Mary Jandles &2 others v James Alex Machokoto&3 others [2025] ZWMSVHC 3 (29 May 2025)

1 SUM 80-20 HMA 20-25 REF CHA 64-23 MARY JANDLES N. O [In her capacity as Executrix Dative of Estate ate Finnie Jandles] And LLOYD PETER JANDLES And RAMAJAN JANDLES v JAMES ALEX MACHOKOTO [In her capacity as Executrix Dative of Estate ate Alex Machokoto] And MASTER OF THE HIGH COURT ZIMBABWE And MINISTER OF LANDS, AGRICULTURE & RURAL RESETTLEMENT And REGISTRAR OF DEEDS N. O. HIGH COURT OF ZIMBABWE ZISENGWE J MASVINGO, 12 & 14 June, 16, 17, 18 & 19 September, 24 October 2024 & 20 January 2025 Judgment delivered on 29 May 2025 O. D Mawadze; for the plaintiffs G. Bwanya; for the first defendant Civil Trial ZISENGWE J: Before me is rather intriguing set of facts, requiring the court in the main to decipher from the evidence what happened or did not happen decades ago, around 1941, to be precise. It is a dispute over a piece of land known as Farm 210 Mshagashe, Masvingo (the SUM 80-20 HMA 20-25 REF CHA 64-23 farm). The latter is a piece of land measuring what is described in the Deed of grant as 110. 8643 morgens and is currently registered in the name of Anex Chihanga. The chief protagonists to this intractable dispute are the Jandles family on the one hand and their estranged nephew, the first defendant on the other. Although the first defendant strove during the trial to suggest that the plaintiffs are very distant relatives, the evidence shows otherwise. When reduced to its lowest terms the dispute is basically who between the first defendant’s father, the late Alex Chihanga and the latter’s maternal uncle, the late John Jandles purchased the farm back in the early 1940’s. The plaintiffs who are the direct descendants of the late John Jandles on the patrilineal side vouch that it was John Jandles who purchased it and that the first defendant has no right whatsoever to inherit it to their exclusion. They claim in the main that the farm was only registered in the name of the defendant’s father solely to circumvent the colonial laws which obtained at the time. According to them, the racially segregated land tenure system which obtained at the lime precluded whites and mixed-race individuals (coloureds) from acquiring land in areas reserved for black people (then known as African purchase areas). The first defendant on the other hand categorically dismisses those assertions and insists that as far as he knows, his father who was then known as Alex Chihanga (but frequently mistakenly referred to as Anex Chihanga) purchased the farm through his own effort and industry. It was therefore on that basis that he in 1999 proceeded to register his late father’s estate whose assets according to him included the disputed farm, much to the angst of the plaintiffs. It is common cause that the Jandles identify themselves as coloureds. The first defendant as with his father before him is black. The first plaintiff is the executor of the late Finnie Jandles. She substituted Finnie Jandles when the latter died after the institution of the claim. Consequent to the registration, for administration purpose, of the estate of the late Alex Machokoto, the second defendant was appointed its executor dative and the first defendant heir to his estate. Listed in the distribution plan as the major asset thereto was farm 210 Mushagashe. It is against this background that the plaintiff’s sued out summons against the defendants seeking the following raft of reliefs: SUM 80-20 HMA 20-25 REF CHA 64-23 a) An order for [the] cancellation of certificate of heirship dated the 5th of March 1999 which wrongfully declared James Alex Machokoto as the heir with the right to inherit from Alex Chinhanga’s immovable property namely farm No. 210 Mushagahe, Masvingo which was wrongfully bequeathed and distributed to the 1st defendant by the executor’s distribution account dated the 24th of May 1999. b) A declaratory order to the effect that the appointment and declaration [of the] 1st defendant as having right of heirship over farm No. 210 Mushagashe West, Masvingo which farms registere in the name of Alex Chihanga’s null and void. c) Setting aside of the 2nd defendants first and final distribution account relating to farm No. 210 Mushagahe west Masvingo dated 24 May 1999. d) A declaratory order to his effect that the 1st plaintiff’s late father John Jandles was the legal owner and purchaser of farm No. 210 Mshagashe, Masvingo during his life time. e) A declaratory order to the effect that the 1st plaintiff is a rightful and lawful heir of the late John Jandle Estate being farm No. 210 Mushagashe West, Masvingo. f) A declaratory order to the effect that should the second defendant continue as executor of the late Alex Machokoto thus the second defendant shall not have anything to do with farm No. 210 Mushagashe West, Masvingo and must not list it all do Estate of the late Alex Machokoto. g) A declaratory order to the effect that the 1st, 2nd and 3rd plaintif have the right of use, possession occupation and enjoyment of farm No. 210 Mushagashe West, Masvingo. h) Eviction of the first defendant and all those claiming occupation, possession, use and enjoyment of farm No. 210 Mushagashe West, Masvingo. i) Costs of suit on a legal practitioner and client scale borne by the 1st and 2nd defendants jointly and severally the one paying the other to be absolved. The entire foundation of the plaintiffs’ claim is captured in paragraphs 5 and 6 of their declaration wherein they aver that sometime in 1941, the 1st plaintiffs’ father John Jandles, a coloured, entrusted to buy on his behalf his late native black nephew one Anex Chinhanga the farm in question. To that end he provided Anex Chihanga the full purchase price. Consequent SUM 80-20 HMA 20-25 REF CHA 64-23 the purchase of farm No. 210 Mushagashe West, Masvingo, the said farm was then registered in the name of the said Anex Chinhanga as per the deed of grant. According to the plaintiffs this entire arrangement was conceived and executed on the understanding and agreement that John Jandles and Anex Changa as uncle and nephew respectively, would mutually enjoy occupation, use and possession of the farm for their “common wealth”. This according to them, led to the late Finnie Jandles and Anex Chihanga constructing their respective homesteads on the farm albeit on different sections thereof. The plaintiffs therefore aver that the registration by the 1st defendant of the farm as asset of his late father, was fraudulent, designedly to rob them of their inheritance. They also allege that Alex Machokoto is fictitious non-existent character who was created to effect the fraud. They therefore want a total reversal of the process and outcomes of the administration of the estate late Alex Machokoto, in so far as it relates to or affects farm No. 210 Mushagashe West, Masvingo. The first defendant’s Plea Initially the first defendant raised three separate special pleas namely res judicata, improper citation of a party and absence of locus standi on the part of the second and third plaintiffs. Each of these were however subsequently abandoned. All the other