Judgment No. HB 107.14
Case No. HC 3259.12
THE ASSISTANT MASTER N.O
IN THE HIGH COURT OF ZIMBABWE
BULAWAYO 4 JUNE AND 10 JUNE 2014
Moyo-Majwabufor the applicant
Siphuma for the respondents
MOYO J: This is an application for an order that the will of the late Sonto Dube be and is hereby declared null and void together with costs of suit.
The facts of this matter are that the Applicant and the first Respondent are sisters and were both married to one Phineas Dube. The 1st Respondent was the first wife of the late Phineas Dube and the Applicant was a sister to the 1st Respondent; she was then impregnated by the late Phineas Dube when she stayed with her sister (the 1st Respondent) and was then taken by the late Phineas Dube as his second wife. The 2nd Respondent is the mother in law to both Applicant and 1st Respondent and is a widow of the late Sonto Dube.
Sonto Dube is a father to the late Phineas Dube. The late Sonto Dube is the owner of stand 539 Nguboyenja as it is registered in his name with the Bulawayo City Council.
First Applicant alleges that stand 539 Nguboyenja is in fact owned by the late Phineas Dube (her husband and the son of Sonto Dube and not owned by the late Sonto Dube) Sonto Dube died sometime ago and he left a Will. In that Will he bequeathed stand number 539 Nguboyenja to his grandsons (that is the children of 1st Respondent). Applicant contends that firstly, stand number 539 Nguboyenja does not belong to the late Sonto Dube although it is registered in his name, but to the late Phineas Dube, and secondly that she does not believe that the Will purported to have been made by the late Sonto Dube was so made and that it is not authentic. She accordingly seeks that it be declared a nullity. The 2nd Respondent raised a point in limine that in fact Applicant should not have proceeded by way of application and that the issues are obviously so contentious that only an action would resolve this matter.
At the close of arguments by both counsel, counsel for the Applicant Mr Moyo-Majwabu conceded that in fact there are material disputes of fact in this matter and he submitted that the court should not penalise the Applicant for the approach she adopted as she was under a lot of pressure since the 2nd Respondent was about to register the estate of the late Sonto Dube and have herself appointed as executrix, yet the will provided for an executor testamentary.
I will therefore not dwell on the aspect of whether there is a material dispute of fact or not as we are all in agreement that there is. What remains is for the court to then assess whether this is one of the cases that should then be referred to trial or be dismissed at this stage.
At this juncture I will refer to the case of Masukusa vs National Foods Ltd and Another 1983 ZLR (1) page 232 where McNALLY J as he then was stated thus:
“Where the facts are in dispute, the court has a discretion as to whether to dismiss the application or allow the matter to go to evidence. The first course is appropriate where an applicant should, when launching his application, have realised that a serious dispute of fact was inevitable.”
Refer as well to the case of Jirira vs Zimcourt Trustees Ltd and Another HH 98/10. In the case before me the Applicant filed this application seeking an order that the will of the late Sonto Dube be declared null and void. She states in paragraph 7 of her founding affidavit that:-
“That I would like to oppose and challenge the admission of the will alleged to have been made by Sonto Dube, for a number of reasons. Inter alia I do not believe it was made by Sonto Dube, and even if it is proved to have been made by him, I challenge the legal basis on which he could bequeath the property that he purports to bequeath on the ground that he was not the owner of the property.”
This paragraph gives the very basis of this application. Applicant does not believe that the will was made by the late Sonto Dube hence her challenge to its validity. How will Applicant prove to the court on paper her lack of belief? Evidence obviously is needed, factual averments as to why there is this perception on Applicant’s part that the will was not made by the late Sonto Dube. Can this aspect be resolved on paper? Certainly not it should have been so obvious at the inception of this application that Applicant’s beliefs or otherwise regarding the validity of the late Sonto Dube’s will can only be resolved through viva voce evidence and in no other way.
Again, Applicant states, Sonto Dube (who according to her own affidavit is the registered owner of the stand in issue), is in fact not its true owner hence he could not bequeathe the property. There are serious factual issues here. There is need for oral evidence to be led on who in fact acquired this property, ownership of this property, that is, and how the late Phineas Dube is the owner of a property registered in Sonto Dube’s name. Viva voce evidence has to be led to establish why the late Phineas Dube acquired the immovable property in his father’s (the late Sonto Dube’s) name. This is one case whose factual disputes are so glaringly obvious that the Applicant is expected to have foreseen the practical difficulty of presenting her case on this platform. I am unable to exercise my discretion in Applicant’s favour. I hold the same view as MCNALLY J’s views in the Masukusa case (supra). Applicant in this case should have realised that her own allegations and beliefs on the validity or otherwise of the late Sonto Dube’s will, were in fact allegations that by their very own nature required viva voce evidence to be led to support and establish same. Applicant accordingly approached this court on a wrong platform.
I accordingly dismiss the application with costs.
Messrs James, Moyo-Majwabu & Nyoni, applicant’s legal practitioners
Messrs K. Lubimbi and partners, 1st respondent’s legal practitioners