A SANYATI woman whose father died in 2000 when she was six years old has recovered his estate 24 years after “strangers” took over the property and were in the process of fraudulently changing the documents of the house.
Jennifer Lemukani approached the High Court seeking cancelation of a fraudulent agreement of sale for a house in Chegutu purportedly signed by her mother in 2011.
The mother, however, died in 2009.
In her civil court application, Lemukani cited the estate of late Enara Muguza, Kaskola Mudhala, Chegutu Municipality housing director and Master of the High Court as respondents.
Muguza is Mudhala’s late wife who purportedly bought the house from Lemukani’s mother.
According to court papers, Lemukani approached the court seeking to have the agreement of sale dated March 11, 2011, declared null and void. She also sought to be declared the lawful holder of the rights to the property and the eviction from the property of Mudhala and all those claiming occupation.
In her founding affidavit, Lemukani stated that she was born on October 20, 1994 to the late David Webu Lemukani and the late Evelyn Pange. Her parents were customarily married and she is the only surviving child.
Her parents acquired the house which was registered in her father’s name through a cession in the Chegutu Municipality housing director’s office.
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Her father died on October 9, 2000 and his estate was not immediately registered before the family moved to their rural home in Sanyati in 2008. The family moved when she was still a minor aged 14, but she heard of the house in Chegutu.
Her mother became seriously ill and died on April 17, 2009, but her estate was not immediately registered.
In 2017, Lemukani went to register her father’s estate in Chegutu with some relatives and found Madhala, who was claiming ownership of the house, in occupation of the property. Mudhala claimed that the house was bought by his late wife Muguza from Pange in 2011.
There were also documents in the housing director’s office indicating that there was an agreement of sale entered into on March 7, 2011, while the house was still registered in Lemukani’s father’s name.
Mudhala also had a court order dated November 11, 2011 purporting to compel transfer of the property from Pange to Muguza. However, Lemukani argued that all documents were forged and registered her father’s estate in 2020 and was appointed executrix dative before advertising it.
Mudhala, a manager at Venice Mine in Kadoma, however, argued that he bought the contested property through Mangwana and Partners Legal Practitioners.
He also argued that a deed of cession was signed between Muguza and Pange, adding that they moved to the house before ownership was changed. He also indicated that he was at work when the transaction took place, adding that Pange wanted an additional amount which he refused to pay.
Mudhala submitted that as a result of the impasse, Pange refused to sign the documents facilitating the transfer and an application to compel transfer was filed at the Magistrates Court which granted the order.
He said he, however, received an eviction order in 2019, but the matter was postponed to verify the authenticity of the order compelling transfer. He further submitted that the matter was not finalised and he received council bills with Lemukani’s name.
However, in determining the matter, High Court judge Justice Fatima Chakapamambo Maxwell said she needed to determine whether or not Pange died in 2009.
A certificate of death for Pange was produced as an exhibit and it indicated the date of death as April 17, 2009.
“It is common cause that a certificate of death is an authoritative document that certifies the death of a person. It is issued by the Registrar General of Births and Deaths in the Home Affairs ministry.
“It is trite that there is a presumption of validity on all official documents issued by government officials in the course of their duties. Since the presumption is (ir)rebuttable, the official documents are considered valid until proven otherwise,” she ruled.
Mudhala, however, challenged the date of death on the basis that it was supplied by Lemukani, but he did not produce counter documents proving the existence of Evelyn Pange beyond April 17 2009.
Justice Maxwell said she also needed to determine whether or not Pange entered into an agreement of sale with Muguza in 2011.
“Having found that Evelyn Pange died on 17 April, 2009, it follows that she did not enter into an agreement of sale in 2011. In any event even if she had been alive and had signed the agreement produced as exhibit in my view the agreement would have been null and void,” the judge ruled, noting that Pange was not the registered owner of the property but her husband.
“Moreover, the authenticity of the court order relied upon by second defendant is questionable. The copy of his bundle of documents indicates that it was a default order by W Tiyatara on November 10, 2011.
“It does not show the presiding judicial officer. It does not show whether or not any party appeared. It seems to be an order granted after perusing the documents only as it does not reflect that any party was heard.
“The draft order is signed and stamped. The date of the stamp is not clear. There is a signature of the presiding magistrate. The two documents do not have the same information.
“Their authenticity is, therefore, questionable. It is not clear if W Tiyatara is the one who signed on the draft order in plaintiff’s bundle of documents. The proceedings are alleged to have taken place in 2011, two years after Evelyn Pange had died. I find that the deed of cession is null and void.”
Justice Maxwell granted the declaratory order in favour of Lemukani, who was also declared the sole holder of rights and interests to the property and Mudhala was given 10 days to vacate the property.
