1

HH 819-22

HC 7132/22

JAMREY MABIKA

versus

MAGRET DANGA N.O.
(In her capacity as the executor dative of the estate of the late
Ragison Mabika DR 445/22)

and

ABEL RWODZI

and

THE MASTER OF THE HIGH COURT OF ZIMBABWE
N.O. Master’s House, Herbert Chitepo Avenue, Harare

and

THE REGISTRAR OF DEEDS N.O.
Century House East, Corner Angwa and Nelson Mandela Avenue,
Harare

HIGH COURT OF ZIMBABWE

BACHI-MZAWAZI J

HARARE, 28 October & 16 November 2022

Urgent Chamber Application

Mr C Kuhuni, for the applicant

Ms J T Sande, Chimombe, for the 1^st and 2^nd respondents

BACHI MZAWAZI J:

Introduction

At the centre of this dispute is property Stand, 1577 Highfields Township, Harare, registered in the name of Ragison Mabika, now deceased. The first respondent is the widow and surviving spouse of the deceased.  She was duly appointed the Executor of the estate. After registering the deceased’s estate with the inclusion of the above property, letters of administration where subsequently issued. Following due process, the first respondent then sold the property to the second respondent and is in the process of transferring the same to the current purchaser.

However, applicant, a young brother to the deceased, has approached this court on an urgent basis seeking the intervention of the court in stopping the transfer with immediate effect. He claims that for all intense and purposes the property though, on the face of it, is registered in his late brother’s name, it is his. He thus, seeks an interim interdict barring the transfer of the same to the second respondent or any other person pending the determination of a lawsuit he initiated before this court, in case HC 6969/22, to determine the ownership rights in the contested property.   

Brief Background

The brief facts are that upon the death of the first respondent’s husband, on 15 August 2021, the first respondent registered his estate with the third respondent under DR 445/22.  As has already been captioned above, letters of administration were issued, on 30 May 2022 after she had been appointed the executor. It is when she advertised for creditors and debtors of the estate, that the applicant in response to the advert, lodged a claim that the immovable property though registered in his brother’s name, does not form part of the estate as it was never authentically, the deceased’s house but his.

Unfortunately, his then lawyers had filed the claim on 18 July, 2022, a few days outside the window period for lodging such claims. The first respondent, by way of a letter dated the 1^st of August 2022, dismissed the applicant’s claim on that basis and proceeded to obtain consent for the sale of the property from the third respondent. Immediately afterwards, she sold the property to the second respondent and spontaneously commenced the process of transfer. All the said steps by the first respondent, were taken amidst several inter- party discussions and with the knowledge that the applicant had the original title deeds to that property. Despite that knowledge, they applied for a lost and obtained a replacement deed. 

It is further alleged that, well before the obtaining of the consent and the sale of the property to a third party by the respondent, Applicant had in the interim, through his then lawyers, after the rejection of his claim, written a letter to the third respondent, Master of the High Court, challenging the dismissal of their claim by the first respondent. The response was delayed as allegedly the file could not be located.

Applicant’s Argument

Applicant submits that, after several visits and searches the missing file was finally located on 14 October, 2022 which is the day they also discovered of the consent to sale granted on 18 August 2022 by the third respondent at the behest of the first. The sale on 12 September 2022 and documents for transfer of the property also came to light on the same date.    Another shocker was that, the first respondent had advertised for lost title deeds yet they knew he had and has always had the original title deed of the property in issue.   This rude awakening resulted  in the launching of the current urgent chamber application as well as the summons action against the respondents for the determination of rights in the property in case HC 6969/22.  

 As a brief over view, applicant, relates that it is common cause, in 1984, during his tenure as an insurance executive, purchased several houses in Harare amongst them, house stand number, 1577 Highfields Township, Harare. Since the then existing laws did not sanction the acquisition and ownership of more than a single property by an individual at any given time, applicant registered four of his properties in Highfields in the names of his close relatives and acquaintances. It is also not disputed that based on the mutual love, consent and trust existing between, his elder brother, Ragison Mabika, the first husband’s now late husband, he registered property, Stand, house number, 1577 Highfields Township, in the name of his brother.  He stated that it is also uncontested that from the time the property was purchased and registered in the deceased’s name, neither the deceased nor any member of his nucleus family knew the location of the property nor had ever set foot on the same.

Further, the truth is at all material times up to the time of his death, the deceased, a retired teacher, was residing at the Mabika clan family farm, with the rest of his family including the first respondent.  In addition, he contends that, from day one, the sale documents, as well as, the title deeds of the said property where in his possession. He argues that it is common cause that he has been letting out and collecting rentals from property, house number, 1577, Highfields, Township, Harare from the date he purchased the same.   

On urgency the applicant, argues that the need to act, arose on 14 October, when he became aware of the consent to sale and transfer his property. He further asserts that, he has a prima facie right in that, though the property is registered in his late brother’s name and has been made part of his estate, it belongs to him. In addition, he propagates that if the court fails to act now his rights will be adversely trampled upon and the harm is irreversible as the transfer of rights is imminent. He urges the court to consider this case on its own unique merits. Applicants relied on several authorities, amongst them, Diamond Bird service (Private) Limited and Trustees of Zimnat Value Preservation Trust Fund v Masbreed Investments (Private) Limited and City of Harare HH413/21, Setlogelo v Setlogelo 1914 AD 221and Kuvarega v Registraar General and Another 1998 (1) ZLR 199H, at 193F-G.

