MAKONI J: At the conclusion of the hearing, I gave an ex
tempore judgement. The respondents have appealed against the
judgment and require written reasons. These are they.
The applicant seeks an order that the sale agreement she
entered into on 12 March 1996 with the second respondent be declared valid and
binding on the parties. She also seeks an order that the transfer of the
property in issue, to the second, third and fourth respondents be set aside and
the second respondent pass transfer of the property to the applicant.
The second, third and fourth respondents filed a counter application
claiming the eviction of the applicant from the property.
The brief background to the matter is that the late Phillip
Munemo during his lifetime, was the owner of Stand No. 16648 Unit M Seke.
He died on 8 October 1995. On 29 May 1996 the estate of the late Munemo
was registered under DR888/96. The second respondent was appointed heir
in terms of Letters of Administration issued to him. Earlier on, on 12
March 1996 the second respondent, in his capacity as heir, entered into an agreement
of sale to sell the property to the applicant. The agreement was with the
consent of the surviving spouse, the mother to the second respondent. The
applicant paid the purchase price in full in the sum of $39 000-00 to the
Estate Agent who was handling the sale. She also took occupation of the
property. The second respondent and his mother were given $29 000-00
leaving a balance of $10 000-00 in trust, to be paid upon cession of the
property.
The surviving spouse died sometime in 1998. The
second respondent became envasire regarding the cession issue, misrepresenting
that the Estate had not yet been registered. At some point he was
incarcerated. When he came out of prison, he demanded that the applicant
make further payments towards the purchase price and she refused.
Meanwhile on 24 November 2004 the third and fourth
respondents registered the estate at Chitungwiza Magistrate Court under DR
No5283/04. The third respondent was appointed Executor Dative and was
given authority to effect cession of the property into the names of the second,
third and fourth respondents. This was done on 8 February 2005. In
December 2004, the applicant was shocked to receive summons for eviction issued
by the third respondent. The matter was dismissed in the Magistrate's Court.
The applicant then brought the present proceedings.
The issue is whether the agreement of sale entered into
between the applicant and the second respondent is valid.
The Master of the High Court filed a report in which he
supported the granting of the application. He opined that the estate was
administered in terms of customary law governing the administration of estate
then i.e.1995. The law then required that a heir be appointed and that
such a heir was entitled to inherit property in his personal capacity. He
further commented that the second respondent was appointed heir and was
subsequently issued with restricted letters of administration.
He also commented that the estate could not be registered
again. If the other siblings were aggrieved by the second respondent's decision
then they should have followed the proper legal channels to challenge his
actions. He concluded by stating that the Master's Office has no
objection to regularize the sale in terms of s 120 of the Administration of Estates
Acts [Cap 6:01]since cases where beneficiaries seek to renege from
agreements of sale after benefitting, on the basis of non-compliance with s
120, are on the increase. He concluded by saying that he will abide by the
decision of the court.
At the time of death of Phillip Munemo, where a person died
intestate, his inheritance and succession was governed by the Administration of
Estate Acts [Cap 6:01]. S 68 (2) of the Act provides;
“If any African who has contracted a marriage according to
African law and custom -----dies intestate his estate shall be administered and
distributed according to customs and values of the tribe or people to whom he
belongs”
The custom was that the eldest son of the deceased would be
the intestate heir of his father's estate and would inherit the property in his
personal capacity. See Magaya v Magaya 1999 (1) ZLR
100. This position changed with the coming into effect of the
Administration of Estates Act No 6 of 1997.
In casu, the second respondent was the eldest son
of the deceased and was the heir to his father's estate in terms of custom. He
went on to be appointed heir to his father's estate and Executor of the
estate. He therefore had the capacity to conclude the sale. The
appointment of the third respondent as executor Dative was done when, the
second respondent had not been removed as an executor. This can be done in
terms of the provision of s 117 of the Administration of Estates Act [Cap
6:01]. The Master in his report states that the issuance of
restricted Letters of Administration in favour of the heir, concluded the
winding up of the estate. Therefore the registration of the estate by the
third respondent and the subsequent transfer of the property to him and the
second and fourth respondents is null and void.
In view of the above I will make the following order;
1.
The sale of agreement entered into by the first respondent and the applicant on
the 12th of March, 1996 is hereby declared valid and binding on the
parties.
2.
The transfer of Stand 16648 Unit M Seke to the 2nd, 3rd and 4th
respondent is hereby declared null and void.
3.
The second respondent be appointed heir to the late Phillip Munemo and that the
proceeds to transfer stand 16648 Unit M, Seke to the applicant, within 14 days
from the date of this order failing which the Deputy Sheriff is authorised to
act on his behalf and transfer the said property to the applicant.
4.
The respondents pay the costs of this application each paying the other to be
absolved.
5.
The counter application is dismissed with costs.
C. Nhemwa & Associates,
applicant's legal practitioners
MessrsPundu
& Transport, respondents' legal practitioners
