Judgment No. HB 59/15
Case No. HC 1474/14
Xref No. HC 638/14, 2403/13
Xref DRB 153/10
NOMUSA HAZEL NCUBE
In her capacity as Executrix Dative of
Estate Late ALICE NKALA
HIGH COURT OF ZIMBABWE
BULAWAYO 23 FEBRUARY AND 19 MARCH 2015
J. Mugova for the applicant
N. Ndlovu for the respondent
MOYO J: This is an opposed application for summary judgment wherein the applicant seeks the following relief:
1) That summary judgment be and is hereby granted in favour of applicant against respondent in the following terms:
a) respondent and all those claiming occupation through him be and are hereby ordered to vacate house number F90 Mzilikazi, Bulawayo.
b) The agreement of sale of house number F90 Mzilikazi, Bulawayo, entered into between applicant and one Berthi Moyo on the 13th December 2013 be and is hereby confirmed.
c) Costs of suit at an attorney and client scale.
The background of this matter is that applicant is the executor testamentary of the estate of the late Alice Nkala. In winding up the estate, applicant has sold the immovable property which is the subject matter of these proceedings, namely stand F90 Mzilikazi to one Berthi Moyo.
Respondent is a son to the late Alice Moyo and also a beneficiary of her estate. Respondent claimed the sum of $8000-00 for improvements made to the immovable property in question. He was granted such an order and was also ordered to clear all municipal bills relating to the property.
Respondent through its legal practitioners of record, offered to purchase the aforenamed immovable. This was however not reduced to writing.
On 7 June 2013 correspondence was sent to respondent’s legal practitioners enquiring if indeed respondent intended to buy out the other beneficiaries in which case he was invited to come and make a payment.
Respondent never replied to such correspondence, on 7 August 2013, applicant wrote another letter inviting the respondent to respond to their earlier correspondence.
On 29 October 2013, applicant wrote yet another letter to respondent wherein he was advised that applicant was proceeding to sell the property as respondent had failed to come forward with payment, nor respond to the previous correspondence.
On 9 December 2013, applicant through Sapphire Real Estate proceeded to sell the house to one Berthi Moyo.
On 3 February 2014 applicant advised respondent through a letter that the house had been sold. Respondent did not even bother responding to the applicant’s letter.
On 17 March 2014, respondent wrote a letter responding to applicant’s letter dated 29 October 2013. Respondent alleged that he had transferred $8157-53 for the purchase of the house. This transfer was done without the assent of applicant’s legal practitioners.
On 25 March 2014 respondent wrote a letter to applicant advising that he would not vacate the house neither did he recognize the sale to Berthi Moyo.
In his plea defendant (respondent) avers that the purported sale was unlawful as it was not done in accordance with the law. He further avers that the beneficiaries were not consulted on the sale neither did they assent to it.
The Remedy of summary judgment at law
Summary judgment is a drastic remedy as it negates a fundamental principle in the administration of justice, the audi alteram partem rule. Refer to the case of Shingadia vs Shingadia 1966 RLR 285. In Rex v Rhodesia Investments Trust Pvt Ltd 1957 R & N, 723 it was held that for a defendant to defeat an applicant for summary judgment he must allege facts which if he can succeed in proving them at trial, would entitle him to succeed in his defence.
In Hughes vs Lotleit 1985 (2) ZLR 179, it was held that summary judgment will only be granted where plaintiff has made out a cause of action to which the defendant has no possible defence.
In Jena vs Nechipote 1986 (1) ZLR 29 it was held that all the defendant has to establish in order to succeed in having an application for summary judgment dismissed is that “there is a mere possibility of success.”
In this case the defendant is challenging the validity of the sale by applicant to Berthi Moyo as it contravenes section 120 of the Administration of Estates Act [Chapter 6:01]. Section 120 of the Administration of Estates Act (supra) provides as follows:
“If, after due enquiry, the Master is of the opinion that it would be to the advantage of persons interested in the estate to sell any property belonging to such estate, otherwise than by way of public auction, he may, if the will of the deceased contains no provision to the contrary, grant, the necessary authority to the executor so to act.”
Section 120 of the Administration of Estates Act has been held in certain cases to be peremptory especially in testate estates like the one before me. I find that the estate is testate for the simple reason that the Letters of Administration state that applicant is an executor testamentary meaning that she was appointed so in terms of a will left by the deceased. Such an opinion is made in the case of Songore vs Gweme and two others HH 90/08.
The validity or otherwise of the sale to Berthi Moyo by the applicant without obtaining the Master’s consent, is a contestable point in my view. It cannot be held that the defendant has failed to raise a defence that could possibly be true in these circumstances. This court cannot shut the door on the defendant in such circumstances.
In the result the application for summary judgment is dismissed with costs.
Lazarus and Sarif, applicant’s legal practitioners
Cheda and partners, respondent’s legal practitioners