After a careful analysis of the documents filed of record, and hearing counsel, I am of the view that the first respondent's purported Certificate of Authority was void ab initio, and as such she had no title to pass. See F.Katirawu v D.Katirawu & Ors HH58-07.

The only person who has control of property in a deceased estate is the executor duly appointed to that office by the Master of the High Court. 

The plaintiff was appointed an executrix dative on 22 August 2007. 

At the time she allegedly disposed of rights in the property she lacked the legal capacity to do so. She could not lawfully dispose of rights that she did not have. See Nyandoro & Anor v Nyandoro & Ors HH89-08…,.

The dispute in this matter revolves around an estate belonging to the late Panganayi Elias Mashita who died, testate, in South Africa on 10 December 1983.

He was survived by his wife, the first defendant, and two minor children being the third and fourth defendants. In terms of his Will, dated 27 June 1978, the first defendant was appointed executor of his estate.

He left, in his estate, an immovable property known as the remainder of subsection B of subsection C of Lot 9 of Hatfield Estate measuring 6,359 square meters otherwise known as Number 11 Chedgelow Road, Logan Park, Hatfield Harare (“the property”) which was to devolve upon his two minor children.

The second defendant was the brother of the first defendant. He was mandated by the first defendant to administer the estate on her behalf through a general power of attorney.

Following the registration of the estate and the issuance of the Letters of Administration by the Master of the High Court (the Master) the first and second defendants entered into an Agreement of Sale with the plaintiff and sold the property. Transfer was not effected to the plaintiff. In 2005 the third and fourth defendants sold and transferred the property to the fifth defendant.

The plaintiff issued summons out of this court seeking a declarator that transfer of the property to the fifth defendant by the third and fourth defendants is wrongful, unlawful and fraudulent as he had already purchased the property from the estate. He seeks an order for the cancellation of the transfer and an order for specific performance in terms of his contract. In the alternative, he seeks an order for damages against the first and second defendants in the sum of Z$4,5 billion.

The claim was opposed by the fifth defendant.

He states, in his plea, that he purchased the property in good faith from the fourth defendant. The property has been transferred into his name. He filed a counter claim for the eviction of the plaintiff from the property and holding over damages.

The first, third and fourth defendants entered appearance to defend and filed a plea. The second defendant did not enter an appearance to defend.

The sixth defendant filed a report in terms of Rule 248 of the High Court Rules, 1971 as amended. The Master of the High Court stated that the estate of the late Panganyi Elias Mashita was wound up in 1995 after he had confirmed the distribution account which transferred the deceased's immovable property to his two children in equal shares.

At a pre-trial conference held on 3 July 2007, before a judge in chambers, the first, third and fourth defendants did not appear; they were held to be in default. The matter was thus referred to trial against the fifth defendant only on the following issues:

1. Whether or not the plaintiff validly and lawfully purchased the property from the estate of the late Panganayi Elias Mashita;

2. Whether the plaintiff's claim for transfer of the property to him has prescribed;

3. Whether, at the time that the fifth defendant purchased the property, he was aware of any claim by the plaintiff;

4. Whether the transfer to the fifth defendant should be reversed;

5. Whether the plaintiff and all those who claim through him should be evicted from the premises; and

6. Whether the plaintiff is entitled to damages based on the current value of the immovable property.

The plaintiff testified that he knew the first and second defendants and they were related by marriage. The second defendant was married to the plaintiff's sister. He first moved into the property in dispute as a tenant. This was during the period 1990 to 1994. The property consisted of a main house and a cottage. He moved into the cottage. The first defendant approached him with a proposal that he buys part of the property which consists of the cottage. The first defendant produced a Will which showed that she had been appointed executor of the estate late Panganayi Mashita (“the deceased”) who owned the property.

The Will was produced in court and confirmed that the first defendant was indeed the executor of the estate. She also showed him Letters of Administration issued by the Master of the High Court which authorized her to administer the estate of her husband.

The plaintiff and the first defendant then entered into an Agreement of Sale on 14 November 1994 wherein he purchased the property for the sum of $20,000=. The plaintiff paid a deposit of $5,000= and the balance was to be paid through a CABS account availed by the first defendant. At a later date, the second defendant approached the plaintiff and asked him to pay the installments for the property through Gabriel Real Estate, an estate agent company. Following this instruction he then received a letter from Gabriel Real Estate, dated 14 October 1999, wherein the author indicated that they were acting on behalf of the first and second defendants, the owners of the property. The letter then asks the plaintiff to pay the sum of $20,157=63 being arrears on the capital and interest. He then paid off the outstanding amount, and, to that end, produced copies of receipts from Gabriel Real Estate. The plaintiff further produced a letter addressed to him from Gabriel Real Estate, dated 16 March 2000, asking him to attend at their offices in connection with the transfer of the property.

Various correspondences were produced showing that the issue was handed over to Messers Scanlen and Holderness so that they could effect the transfer to him. At some stage, there was an indication that the title deeds had been lost and that they were in the process of obtaining replacements. The plaintiff thereafter received correspondence from Messers Scanlen and Holderness seeking a payment of $45,333=33 which he duly paid as detailed in the receipt that he produced to the court dated 6 May 2001. The plaintiff subsequently received notice that the third defendant had died and the transfer was stopped. In July 2004 he left for Australia before the transfer had been effected into his name.

On 4 January 2005, the fourth defendant wrote to him and advised that the late Panganayi Elias Mashita's estate had not been properly administered and asking him to pay an additional amount to the purchase price he had already paid. The plaintiff did not pay this amount as he was of the view that he had complied fully with the terms of the agreement with the first defendant. In May 2005 the fourth defendant advised him that he was selling the property following which he caused the plaintiff's children to be evicted. The plaintiff stated that unbeknown to him the property was then sold to the fifth defendant.

The plaintiff further testified that he was 56 years old and the immovable property was now his home. He had one year left in Australia in terms of his contract. He stated that at the time he moved into the house it was not electrified and he had it installed. He has put up a wall around the property and installed burglar bars. He had the property valued by an evaluator and the present value was placed at $210 quadrillion. An application to amend his claim to this amount was admitted by consent.

