Tawanda Lameck Muzonda and Others v Lorraine Usayiwevhu and Others

The five applicants are the offspring of the late Moses Muzonda, who died intestate on 23 September 1997. The deceased estate had one asset: house number 5694 Unit J, Seke, Chitungwiza. Richard John Chimbari was appointed executor dative and wound up the estate via a first and final administration and distribution account on 23 April 2004, approved by the Master on 20 August 2004. The executor awarded the house to the five applicants in equal shares of 1/5 each. The property originally belonged to the applicants' paternal grandfather, Lameck Usayiwevhu, who died on 31 October 1997. The grandfather arranged for the house to be registered in his daughter Annie Muzonda's name (as he already owned another property in Harare), intending it to be transferred to his son Moses Muzonda. On 13 April 1993, Annie Muzonda ceded the house to Moses Muzonda. After Moses died in 1997, family relatives arranged for the first respondent (paternal aunt to applicants) to stay in the house until the first applicant attained majority age. When the first applicant requested vacant possession in 2001, the first respondent refused, claiming ownership of the property. The applicants sought an eviction order.

• Whether there was a matter regarding the property pending before the High Court
• Whether the cession of property from Annie Muzonda to Moses Muzonda was valid
• Whether the applicants had locus standi to evict the first respondent from the house
• Whether there were material disputes of fact requiring resolution by way of trial

The court granted the application ordering: (1) The first respondent give vacant possession of house number 5694 Unit J, Seke, Chitungwiza to the applicants within three months of the date of the order; (2) Failure to comply, the second respondent (Deputy Sheriff) evict the first respondent and all those claiming occupation through her and hand the house over to the applicants; and (3) The first respondent pay costs of the application.

Once the Master approves a distribution account in terms of which property is awarded to beneficiaries, the executor becomes functus officio and the beneficiaries acquire locus standi in judicio to institute proceedings concerning that property. A respondent raising a defence of lis alibi pendens must show that a matter is actually pending; a dismissed case that has not been re-instituted does not constitute a pending matter. Fraud must not only be pleaded but proven; bald allegations without supporting evidence are insufficient. A deed of cession involving third-party approval (such as municipal authorities) attracts a presumption of regularity. Material disputes of fact must be genuine and real, not fictitious; the court must examine alleged disputes to determine whether they can be satisfactorily determined on the papers or require oral evidence.

The court observed that even if the defence of lis alibi pendens existed, it would exercise its discretion to ignore it for the sake of equity and convenience where a matter has not been prosecuted for close to eight years with no sign of when it is likely to proceed. The court noted that although the grandfather's document titled 'will' was not a valid will for want of signatures of two witnesses, it nonetheless revealed the testator's intention regarding disposition of the property and corroborated the applicants' case. The court expressed that it would be unconscionable to uphold a defence of lis alibi pendens in circumstances of prolonged non-prosecution of litigation.

This case clarifies important principles in Zimbabwean law regarding intestate succession, the effect of approval of distribution accounts by the Master, and the locus standi of beneficiaries after estate distribution. It demonstrates the application of the test for material disputes of fact in motion proceedings and reaffirms that bald allegations of fraud without supporting evidence are insufficient to establish a triable issue. The case also illustrates the court's discretion in dealing with the defence of lis alibi pendens where litigation has been unduly delayed.