On 3 May 2007, the plaintiff issued summons out of this court seeking the nullification of an Agreement of Sale that was entered into between the first defendant and the late Gladys Mutasa; the nullification of the appointment of the second defendant as an executor in the estate of the late Augustine Katsiga; the nullification of the distribution account that was confirmed by the third defendant in that estate; a declaration that three minor children of the late Augustine and Gladys Mutasa are the beneficiaries of their late father's estate; the transfer of Stand 6673 Ruwa Township of Dispute Estate measuring 609m² into the names of the three minor children and costs of suit against the first and second defendants.

The first and second defendants contested the action.

The plaintiff and the first and second defendants gave evidence in person. In addition, the plaintiff produced 14 documentary exhibits and called two witnesses while the first defendant produced two documentary exhibits and called four witnesses. The second defendant produced three documentary exhibits and was the only witness in his defence. The two witnesses who were called by the plaintiff were two members of the Norton branch of the Jesus Embassy Church, Gift Chilengwe and Fadzisai Mutatabikwa, while the four who were called by the first defendant were her erstwhile legal practitioner based in Murewa, Benjamin William Chirambasukwa; her nephew Briam Mafemba Charlie; her maid Gaudencia Gula and Mafunasi Gula.

THE ISSUES

At the pre-trial conference that was held on 16 April 2008, seven issues were referred to trial. They were worded as follows:

1. Whether or not the late Gladys Mutasa had authority to sell Stand 6673 Ruwa Township.

2. Whether or not the late Gladys Mutasa sold Stand 6673 Ruwa Township to the first defendant.

3. Whether the sale should be declared a nullity.

4. Whether the appointment of the second defendant as executor was valid.

5. Whether the confirmed distribution account is valid or not.

6. Who is the rightful beneficiary of the estate of the late Augustine Katsiga.

7. Whether the Stand should be transferred to the minor children of the late Augustine Katsiga and the late Gladys Mutasa.

THE AGREED FACTS

These were the facts and events which were not disputed during trial. The late Augustine Katsiga (Augustine) married the late Gladys Mutasa (Gladys) by civil rites on 7 October 2000. The union was blessed with three children, that is, Kelvin Philbert Katsiga, born 11 June 1992; Tafadzwa Ignatious Katsiga, born 8 March 1997; and Augustine Tinotenda Katsiga, born 4 December 2001. Augustine Katsiga was the registered owner of an undeveloped Stand in Ruwa, commonly known as Stand 6673 of Ruwa Township (the Stand). The title deeds were produced as exhibit 4.

He died on 26 October 2002 and was survived by his wife and three children. His wife died on 3 November 2005 and was survived by the three children. The plaintiff was the sister to Augustine Katsiga. On 16 April 2007 she was appointed the guardian of the three children by the Children's Court. The information concerning the dates of death and appointment as guardian are found in exhibits 1, 2 and 3, respectively.

Exhibit 5, though in contention, was produced by consent. It consists of three photocopied one-paged documents. The originals of the second and third documents were produced by the first defendant as exhibit 15. The three documents were prepared by the first defendant. While the first and third documents are not dated, the second document is dated 26 April 2005. These documents purport to be a memorial of an Agreement of Sale entered into between Augustine and Gladys as the sellers and the first defendant as the buyer.

Gladys and her children resided at D14 Flamingo, Norton while the first defendant lived at 3835 Instamac, Norton. They all attended Jesus Embassy Church in Norton together with Gift Chilengwe (Gift), Fadzisai Mutatabikwa (Fadzisai) and Mafunasi Gula (Mafunasi). By the end of October 2005 Gladys was seriously ill. She was in pain, could not walk, and was bedridden.

Gladys' condition deteriorated. The first defendant, who was an influential member of her church, made an appeal in church for the sum of $5 million to buy food and medicines for Gladys Mutasa. The church failed to raise the amount sought. The first defendant advanced the required amount to Gladys Mutasa. The church undertook to refund her.

The plaintiff came to know the first defendant towards the end of October 2005. The first defendant telephoned her and demanded the sum of $5 million. She indicated that she would not surrender the title deed to the Stand and other documents unless the money was repaid. The plaintiff went to Norton to pay the money. The first defendant increased her demand to $7,2 million averring the new amount included interest. When she attempted to pay the increased amount the first defendant declined to accept it; intimating that the title deed was in the possession of her legal practitioners in Murewa.