In cross examination, the plaintiff confirmed that he was related to the first and second defendants. He admitted that, in terms of clause two of the Will, the property was bequeathed to the late Panganayi Elias Mashita's minor children and therefore he was aware that the property belonged to the deceased's minor children. He however stated that as far as he was aware the Master of the High Court's consent to sell the property had been sought and obtained. He also confirmed that he later learnt that the property had been transferred into the names of the heirs to the estate. He also admitted that he had no agreement with the heirs as he had entered into an agreement of sale with the first defendant.

When it was put to him that his agreement was illegal he stated that he did not know the law.

He admitted that the fifth defendant was not related to any of the parties but had bought the property through an estate agent. The plaintiff also conceded that he had received notice, in May 2005, from the fourth defendant that he was selling the property and he had not done anything to stop the sale. He however explained that he was out of the country at the time. When questioned by the court, the plaintiff stated that in terms of their agreement he was not purchasing the whole property but only the cottage where he was residing. He confirmed that there was a subdivision of the property and this is the same property which was sold to the fifth defendant.

The plaintiff's evidence, in my view, was not convincing. He contradicted himself when he stated that he did not know that the property was sold to the fifth defendant and yet confirmed that the fourth defendant had advised him that he was selling the property. When he was told that the property was being sold he did nothing to protect his interests. It was apparent, from the evidence, that he was aware that the property he wished to purchase was estate property and yet he did not give a clear explanation regarding his failure to investigate whether or not the Master of the Master of the High Court's consent to the sale was obtained. He merely stated that it was the duty of the sellers to obtain such consent.

Edgar Nemuseso was the second witness for the plaintiff.

He stated that in 2004 he was asked by the plaintiff to stay at his place of residence which was Number 11 Chaghill Road, Hatfield. He said at some stage a Messenger of Court from the Magistrates' Court came and sought to evict them. They however managed to have the order set aside and they were restored into the property. He stated that at the end of 2004 some agents from Knight, Frank and Rutley came to inspect the property. He stated that he showed them documents which showed that the matter relating to the property was before the courts. At a later date, people from Generations Estate Agents came to the property and he again showed them the papers.

In September 2005, the fifth defendant then approached him and stated that he had bought the property and gave him notice to vacate the premises. The witness told the court that he agreed to meet with him in town the following day whereupon he told the fifth defendant that he would not talk to him but would refer the matter to his legal practitioners.

In cross examination, the witness admitted that he met the fifth defendant on two occasions after that and he promised to give him the keys to the property. He also told the court that many people would come to view the property and would not talk to him. The witness was however adamant that he had showed the people from Generations Estate Agents the Agreement of Sale between the plaintiff and the first defendant.

The witness's evidence, in my view, served to confirm that the sale to the fifth defendant was not done clandestinely. Whilst he told various estate agents that the property had been sold to the plaintiff he did not tell the agents who sold the property to the plaintiff - neither did he tell the fifth defendant. He also confirmed that the plaintiff was aware that the property was on the market. Thus, although he was a credible witness, in my view, he did not take the plaintiff's case any further.

With this evidence the plaintiff closed his case.

The fifth defendant testified that he is employed by Standard Chartered Bank and is presently based in Quatar. In June 2005 he saw an advertisement in the newspaper for the sale of a house. He then called the agent who gave him the address to the property. He went to view the property in Hatfield. On the first occasion he found no-one present. On the second occasion he was met by a lady at the gate who then showed him round the cottage. He subsequently entered into an Agreement of Sale on 23 June 2005. An evaluation of the property was conducted by Mabikacheche Valuers and a report was submitted to his employers who subsequently availed a loan to him to purchase the property.

On 26 August 2005, the property was transferred into his name after obtaining replacement deeds.

When he sought vacant possession of the property he was then advised by the plaintiff's agent that they had also bought the same property. He served him with an eviction notice dated 31 August 2005. He confirmed Edgar Nemuseso's testimony that they had met at Construction House on two separate occasions as he tried to get keys for the premises. When he failed to get access to the property he then instituted proceedings at the Magistrates' Court for the eviction of the plaintiff. He stated that he later abandoned those proceedings when the plaintiff instituted these proceedings against him.

The fifth defendant told the court that he was abandoning his claim for holding over damages and merely pursing the claim for eviction of the plaintiff.

In cross examination, the fifth defendant was adamant that he was unaware of the dispute over the property. He denied that he had viewed the property in the company of the agents from the estate agent which had the mandate to sell the property. He also told the court that he did not know the name of the seller until he signed the Agreement of Sale.

The fifth defendant gave his evidence well. He was an honest witness who was not shaken in cross-examination. His evidence was credible and supported in all material respects by documentary proof. It was apparent that he was unaware of any prior sale that had taken place between the plaintiff and the first defendant. It was apparent, from the Agreement of Sale which he produced, that the sellers of the property were the third and fourth defendants. There was no evidence that Messers Mabikacheche, who conducted the valuation, had been advised of the prior sale. One would have thought that since they were conducting the valuation on behalf of the Bank they would have raised the alarm on any impropriety. I found him a credible and reliable witness.

It seems to me that this matter may be resolved by the determination of the first issue that was referred to trial, namely, whether or not the agreement entered into by the plaintiff and the first and second defendants was legal.

From the evidence led during the trial it was quite apparent that the plaintiff was aware that he was purchasing property that related to a deceased's estate. He was also aware, having been shown the Will that the property devolved upon two minor children. It was also not in dispute that the consent from the Master of the High Court was never sought at any stage of the sale.

It is trite that estate property is regulated by the Administration of Estates Act [Chapter 6:01] (“the Act”). An executor appointed to administer an estate must act in accordance with the Act. In order for any agreement to be valid it must comply with the provisions of the Administration of Estates Act.

Sections 120 and 122 of the Administration of Estates Act deal with the disposal of estate property.

