The first respondent, Angwa City
Investments (Pvt) Ltd, purchased a flat belonging to the applicant's estate.
The applicant is challenging the
legality of that sale.
The second respondent Saint Sebastian
Estate Agents, is the first respondent's estate agent with a mandate to manage
the flat in dispute. The third respondent, the estate late Israel Gumunyu, is
cited for the involvement of the late Israel Gumunyu in the sale of the
applicant's flat without the Master of the High Court's authority and his
failure to hand over the purchase price to the applicant. Israel Gumunyu
committed suicide when this matter was being investigated leaving his estate to
answer for his handling of the applicant's estate. The fourth respondent, the
Registrar of Deeds, is being cited in his official capacity as the officer
responsible for the registration of immovable properties. The fifth respondent,
the Master of the High Court, is being cited in his official capacity as the officer
responsible for the administration of deceased estates.
Jean Moir Hedley died testate
leaving behind three adult children. She, in her will, bequeathed all her
estate to John Moir Rosslyn Hedley and appointed an executor testamentary. John
Moir Rosslyn Hedley, in anticipation of the pending inheritance but not in
accordance with his mother's will, took all the papers pertaining to his late
mother's estate to the Will Writing Centre where he handed them to Israel
Gumunyu who promised to handle the estate. In paragraph 2 of her will, the late
Jean Moir Hedley appointed National Executor and Trust (Private) Limited to be
the Executor and Administrator of her estate. Israel Gumunyu sold the
applicant's flat without the Master of the High Court's authority. This got him
in trouble which he apparently avoided by taking his life. The avoidance was,
however, only personal and of a temporary nature as his estate is still to
account for his handling of the applicant's estate.
The applicant seeks an order in the
following terms;
1. The Agreement of Sale entered
into by and between the applicant, as represented by Israel Gumunyu, in his
capacity as its curator bonis
and the first respondent is declared null and void ab initio.
2. The fourth respondent be and is hereby
ordered to cancel Deed of Transfer Number 4483/10 in favour of the first
respondent and register the property known as an undivided 2.380% share being Share
Number 20 in certain piece of land situate in the District of Salisbury, being Stand
1773 Salisbury Township, measuring 2379 square metres in the name of the
applicant.
3. The third respondent be and is
hereby directed to reimburse the first respondent the purchase price it paid to
Israel Gumunyu for the property called an undivided 2.380% share being Share Number
20 in certain piece of land situate in the District of Salisbury, being Stand
1773 Salisbury Township, measuring 2379 square metres pursuant to the null and
void Agreement of Sale entered into by and between the applicant as represented
by Israel Gumunyu, in his capacity as its curator bonis, and the first respondent on 3 September 2010.
4. The first and third respondents
shall pay the costs of this application.
The first and second respondents
opposed the applicant's application and filed a counter claim for arrear
rentals and the eviction of John Moir Rosslyn Hedley from the flat in dispute.
The third to fifth respondents did
not file any opposing papers.
The second respondent filed opposing
papers and participated up to the filling of Heads of Argument. In its Heads of
Argument it said it would abide with the order of the court. It thus did not
participate in this litigation any further.
The facts of this case are common
cause. Counsel for the first respondent does not dispute them but sought to
hang the legality of the purchase of the applicant's flat without the Master of
the High Court's authority on section 41(a) of the Administration of Estates
Act [Chapter 6:01]. He submitted that the late Israel Gumunyu sold the flat at
the instance of John Moir Rosslyn Hedley, the beneficiary of the late Jean Moir
Hedley's will. He further submitted that John Moir Rosslyn Hedley was in
desperate need of cash and had suggested the sale of the flat when Israel
Gumunyu had not succeeded in timeously accessing money from the late Jean Moir
Hedley's foreign accounts.
That is not in dispute.
It is common cause, that John Moir
Rosslyn Hedley and his two siblings wrote letters to the Master of the High
Court in which they were persuading him to authorise Israel Gumunyu to sell the
flat.