In the meantime, Fadzisai Mutatabikwa, Gift Chilengwe, the first defendant and Marvelous Gula (also known as Floyd's mother) made what was to be their last visit to Gladys Mutasa. She failed to rise from her bed. When they were identified as her fellow church members, she asked them to help her recover the title deed, her national identity card, her marriage certificate, her husband's death certificate and her children's birth certificates from the first defendant. Apparently they had been handed to her by the maid under the pretext that she required the birth certificates to register the children for school. The maid had given her the file with all the documents. Gift Chilengwe asked the first defendant, in the presence of Fadzisai Mutatabikwa, to return the documents. The first defendant stated that she would only do so after Gladys Mutasa refunded her the $5 million that she had loaned to her.

Gladys died at Kadoma on 3 November 2005. The first defendant was advised of her death by the plaintiff but she did not attend the funeral.

In November 2005, Mr. Chirambasukwa prepared exhibit 9, an agreement for the sale of the Stand in question, between the first defendant and Laston Tachiona (Laston). The first defendant signed the agreement in November at her residence in Norton while the purchaser, Laston Tachiona, signed it on 14 December 2005 at Chirambasukwa and Associates offices in Murewa. Laston Tachiona paid the purchase price of $220 million on 13 December 2005. On 16 December 2005, the first defendant executed a power of attorney authorizing Mr. Chirambasukwa to transfer the Stand to Laston. In both documents she misrepresented that she was the registered owner of the Stand. The transfer failed and Laston Tachiona reported her to the police for fraud before he cancelled the agreement and demanded the purchase price. In exhibit 13, the first defendant agreed to refund Laston the purchase price by 31 January 2006. She then sold the Stand to Florence Sibongo on 18 January 2006 for $750 million.

On 9 January 2006, two events occurred. The plaintiff retrieved the documents which Gladys's maid had given to the first defendant. She also registered Augustine's estate, reference DR50/06, oblivious of the fact it had been registered by Gladys in 2003.

On 15 February 2006, the first defendant filed a court application, case number HC877/06, against Gladys seeking an order for the transfer of the Stand to her in terms of the Titles, Registration and Derelict Lands Act [Chapter 20:20]. She falsely declared in both her founding and supplementary affidavits, which were produced as exhibit 19 and 8, respectively, that Gladys was the executor dative in the estate of Augustine; that she last saw her in December 2005; that she had only been advised of her death by the plaintiff in February 2006 and that the plaintiff had declined to provide her with the names of Gladys' relatives. In exhibit 16, her opposing affidavit to the urgent application brought by the plaintiff to stop the transfer of the Stand to her, she indicated that she knew where Gladys' mother resided. Her court application for transfer was struck off the roll on 17 May 2006.

On 7 and 16 August 2006, at her instigation, the Master called for an edict meeting in the estate of Augustine. The Master dispatched notices of the meeting to the residence of the first defendant and the house where Gladys used to reside in Norton. The first defendant did not advise the Master of the address of Gladys's mother. She was aware, at the time, that the plaintiff was a police woman based at Mabelreign police station and had her contact details yet she did not provide this information to the Master. The Master was prevailed upon by the first defendant to appoint a neutral executor and appointed the second defendant on 8 September 2006.

On 19 September 2006, the second defendant perused the Master's file on the estate of Augustine. He noted that Gladys had not been appointed an executor and that the purported sale of the Stand had not been sanctioned by the Master. He also noted that case number HC877/06 had been struck off the roll. He however accepted the validity of exhibit 5, and, without receipts to prove that payment in the sum of $135 million had been paid, acknowledged that the first defendant had done so before accepting payment for the balance of the purchase price of $65,000= (after the removal of three zeroes from our currency in August 2006).

The second defendant compiled exhibit 6, the Distribution Account in the estate of Augustine Katsiga, on 1 November 2006. He awarded the Stand to the first defendant on the ground that she was a creditor to Augustine's estate. He stated that Gladys, as the surviving spouse of Augustine, was entitled to receive the Stand.

He submitted his report to the Master and advertised it in the Herald and Government Gazette of 16 February 2007. Before the advertisements were flighted, the plaintiff came to his offices with a police officer who was based at Norton police station and Laston Tachiona. She complained that he was conniving with the first defendant to cheat the minor children of Augustine of their inheritance.

On 13 March 2007, at his request, the Master confirmed the account. He did not advise the Master of the complaint he had received from the plaintiff. He prepared exhibit 18, the Consent to Transfer of Immovable Property, E.D.16 Form, for the transfer of the property from the Estate of Augustine to the first defendant. The Master gave his consent to the transfer on the same date. He then referred it to the first defendant's legal practitioners for conveyancing. The defendant attempted to sell the Stand to Nyarai Nyandoro on 17 April 2007. On that day, the plaintiff registered her complaints with the Master, who, on 23 April 2007, recalled the Distribution Account and directed the executor to stop the transfer of the property to the first defendant pending the resolution of the complaints.