Section 120 of the Administration of Estates Act [Chapter 6:01] provides as follows:

"Sale of Property otherwise than by public auction

If, after due inquiry, the Master is of the opinion that it would be to the advantage of persons interested in the estate to sell any property belonging to such an estate otherwise than by public auction he may, if the Will of the deceased contains no provision to the contrary, grant the necessary authority to the executor so to act."

It is apparent from this provision that an estate property may not be sold through private treaty without the Master of the High Court's consent.

In this case, the consent of the Master of the High Court was never sought at any stage in order to effect the sale of the property to the plaintiff.

The plaintiff submitted that it was the first and second defendant's obligation to secure the Master of the High Court's consent, and, in any event, authority may be secured even after the sale.

I understood the plaintiff to be saying that the failure to obtain the Master of the High Court's consent before the sale did not make the sale void ab initio but merely voidable if the Master of the High Court subsequently did not give his consent. The fifth defendant, on the other hand, submitted that the failure to obtain the Master of the High Court's consent prior to the sale made the sale void ab initio.

It seems to me that it is not necessary, in these proceedings, to determine whether the effect of section 120 of the Administration of Estates Act [Chapter 6:01] is to make a sale void ab initio or voidable. I say this because the Master of the High Court's consent was never sought at all by the parties in this case. The estate was wound up in 1995 and is no longer in the hands of the Master of the High Court. The property was transferred into the names of the beneficiaries of the estate in accordance with the Will of the deceased.

Section 122 of the Administration of Estates Act [Chapter 6:01] deals with disposal of estate property where minors have an interest in such property.

Section 122 of the Administration of Estates Act provides as follows:

"In cases where minor heirs are interested in property inherited from the estate of any deceased person, the Master may apply through the chamber book to a judge in Chambers for authority for the lease, mortgage, sale or other disposition of such property, and the judge make such order as in the circumstances he considers advisable."

In casu, it is not in dispute that at the time of the sale to the plaintiff, the heirs to this estate were minors.

In terms of the provision set out above it was incumbent upon the parties to approach the Master of the High Court for his consent or so that he could apply to a judge for authority to sell the property. An interpretation of the provision, in my view, seems to indicate that the Master of the High Court is called upon to exercise his discretion as to the referral of the case to a judge in chambers. Thus, the word "may" is used instead of the mandatory "shall".

It seems to me that the rationale of this provision may stem from the South African provision. The South African section 87 of the Administration of Estates Act, No. 24 of 1913 which is similar to the Zimbabwean section 122 of the Administration of Estates Act [Chapter 6:01] prohibits the sale of property belonging to a minor by a tutor or curator (unless duly authorized to do so by a Will or deed appointing him) without a court order, or, if the property is below a certain prescribed value, the consent of the Master of the High Court.

The provision in the Zimbabwean legislation does not prescribe a value upon which the Master of the High Court is required to refer the case to a judge for his authority. The provision is couched in very wide terms thus giving the Master of the High Court a wide discretion once a request has been made to him to either grant the consent himself or refer the matter to a judge in chambers.

What is clear, in both the South African legislation and our legislation, is that property of a minor is protected and may not be disposed of without the consent of either the Master of the High Court or the court. Clearly, the intention of the legislature was to protect the inheritance of minors from unscrupulous executors. In my view, it might be necessary for Parliament to consider amending section 122 of the Administration of Estates Act in order to direct the Master of the High Court to refer the request to a judge where the value of the property to be sold exceeds a prescribed amount. This would ensure certainty with respect to the manner in which properties relating to minors are dealt with. It should also be noted that, due to the high turnover of officers in the civil service, such an amendment would provide guidance in the Master of the High Court's office when dealing with such matters.

D MEYEROWITZ, in, The Law and Practice of Administration of Estates, 2^nd ed…., explains the need for authorization as follows:

"Before considering giving his authority to sell, the Master will usually require a sworn appraisement of the property to be sold….,. He will want to know the reason why the property is being sold and why the sale will be to the benefit of the minor."

The learned author goes on to state that the same information will be required by a court and further comments as follows:

"…, the court will not grant such leave unless it is fully satisfied, beyond all reasonable doubt, that it will be to the advantage of the minor."

In this case, the Master of the High Court's consent was never sought in accordance with section 122 of the Administration of Estates Act [Chapter 6:01].

Where a provision prescribed by statute is not followed then it renders the contract void.

In the case of Schiourt v Minister of Justice 1926 AD 99…, INNES CJ held as follows:

"It is a fundamental principle of our law that a thing done contrary to the prohibition of the law is void and of no effect. So that what is done contrary to the prohibition of the law is not only of no effect but must be regarded as never having been done - and that whether the law giver has expressly so decreed or not; the mere prohibition operates to nullify the act."

The same sentiments were expressed by SANDURA JA in the case of Mugwebie v Seed Co Ltd & Anor 2000 (1) ZLR 93 where the respondents had not complied with the provisions of the Code of Conduct in suspending an employee. He stated as follows;

"There is no doubt in my mind, whatsoever, that it was null and void. It was a complete nullity. In this respect, I can do no better than quote what LORD DENNING said in MacFoy v United Africa Co Ltd [1961] 3 ALL ER 1169 (PC) at 11721:

'If an act is void then it is, at 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 further ado, though 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.'"

Turning to the facts at hand, it is my view that the plaintiff's case falls on this basis.

The agreement which he entered into with the executor of the estate was null and void as it related to property in which minors had an interest and no authority to sell was sought either from the Master of the High Court or from the court for such sale. It is as if there was never a sale to the plaintiff by the first and second defendants. The heirs to the estate subsequently sold the property to the fifth defendant after they had inherited it from their father's estate.

The fifth defendant acquired rights of ownership over the property. It is trite that he can thus vindicate it from whoever is in possession. See Chetty v Naidoo 1974 (3) SA 13A.

The fifth defendant had not given the plaintiff an opportunity to vacate the premises before he is evicted. In the order that I will make I will give the plaintiff an opportunity to vacate the premises on his own. The fifth defendant abandoned his claim for holding over damages at trial and the claim therefore falls away.

