Chidziva and 2 Others v Estate Late Motokari and 3 Others (301 of 2024) [2024] ZWHHC 301 (15 July 2024)

1 HH 301 - 24 HC 1440/24 TENDAI CHIDZIVA and TICHAONA CHIDZIVA and RUMBIDZAI PARWARINGIRA versus ESTATE LATE THAMARY MOTOKARI (represented by FUNGISAYI MOTOKARI as Executor) and FUNGISAI MOTOKARI and MASTER OF HIGH COURT and CITY OF HARARE HIGH COURT OF ZIMBABWE WAMAMBO J HARARE 12 & 15 July 2024 Urgent Chamber Application C Tawanda for the applicants S Kufandada for the first and second respondents No appearance for the third and fourth respondents WAMAMBO J: This mater came before me as an urgent chamber application. The applicant seeks to interdict the respondents from disposing of an immovable property at the centre of this dispute. The property is 64 Daniel Street Mbare, Harare (the property). The four applicants and second respondent are all grandchildren of the late Thamary Motokari (deceased) whose estate was registered under DR 1071/19 The first respondent was appointed executrix of deceased’s is estate and was granted authority to sell the property by the Master of the High Court in terms of section 120 of the Administration of Estates Acts [Chapter 6:01]. A consent to session of immovable property was also issued by the Master of High Court. HH 301 - 24 HC 1440/24 Before the filling of this urgent chamber application the property was sold to one Jealous Matotote for US $25 500.00 as per agreement of sale dated 8 July 2024. This application was issued the next day on 9 July 2024. It became clear during the hearing that applicants were not aware of the sale when they filed this application. The first and the second respondents are opposed to the application. They filed opposing papers and raised a number of points in limine. I will resolve same presently. Lack of urgency was raised as a point in limine. The first and second respondents aver that the cause of action arose as far back as 2019. They missed the point that the cause of action in this application relates to the authority to sell the property. That authority was only granted on 4 June 2024 while the consent to cession of immovable property was granted on 8 July 2024. The issue is when the applicants gained knowledge of the issuance of the two documents referred to above before, they sprang to action? The Applicants contend that they gained knowledge of the impending sale of property on 25 June 2024 when potential buyers came to view the property. This assertion has not been challenged by the two respondents. Between 25 June 2024 and 9 July 2024 when the application was filed it is not an unduly long period amounting to one sitting on their laurels. I should note here that only the time aspect of urgency was challenged in this case. I find that applicants acted when the need to act arose. I note here that the founding affidavit and supporting affidavits were signed on 8 July 2024. The point in limine of lack of urgency is thus dismissed. The two respondents raise the point in limine that the D. R. number of the deceased’s estate is not referenced. While it is important for this to be done it strikes me that in their application papers the DR number is indeed referred to. The authority to sell estate property otherwise than by auction at page 50 of the application reflects the DR number, the estate and the immovable property description in full. The letters written to second respondent at pages 31 and 33 also reflect the correct DR number. The two are part of applicant’s papers filed of record and served on the respondents. I find that there is no prejudice in the non mention of the D. R. number in the citation of the papers in the circumstances of this case. To that extend I dismiss this point in limine. HH 301 - 24 HC 1440/24 The respondents also raise the point in limine, that applicants have no locus standi to make this application and that they should have sought a review of the Master’s decision instead of challenging a sale. The applicant are grandchildren of the deceased. The second respondent is also a grandchild of the deceased. The round table minutes at page 28 of the record reflects that the first to third applicants and the second respondent representing the estate of the deceased were in attendance. The round table minutes records the first to third applicants as beneficiaries to the estate of the deceased. Issues that were discussed at the round table include the improvements done on the property by first to third applicants, a claim registered for such with the Master of the High Court, the issue of appointment of three executers, the payment of utility of bills and monthly rentals for the property and the payment of the master’s fees was also included in the discussions. I find that in the circumstances the applicants were included in these discussions as grandchildren of the deceased and as persons with a substantial interest in the estate of the deceased. I find that this point in limine as discussed above has no merit and dismissed. The issue of the sale of the house is more an issue on the merits and l will resolve such on merits. I note that the application was hurriedly put together. The application contains numerous errors and does not hold together for many reasons. The filing of papers seems to have been made haphazardly to say the least. There is a founding affidavit and a declaration. The relief sought under the founding affidavit and that sought under the draft order do not speak to each other. I am aware that the founding affidavit is the bedrock of the application. How else should respondents respond to relief sought in the founding affidavit being substantially different from the relief reflected on the draft order. This much was drawn to the attention of the applicants’ counsel who acknowledged the error. Her take was to seek to amend the draft order to be in line with the founding affidavit. This was clearly improper and prejudicial to the respondents. The draft order also contains relief that is not only too broad but has also been overtaken by events. The relief sought is for first and second respondents to be interdicted from “disposing the property Number 64 Daniel Street National, Mbare (sic)” HH 301 - 24 HC 1440/24 The property has already been sold to a third party. I queried of, applicants counsel what disposing of the property meant in the circumstances. Her view, was that the application was made before the agreement of sale was entered into. Now that she was aware of the agreement of sale she sought to interdict cession of the property. Asked if the cession had not already been finalised she candidly did not know. I was concerned with issuance of a brutum fulmen, an order that would not benefit the parties or the ends of justice. The founding affidavit seeks relief that is different from that contained in the draft order. At paragraph 10 of the founding affidavit it is stated as follows-: “This is an urgent chamber application for-: a. An anti-dissipation interdict against the second respondent from disposing, ceding and or alienating the immovable property pending full distribution of the Estate late Thamary Motokari b. Setting aside of the masters consent to sell immovable property which was issued erroneously on 10 June 2024” Paragraph 10 (b) is not part of the draft order at all. Paragraph 10 (a) has been overtaken by events I find that the applicants used the wrong forum of an application by way of an urgent chamber application. I also find the application murky and the relief sought unclear. I also find that the relief sought has been overtaken by events. To that end I find that the application has no merit in the circumstances and stands to be dismissed and I order as follows-: The application be and is hereby dismissed with costs WAMAMBO J:……………………………….. Tawanda Law Practice, applicant’s legal practitioners Charamba and Partners, first and second respondents’ legal practitioners