The issue is whether or not section
41(a) of the Administration of Estates Act [Chapter 6:01] authorizes a curator bonis to do under it what he is
prohibited from doing by other sections of the Administration of Estates Act [Chapter
6:01].
Counsel for the applicant submitted
that a curator bonis'
authority, is restricted by section 22(2) of the Administration of Estates Act [Chapter
6:01] and section 91 of the Administration of Estates Act [Chapter 6:01].
Section 22(2) of the Administration of Estates Act [Chapter 6:01] provides as
follows;
“(2) Every such curator bonis may collect such debts
and may sell or dispose of such perishable property belonging to the estate as
the Master shall specially authorize.”
Counsel for the applicant submitted
that in terms of section 22(2) of the Administration of Estates Act [Chapter
6:01] a curator bonis can
only dispose perishable property - and only when specially authorized by the
Master of the High Court. He submitted that immovable property is not
perishable and cannot be sold by a curator bonis. He further submitted that if a curator bonis needs the Master of the High
Court's special authority to sale perishables the legislature could not have
required less stringent restrictions for him to sell immovables.
I agree with counsel for the
applicant's interpretation of section 22(2) of the Administration of Estates
Act [Chapter 6:01].
Counsel for the first respondent
agreed with counsel for the applicant's general interpretation of section 22(2)
of the Administration of Estates Act [Chapter 6:01] but disputed counsel for
the applicant's submission on the intention of the legislature on the curator
bonis' sale of immovables.
Counsel for the applicant also
submitted that in terms of section 91 of the Administration of Estates Act [Chapter
6:01] a curator bonis cannot
sell immovable property belonging to or forming part of any estate under his
guardianship unless the High Court or any judge thereof has authorized such
sale or unless the person by whom any such curator bonis has been appointed has
directed such sale to be made. Section 91 of the Administration of Estates Act [Chapter
6:01] provides as follows;
“91 No tutor, either testamentary or dative, and no curator,
either nominate or dative, or curator bonis
shall sell, alienate or mortgage any immovable property belonging to
any minor or forming part of any estate under the guardianship of such tutor or
curator, unless the High Court or any judge thereof has authorized such sale,
alienation or mortgage or unless the person by whom any such tutor testamentary
or curator nominate has been appointed has directed such sale, alienation or
mortgage to be made.”
Counsel for the applicant submitted
that section 91 of the Administration of Estates Act [Chapter 6:01] prohibits
the sale of immovables by a curator bonis
unless he has been authorized to do so by the High Court, a judge of the High
Court or by the person who appointed him.
I agree with his submission.
The clear meaning of section 91 of
the Administration of Estates Act [Chapter 6:01] is that a curator bonis cannot sell immovable property
without being authorized to do so by the High Court, a Judge of the High Court,
the testator or the person who appointed him. In this case, Israel Gumunyu was
appointed curator bonis by the
Master of the High Court in terms of section 22(1) of the Administration of
Estates Act [Chapter 6:01]. He thus could not sell the applicant's immovable
property without the Master of the Court's authority. That is probably why he
had asked John Moir Rosslyn Hedley and his siblings for letters of support to
request the Master of the High Court to authorize him to sell the flat.
It is not in dispute that he,
thereafter, sold the flat without the Master of the High Court's authority….,.
The intention of the legislature in
enacting section 41(a) of the Administration of Estates Act [Chapter 6:01] was
to enable “any person” to, before the appointment of an executor, take it upon
himself to act for the preservation of the deceased's property, or sell the
deceased's property for purposes of giving the deceased a decent burial or for
the sustenance of the deceased's family or livestock. This was intended to
provide for situations which arise before an estate can be properly
administered under the authority of the courts and the Master of the High Court.