The fifth defendant had claimed costs on a legal practitioner and client scale, but, in his closing submissions, he merely prayed for costs on the ordinary scale. I take the view that he has abandoned the claim for costs on an attorney and client scale which is punitive in nature. He has successfully defended his rights of ownership and entitlement to evict the plaintiff. He is thus entitled to his costs.

Accordingly I make the following order:

1. The plaintiff's claim is hereby dismissed with costs.

2. The fifth defendant's counterclaim is upheld and it is ordered that the plaintiff, and all those claiming occupation through him, be and are hereby evicted from the remainder of sub-division B of subdivision C of Lot 9 of Hatfield Estates measuring 6,359 square meters otherwise known as Number 11 Chedgelow Road, Logan Park, Hatfield, Harare within seven days of service of this order.

3. The plaintiff shall pay the fifth defendants' costs of suit.

In her founding affidavit, the first applicant states that the first respondent was appointed executor dative of their late father, Reginald Tswakai Griffin Salila. Stand Number 20 Creil Road, Southdowns, Gweru was included in the inventory of assets to the estate. Sometime in 2000, the first respondent allocated the property to the second respondent and had it transferred to him.

It turns out that the house in question was sold to the fifth and sixth respondents.

The fifth respondent deposed to an opposing affidavit in which he stated that on the 31^st of March 2007 he and the second respondent entered into an Agreement of Sale in respect of Stand 2723 Gwelo of Gwelo Township Lands, also known as House Number 20 Creil Road, Southdowns, Gweru. After the purchase, transfer was effected into their names. He also contended that they were innocent purchasers.

Finally, counsel for the applicants submitted that the fifth and respondents did not acquire any rights since the estate was not administered in accordance with the law. He referred to the case of Macfoy v United Africa Company Limited [1961] All ER 1169 (PC).

Counsel for the fifth and sixth respondents further submitted that it is common cause that property constituting a deceased estate cannot be transferred without the Master of the High Court's consent. However, according to him, the fact that the transfer took place signifies the Master of the High Court's consent.

The applicant is one of the two surviving children of the late Norman Katsande and a beneficiary to his estate. He also purported to be acting on behalf of the other surviving child of the late Norman Katsande, namely, Milenda Tinashe Katsande who is still a minor.

The first respondent is a brother to the late Norman Katsande and he is the executor testamentary of the estate late Norman Katsande.

The second respondent is a male adult who purportedly bought House No.18806 Unit L. Seke Chitungwiza from the first respondent.

The brief facts of the case are that the applicant and Milenda Tinashe Katsande are the only surviving children of the late Norman Katsande and the late Hilda Gamanya. Hilda Gamanya died in August 1996. Norman Katsande died on 26 March 2001.

Before his demise, Norman Katsande executed a Will and Testament on 17 January 2001. In terms of clause 1 of the aforesaid Will, Norman Katsande appointed his brother, Razmond Katsande, as the executor. In clause 3 of the Will, Norman Katsande bequeathed to the applicant House No.18806 Unit L, Seke, Chitungwiza and Stand No.2310 Lower Paradise, Marondera in these terms:-

“I direct that:-

(a) House No.18806 Unit L, Seke, Chitungwiza, for which was acquired during my first marriage shall devolve upon my son KUDZANAYI FRANK KATSANDE, presently residing at 18806 Unit L, Seke, Chitungwiza who shall exercise such responsibility and execute such paternal duties as I would have done over my daughter MILENDA TINASHE KATSANDE.

(b) Stand Number 2310 Lower Paradise in Marondera shall only be disposed as and when my estate failed to meet claims and demands, otherwise it shall devolve upon my son KUDZANAYI FRANK KATSANDE.

(c) Ensure that the two of them share equally any cash or liquid assets of this Estate.”

On 26 September 2007, the third respondent issued the first respondent with a Letter of Administration as the executor testamentary in terms of the aforesaid Will.

In the same year, 2007, the first respondent sold House No.18806 Unit L, Seke, Chitungwiza to the second respondent. The Agreement of Sale was entered into on 11 October 2007 apparently without a consent to sell from the Master of the High Court. In his report, the Master of the High Court indicated that the consent to the sale was only obtained three months after the sale. The purported consent to the sale document is not dated. If at all it was dated such date is not legible from the copy filed with court.

On 25 March 2009, the applicant applied to this court, by way of a court application, seeking an order that:-

1. The consent to sell House No.18806 Unit L, Seke, Chitungwiza given by the Master of the High Court sometime in 2007 be and is hereby set aside.

2. The appointment of Razmond Katsande as the executor testamentary in the estate late Norman Katsande be and is hereby set aside.

3. The purported sale of House No.18806 Unit L, Seke, Chitungwiza to the second respondent be and is hereby set aside and the second respondent and all who claim right of occupation through him of House No.18806 Unit L, Seke, Chitungwiza be and are hereby ordered to vacate the premises within forty-eight (48 hours) of being served with this order.

4. In the event that the second respondent and all who claim right of occupation through him fail to comply with paragraph 3 above, the Deputy Sheriff be and is hereby authorized to evict them from House No.18806 Unit L, Seke, Chitungwiza.

5. The fourth respondent be and is hereby ordered not to cede rights and title in House No.18806 Unit L, Seke, Chitungwiza from the name of the late Norman Katsande into any other name except the applicant, and, in the event that such cession had been effected it is hereby set aside.

6. The first respondent shall pay the costs of this suit on a legal practitioner-client scale.

All the respondents were duly served with the court application in terms of the rules.

The first respondent did not file any opposing papers.

The second respondent filed opposing papers contending that he is an innocent purchaser.

The third respondent filed the requisite Master's Report in terms of the rules expressing his views on the issues at hand.

The fourth respondent did not file any papers in response to the application.

The applicant's argument was to the effect that the sale to the second respondent was wrongful as the first respondent was not empowered by the Will to sell the house in question. If there was need to sell any immovable property the first respondent was authorized to sell Stand No.2310 Lower Paradise, Marondera and not the house in question. The sale has left the applicant and his sister destitute and with no accommodation.

