In this matter, two deceased estates, one for the late
Mishack Nyathi and the other for the late Kuyibisa Masuku, who were married to
each other on 4 November 1997 in terms of the Marriage Act [Chapter 5:11], are
now fighting each other with the other respondents being mere casualties in a
winding up process that went horribly wrong.
The late Kuyibisa Masuku died intestate in 1997 at a time
that she was married to the late Mishack Nyathi aforesaid. Her estate was
registered by the fifth respondent as DRB2249/97. The late Mishack Nyathi, who
survived his wife was then issued with a certificate of authority by the fifth
respondent, on 21 April 1998, in terms of the provisions of the Administration
of Estates Act [Chapter 6:01], to administer and distribute his late wife's
estate, and, in particular, to “deal with and take over House Number 2459
Cowdray Park, Bulawayo.”
Armed with the certificate of authority to take over the
house, Mishack Nyathi must have thought that all was over. He did not proceed
to take transfer of the house he had inherited in accordance with the law until
nature caught up with him as well. He died intestate on 21 May 2005. His estate
was registered by the fifth respondent as DRB No.802/05 and the present
applicant was appointed executor of the estate.
Meanwhile, something strange was also happening at the
fourth respondent's office; that is, the Additional Assistant Master, whose
office is subservient to that of the fifth respondent.
15 years after the estate of the late Kuyibisa Masuku was registered
and the late Mishack Nyathi inherited the estate as the surviving spouse, the
first respondent approached the fourth respondent's office and purported to
register that estate anew. The fourth respondent obliged and registered the
estate as DRBY No.689/12. Unbeknown to the fourth respondent, not only had the
estate been registered by the fifth respondent and the late Mishack Nyathi
inherited it; the estate in question fell to be administered only by the fifth
respondent and not the fourth respondent who deals only with estates governed
by Customary Law because the deceased was married in terms of General Law.
The unfolding drama found expression in the appointment of
the first respondent, the son of the late Kuyibisa Masuku, as the executor. He
wasted no time in applying for, and obtaining, authority, in terms of section
120 of the Administration of Estates Act [Chapter 6:01], to sell Stand 2459
Cowdray Park, Bulawayo by private treaty - the same property which had devolved
to the late Mishack Nyathi by authority of the fifth respondent fourteen years
earlier.
The first respondent moved with indecent haste in
appointing the second respondent as his agent with authority to dispose of the
property and it was duly sold to the third respondent who immediately took
transfer by Deed of Transfer number 174/2014, never mind that when that
occurred, on 17 February 2014, the third respondent was only four years and
three months old (according to the transfer deed she was born on 18 November
2009). Happily, one Qhelani Moyo has stepped in as legal guardian of that minor
child to assist her in this litigation.
The applicant has now approached this court seeking a
declaratur that the second registration of the estate, as DRBY659/12, is
unlawful and therefore null and void…., and punitive costs against the first,
second and third respondents.
It is those respondents who have opposed the application.
The first respondent says he was unaware that his mother's
estate had been registered already when he sought to have it registered again.
He, however, seeks to uphold its winding up and finalization by himself
notwithstanding its prior registration and management. He then argues,
extraneously, about the house having been purchased by his late mother, him
being listed as one of the occupants, and being the beneficiary of the estate
because his mother had married Mishack Nyathi 'on her death-bed' before “she
died two weeks later.”
The other respondents followed in unison to chorus their
support of the first respondent….,.
The applicant seeks a declaratory order which is a remedy
provided for in section 14 of the High Court Act [Chapter 7:06] in terms of
which this court may, at the instance of any interested party, inquire into and
determine any existing, future or contingent right or obligation. In
interpreting section 14 of the High Court Act [Chapter 7:06], GUBBAY CJ
pronounced as follows in Munn Publishing (Pvt) Ltd v ZBC 1994 (1) ZLR 337 (S)…,.:
“The condition precedent to the grant of a declaratory
order is that the applicant must be an interested person, in the sense of
having a direct and substantial interest in the subject matter of the suit
which could be prejudicially affected by the judgment of the court. See United
Watch and Diamond Co (Pty) Ltd and Others v Disa Hotels and Another 1972 (4) SA
409 (C) at 415 in fine; Milani and Another v South Africa Medical and Dental
Council and Another 1990 (1) SA 899 (T) at 902G-H. The interest must relate to
an existing, future or contingent right. The court will not decide abstract,
academic or hypothetical questions unrelated to such interest. See Anglo-Transvaal Collieries Ltd v SA
Mutual Life Assurance Soc 1977 (3) SA 631 (T) at 635G-H. But the existence of
an actual dispute between persons interested is not a statutory requirement to
an exercise by the court of jurisdiction. See Exp Nell 1963 (1) SA 754 (A) at
759H-760A. Nor does the availability of another remedy render the grant of a
declaratory order incompetent. See Gelcon Investments (Pvt) Ltd v Adair Properties
(Pvt) Ltd 1969 (2) RLR 120 (G) at 128A–B; 1969 (3) SA 142 (R) at 144D-F.
This, then, is the first stage in the determination by the
court.