The transfer was stopped by the urgent chamber application which was launched by the plaintiff and the subsequent consensual order of this Court of 17 May 2007. Despite the interdict against her, she attempted to sell the Stand to Nyikayaramba in October 2007.

THE DISPUTED FACTS

The contentious issues between the parties were on the authenticity of the documents that make exhibit 5 and the validity of the appointment of the second defendant as the executor in the estate of Augustine Katsiga. The plaintiff was adamant, both in her evidence in chief and under cross-examination, that exhibit 5 was a forgery. She also maintained that the second defendant was appointed as a result of a flawed process that was driven by the first defendant.

The first defendant insisted that exhibit 5 was authentic and denied misleading and manipulating the Master into appointing the second defendant. The second defendant, on the other hand, opined that he did not solicit for appointment and stated that once appointed he acted professionally and scrupulously observed the dictates of the law.

I resolved the disputed facts in favour of the plaintiff for the full reasons that appear in the determination of each issue that was referred to trial. Suffice it to add that I found the plaintiff and her two witnesses to be truthful witnesses. Her two witnesses were unknown to her until after the death of Gladys Mutasa. They volunteered to testify on her behalf. They were closer to the first defendant. On the other hand, I did not believe the first defendant and her witnesses where their evidence differed with that of the plaintiff. The defendant was a pathological liar. She prevaricated in her testimony. The version of her witnesses was not canvassed with the plaintiff's witnesses when they were cross examined. Her witnesses also differed with her on matters in which agreement was expected. Mr. Chirambasukwa did not assist her in her bid to show that exhibit 5 was genuine. He also drew misleading documents which falsely painted her as the registered owner of the Stand.

As for the second defendant, I was satisfied that his appointment was based on a flawed process that was designed to exclude Augustine's relatives. By his own admission, in cross-examination, the executor failed to make a diligent search for Augustine's relatives. When the plaintiff presented herself to him, instead of working with her, he rebuffed her. He awarded the Stand to the first defendant well-knowing that the purported sale was invalid. He had no proof that the first defendant had paid $135 million in reduction of the purchase price. He deliberately misrepresented that Gladys had been appointed an executrix. His fees were paid by the first defendant and he was defended by her legal practitioner in this trial.

RESOLUTION

I turn to determine each issue that was referred to trial.

1. Whether or not the late Gladys Mutasa had authority to sell Stand 6673 Ruwa Township.

The evidence led at the trial demonstrated that Gladys registered the estate of her late husband but was never appointed executrix. It was common cause that the Stand in question belonged to her late husband. Exhibit 4, demonstrated, beyond doubt, that he held title to the Stand. On his death, the Stand vested in his estate. In our law, an executor is the only person who is looked upon by the court as the person to represent the estate of the deceased. This position was enunciated in 1890 by DE VILLIERS CJ in Fischer v Liquidators of the Union Bank 8 SC 46…,. It has been religiously followed by our courts ever since in such cases as Clarke v Barnacle NO & Two Ors 1958 R&N 348 (SR)…,.; Mhlanga v Ndlovu HB54-04; and Nyandoro & Anor v Nyandoro & Ors HH89-08.

I agree with the submission by counsel for the plaintiff that Gladys Mutasa did not have the legal power to dispose of the property….,.

3. Whether the sale should be declared a nullity

Counsel for the first and second defendants made the ingenious submission that the sale had been validated by the Master when he approved the distribution account on 13 March 2007.

Neither the Master nor, for that matter, a court of law could validate an invalid sale. Such a sale does not exist. It is well to remember the timeless words of LORD DENNING in McFoy v United Africa Co Ltd [1961] 3 All ER 1169 (PC)…, which were quoted with approval in Jensen v Acavalos 1993 (1) ZLR 216 (S)…., that:

“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.”

The Master could not validate a sale that never was. He recalled the confirmed distribution account in exhibit 7 on 23 April 2007 after his error had been brought to his attention by the plaintiff.

The only reasonable conclusion to draw from either of my findings in answer to the first and second issues is that the sale was a nullity. Firstly, for the reason that there was no sale in the first place, and, secondly, that even if the sale was executed, it was invalid because Gladys Mutasa was not an executor to the estate of her late husband. It would also appear that even if she were the executor, the absence of the Master's prior consent to the sale by private treaty would, in terms of section 120 of the Administration of Estates Act, have been invalid.

I hold that the purported sale was a nullity….,.

1. The Agreement of Sale in respect of Stand Number 6673 Ruwa Township of Dispute Estate entered into between the first defendant and the late Gladys Mutasa be and is hereby declared null and void.