The applicant also argued that the purported consent to the sale by the Master of the High Court was contrary to the provisions of his late father's Will and so ineffective.

On his part, the second respondent contended that the applicant's case must be dismissed because he is an innocent purchaser. The second respondent contended that the property was advertised in the Herald by an estate agent. He went and viewed the house after which he offered to buy it. The first respondent told him that the property was from a deceased estate. The first respondent showed him all documents pertaining to the house except the Master of the High Court's consent to the sale. They agreed on the purchase price but he indicated that he would only pay after the first respondent had obtained the consent to the sale and shown him the same. Later on, the first respondent advised him that he had now obtained the consent to the sale. Upon being shown the consent to the sale document he duly paid the purchase price. He is therefore an innocent purchaser whose rights can no longer be taken away. The applicant's recourse is to sue the first respondent.

The third respondent's response to the application was to the effect that the first respondent misrepresented the facts when seeking consent to the sale. The first respondent had indicated that he wished to buy two (2) smaller houses for the minors but up to now nothing had been done. The third respondent went on to say that in any case the sale took place on 11 October 2007 some three months before the granting of the Master of the High Court's consent in terms of section 120 of the Administration of Deceased Estates Act [Chapter 6:01].

The issues as identified by the parties included:-

(1) Whether the first respondent, Razmond Katsande, being the duly appointed executor testamentary failed to execute his duties by fraudulently obtaining the consent to sell the house.

(2) Whether the second respondent is a bona fide or innocent third party.

(3) Whether the relief sought is the only relief available to the applicant.

I am of the view that this matter can be resolved on the first issue and answers to the other issues will fall into place.

(1) Whether the first respondent, Razmond Katsande, being the duly appointed executor testamentary failed to execute his duties by fraudulently obtaining the consent to sell the house

Section 52(1) of the Administration of Estates Act [Chapter 6:01] states that:-

“Every executor shall administer and distribute the estate in respect of which he is appointed according to law and the provisions of any Will relating to that estate.”

In the administration of the estate, an executor is required to act with utmost good faith and every thing is done for the benefit of the beneficiaries.

In casu, the first respondent was appointed in terms of a valid Will. He was thus bound to act in terms of the law and provisions of that Will. The question that arises is; what did the Will provide regarding the immovable properties and did the first respondent comply with those provisions?

Clause 3 of the Will on the immovable property stated that:-

“I direct that:-

(a) House Number 18806 Unit L Seke, Chitungwiza for which was acquired during my first marriage shall devolve upon my son, KUDZANAYI FRANK KATSANDE, presently residing at 18806 Unit L Seke, Chitungwiza who shall exercise such responsibility and execute such paternal duties as I would have done over my daughter MILENDA TINASHE KATSANDE.”

Clearly, the late Norman Katsande intended this particular immovable property to devolve to his son, the applicant. This is how the first respondent was to execute his mandate. The executor was duty bound to comply with that provision. There is no ambiguity in that clause at all.

The late Norman Katsande, being mindful that there may be debts to be paid which may necessitate the sale of some property went on to provide, in clause 3(b), that:-

“b. Stand Number 2310 Lower Paradise in Marondera shall only be disposed as and when my estate failed to meet claims and demands, otherwise it shall devolve upon my son KUDZANAYI FRANK KATSANDE.”

Clause 3(b) is not ambiguous at all.

The Stand was only to be sold if, and only if, the estate failed to meet claims and demands from his creditors; otherwise it was to devolve to the applicant, as was the case with House No.18806 Unit L Seke, Chitungwiza. The first respondent was expected to comply with this provision as well.

The condition that was set for the Marondera property to be sold had to be satisfied first. The property could thus not be sold for any other reason serve to meet claims and demands that the estate failed to meet.

The clear intention of the testator, as evident from the Will, was that both immovable properties were to devolve to the applicant. House No.18806 in Unit L Seke, Chitungwiza was not to be sold at all whilst the Stand in Marondera was to be sold only for purposes of meeting outstanding debts, if any. The first respondent's duty was to act in terms of the clear intentions of the late Norman Katsande.

The executor, if acting in good faith, needed to show that a need had arisen to dispose of the Marondera Stand in terms of the condition set by the testator. He could not devise his own conditions or reasons to sell the property. As for the Unit L, Seke house the executor had no authority to sell it at all.

In his report, the Master of the High Court stated that the first respondent represented that he wanted to sell the Seke house so that he could buy two (2) smaller houses for the minor children. That was clearly not in terms of the law and was contrary to the provisions of the Will.

Master's Report

It is trite law that where estate property is to be sold it must be done in accordance with the Administration of Estates Act [Chapter 6:01].

Section 120 of the Administration of Estates Act states that:-

“If, after due inquiry, the Master is of the opinion that it would be to the advantage of persons interested in the estate to sell any property belonging to such estate otherwise than by public auction he may, if the Will of the deceased contains no provision to the contrary, grant the necessary authority to the executor so to act.”

In this case the Master of the High Court's consent was of no consequence as the Will did not provide for the sale of this particular property, if anything it provided to the contrary.

In any case, section 122 of the Administration of Estates Act states that:-

“In cases where minor heirs are interested in property inherited from the estate of any deceased person the Master may apply, through the chamber book, to a judge in chambers for authority for the lease, mortgage, sale or other disposition of such property, and the judge may make such order as in the circumstances he considers advisable.”

In casu, it is common cause that the applicant and his sister, Milenda Tinashe Katsande, were minors and were heirs to the property in question.

If the property was to be disposed of in any way, including the Marondera property, the Master of the High Court should have complied with section 122 of the Administration of Estates Act. In his report, the Master of the High Court did not state that he had complied with this section at all. It is clear from all the submissions that the sale was in violation of the specific provisions of the law. See Emmanuel Nemuseso v Dorothy Mashita & Others HH122-09.

