Muganhire v Chabveka (nee Apolina) (HH 82 of 2004) [2004] ZWHHC 82 (20 April 2004)

HH 82­2004 HC 9863/03 MAGNA MURECHE MUGANHIRE versus LIYA CHABVEKA (NEE APOLINA) HIGH COURT OF ZIMBABWE BHUNU J HARARE, 3rd March 2004 and 21 April 2004 Mr Musimbe, for the applicant Mr Dondo, for the respondent Urgent Chamber Application BHUNU J: This matter initially came before me as an urgent exparte chamber application for a spoliation order involving a Mazda 323 registration number 560­536C. In the urgent chamber application the applicant was seeking a provisional order compelling the respondent to restore peaceful and undisturbed possession of the said motor vehicle to her. a.m. After the initial hearing the matter was postponed to the 18th November 2003 at 8.30 On the 18th November the applicant and her lawyer were in default judgment was entered against the applicant. She now explains that she turned up late for the hearing because they arrived at the main entrance gate at 8.25 a.m. but they were delayed due to security checks. I am of the view that it was remiss of the applicant to turn up at the court gate at 8.25 a.m. well knowing that they would be subjected to security delays. Despite that observation I however find the explanation to be reasonable though not prudent. The more reasonable thing to have been done in the circumstances was to make allowance for security check delays which they were both aware of. Having said that I now proceed to consider whether there are any reasonable prospects of success on the main application if rescission is granted. The background to the main application is that the respondent was married to the late Isaac Chabveka on the 12th of June 1995 in terms of the then Chapter 37 which is now HH 82­2004 HC 9863/03 Chapter 5:11. This type of marriage is a civil marriage which does not co­exist with any other marriage, it is monogamous. During the subsistance of the civil marriage the late Isaac Chabveka entered into a sexual relationship with the applicant Magna Mureche Muganhiri. The two cohabited as man and woman resulting in the birth of a child. The late Isaac Chabveka was the registered owner of the Mazda 323 in question. There is now a tustle for the possession of the motor vehicle in question. The applicant lodged an urgent exparte application claiming the restoration and possession of the motor vehicle in question from the respondent. In her founding affidavit the applicant claimed that prior to the 1st October 2003 she was in peaceful and undisturbed possession of the Mazda 323. She then gave the motor vehicle to the late Isaac’s brother Raphael Nyaunga. The respondent then forcibly took the motor vehicle from Raphael Nyaunga. The respondent denied that the applicant was in peaceful and undisturbed possession of the motor vehicle. She claimed that the motor vehicle was bought and registered in her late husband’s name sometime in 2003. At the time of his death the motor vehicle was still registered in his name. It formed part of his deceased estate. She confiscated the motor vehicle because Raphael Nyaunga was abusing it. She had the duty to safeguard her late husband’s deceased estate. Raphael voluntarily gave up possession. In a bid to establish her claim to ownership and peaceful undisturbed possession of the motor vehicle the applicant tendered an extract from the Central Vehicle Registry showing that she is the registered owner of the motor vehicle in question. An examination of the CVR extract shows that change of ownership was effected from the late Isaac Chabveka on the 3rd of October 2003. It is however common cause that the late Isaac Chabveka died on the 20th September 2003. What this therefore means is that the applicant effected change of ownership into her name after the death of Isaac Chabveka. In her answering affidavit she now seeks to argue that there was a mistake at CVR. She claims that although she bought the motor vehicle using her own money, she had the vehicle registered in Isaac’s name. When Isaac was now sick and about to die they then agreed to transfer the motor vehicle into her name to avoid future complications. I am aware that at this stage I am not required to determine ownership but the HH 82­2004 HC 9863/03 applicant’s story is disjointed and has no ring of truth which impeaches on her claim to peaceful and undisturbed possession of the motor vehicle. In her founding affidavit although she was seeking an exparte order she did not disclose material facts which she is now trying to explain at this late hour. In her founding affidavit she did not disclose that transfer had been effected from the late Isaac. The CVR extract which she produced in an endeavour to establish her claim to peaceful possession does not support her case. Initially she lodged her application without a supporting affidavit from Raphael who had possession of the motor vehicle when the alleged spoliation took place. The applicant in her affidavit claims that the motor vehicle was forcibly taken from Raphael whereas Raphael states that he emerged from the house he had gone to see a sick brother only to find that the vehicle had vanished. Thus the applicant’s claim to forcible dispossession is not supported by Raphael who was in possession of the motor vehicle at the material time. On the basis of the papers before me it is clear that the applicant’s claim to peaceful and undisturbed possession of the motor vehicle is shrawded in mystery and gross inconsistencies such that there are no reasonable prospects of success in the main application even if I were to grant rescission of default judgment. Looked at differently. The applicant claims that she was dispossessed of the motor vehicle on the 10th of October 2003 yet she only approached this court for relief on the 7th November 2003 about a month after the alleged unlawful dispossession. The applicant’s explanation for the inordinate delay of about a month is that she was trying to establish the respondent’s address of service. That excuse sounds hollow and unconvincing. She must have known the respondent’s residential address because she attended Isaac’s funeral at the respondent’s residential address. Raphael Nyaunga from whom the motor vehicle was taken must have known where his late brother’s wife the respondent was residing. Had the applicant asked him he would undoubtedly have told her. On the facts and having regard to the applicant’s inordinate delay in bringing this matter to court can only conclude that there is no urgency in this matter. That being the case there are no reasonable prospects of success that the court may treat this matter as an urgent case. In the result the application for rescission of judgment cannot succeed. HH 82­2004 HC 9863/03 It is accordingly ordered that the application for rescission of judgment entered against the applicant on the 18th November 2003 be and is hereby dismissed with costs. J. Musimbe and Associate, applicant’s legal practitioners Chinamasa, Mudimu and Chinogwenya, respondent’s legal practitioners