defendants did not respond to the summons. They were accordingly barred. On the merits, the first defendant’s position was a categorical denial of the plaintiffs’ assertions regarding the acquisition of the farm. According to him, the farm was purchased by his father who at that time hailed by the name Anex Chihanga but was also known as Alex Machokoto. According to him this farm was a small-scale farm lying in an area reserved for native black people who were considered low income people. He averred that if a coloured person wanted to purchase agricultural land at the time, he would have done so in areas designated for the people of his race. He averred that his father purchased the farm in instalments through a scheme called “Cooper”. This scheme, according to him was meant for low income farmers. The repayment was made through deductions from the farmers’ crop sales. Most importantly he averred that John Jandles merely resided the farm upon his late father’s invitation and benevolence. He elaborated by stating that his great grandmother, SUM 80-20 HMA 20-25 REF CHA 64-23 Vachihware had two children, namely his paternal grandmother Elizabeth and John Jandles. The latter two had different fathers making them half siblings. Further, whereas Elizabeth was black, John was of mixed (coloured) race. He had a white father. Therefore, according to him when Anex Chinhanga purchased the farm he then invited his mother Elizabeth who in turn brought her mother, vaChihware. VaChihware then brought his coloured son, John Jandles in tow. He therefore referred to the Jandles as distant relatives who have no claim whatsoever on the estate of his late father, not least the farm. As intimated earlier, although the matter characterized by subplots, it hinges almost entirely on who between John Jandles and his nephew Anex chinhanga acquired the plot. A finding either way disposes virtually each of the disputed items. Needless to say, if the court finds from the evidence that the farm was purchased by John Jandles, this would naturally result in the relinquishment by the first defendant of any legal right over the farm which were bestowed upon him by virtue of the Master’s certificate in that respect. In other words, the claim would stand to succeed almost in its entirely. Conversely, a contrary finding, i.e., a finding to the effect that it was Anex Chinhanga who purchased or otherwise acquired the farm in his personal (rather than in his representative) capacity, inevitably implies a total failure of the claim. The positions of the protagnists could not have been starker. The evidence Four witness testified for the plaintiffs’ case and the first defendant was the sole witness for his case. The witnesses for the plaintiffs’ case comprised one Benedict Kwangwari as well as the three plaintiffs. What follows is a summary of each of the accounts of the witness. Benedict Kwangwari 93-year-old Benedict Kwangwari was the first witness for the plaintiffs’ case. He owns a farm adjacent to the disputed one, namely farm No. 209 Mushagashe. He also identified himself as the village head of this small scale farming community. His evidence was basically that the disputed farm was acquired by John Jandles who applied for a piece of land back in 1941 in the wake of the conversion by the colonial government of this area from a native reserve area into African purchase land. SUM 80-20 HMA 20-25 REF CHA 64-23 It was his evidence that sometime around 1941, he would routinely overhear conversations between his father and John Jandles. In those conversations John Jandles would inquire from his (i.e., witness’s) father how the process of applying for land was done and how his father would furnish John Jandles with the requisite knowledge on the application procedure. He indicated that at that time he as a 10-year-old child was friends with John Jandles’s son Finnie Jandles. Despite questions by the court and by 1st defendants counsel in cross examination on the veracity of his account given that he was only 10 years at the time; the witness insisted that he was privy to and had recollection of these events. According to him it was during the process of applying for the farm that authorities discovered that Jandles was in fact a coloured and therefore ineligible for allocation of land in that area. It was then that the idea of roping in a black relative to stand in for John Jandles was mooted. According to him the initial idea was to have John Jandles’s half-sister to stand in his stead. However, that idea was discarded when the latter indicated that she was too old to do that. Soon a plan was hatched to rope in the first defendant’s father Anex/Alex Chihanga, who as earlier said was the son of John Jandles’s sister (i.e., he was John Jandles’s nephew). At that time he was resident in the Summerton area of Masvingo. It was pursuant to that plan, so the witness account goes, that Alex Chinhanga was brought to the farm and consequently had it acquired and subsequently registered in his name. He further explained that Anex Chihanga is the same person as Alex Chinhanga. The witness was however evasive on whether Alex Machokoto was the same as Alex Chinhanga. I will return to this later in this judgment. Benedict Kwangwari therefore stressed throughout his account that the resources for the acquisition of the farm were provided by John Jandles with its registration in Anex Chihanga’s name being merely one for convenience to circumvent the colonial laws that obtained at the time. He further explained that the modalities of the acquisition of the farms was that an applicant would be allowed to work the land for a few seasons following which an assessment would be done by the authorities on his capabilities. If one passed this test only then would a yearly tax/levy would be paid. According to him, to date it has been the Jandles who have been paying the requisite taxes/levies. SUM 80-20 HMA 20-25 REF CHA 64-23 According to him the Jandles family and that of Anex Chihanga have been living harmoniously on that farm over the decades, with both families constructing their houses thereon. He expressed ignorance over the genesis of the disharmony between the two families. According to him efforts to have the dispute resolved by the local chief, chief Zimuto were unsuccessful as the first defendant was intransigent and refused to co-operate. Kwangwari also referred to an incident where the first defendant enquired from him in confidence on the true purchase of the farm, to which he, i.e., the witness explained to him in no uncertain terms that it was in fact John Jandles who had acquired it. The evidence of Mary Jandles 75-year-old Mary Jandles (the second plaintiff) testified as the second plaintiffs’ witness. First and foremost, she laid out the family structure which was summarized herein before. Suffice it to reiterate that she is John Jandles’ daughter and youngest child. She explained that the late Finnie Jandles (also known as Thomas John Jandles) was the eldest child in their family. Her other siblings being the late Peter Jandles, father to Lloyd (the second plaintiff). Ramajan