I am of the firm view that the net effect of the anomalies pointed above, as regards both the executor and the Master of the High Court, is that the purported sale of House No.18806 Unit L Seke, Chitungwiza by the first respondent to the second respondent is a nullity. Not only did the first respondent not have the right or authority to do so from the Will itself, but he also acted dishonestly and fraudulently in obtaining the Master of the High Court's consent to sell. As already shown, the consent itself was not proper in the light of the clear provisions of the Will and the law applicable in such cases.

Consequences of a nullity

Where an act is a nullity, the innocence or otherwise of the other party to the act is of no assistance at all. This is so because nothing can be built on nothing.

In F. Katirawu v D. Katirawu and 3 Others HH58-07 the second respondent had claimed to be an innocent purchaser of rights and interests in a property where the purported executor was found to have acted fraudulently in obtaining the Letters of Administration. After holding that the sale was a non-sale, MAKARAU JP went on to say that:-

“In conclusion, the rights that the second respondent believes to have purchased and acquired from the first respondent are tainted by the same illegality and amount to nought by token of the same reasoning. It is as if there was never a sale between her and the first respondent, and, consequently, no rights can flow from a non-sale in her favor. The sale and the consequent cession of rights in her favor amount to nothing at law for nothing legal can flow from a fraud.”…,.

In casu, the purported sale was contrary to the provisions of the Will and was done without following the law as pointed to above. The first respondent went clearly against the intention of the testator. One can say he acted dishonestly and clearly contrary to the provisions of the Will he was supposed to execute. In my view, whatever he did was a non-sale. He purported to sell something he had no power and was in fact prohibited from selling.

The issue of innocent purchaser would thus not turn a non-sale into a valid sale. There was nothing for the first respondent to sell and for the second respondent to purchase as the law and provisions of the Will did not allow the sale. The first respondent's purported sale was an act of illegality.

It is pertinent to note that the Master of the High Court's office needs to awaken to the serious duties and responsibilities bestowed on that office in deceased estates.

As already alluded to, section 120 of the Administration of Estates Act enjoins the Master of the High Court to do an inquiry in order to be satisfied that the request being made would be to the advantage of the persons interested in the estate to sell the property. Due inquiry connotes that the Master of the High Court takes active or positive steps to verify the contents of the application before granting the consent. In cases where minors are the beneficiaries it may necessitate the appointment of a curator ad litem to ensure that the interests of the minors are protected. Had such an inquiry been made the Master of the High Court would easily have realized that the request was contrary to the provisions of the Will as the house in question was unconditionally bequeathed to the applicant. Through the inquiry, the Master would have been further alerted to the fact that as the heirs/ beneficiaries were minors, section 122 of the Administration of Estates Act needed to be complied with if ever such a request was to be granted.

I would implore the Master of the High Court's office to take such requests from executors seriously as failure to do so may bring that office into disrepute.

I raise this issue because, of late, applications in which the Master of the High Court's office had granted consent to sell well after the properties had been sold or where minors are the beneficiaries or interested persons without complying with section 122 of the Administration of Estates Act have become common.

Whenever a minor is involved, as beneficiary or interested party, the Master of the High Court's office must, in my view, take extra caution and ensure that the provisions of the law are adhered to as there is ever the temptation, on the part of executors and others, to prejudice the minors who will, in many cases, not be consulted or represented by a curator ad litem....,.

Eviction and costs

The eviction of anyone in occupation of the property is a nature consequence of the finding that the purported sale was a nullity. The second respondent and all those claiming right of occupation through him must vacate the premises within an appropriate period. The applicant's quest was for the second respondent to vacate within forty-eight (48) hours. There is need to give the occupants reasonable time within which to vacate the premises. In this regard, a period of seven days should be adequate taking into account the circumstances of the case…,.

Accordingly it is hereby ordered that:-

1. The consent to sell House No. 18806 Unit L, Seke, Chitungwiza given by the Master of the High Court sometime in 2007 be and is hereby set aside.

2....,.

3. The purported sale of House No. 18806 Unit L, Seke, Chitungwiza to the second respondent be and is hereby set aside.

4. The second respondent and all those who claim right of occupation through him of House No. 18806 Unit L, Seke, Chitungwiza be and are hereby ordered to vacate the premises within seven (7) days of being served with this order.

5. In the event that the second respondent and all those who claim right of occupation through him fail to comply with paragraph 4 above, the Deputy Sheriff be and is hereby authorized to evict them from House No.18806 Unit L, Seke, Chitungwiza.

6. The fourth respondent be and is hereby ordered not to cede rights and title in House No.18806 Unit L, Seke, Chitungwiza from the name of the late Norman Katsande into any other name except the applicant and in the event that such cession had been effected it is hereby set aside and the House must be ceded to the applicant.

7....,.

8. The Registrar is hereby directed to serve a copy of this judgment on the Master of the High Court.

The plaintiff issued summons out of this court seeking the setting aside of an Agreement of Sale relating to Stand Number 32 Manga Street, New Mabvuku entered into between the first and second defendants, nullification of the cession of the property from the estate of the Late Vito Bhero to the first defendant and costs….,.

Several facts in this matter are common cause and I will set them out hereunder.

The plaintiff was married, at customary law, by the late Vito Bhero (the deceased) who died intestate on 15 January 2004. She had five children with the deceased who are now all majors. Prior to the deceased's marriage to the plaintiff he was married to the first defendant in terms of the African Marriages Act.

After the death of the deceased, the first defendant registered the estate and was appointed executor of the estate. She proceeded to transfer the only immovable property, which was Stand 32 Manga Street, New Mabvuku into her name and subsequently sold it to the second defendant. The second defendant, after acquiring title to the property, sought to evict the plaintiff and her children from the property. The plaintiff sought and obtained interim protection from this court stopping her eviction. She then instituted a court application seeking an order setting aside the first defendant as executor of the estate and the relief already alluded to above....,.

The first defendant testified that after the deceased died she was appointed as executor of his estate. She produced the Letters of Administration granted to her by the Master of the High Court....,. Following the registration of the deceased's estate the first defendant had the property transferred into her name. She subsequently sold it to the second defendant.

The property is now registered in the name of the second defendant.

She produced the Agreement of Sale dated 18 February 2005 and the Memorandum of Assignment from the City Council....,.