Respondents’ Argument

The first respondent does not deny all of the applicant’s averments but states that, the property was registered in her late husband’s name, thus it fell under his estate and is subject to distribution to his family and beneficiaries. They further, add that the title deed, in the deceased’s name is prima facie evidence of ownership.

In turn, they raised two preliminary objections. Firstly, that the matter lacks urgency as the cause of action arose on 1 August, 2022, when the applicant’s claim was rejected by the first respondent. It is their argument that the applicant chose not to act. He only reacted after the first respondent gave eviction notices to the tenants on the property. She had also instructed them to stop paying rentals to anyone else other than the appointed executor of the estate. Secondly, on the merits, they argue that the applicant has no locus standi or prima facie right to interdict the respondents, since the property is registered in the deceased’s name.

Additionally, they contend that the balance of convenience favors the respondents and that the applicant has other remedies to pursue in terms of the Administration of Deceased estates laws. They further assert that applicant’s summons matter will not succeed as he has not attached any evidence to buttress his claim to the property.

The issues for determination

The issues that have to be addressed are, whether or not the matter is urgent, whether or not the applicant has locus standi to bring this application and whether or not applicant has made a case for an interdict?

Whether or not the application is urgent?

The concept of urgency has been spelt out in numerous cases in this jurisdiction. Ordinarily, in terms of the uniform rules of the court, litigants wait for their turn in court applications which had been set down for hearing on a first come first to be dealt with basis. As such, there must be justification on why an individual litigant may be allowed to be entertained ahead of those who came before him. The applicant has to demonstrate to the satisfaction of the Court, what it is that cannot wait, the pressing issue that needs quick response or seeks the immediate intervention of the court?  Of consideration is also the fact of an injustice or tragedy befalling the applicant whilst awaiting his turn of justice in the drawn-out process of bringing a suit before the courts. All these factors where elaborately outlined in, Document Support Centre Ltd v Mapuvire,2006(1)ZLR 232(H), Tripple C Pigs and Anor v Commissioner General, ZLR, 2007 (1) ZLR 27 (H), Gwarada v Johnson & Ors 2009 92) ZLR 159, to mention ,but a few. 

On these facts, what prompted this action is the undeniable fact that the transfer of the contested property is imminent and at a very advanced stage. The respondents did not rebut that due to some inefficiency, in the department of the third respondent, the issue of both the sale and transfer came to light on 14 October 2022. This application was launched on 21 of October 2022, within seven days of learning of the outcome of the applicant’s letter to the third respondent. Going with the above averments and the circumstances of this case, a six days delay is not inordinate, as amply articulated in Telecel Zimbabwe (Pty) Ltd v POTRAZ & Ors, HH 446/2015. It is therefore, evident that the applicant did not waste time but chose to act. 

Even if the date when the need to act can arose, is the 1^st of August 2022, when the first respondent, as the executor rejected his claim.   On the faith of the dictum in Telecel Zimbabwe (Pty) Ltd, it still is not an inordinate delay. It is thus, apparent that, the applicant did not sit on his laurels as it is not denied that he reacted by writing a letter of objection to the Master of the High Court. His filing of the current lawsuit, as well as that, in case HC 6969/22 is evidence of his reaction. The respondent’s argument that the application under case HC 6969/22, is procedurally incorrect and bound to fail, therefore it cannot not be considered, does not hold. Wrong procedure or not, are issues for the court seized with the main action. Therefore, that is not a valid pointer to inaction. What constitutes failure to act when the cause of action arose is explicitly enunciated in, Kuvarega v Registrar General and Anor 1988(1) ZLR 199H at 193F-G, and in the Tripple C Pigs case above.

It is my finding that, this matter is urgent, given the admissions by the respondents that, they have already advertised for and obtained replacement of lost title deeds from the fourth respondent, despite the fact that the applicant has the original title deeds and is contesting the sale. In addition, the respondents have stated that if not for this urgent application they had already embarked on the process of changing title into that of the second respondent.

This in my considered view requires a contemporaneous resolution to stop any further action from either side, as there is a dispute over the ownership of the property pending before this court which will be rendered academic if there is no immediate intervention. Makarau JP, as she then, was had this to say, in the Documents Support Center, above,

“Some actions, by their very nature, demand urgent attention and the law appears to have recognized that position.”

See, Chidawu & Others v SHA & Others, SC 12/2013.In that regard, the point in limine on urgency fails.

Whether or not the applicant has locus standi

In common parlance locus standi, simply means, legal standing to bring or partake in a lawsuit. In terms of the law, for one to participate in or bring an action against another they should have a direct and substantial interest in the subject matter. See, United Watch & Diamond Co (Pty) Ltd and other v Disa Hotels Ltd and Another 1972(4) SA 409.