Jandles (the third plaintiff) on the other hand being the son of the late Finnie Jandles. Vachihware was John Jandles’s mother. She testified that she never got married and stayed on the farm all her life. She also testified that the Jandles, by race or ethnicity belong to the coloured community. She also explained the circumstances of Anex’s death which are briefly to the effect that he developed a sore on the tongue which later became cancerous and spread to his throat. He died in Harare when all efforts to get him treated including consulting traditional healers failed. According to her before his demise Anex resided with the late Peter Jandles in Sunningdale, Harare. It was her further that evidence that the first defendant has always resided on the farm save for instances where he sought and obtained employment away the farm. With regards to the all-important issue, namely the acquisition of the farm, it was her evidence that it was acquired by her father, John Jandles. However, she got most of what she knows from her late mother, Maina. She explained that the first defendant is her nephew being SUM 80-20 HMA 20-25 REF CHA 64-23 the son of the late Anex Chihanga who in turn was a nephew to her father John Jandles; the latter being a half-brother to Anex’s mother. According to her the Jandles family has always regarded the disputed farm as their rural home. She pointed out that all the deceased members of the Jandles family are interred on that farm in the common family cemetery thereon. She confirmed that Alex Chihanga, is the same as Anex Chihanga the former being his original name but corrupted to “Anex” by mispronunciation and common usage. She however expressed surprise and reservations of the latter’s purported use of the surname Machokoto. She claimed to have only been made aware of the surname Machokoto when Anex died. Her evidence regarding the acquisition of the farm mirrors the plaintiffs’ overall position namely that it was acquired by her father John Jandles. However, because of the race restriction law which operated at the time he (i.e., John Jandles) could not acquire land on areas reserved for native blacks. It was then that he was one of necessity forced to enlist his nephew Alex/Anex Chihanga to acquire it and register it in his name. This was on the understanding Anex would hold it in trust for John Jandles. According to her, the two families have resided on the farm harmoniously through the decades. Disharmony only arose in the wake of the demise of Anex Chinhanga in October 1983. More particularly, it was her evidence at some point in 1999, she was forcibly evicted from the farm at the instance of the first defendant. She testified that the first defendant claimed to have won his case in the courts and therefore managed to have her ejected from the farm. The status quo was only restored upon the intervention of members of the National Youth Service stationed at Mushagashe Training Centre. Needless to say, she categorically denied the first defendant’s position that it was Anex Chihanga who through his industry and effort had acquired the farm. She described Anex Chinhaga as an unproductive, unemployed, lazy layabout who had lacked the capacity to acquire the farm. More particularly she dismissed assertions that Anex had at any time before or after independence, produced any agricultural yield which he had sold to GMB. According to this witness, part of Jandles’ investigative pursuits to unravel the question of the acquisition of the farm took them various offices and institutions including the Deeds Office and the National Archives. The Jandles also sought audience with the traditional SUM 80-20 HMA 20-25 REF CHA 64-23 leadership (including the first plaintiffs’ witness Benedict Kwangwari and the local Chief). They also consulted the surviving relations and their findings were the same, namely that it was John Jandles who had acquired the farm. She also gave an elaborate account of the dwelling structures within the farm. These consist some houses up the hill constructed by the Jandles and those downhill predominantly constructed by the Chihangas. As far as payment of the unit/and taxes or levies is concerned, it was her evidence that these have always been paid by the Jandles. Initially it was her late brother Finnie Jandles but after his death the third plaintiff, Ramajan Jandless took over that role. A few illustrative receipts of payments to the Rural District Council were produced as exhibits. She expressed surprise that the first defendant would elect to rope in other people, to the exclusion of the Jandles in the edict meeting convened by the (Additional Assistant) Master when the estate of the late Anex Machokoto was registered. She was taken to task during cross examination on whether Anex/Alex Chinhanga was the same person as Alex Machokoto. She maintained that as far as she was concerned Anex was never referred to by that surname – Machokoto. She however conceded there was a possibility of members of the same family bearing different surnames. She insisted, regardless, that she only learnt of Anex’s purported change of surname from Chihanga to Machokoto in the wake of his death. She however expressed dissatisfaction with the authenticity of such change of name given that the deed of grant remained of the farm remains (to date) in the name of Anex Chihanga. She was at pains to explain the purposes of a fraudulent change of name from Chihanga to Machokoto in the context of what is at stake, particularly in light of the fact that the deed of grant remains in the name Anex Machokoto. She would also be quizzed in cross examination on why the Jandles opted not to correct the anomalous situation after independence by causing the farm to be registered in their name considering that new, non-racial laws had been ushered in. In response she referred to the ‘deep love’ which her father had for his nephew Anex which love they also extended to him and his family. She indicated that the Jandles were content with the status quo more than three decades after independence. SUM 80-20 HMA 20-25 REF CHA 64-23 The evidence of Lloyd Peter Jandles He was born in 1975 and is the paternal grandson of John Jandles. His father was Peter Jandles. It shall not be necessary to repeat his testimony as far as the acquisition of the farm is concerned. It suffices to say it mirrors that of his paternal aunt, Mary Jandles. It shall equally be unnecessary to repeat his evidence regarding the relationship between the Jandles lineage on the hand and that of the Chihangas on the other as well as the family trees of both. He also explained the hitherto peaceful and cordial co-existence of both families on the farm this was up until the present dispute erupted. Instead focus will be placed on thee related key areas of his evidence. Firstly, he vouched that the first defendant created the fictitious non-existent persona of Alex Machokoto to fraudulently distance himself from his true relatives- not least the Jandles. This was designedly in his own words “to box out” the Jandles and anyone answering to the surname “Imbayago”. Secondly, and