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,
2nd
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.