At the second stage of the inquiry, it is incumbent upon
the court to decide whether or not the case in question is a proper one for the
exercise of its discretion under s14. What constitutes a proper case was
considered by WILLIAMSON J in Adbro Investment Co Ltd v Minister of the
Interior and Others 1961 (3) SA 283 (T) at 285B–C to be one which, generally speaking,
showed that –
'despite the fact that no consequential relief is being
claimed or perhaps could be claimed in the proceedings, yet nevertheless
justice or convenience demands that a declaration be made, for instance as to
the existence of or as to the nature of a legal right claimed by the applicant
or of a legal obligation said to be due by a respondent. I think that a proper
case for a purely declaratory order is not made out if the result is merely a
decision on a matter which is really of merely academic interest to the
applicant. I feel that some tangible and justifiable advantage in relation to
the applicant's position with reference to an existing, future or contingent
legal right or obligation must appear to flow from the grant of the declaratory
order sought.'
See also Reinecke v Incorporated General Insurance Ltd 1974
(2) SA 84 (A) at 93D-H.”
See also Bulawayo Bottlers (Pvt) Ltd v Minister of Labour,
Manpower Planning and Social Welfare and Others 1988 (2) ZLR 129 (H); Johnsen v AFC 1995 (1) ZLR 65 (H).
The applicant is the executor of the estate late Mishack
Nyathi, an estate which, in law, inherited from the estate of the late Kuyibisa
Masuku, the latter having pre-deceased her husband. He therefore is an
interested person who could be prejudicially affected. It is an interest
relating to an existing right. The first stage of the inquiry is therefore
answered in the affirmative.
The second stage of the inquiry is whether this is a case
in which the court has to exercise its discretion reposed by section 14 of the
High Court Act [Chapter 7:06].
What has happened here is that the surviving spouse
registered the estate of his wife during his lifetime and probably complied
with all the requirements for winding up hence the decision by the fifth
respondent to grant him leave to take transfer of the house belonging to the
estate. The estate fell to be administered in accordance with the law under the
process initiated by its registration in 1997. If the first respondent had a
claim against the estate he had to make it under that process. He could not
wait several years and then purport to initiate a winding up process of his own
because his step-father had passed on.
It was incompetent.
That position is confirmed by the Master's report submitted
in terms of Rule 248 of the High Court of Zimbabwe Rules, 1971. He has reported
that:
“Estate late Kuyibisa Masuku is registered with my office
under DRB2249/97 whilst estate late Mishack Nyathi is also registered with my
office under DRB802/05. A perusal of the file shows that (in the) estate late
Kuyibisa Masuku there was a will which was nullified by an existence of a
marriage certificate. It therefore means that the estate was supposed to be
dealt with intestate. On the 21st of April 1998 my office issued a
certificate of authority in favour of Mishack Nyathi who was the surviving
spouse. See annexure 'A'. The deceased's husband took time to change ownership
of the said property until he also died. On the other hand, estate Kuyibisa was
also registered at Tredgold Magistrate(s) Court under DRBY689/12. The estate
was done and finalized, consent to transfer were (sic) issued by the Magistrates
Court which necessitated the transfer of the property. The executor, then Mr
Lungisane Mpofu, applied for section 120 authority and he was given. Since the
estate late Kuyibisa Masuku had a will and the two were also married in terms
of Marriage Act [Chapter 37], (sic) the estate was indeed supposed to be
registered at my office. The certificate of authority produced by my office
was for the purpose of transferring the property to the surviving spouse
Matthew (sic) Nyathi…,. I therefore believe that the double registration of the
estate was only meant to confuse the system, and, as such, I submit that I will
have no objection to the order sought.”…,.
The fact that Mishack Nyathi survived his wife, Kuyibisa
Masuku, triggered the application of section 3A of the Deceased Estates
Succession Act [Chapter 6:02] as well as the provisions of section 3 of the
Administration of Estates Act [Chapter 6:01]. He was entitled to inherit her
estate - and did inherit.
See Chaumba v Chaumba 2002 (2) ZLR 51 (S)…,.; Nyathi and
Another v Ncube and Others HB123-11; Mpofu v Mlavu and Others HB17-16.
When the first respondent purported to inherit House Number
2459 Cowdray Park, Bulawayo and to wind up the estate of his late mother he was
engaging in futility. The estate had already been dealt with and the house in
question had already been inherited. The purported registration of the estate,
inheritance by the first respondent and everything else that flowed from it was
a nullity. There was no longer an estate to be dealt with that way. The often
cited seminal remarks of LORD DENNING in Macfoy v United Africa Co Ltd [1961] 3
ALL ER 1169 (PC)…, are apposite:
“If an act is void, then it is, in law, a nullity. It is
not only bad, but incurably bad. There is no need for an order of the court to
set it aside. It is automatically null and void without more ado, although it
is sometimes convenient to have the court declare it to be so. And every
proceeding which is founded on it is also bad and incurably bad. You cannot put
something on nothing and expect it to stay there. It will collapse.”
And so will the purported sale and transfer of the house to
the third respondent collapse as well. That conclusion is consistent with the
pronouncement of the Supreme Court in Standard Chartered Bank Zimbabwe Ltd v
Matsika 1997 (2) ZLR 389 (S)…, that;
“A cardinal principle of the common law is expressed in the
aphorism: 'nemo exproprio dolo consequitur actionem' which translates: no one maintains an action arising out of his
own wrong. Complementary to this principle is another which stipulates: 'nemo
ex suo delicto meliorem suam conditionem facere potest' which means: no one can make his better by his own misdeed.”
That is what the first respondent did…,. In the result, it
is ordered that;
1. It is declared that the purported
registration of the estate late Kuyibisa Masuku by the first respondent at the
office of the fourth respondent, as DRBY689/12, was unlawful and therefore null
and void.