The law relating to the distribution of deceased's estates is regulated by the Administration of Estates Act [Chapter 6:01] (“the Act”).

The first defendant was properly appointed as executor of the deceased's estate on 4 August 2004. Following her appointment as executor she was obliged, in terms of the law, to draw up an inheritance plan, after due consultation with the beneficiaries, for consideration and approval by the Master of the High Court in terms of section 68D and 68E of the Administration of Estates Act.

The specific provisions provide as follows:

“68D Inheritance Plan

(1) As soon as possible after the death of a person referred to in subsection (1) of section sixty-eight A and the discharge or settlement of any legitimate claims against his estate, his executor shall draw up a plan providing for such of the following matters as may be appropriate -

(a) The conservation and application of the net estate for the benefit of the beneficiaries;

(b) The distribution of all or any part of the net estate to the beneficiaries;

(c) The sale or disposal of any property of the net estate for the benefit of the beneficiaries;

(d) The maintenance of any beneficiary.

(2) When drawing up a plan in terms of subsection (1), an executor shall -

(a) Pay due regard to the principles set out in subsection (2) of section sixty-eight F, to the extent that they are applicable; and

(b) So far as is practicable, consult the deceased person's family and the beneficiaries and endeavour to obtain the beneficiaries agreement to it.

68E Consideration and approval of inheritance plan

(1) As soon as possible after drawing up a plan in terms of section sixty-eight, an executor shall submit it to the Master for approval.

(2) On receipt of a plan drawn up in terms of sixty-eight D, the Master shall take such steps as he considers necessary or appropriate to satisfy himself that -

(a) The executor has consulted all the members of the deceased's family and beneficiaries whom he could, with reasonable diligence, have consulted, and has obtained the beneficiaries' agreement to the plan; and

(b) The beneficiaries who have agreed to the plan have done so with full knowledge and understanding of their rights.

(3) If the Master -

(a) Is satisfied that a plan submitted to him in terms of subsection (1) has been agreed to by all the beneficiaries concerned or by such of them as the executor could, with reasonable diligence, have consulted, the Master shall approve the plan and authorize the executor to distribute or administer the estate in accordance with it;

(b) Has reason to believe that the executor has failed to consult a member of the deceased's family or a beneficiary whom he could, with reasonable diligence, have consulted, the Master shall refuse to approve the plan until that family member or beneficiary has been consulted, and, in the case of a beneficiary, his agreement to the plan has been obtained;

(c) Has reason to believe that one or more of the beneficiaries concerned have not agreed to a plan submitted to him in terms of subsection (1), the Master shall proceed to determine, in accordance with section sixty-eight F, any issues in dispute between the executor and the beneficiary or beneficiaries, and shall direct the executor to distribute or administer the estate in accordance with his determination.”

It seems to me that the wording of section 68D of the Administration of Estates Act [Chapter 6:01] is mandatory in that it requires the executor to act in a specified manner.

The first defendant submitted that she had substantially complied with the requirements, regard being had to the "bad blood" between the plaintiff and her. It was further submitted that for an un-educated old woman she had acted rationally and above board.

In my view, the application of the provisions is not discretionary on the part of the executor. The legislature crafted the legislation in this manner in order to ensure that all the beneficiaries of the estate of the deceased would be catered for.

The first defendant's failure to comply with the Administration of Estates Act cannot be absolved by the mere fact that she was an old and illiterate woman who thought she was acting in the best interest of the parties. Having accepted the position of executor she was obliged to act in the best interest of the estate and the beneficiaries and in accordance with the law.

The legal position of an executor has been set out in various judgments of this court. D. MEYEROWITZ, in, “The Law and Practice of Administration of Estates"…, describes the position of an executor succinctly as follows:

"The executor acts on his own responsibility, but he is not free to deal with assets of the estate in any manner he pleases. His position is a fiduciary one, and, therefore, he must act not only in good faith but also legally. He must act in terms of the Will and in terms of the law, which prescribes his duties and the method of administration, and makes him subject to the supervision of the Master in regard to a number of matters."

The evidence led in this trial clearly shows that the executor did not act in the manner expected of an executor. She did not comply with the provisions of the Administration of Estates Act and acted in her own interest. Had the first defendant complied with the requirements of the Administration of Estates Act this would not have happened.

The evidence led in this court disclosed that the deceased had not divorced the first defendant. Thus, the estate had to be distributed between the two surviving spouses.

The evidence led did not disclose how the property was transferred into the first defendants name from the name of the deceased. The Letters of Administration granted to the first defendant did not give her the right to make such a transfer. As an executor she could only have sold the property after being given authority by the Master of the High Court in accordance with section 120 of the Administration of Estates Act [Chapter 6:01].

It seems to me that the act of transferring the property from the deceased to the first defendant could only have been accomplished through fraud as mere appointment of a person as executor does not grant them the right to transfer estate property into their name. The property, being estate property, could only have been transferred into the name of an individual once the Master of the High Court had, in terms of section 68E of the Administration of Estates Act, considered and approved the proposed distribution plan. The evidence led showed that, to date, the estate has not been finalized with the Master of the High Court. No distribution plan has been lodged.

In my view, therefore, the failure by the first defendant to comply with the provisions of the Administration of Estates Act [Chapter 6:01] renders her actions in selling the property a nullity, and, as such, the sale must be set aside.

Having determined that her actions are a nullity it is unnecessary for this court determine whether or not the second defendant was an innocent bona fide purchaser. The transaction being illegal makes the sale a nullity. In the case of Katirawu v Katirawu & Anor HH58-07 MAKARAU JP…, stated as follows:

“In conclusion, the 'rights' that the second respondent believes to have purchased and acquired from the first respondent are tainted by the same illegality and amount to nought by token of the same reasoning. It is as if there was never a sale between her and the first respondent, and, consequently, no rights flow from a non-sale in her favour. The sale and the consequent cession of rights in her favour amount to nothing at law - for nothing can flow from a fraud.”

It is also on that basis that I will not award costs against the second defendant.