related to the first, he expressed utter dissatisfaction with the process of change of name by Anex Chihanga to Alex Machokoto. He testified that as far as he could tell the process was shrouded in mystery as a proper process involving a notarial deed of change of name was not followed. Further, as far as he is concerned this whole process was fraudulently designed to ensure that the first defendant would subsequently inherit the farm to the exclusion of the rightful heirs - the Jandles family. Further, it was his opinion that it is curious that Anex Chahanga purported to execute his change of name barley a month prior to his demise. He indicated that at that stage Anex Chihanga was seriously ill, on his death bed as it were, in Harare and it was implausible that he could have proceeded to Masvingo to effect a change of name with the office of the registrar in Masvingo. He reiterated that Alex Chihanga was always known by that name throughout his life and as far as he could tell the name Machokoto was only fraudulently created by the first defendant in 1999 as foundation for his intended deceitful disinheritance of the Jandles of the farm. According to him, in order to position himself to effect the subsequent coup de grace over the farm, the first defendant conveniently changed his surname from Chihanga Imbayago to Machokoto in 1995. SUM 80-20 HMA 20-25 REF CHA 64-23 Secondly, he also pointed to some peculiarities regarding the details recorded on Alex Machokoto’s death certificate which in his view arouses suspicion. These are his usual place of residence was given as Harare central Hospital (which was inaccurate), the place of burial was given as Warren Hills (Harare) when in fact he was buried at the farm in Masvingo province, and thirdly the date of death was given as September 1983 (when in fact it was November 1983). The third issue of his concern was that whereas the death notice filed with the (Additional Assistant) Master of the High Court in 1999, reflected that the late Alex Machokoto did not own any movable property, yet the liquidation and distribution plan surprisingly listed Farm 210 Mushagashe as his asset. He therefore suspected fraud on the part of the first defendant and the executor of Alex Machokoto’s estate, one Kingston Matenhese (the 2nd defendant). The witness also made reference to a meeting held with the then district administrator for the area one, Mutingwende. He was questioned at length on why he continued to dispute that the surname Machokoto applied the to the first defendant and his father, particularly in light of the evidence of Benedict Kwangwari who confirmed its origins in the first defendant’s lineage. In response he persisted with his reservations of both the authenticity of the purported change of name and the motive underpinning it. He was also questioned during cross examination if there was proof of John Jandles having paid the purchase price of the land which he referred to the payment of “unit tax”. It was further was suggested to him that the erroneous reference of Alex Machokoto’s place of burial as Warren Hills cemetery was merely an error, given that the person who had provided that information was the mortuary attendant. Further it was pointed out that all the other relevant information coincided with that of Anex Chihanga. The witness however completely discounted the possibility of a mere error and insisted that this was a scheme perpetrated by the first defendant to perpetrate a fraud. Importantly it was pointed to him during cross examination that the absence of proof of the death of Anex Chinhanga from the Registrar of births and death was additional proof that Alex Chihanga and was the same person as Alex Machokoto. He however he insisted that throughout his life he was known as Alex Chihanga and only after his death, was he then known SUM 80-20 HMA 20-25 REF CHA 64-23 as Alex Machokoto. In response the witness suggest that perhaps the “fraudulent” death certificate bearing the name Alex Machokoto was used to bury Alex Chihanga. He was asked by the court whether according to him the change of name of Alex Chihanga to Alex Machokoto never look place and that the first defendant somehow back- dated the change of name fraudulently to make it appear as if the change of name had been done in 1983 or that the first defendant in 1983 had fraudulently caused his father’s change of name with a view to perpetrating the fraud in 1999 some 16 years later. In response he expressed the opinion that in all probability it was the former scenario. He further indicated that it is not beyond the realm of possibility to corruptly influence office bearers to corruptly temper with official documents to create a false narrative. Regarding the issue of the exclusion of the Jandles family at Alex Machokoto’s edict meeting, it was suggested to him that there was nothing amiss about the first defendant enlisting his relatives from his father’s side as no law precludes that. He responded by stating that in the instant case it was surprising given the close and virtually inseparable relationships they had. He also dismissed the suggestion that the omission of the farm from the death notice was an error. Upon being quizzed on the Jandles’ failure to raise an objection to the publication of the liquidation and distribution plan, the witness pointed out they were not concerned about the estate of Alex Machokoto and further that the publication was only done in the mirror newspaper circulating in Masvingo when he and other Jandles were based in Harare. The witness was also questioned extensively on the probative value of the affidavit of one Mutoredzanwa deposed to in previous proceedings between the parties. It was suggested that such affidavit carried minimal value given it is not clear how old Mutoredzanwa was at the time of the acquisition of the farm and the source of his information. Ramajan Jandles He is the grandson of John Jandles (i.e., the son of Thomas Finnie John Jandles). As far as the acquisition of the farm is concerned, his evidence is for all intents and purposes identical to that of Mary and LIoyd Jandles. Suffice it to say he insisted that as far he has learnt, the farm was acquired by his potential grandfather, John Jandles in circumstances articulated Mary and LIoyd Jandles. SUM 80-20 HMA 20-25 REF CHA 64-23 He also stressed that the Jandles have always referred the farm as their rural home and that John Jandles mother (VaChihware), sister wife (Maina), chidren (Finnie and Peter) are all interred at the family graveyard within that farm. He also testified that he learnt from elders in the community, particularly the current headman Benedict Kwangwari that the arm was acquired by John Jandles but subsequently registered in the name of Anex Chihanga in circumstance as articulated by the other witness. The First Defendant’s case The evidence of James Machokoto As earlier stated, the first defendant was the sole witness for his case. In the opening paragraphs of this judgment I gave the broad framework of his evidence. He gave the detailed version as follows. He was born