there is a material dispute of fact regarding who acquired the Chivi house, when and how it was acquired and that there is need for witnesses to be called to testify on this.  The same was said to apply to the Chamahota store.

The second issue was said to relate to what transpired before the Chibi Community Court on 1 October 1990 beyond what is reflected on the record regarding the names and details of those who attended the next of kin meeting.  It was argued that the court record would shed light on whether the late Nelly Mapuvire who was present together with her mother in law, brother in law, aunt and son, voluntarily ceded her rights to Frank Mapuvire.

It was also stated that the papers on record do not show when the applicant became aware of the Chibi Community Court proceedings.

Lastly, it was submitted that it was unclear whether the late Edward Gwainda Mapuvire and Nellie Mapuvire were married in terms of the general law as the marriage certificate did not reflect the marriage regime.  It was prayed that the matter should be referred to trial.

Mr Chipetiwa submitted that there is no dispute of fact regarding the fact that the Chibi Community Court issued out a certificate of heir and that this is the material issue. Everything else surrounding this was said to be incidental.

Mr Chipetiwa conceded that there is a material dispute of fact regarding the Chivi house and indicated that they are willing to abandon the claim in relation to the house.  On the Chamahota store, it was submitted that there can be no dispute of fact as the respondents conceded in their notice of opposition on p 18 of record, para 7, that the store was acquired by the late Edward Gwainda Mapuvire.   It was prayed that the material disputes point be dismissed and the matter be referred to trial.

Material disputes of fact have been said to arise when material facts alleged by the applicant are disputed and traversed by the respondent in such a manner as to leave the Court with no ready answer to the dispute between the parties in the absence of further evidence.  See Supa Plant Investments (Pvt) Ltd v Chidavaenzi 2009 (2) ZLR 132 (H)

A material dispute of fact was indeed evident from the papers regarding the Chivi house but since the applicant elected to abandon the inclusion of the Chivi house in this matter, the point in limine cannot be sustained on the basis of this property.

The papers resolve the issue of the Chamahota store as it is common cause that the property was acquired by the late Edward Gwainda Mapuvire.  There can be no material dispute of fact in that respect.

Issues surrounding the issuance of a certificate of heir to the late Frank Mapuvire cannot be material to the dispute at hand.  The applicant is seeking to challenge the validity of the certificate of heir issued by the Community Court on the basis that the court had no jurisdiction to act as it did since the late Edward Gwainda Mapuvire was married in terms of general law and not customary law.  That is the crisp legal question to be determined and the papers sufficiently show that there is no dispute of fact on the material issue as the existence of the marriage is evident from the papers as is the certificate of heir leaving no dispute as to whether the late Frank Mapuvire was appointed as heir by Community Court.

Mr Mavhiringidze sought to introduce a new dispute of fact in his oral submissions by questioning whether the late Edward Gwainda Mapuvire was married in terms of general law as the marriage certificate was not reflective of this.  Mr Chipetiwa objected to this and I upheld the objection on the basis that the respondents on p 18 of the record, in the opposing affidavit unequivocally agreed that the two were married in terms of the general law but questioned the law which would then be applicable to the estates of Africans who were so married.  That only leaves a question of law for determination and not a dispute of fact.

I find that there are no disputes of fact which should bar the court from proceeding to hear the matter on the merits and dismiss this point in limine.

Accordingly, all the points in limine are dismissed and the registrar is directed to set this matter down for a hearing on the merits at the next available date.

Maringe & Kwaramba, applicant’s legal practitioners

Mavhiringidze & Mashanyare, second and third respondents’ legal practitioners