It is inconceivable that the legislature could have envisaged the use of section
41(a) of the Administration of Estates Act [Chapter 6:01] in circumstances
where the Master of the High Court has already been involved in the
administration of a deceased estate. In this case, the Master of the High Court
had already appointed Israel Gumunyu the applicant's curator bonis.
I therefore find that Israel Gumunyu
had no authority to sell the applicant's flat.
When the Administration of Estates
Act [Chapter 6:01] is read and interpreted as a whole he could only have
validly sold the flat with the Master of the High Court's authority. The sale
was therefore illegal and a nullity. The fact that the first respondent was an
innocent purchaser is not relevant as the sale was a nullity. See the cases of Furure Katirawu v David Katirau and Others HH58-07…,.; Farai
Chitsinde and Another v Stanely
Musa and Another SC20-11; and Kudzanayi
Frank Katsande v Razmond
Katsande HH113-10…., in which a judge of the Supreme Court and two
judges of the High Court held that the issue of innocent purchaser does not
turn a non-sale into a valid sale.
The applicability of section 41(a) of
the Administration of Estates Act [Chapter 6:01] in this case is further
excluded by its not being applicable if the person taking it upon himself to
dispose the deceased's property does so for fraudulent purposes. The
authorization and protection against liability given to persons who take it
upon themselves to intervene for the deceased's burial or the deceased's
dependents by disposal of the deceased's property does not extend to
fraudsters.
In this case, Israel Gumunyu had
asked the deceased's children for letters supporting his being authorized to sell.
He, without reverting back to them, sold the flat without the Master of the
High Court's authority. He did not deposit the purchase price into the
applicant's account. An officer from his office, who deposed to the applicant's
supporting affidavit, agreed with what John Moir Rosslyn Hedley, the
applicant's curator bonis
deposed in his founding affidavit. On page 12 of the record and paragraph 20 of
his founding affidavit John Moir Rosslyn Hedley said;
“Unfortunately, probably having
realized the gravity of the situation he was in, Mr Gumunyu committed suicide,
having abused his office by intentionally and unlawfully defrauding and
depriving my late mother's Estate of a significant part of its property, to my
prejudice as the beneficiary therein.”
This was a direct allegation of
fraud yet Clever Mandizvidza, who is employed by the Will Writing Centre as its
Operations Manager, on page 29 of the record and paragraphs 2 and 3 of his
supporting affidavit, said;
“2. Mr John Moir Rosslyn Hedley
approached our offices sometime in February 2010 seeking advice on how he could
wind up his late mother's Estate. Mr Gumunyu then advised him that our office
could handle the matter for him.
3. I can confirm that what Mr Hedley
has deposed to in his founding affidavit as far as his dealings with Mr Gumunyu
in this case are concerned is true and correct.”
This is a telling admission by the late
Israel Gumunyu's office that the applicant's estate was fraudulently dealt with
by Israel Gumunyu. If it was otherwise his office would have exonerated him. If,
for example, the money was in their account pending its being deposited into
the applicant's account Clever Mandizvidza would have said so. The admission by
his office is strengthened by his committing suicide.
The applicant's application must
succeed and the first respondent's counter-claim for the eviction of John Moir
Rosslyn Hedley from the flat in dispute must fail.
The applicant's draft order seeks an
order against the third respondent in favour of the first respondent. The first
respondent vehemently resisted the applicant's application. It cannot therefore
benefit from an application it resisted in whole till the end of the parties'
submissions. If the first defendant chooses to recover from the third
respondent it can institute its own proceedings.
I therefore order that:
1. The Agreement of Sale entered
into by and between the applicant, as represented by Israel Gumunyu, in his
capacity as its curator bonis,
and the first respondent is declared null and void ab initio.
2. The fourth respondent be and is hereby
ordered to cancel Deed of Transfer Number 4483/10 in favour of the first
respondent and register the property known as an undivided 2.380% share being Share
Number 20 in certain piece of land situate in the District of Salisbury, being Stand
1773 Salisbury Township, measuring 2379 square metres in the name of the
applicant.