and raised on the farm. He learnt most of what he knows from his father. He insisted both in his evidence in chief and during cross examination that if was father who purchased the farm back in 1941. He gave an elaborate account of how his father purchased the farm in 1941. It was to the following effect. Around 1938/39 the then government removed people from the area in question with the intention of subdividing it into farms which would then be put up for sale. Those farms according to him comprised two categories, small scale farms for blacks who were considered persons of limited means and the large-scale farms for whites, Indians and coloureds. It was then at hat his father resigned from his job as a gardener and proceeded to Mvuma to apply to be allocated a farm. He paid the sum of 2 pounds and was placed on the waiting list and allocated waiting list AP1102 (The acronym AP standing for African Purchase). He produced the waiting list document in question which he extracted from (administrative) accounts office at Mvuma. According to him in 1940 Anex was subsequently allocated the farm in question. He also produced a copy of the receipt for the first payment he made towards its purchase price. He further referred to various documents showing various reminders sent to Anex Chihanga by the administrative authorities of the day to clear up outstanding arrears. These date back to the period between 1943 and 1947. These were also obtained, according to the witness from the SUM 80-20 HMA 20-25 REF CHA 64-23 Accounts office at Mvuma. According to him those arrears were paid, his evidenced by the fact that eventually he obtained the deed of grant in 1957. He completely dismissed Benedict Kwangwari’s evidence to the effect that it was John Jandles who purchased the farm as a pack of lies. He pointed out that Kwangwari was too young at the material time to be privy to how these farms were acquired. He equally disputed Kwangwari’s status supposedly a village head and pointed out that designation does not exist in small scale farms of this nature. He equally dismissed the contents of Bvuvayi Chiweshe’s affidavit confirming that John Jandles purchased the property. In explaining the presence of the Jandles Family on the farm, it was the first defendant’s evidence that Anex Chihanga’s mother (i.e., the witness’s paternal grandmother) Elizabeth Zezi took pity of her own mother’s impoverished situation and allowed them to reside on the farm. She brought with her John Jandles, who was coloured. Ever since that moment the Jandles have resided on that farm. He referred to the Jandles as distant relatives who are ineligible to inherit from his late father’s estate. He however acknowledged that the Chihangas and the Jandles have peacefully co-existed on the farm. According to him, the dispute which culminated in the present proceedings has its roots in 1955 when John Jandles died. It was then that the latter’s first born son Thomas Finnie John Jandles started laying claim over the property. At one point, Finnie Jandles left in a huff only for his family to return in 1972. Again, on this occasion, Anex allowed John Jandles wife Maina to return to the farm subject to them building their home uphill. It was on that basis, according to him, that the Jandles proceeded to construct their dwelling structures atop the hill. As far as the identity of his father is concerned, he testified that his father was initially known as Anex Chihanga but also later after he executed the process of change of name, also as Alex Machokoto. In this regard, he produced confirmation of identity originating from the Registrar of births and deaths dated 13 February 2023. The said document is directed to the first defendant’s legal practitioners-Chihambakwe Law and was authored by the District Registrar – Masvingo. It reads: “Confirmation of ID details: Alex Machokoto ID NO. 22-036789 F 22 This serves to confirm that the above named initially registered his old registration certificate on 23/05/1932 using the first name Chihanga and the pseudonym Anex. SUM 80-20 HMA 20-25 REF CHA 64-23 During that period the registration certificate were not bearing the surname but first names only. On the 27th day of September 1983 registered his current ID using the first name Alex and surname Machokoto, ID NO. 22-036789 F 22 thus disregarding the first names Chihanga and Anex. Nevertheless according to the records kept at this office Alex Machokoto and Chihanga Anex is one and the same person because the same ID NO. 22-036789 F 22 is also annexed on his old registration certification card which bears the name, Chihanga Anex.” According to him, Chihanga was his paternal grandfather, (i.e., the first defendant’s great grandfather”). In short according to him Imbayago, Chihanga and Machokoto are names used by his fore bearers. He therefore vehemently denied that Alex Machokoto is not the same person as Anex Chinhanga”. He equally denied that he had created a fictitious name of non-existent name Alex Machokoto to facilitate a fraud. With regards to the registration of his father’s estate, it was his evidence that everything was above board. He had roped in members of his immediate family to the exclusion of the Jandles as he regarded the latter as “distant relatives”. He expressed the view that a relative is one who can inherit from one’s estate which according to him excluded the Jandles could not do in respect of the late Alex Chihanga. It was upon successfully registering the estate that he then handed over all subsequent administration of estate processes to one Kingston Matenhese of Polka executor services. Ultimately the estate was wound up with the farm in question being listed as one of the assets of the late Anex Chihanga. In the wake of the winding up of the estate he then proceeded to apply for an eviction order against the Jandles namely became Finnie Jandles was now fighting tooth and nail to have him removed from the farm who did so on the pretext that the farm had supposedly been acquired by John Jandles. The Jandles only returned upon the extra judicial intervention of members of the National Youth Service stationed at Mshagashe Training centre. But that was not before they gave him a thorough hiding for having evicted the Jandles (especially Mary Jandles) in the first place. SUM 80-20 HMA 20-25 REF CHA 64-23 He indicated that the Jandles have since constructed several houses over the years, in the wake of the death of his father Anex. As far as the payment of unit tax for the farm is concerned, it was the first defendant’s version that it was his father Anex, who did so during his life time and that he took over that role in the wake of his death. He was subjected to fairly lengthy cross examination which cross examination traversed all aspects of his evidence. In particular he was quizzed at considerable length on his apparently contradictory evidence in relation to how the farm was supposedly purchased by his father. It was pointed out that he gave several irreconcilable versions in this regard; it being pointed out that he had prior inconsistent statements. These