HB 110-18 SELINA THEBE (NEE MABALEKA) Versus LEONARD MABELEKA And Anor

SELINA THEBE (NEE MABALEKA)

 

Versus

 

LEONARD MABELEKA

 

And

 

MUNICIPALITY OF BULAWAYO

 

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 20 OCTOBER 2017 & 3 MAY 2018

 

Opposed application

 

Ms L. Mumba for the applicant

Advocate L. Nkomo for the respondent

            TAKUVA J:  This is an application for rescission of a default judgment wherein the applicant has brazenly adopted a scattergun approach by relying on rules 63 and 449 of this court’s rules.

            The facts which form the genesis of this case are that the applicant’s late husband and 1st respondent were brothers born to the now deceased Lucy Msipa who owned house number 61218 Pelandaba.  The estate of the late Lucy Msipa was registered under DRBY number 172/08.  Applicant was subsequently appointed as Executrix Dative on 17 December 2009.  Lucy Msipa had died intestate on 26 April 1991.

            On 25 February 2010, a distribution account was approved by the Additional Assistant Master.  The final liquidation and distribution account declared the applicant and 1st respondent sole beneficiaries of the property in dispute in equal shares.  Both parties agreed that the house be sold by private treaty but appeared to disagree on the purchase price.  Applicant offered, from February 2010 to buy 1st respondent out.  However, this she did not do for 3 years although she continued to lease the property and taking rentals to her exclusive benefit.  Surprisingly

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2018