Clause 3(b) of the Agreement of Sale, signed by the parties on 10 February 2005, provided as follows-

“3(b) That this Agreement is subject to the Seller obtaining the necessary authority from the Master of the High Court to sell the one half undivided share registered in the name of Emilia Maria Bernadette Rodrigues, of which the said Thomas Rodrigues is the sole beneficiary.”

As at 10 May 2005, the Master of the High Court had not yet been approached for granting the necessary authority to sell the one half undivided share registered in the name of Emilia Maria Bernadette Rodrigues. The first respondent's legal practitioners then wrote to the applicants in the following terms-

“RE: SALE T C P RODRIGUES – ESTATE LATE EMILIA MARIA BERNADETTE RODRIGUES

We refer to the above agreement of sale.

We have been instructed by the Executor in the Estate, to cancel the Agreement of Sale as the beneficiaries in the Estate have repudiated the sale on the basis that the Executor did not act in the best interest of the Estate.

We are accordingly left with no alternative but to formally cancel the sale and to return to you monies paid pursuant to the agreement.

Accordingly, we forward herewith our cheque drawn in the sum of $765,613,085= in full and final settlement of this matter.

Please acknowledge safe receipt of the enclosed payment.”

On 5 July 2005, the applicants' legal practitioners wrote to the respondents' legal practitioners in the following terms-

“RE: TRANSFER FROM THOMAS C.P RODRIGUES & ESTATE LATE E.M.B RODRIGUES TO DAVID & NELIA CHIGODORA

We refer to the above and advise that we have been retained by Mr and Mrs Chigodora to act for them in this matter. We do understand that there has been some communication between yourselves and Messrs Dzimba Jaravaza & Associates who were representing our clients.

We have been given your letter of the 10^th May 2005 together with the agreement of sale. We have also perused the Master's file DR3208/04 which shows that there has been no application for his consent to dispose of the property. We are instructed to write to you as follows:

1. The agreement that was signed between our clients and Mr Rodrigues, in his Personal capacity and in his capacity as the Executor of his wife's estate, states clearly that he is the beneficial owner of the property held under Deed of Transfer Number 5266/84 which is the subject of the sale.

2. Our clients duly complied with the agreement of sale and paid the purchase price and the transfer costs.

3. The agreement was subject to the Master's Consent in terms of Section 120 of The Administration of Estates.

4. To their surprise our clients then received a letter from yourselves dated 10^th May 2005 in which you purported to cancel the agreement on the instructions of the Executor of the Estate. The reason advanced for the cancellation was that the beneficiaries had complained that the “Executor did not act in the best interests of the Estate.”

5. Firstly, our clients have not been informed of the identity of these alleged beneficiaries and this averment is the total opposite of what Mr Rodrigues stated in the agreement that was prepared by ourselves. Our client would like to know who these beneficiaries are so that they can be cited in the proceedings that our clients intend to institute should this matter not be resolved amicably.

6. Secondly, the property in question was the matrimonial home of the Rodrigues family hence the need to give Mr Rodrigues a period not exceeding ninety (90) days to find alternative accommodation after the date of transfer .The inheritance of a matrimonial home is governed by section 3A of the Administration of Estates Amendment Act [Chapter 6:02]. It is clear in terms of that section that Mr Rodrigues is the only beneficiary of the matrimonial home. It can therefore not be true that there are any other beneficiaries who would object to the disposal of that house.

7. In the circumstances, we are instructed to demand, which we hereby do, that as the Conveyancers you advise us that you are proceeding with the transfer of the property in terms of the agreement of sale.  May we have confirmation of this by Friday the 8^th July 2005.

8. In the event that we do not receive such confirmation by end of business on Friday we will institute proceedings to compel transfer. We will also file an urgent chamber application to stop your client from transferring the property to any other person pending finalization of the application to compel transfer.

9. In the applications we will pray that the resultant costs be borne by your client on the attorney and own client scale as it is clear that the reason advanced for the purported cancellation is not valid at law and is not bona fide.

We wait to hear from you as a matter of urgency.”

Subsequent to the above letter, and on 17 August 2005, the respondents' legal practitioners addressed the following letter to the Master of the High Court-

“Dear Sir

RE: ESTATE LATE  E. M. B RODRIGUES

We act for Mr T Rodrigues who is the executor of the above estate, The estate is a half owner of a certain piece of land in the district of Salisbury being Lot 1 of Sub-division A of Lot 18 of Greendale. The executor entered into an agreement of sale with Mr and Mrs Chigodora, a copy of which is annexed hereto, in terms of which he sold the estate's half share of the property together with his own half share. The sale was subject to your consent as is required for a sale by private treaty in terms of section 120 of the Administration of Estates Act [Cap 6:01].

Our client is obliged to make application to you for your consent. However, since entering into the agreement his two daughters have objected to the sale. We understand that a copy of their objection has been lodge with you by a letter dated 30^th June 2005.

Our client has also been advised that at the time that he entered into the Agreement the property was worth far more that the agreed purchase price and we have asked our client for furnish to us a valuation in this respect.

It seems to us that the purpose of section120 of the Administration of Estates Act, which requires that the sale of assets of an estate to be done by public auction, is designed to protect both the estate and the beneficiaries in the event of an executor selling the property for less than its market value. Whilst our client is duty bound to make this application he does seek your protection.

In the circumstances, our client leaves it to you as to whether or not you should grant your consent.

Please let us hear from you as soon as possible.”

On 17 November 2005, the Master of the High Court's office wrote to the respondents' legal practitioners in the following terms-

“Dear Sir

ESTATE LATE:  E.M.B. RODRIGUES

I have noted that an estate property was sold without my consent to sale in terms of Section 120 of the Administration of Deceased Estates Act [Chapter 6:01]. It is also reported that the beneficiary who once sold the said property is no longer interest in the sale. As such, my office is not in a position to authenticate the alleged sale.

Please be guided accordingly.”

The above detailed background, explained in various exchanges of correspondences between the parties, explains why, on 2 August 2005, the applicants approached this court for the relief indicated on the first page of this judgment.

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.