versions include that the source of funds was Anex’s father, James Imbayago Muneri (his evidence under cross examination), that the funds were from Anex’s salary as a gardener (the version portrayed in his summary of his evidence), that the funds were from the Kooper scheme (his version as portrayed in the summary of his evidence), that it was his mother who had sold her beasts (as averred in an affidavit in prior proceeding) between the parties. It was suggested to him that his inconsistences in so far as the source of funds for purchase of the farm was concerned was indicative of absence of evidence that it was actually Anex Chihanga who had provided those finds. It was therefore suggested that the absence of a consistent and coherent evidence, by first defendant of the source of funds for the farm’s purchase lent credence to the plaintiff’s version. The first defendant flatly denied this. He would reiterate under re-examination that his grandfather provided the initial amount but his father the provided the rest of the purchase price in the subsequent years. Related to the above, it was suggested to the first defendant in cross-examination that the mere production of receipt in the name of Anex Chihanga did not ipso facto show that same was the source of the funds. It was further suggested that the fact that he had at some point asked Finnie Jandles to pay the unit tax for the farm further cemented the plaintiffs’ position with regards to the source of the funds for payment of the purchase price. In respect of the latter suggestion, the witness indicated that he had merely borrowed money from Finnie Jandles. SUM 80-20 HMA 20-25 REF CHA 64-23 On the highly disputed subject of the identity of Alex Machokoto vis-à-vis Anex Chinhanga it was put to the witness that his failure to produce the National identity document of Alex Machokoto was fatal to his cause. In response he indicated that he placed reliance on the death certificate. Related to the above was the set of questions wherein it was suggested to the first defendant that he could not have registered the farm as an asset of Alex Machokoto. These questions were predicated on the fact that the death notice did not include the farm as an immovable asset of Alex Machokoto yet the liquidation and distribution plain did. Secondly, it was pointed out that the property being registered in the name of Anex Chihanga could not conceivably be listed as an asset of a different person (i.e., Alex Machokoto). In respect of the former, the first respondent attributed this to mere oversight and in respect of the latter, he reiterated that Anex Chinhanga ws the same person as Alex Machokoto. He completely denied any assertions to the contrary. Needless to say he completely denied having colluded with the executor of Alex Machokoto’s estate to perpetrate a fraud insisting as he did that all he did was appoint Matenhese as the executor of his father’s estate and submitted all relevant documents to him and that the latter in turn submitted the documents to the Master of High Court in the course of the administration of the estate. The issues After everything is said and done, the first and perhaps overarching question is who between John Jandles and Anaex Chinhanga purchased farm 210 Mshangashe West, Masvingo. The onus is undoubtedly on the plaintiffs not least because the farm is registered in Anex Chinhangas name. Should the court find that the plaintiffs have demonstrated on a balance of probabilities that it was John Jandles who acquire the property but caused it to be registered in the first defendant’s name, the rest of the issues would be rendered virtually redundant. For example it would matter little if Alex Machokoto is the same person as Anex Chihanga. SUM 80-20 HMA 20-25 REF CHA 64-23 The second broad issue is whether the first defendant fraudulently registered the estate of a non-existent person, namely Alex Machokoto. This issue is in turn dependant on two related sub-issues namely whether Alex Machokoto was the same person as Anex Chinhanga. In their written closing submissions which were quite comprehensive, the plaintiffs urged the court to make three key findings. Firstly, the that the probabilities favoured that it was John Jandles who purchased the farm. They averred that by contrast the defendant prevaricated, was inconsistent and evasive. Secondly, they urged the court to find that the arrangement between John Jandles and Anex Chihanga was effectively one of a trust wherein the former had entrusted the latter with the property with an understanding that their respective families were to co-exist on the farm. They implored the court to take cognisance of the fact Zimbabwean law (as in other jurisdictions such as South Africa, Australia and England) recognise the validity of unwritten trusts. Reliance was placed in part on the Australian case of Napier v Public Trustee (Western Australia) (1981) 55 A. L. R where two parties who lived in a de facto relationship wherein the de facto husband had provided the funds for the purchase of a house and had it registered in the name of his de facto wife who later died found himself in the cold after he discovered that, upon her death, she had not bequeathed by her will the said house to him. The husband claimed in the lower court and lost but took his matter to the Court of Appeal which held that: “a resulting trust had been created when the de facto husband provided the funds for purchase of the house and had it registered in his late de facto wife. He had not donated the house from facts of the case. He was therefore entitled to the remainder. The late de factor wife only had a beneficial interest during her lifetime as such was the intention of the parties.’’ Thirdly, the plaintiffs implored the court to find that the registration by the first defendant of the farm as being part of Alex Machokoto’s dispute was tainted by fraud and must be rescinded. SUM 80-20 HMA 20-25 REF CHA 64-23 The defendant on the other hand urged the court to dismiss the claim in its entirety. It was submitted on his behalf that there was no evidence to support claim that it was John Jandles who had purchased the farm. More importantly it was argued that even if that were the case, the arrangement between John Jandles and Anex was an illegal one meant to circumvent an extant law at the time. He urged the court to have regard to the general law that the court cannot enforce a contract whose object is to commit an illegality. Reliance was placed in part on the cases of Hindley and Company Ltd v General Fibre Company Ltd (1940) 2KB 517 and Hire Purchasing Furnishing Comapy v Richens (1887) 2v QBD387 CA. It is against the background of the foregoing that the plaintiff’s quest for declaratory and consequential relief needs to be assessed. Section 14 of the High Court Act [Chapter 7:06] grants the High Court the discretion to grant declaratory orders. It reads: 14. High Court may determine future or contingent rights. The High court may, it its discretion, at the instance of any interested person, inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination. In