It is common cause that, the property is in the name of the deceased but the applicant has a claim on the property.  It has not been disputed that he purchased the property, has the original title deeds and has been letting out the property ever since. This illustrates that indeed he has a real, direct and substantial interest in the property, until such time a competent o court of law decides on the crucial issue of ownership rights in the property.  In that regard the point in limine on this aspect fails.

Whether or not the applicant has made a case for an interdict.

It has been repeatedly outlined that an interdict pending an action is an extraordinary remedy. The discretion to grant the relief or not lies with the court upon the satisfaction that essential requirements have been met. See, Airfield Investments (Pty) Ltd v Minister of Lands, Agriculture and Rural Resettlement & Others 2004(10) ZLR (S). These specific guidelines have been spelt out in several cases, with Setlogelo v Setlegelo 1914 AD 221, being one of the founding authorities. Essentially, they are, a right, though prima facie established, is open to some doubt, a well-grounded apprehension of irreparable injury or harm and the absence of another remedy and the balance of convenience favors the applicant. See also, Choruma Blasting and Earthmoving Services (Pvt) Ltd v Njainjai and Others 2000, ZLR85 (S) 89E-H. Broadcasting Authority of Zimbabwe and Anor v Dr Dish (Pvt) Ltd, SC 62/17.

Prima facie right

All the applicant needs to establish in an application of this nature is that, on the face of it he has some rights. What constitutes a prima facie right was laid out in the case Judicial Service Commission v Zibani Ors, SC 68-17. The right may even be open to some doubt as expressed in LF Boshoff Investment (Pty) LTD v Cape Town Municipality,1969(2) SA 256  at 267.

From the submissions on record, there is no doubt that the applicant, on the face of it, has some rights in the property to be transferred to another party.     

A well-grounded apprehension of irreparable injury or harm

It is evident that the property which the applicant is asserting his rights has already been sold to a third party. It is also clear that had it not been for this application the respondent has already taken advanced steps to transfer the same property in the face of a court action to determine ownership rights. That there is an apprehension of irreparable harm is crystal clear. Once the change of title is done, it takes a long arduous process, costly in time and money to reverse.

Absence of an alternative remedy

The case of, East Rock Trading (Pty) Ltd & Another v Eagle Valley Granite (Pty) Ltd [2011} ZAGPJHC,196, underpinned that,

“The issue of absence of substantial redress in an application in due course allows the court to come to the assistance of a litigant.”

In this case, the respondents argue that the alternative remedy is available and grounded in the Administration of Estates Laws. In my view this is an alternative action to the challenge of ownership but does not hinge on stopping the events of transfer that have already been set in motion.  I am not persuaded by the respondent’s views. In a contentious matter like this the only remedy is that of having the property rights determined by a competent court. Until that has been done, I am of the view that there is no alternative remedy other than the injunction sought.

Balance of convenience to the applicant

The balance of convenience favors the applicant. What is evident is they do have claim to the property in question. The cumulative factors presented in this matter points to the fact that, they exercised some rights over the property, by leasing out and collecting rentals of the property. Further, it has not been refuted that he had from day one and still has the original title deed. Circumstances surrounding the issue of leasing, collection of rentals and the ownership of the property has to be interrogated and determined by a competent court, in this case the court seized with case HC 6969/22.  

Disposition

In the final analysis, the respondents chose to ignore applicant’s competing claim on the property, lodged al beit late. Though they were engaged soon after that rejection they proceeded to expediently obtain the Master’s consent and to sale the property. With the knowledge of the existence of the original title deeds, the first respondent, avoided addressing the claim but knowingly and misleadingly advertised for a lost title deed. She obtained a copy of a deed which is already in existence.  She again, speedily wanted to change title ignoring the applicant’s claim. Surely, every legal mind knows that though a title deed is prima facie proof of ownership, that right is not absolute. It is open to challenge. This has been expressed in numerous cases, Fryes (Pty) Ltd v Ries, 1957 (3) SA 575, Ishemunyoro (nee Mandidewa) v Ishemunyoro & Ors SC 14/19.  In any event, it is a rebuttable presumption. The onus to rebut that presumption lies with the person contesting title in the immovable property on a balance of probabilities. See, Cunning v Cunning 1984(4) SA585, CBZ Bank Limited v Moyo and the Deputy Sheriff, Harare, SC 17/18, Sibindi v Sibindi & Anor HH 327/20 and The Sheriff of Zimbabwe v Humbe, HH 378/20. As already stated, these are issues for the court determining the ownership wrangle.

I have been persuaded by the applicant’s argument that they have a claim to the property registered in the deceased’s name. For the purposes of this case, I am inclined to allow the relief sought so that the parties are given the chance to ventilate their arguments on the ownership issue.

For the above reasons I am satisfied that the applicant has made out a case for the granting of an interim interdict.

Accordingly, a provisional order is granted in terms of the draft order filed of record pending the return date of the final order.

C, Kuhuni Attorneys, applicant’s legal practitioners

Tarugarira, Sande Attorneys, first & second respondent’s legal practitioners