Simeon & Anor v Shoniwa & Ors (HC 7002 of 2014) [2015] ZWHHC 761 (30 September 2015)

1 HH 761-15 HC 7002/14 CLEMENCY SIMEON and ANYWAY SIMEON versus DAVISON SHONIWA (In his capacity as the executor dative of Estate Late Simeon Chiwanda) Dr 486/10) and THE MASTER OF THE HIGH COURT and SHUPIKAI SANDRA NDARADZI HIGH COURT OF ZIMBABWE BHUNU J HARARE, 4 February 2015 and 11 February 2015 and 30 September 2015 Opposed matter Mrs M. R. Zvimba-Mukono, for the applicants N. Phiri, for the 3rd respondent BHUNU J: This is an opposed chamber application for condonation of late filing of a Court Application for review. The facts giving rise to this application are by and large common cause and may be summarised as follows. The late Simeon Chiwanda was married to the applicants’ mother the late Solomi Simeon. During their life time the couple acquired an immovable piece of property known as Stand Number 3143 Unit C Seke Chitungwiza. The property was duly registered in the name of their father the late Simeon Chawanda. Their mother Solomi Simeon however predeceased her husband. Their father retained ownership of the said stand in dispute. With the passage of time the applicants’ father Simeon Chawanda eventually remarried and took the third respondent Shupikai Sandra Ndaradzi as wife under customary law. The couple resided at stand 3143 Unit C Seke. In due course Simeon Chawanda died and was survived by his customary law wife Shupikai. HH 761-15 HC 7002/14 Following the death of Simeon Chawanda the first respondent was duly appointed executor dative to the Estate Late Simeon Chawanda Dr 486/10. Despite spirited resistance from the applicants, stand 3143 was registered under the estate of the late Simeon Chawanda. The applicants argued without success that the stand should be registered in the estate of their late mother Solomi Simeon because she had single handedly acquired the property which was only registered in their father’s name because she fell under his marital power. That argument found no favour with the Master of the High Court who dismissed their contention and registered the stand under the estate of the late Simeon Chawanda. The Estate late Simeon Chawanda was eventually wound up and the disputed stand awarded to the third respondent. Aggrieved by the Master’s determination and award the applicants filed a defective application for review in the High Court under case number HC11119/12 on 22 October 2012. They withdrew the defective application about 2 years later on 6 August 2014 and filed a new application for review on 19 August 2014. But for the ineptitude of their legal practitioners the applicants have always exhibited a desire to prosecute their case timeously right through to the end. That being the case I am unable to say that the delay was wilful and deliberate. The third respondent has raised a point in limine arguing that the applicants are improperly before the court in that they did not file a founding affidavit as required by r 227 (4). That rule provides that an application be accompanied by an affidavit made by the applicant or a person who can positively swear to the facts or averments set out in the application. Relying on case law the third respondent argued that it is generally undesirable that a legal practitioner should depose an affidavit on behalf of his client. See Dr Ibbo Mandaza t/a Induna Development Projects v Mzilikazi Investments (Pvt) Ltd HB 23/07 and Core Mining & Mineral Resources (Pvt) Ltd v Zimbabwe Mining Development Corporation & Ors 2011 (!) ZLR 22 (H). It is clear that the rule against lawyers deposing founding affidavits for their clients in an application is a general rule not cast in stone. What this means is that where appropriate a legal practitioner is free to depose to a founding affidavit on behalf of his client. A perusal of the record of proceedings in this case however shows that the first applicant Clemence Simeon filed a detailed founding affidavit dated 25 September 2012 at page 9 of the record of proceedings. That affidavit takes care of the factual basis upon which the application is founded. The application is backed up by another founding Affidavit HH 761-15 HC 7002/14 deposed to by his legal practitioner Rutendo Muchenje dated 18 August 2014 at p 3 of the record of proceedings. The legal practitioner’s affidavit seeks in the main to explain the procedural aspects of the case which resulted in the inordinate delay in filing the application for which condonation is sought. That affidavit takes care of the procedural and technical aspects of the case which are exclusively within the knowledge of the legal practitioner’s specialised knowledge to explain the reasons for delay. His reason for delay is that he inadvertently filed the initial application without reasons for review thereby necessitating withdrawal of the original application. It is needless to say that the legal practitioner was the best person suited to explain why he filed the initial application without reasons for review. In the circumstances of this case it is difficult to say that any fault for the delay in bringing this application to court can be laid at the applicants’ door. Though the delay was not wilful or deliberate, for the applicants to succeed they must show that they have bright prospects of success in the sense that they have an arguable case on the merits. The applicants are basically challenging the validity and legality of any law that dispossesses them without compensation of their right to inherit property and rights belonging to their mother who died intestate. Is it lawful, just and proper to deprive children of their birth right giving it to a total stranger? Their argument to some extent makes sense considering that the third respondent was married to their father and not their mother. Did their mother sweat during her life time so that whatever stake she had in the disputed property would accrue to her husband’s wife to the exclusion of her own children? This is a polemic moot point deserving judicial determination after full argument by both parties. The delay in approaching the courts can hardly be laid at the applicants’ door as it is mainly attributable to their legal practitioner’s ineptitude. In my view, this is a matter crying out for determination on the merits so that the competing interests can be balanced and determined by the courts so that the law may be known and justice may be done between the applicants and their stepmother. For that reason the application can only succeed. It is accordingly ordered that: 1. The application for condonation of late filing of the application for review be and is hereby granted. 2. The applicants be and are hereby ordered to file their application for review within 5 (five) days of receipt of this order. 3. Costs are to be costs in the cause. HH 761-15 HC 7002/14 Mugiya & Mucharagwa Law Chambers, applicants’ legal practitioners Muvingi & Mugadza, 3rd Respondent’s legal Practitioners