interpreting this provision, GUBBAY CJ in Johnsen v Agricultural Finance Corp 1995 (1) ZLR 65, had this to say: “The condition precedent to the grant of a declaratory order under section 14 of the High Court of Zimbabwe Act, 1981 is that applicant must be an “interested person” in the sense of having a direct and substitutional interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court. The interest must concern an existing future or contingent right. The court will not decide abstract, academic or hypothetical questions unrelated thereto. But the presence of an actual dispute or controversy between the parties……” The principles governing the granting of a declaratory order have since been distilled to consist of the following: a) The applicant must be an interested person in the sense that he or she must have a direct interest in the right to which the order relates; SUM 80-20 HMA 20-25 REF CHA 64-23 b) There is a right or obligation which becomes the object of the inquiry; c) The applicant must not be approaching the court for what amounts to a legal opinion upon an abstract or academic matter; d) There must be interested parties upon which the declaration will be binding; and e) Considerations of public policy favour the issuance of the declaratur. See MDC v The President of Republic of Zimbabwe & Ors HH-28-2007 & Family Benefit Society v Commissioner for Inland Revenue & Anor 1995 (4) SA 130 (T). Whether Anex Chinhanga was the same person as Alex Machokoto Although this is not the main issue, I find myself constrained to address it first considering the amount of effort and time expended by the parties on it. To being with is unanimity as between the parties that Anex Chihanga was the same as Alex Chihanga. As a matter of fact, the overall impression created by the parties was that his proper first was Alex Chihanga with the name “Anex” being a distortion thereof. This distortion somehow ended up on the deed of grant as an “alias”. It is clear that the registration of title over property was not done, in those days, with the same meticulous attention to detail as today. From the evidence I find that there is ample evidence to show that Alex Chihanga (also known as Anex Chihanga) was the same person as Alex Machokoto. This is supported in the main by the confirmatory letter originating from the District Registrations Office. Although the plaintiffs strove to argue that there is an insufficient paper trial to show the change of name, the evidence at my disposal hardly supports the commission of such a fraud. Apart from the letter from the district registrar there is the evidence of the plaintiffs’ own witness Benedict Kwangwari, who dispite his reluctance to divulge more about the first defendant’s paternal family tree all but confirmed the origins of the name Machokoto. The alleged illegality, hence unenforceability of the agreement between John Jandles and Alex/Anex Machokoto SUM 80-20 HMA 20-25 REF CHA 64-23 Before tackling the question of who provided the funds for the purchase of the farm, I will deal with the first defendant’s argument that in any event the agreement between John Jandles and Anex Chihanga is unenforceable on account of its illegality. Parallels may be drawn with facts in Dube v Khumalo 1986 (2) ZLR 103 (SC). This was an appeal to the Supreme Court. The brief facts of that case are that the parties entered into an agreement wherein the appellant would purchase a house in the name of the respondent. The use of the respondent’s name as purchaser involved a deception on the seller, the Municipality of Bulawayo, which would otherwise have not sold to the appellant himself because of an existing law which precluded one who already had another property in his name in the municipal area from purchasing another. The two were in an adulterous relationship. However when the relationship soured, the appellant demanded possession of the property from the respondent who refused to comply relying on the registration of the property in her name. In the court below , the court invoked the in pari delicto rule and refused the relief sought. On appeal, however, the Supreme Court held that the in pari delicto rule should be relaxed in order to do justice between the parties. GUBBAY JA (as he then was) had this to say; “There are two rules which are of general application: The first is that an illegal agreement which has not yet been performed, either in whole or in part, will never be enforced. This rule is absolute and admits no exception. See Mathews v Rabinowitz 1948 (2) SA 876 (W) at 878; York Etates Ltd v Wareham 1950 (1) SA 125 (SR) at 128. It is expressed in the maxim ex turpi causa non oritur actio. The second is expressed in another maxim in pari delicto potior est conditio possidentis, which may be translated as meaning “where the parties are equally in the wrong, he who is in possession will prevail.” The effect of this rule is that where something has been delivered pursuant to an illegal agreement the loss lies where it falls. The objective of the rule is to discourage illegality by denying judicial assistance to persons who part with money, goods or incorporeal rights, in furtherance of an illegal transaction. But in suitable cases the courts will relax the par delictum rule and order restitution to be made. They will do so in order to prevent injustice, on the basis that public policy “should properly take into account the doing of simple justice between man and man.” SUM 80-20 HMA 20-25 REF CHA 64-23 Ultimately, the Supreme Court in overturning the court below relaxed the in pari delictorule relied in Jajbbay Cassim 1939 AD 537 at 544-545 and Peterscen v Jajbhay 1940 TPD 182 and concluded as follows: “In this case, so it seems to me, the plaintiff was not seeking to enforce an illegal agreement. That agreement had been performed. It had achieved its purpose the Municipality was defrauded. In consequence of the defendant had acquired rights in respect of Stand No. 70769 without incurring any corresponding disadvantage. She had given no value for them. The plaintiff paid for the acquisition and continues to do so and it was the official recognition, that those rights vested in him and not in the defendant that he sought from the court a quo; in other words, the recovery of those right from the defendant.” In my view the refusal to accord that relief allowed the defendant to be enriched at his expense. See Padayachey v Lebesc 1942 TPD 11; Albertyn v Kumalo & Ors 1946 WLD 529; Rootes (Central Africa) (Pvt) Ltd v Mundawarara & Anor 1973 RLR 57 at 61 A-B; Osman v Reis 1976 (3) SA 710 (C) at 712 (H).” By the same token, in casu, should it be established that the farm was indeed purchased by John Jandles but registered in the name of Anex Chihanga to circumvent the colonial laws obtaining at the time, the in pari delicto rule would stand to be relaxed to avoid enriching the Chihanga family at the expense of the Jandles family. Who bought the farm? The parties presented two diametrically opposite versions which appear to be almost equipoised. Sight, however, must not be lost of the general question of onus. The onus rested squarely on the plaintiffs to show that despite the farm being registered in the name of Anex Chihanga it was in fact John Jandles who had purchased it using Anex merely as a proxy or front. Before proceeding I interpose here to refer to the effect of the registration of immovable property. In Moyo v Nyamukonda & Anor HB-41-18 MATHONSI J (as he then was) summarised the position as follows: SUM 80-20 HMA 20-25 REF CHA 64-23 “It is settled in our jurisdiction that ownership in immovable property is held by way of a Deed of Transfer in the name of the person who owns the immovable property as provided for in the Deeds Registries Act [Chapter 20:05]. Registration of rights in immovable property is a matter of substance as it conveys real rights upon those in whose names the property is registered which rights have been described as “the sum total of all the possible rights in a thing.” See Takafuma v Takafuma 1994 (2) ZLR 103 (S) at 105G. It means that those real rights cannot be alienated by anyone else except their holder.” A deed of title however constitutes prima facie proof of ownership. See Chido Erica Matewa (in her capacity as Executrix dative of estate late Judith Matewa) v City of Harare SC 61-23; Ishemunyaro (nee Mandidewa) v Ishemunyoro & Ors SC 14-19, & CBZ Bank Ltd v Moyo & The Deputy Sheriff Harare, SC-17-18. In Fryes (Pvt) Ltd v Ries 1957 (3) SA 575 at 582 the following was said: “Indeed, the system of land registration was evolved for the very purpose of ensuring that there should not be any doubt as to the ownership of the person in whose name real rights are registered. Generally speaking, no person can successfully challenge the right of ownership against a particular person whose right is duly and properly registered in the Deeds office” The onus therefore rests on a party challenging such registration rebut the presumption of ownership that arises from registration. In casu, although the plaintiff vouched for their position with almost palpable conviction, they were let down primarily by the absence of any paper trail confirmatory of that position. Because the events to which they narrated occurred decades before they were born, they had to rely on what can be described as “oral tradition’. To accept their position is to necessarily undo a position that is not only solidly backed by documentary evidence but also one that has obtained for 84 years (if one calculates this from 1941 when the farm was acquired) or 68 years (if one calculates this period from 1957 when the deed of grant was granted). The plaintiffs in my view failed to show that John Jandles was precluded from purchasing land in the area concerned. For example, they did not show a letter of the rejection of his SUM 80-20 HMA 20-25 REF CHA 64-23 application. To the contrary the first defendant produced evidence that his father Alex/Anex Chihanga was placed on the waiting list and obtained a waiting list number. He also produced a document showing that Alex/Anex Chihanga was on the list of people allocated land. Receipts for the payment of levies and taxes are also in his name. Meanwhile, other than their mere ipse dixit, the plaintiffs have absolutely no documentary evidence upon which to anchor their claim. To compound the plaintiffs’ rather precarious situation, they (or their forbearers) did not with the requisite promptitude, rectify the purported anomalous situation. With the dawn of Zimbabwe’s independence in 1980, ushering as it did a non-racial society, one would have expected them to act swiftly to rectify that situation. They could not have left the fact of the farm to some tenuous conception of their father (or grandfathers) fondness of Anex. I did not find the evidence of Benedict Kwangwari convincing. It is stretching the bounds of credulity to accept that at age ten, he would be privy to the meetings held between his father and a neighbour and would be able to recount such conversations 84 years later! In their closing submissions, the plaintiffs went to great lengths to try and convince the court that the arrangement between John Jandles and Anex/Alex Chihanga was one of a trust wherein the former the latter entrusted with the farm for the benefit of the former’s offspring. That argument is hard to sustain given that there is proof of the setting up of such a trust. If that was the case John Jandles would have either reduced that to writing or confided with someone of this being the case. A fortiori as stated earlier, the facts adduced do not on a balance of probabilities justify the granting of the order sought. Disposition The sets of relief sought by the plaintiffs are interrelated and in severable in paragraph 16 (a), (b), (c) and (f) of the plaintiffs’ declaration any conferment of right upon the first defendant over farm 210 consequent to his appointment as heir to the late Alex Machokoto should be cancelled or otherwise set aside. From the foregoing discourse I do not believe this is a case where the court can in its discretion, properly exerciser should grant that relief. SUM 80-20 HMA 20-25 REF CHA 64-23 Hasten, I must, to add that I have not necessarily found that it was Anex Chihanga who purchased the property. All that is being said is onus resting on it to show on a balance of probabilities that it was John Jandles who did. The second kindred set of reliefs are captured in paragraphs 16 (d) (e) and (g) of the plaintiffs’ declaration. They are all to the effect that John Jandles was the legal and purchaser of Farm No. 210 Mshagashe Masvingo and that therefore, that the first plaintiff is the rightful heir of his late estate which estate comprises Farm No. 210 Mshagashe West Masvingo. As a consequence, they seek a declaratory order that the three plaintiffs have a right of use possession occupation and enjoyment of the said farm to the exclusion of the first defendant who they want evicted therefrom. Having been unable to find that the evidence does not support the main finding namely that it was John Jandles was the owner and purchaser of the farm, I do not believe this a proper case for the exercise of the court’s discretion in granting the claim. It follows therefore that the above raft of reliefs cannot succeed. Costs The general principle is that the substantially successful party is entitled to his or her costs, I do not find any reason from departing from this principle. However, there are no good reasons for awarding costs on the punitive scale as prayed for by the first defendant. The claim was neither frivolous nor actuated by malice or some such ill motive. It was also not recklessly pursued. It was predicated on a genuinely held belief of the soundness of their position. Accordingly costs on the ordinary scale suffice. Accordingly the following order is hereby made: 1. The claim be and is hereby dismissed in its entirety. 2. The plaintiffs jointly and severally to meet the first defendant’s costs (on the ordinary scale). SUM 80-20 HMA 20-25 REF CHA 64-23 Mawadze & Mujaya Legal Practitioners, the plaintiffs’ legal practitioners Chihambakwe Law Chambers, the first defendant’s legal practitioners