This is an appeal against the whole judgment of the High Court (the court a quo) handed down on 27 January 2022 dismissing the appellant's application. After hearing submissions, we dismissed the appeal, on 20 July 2023, for lack of merit. We indicated that our reasons will follow. These are ...
This is an appeal against the whole judgment of the High Court (the court a quo) handed down on 27 January 2022 dismissing the appellant's application. After hearing submissions, we dismissed the appeal, on 20 July 2023, for lack of merit. We indicated that our reasons will follow. These are they.
THE FACTS
The appellant and the first (Clever Sibanda), fifth to eleventh respondents (Ettah Sibanda, Joyce Sibanda, Elphina Sibanda, Khefeni Sibanda, Maxwell Sibanda, Siyolisiwe Sibanda and Sibusisiwe Sibanda) are all surviving children of the late Melusi Sibanda who died on 5 September 2005.
On 7 May 2019, Clever Sibanda was appointed executor dative of the estate of the late Melusi Sibanda by Letters of Administration issued on that date.
The second respondent (Nqobile Mloyi) purchased an immovable property, being House Number 501 Nkulumane, Bulawayo from the estate of the late Melusi Sibanda during its administration by the executor dative.
Though the appellant alleges that he was named heir in a document purporting to be a Will of the deceased, such assertion did not curry favour with the appointing authority, hence, the appointment of Clever Sibanda as executor dative (executor) on 7 May 2019.
The appointment has not been challenged and is extant.
At a meeting called by and held before the third respondent (the Deputy Master of the High Court of Zimbabwe), on 25 June 2019, it was resolved, that, the late Melusi Sibanda's immovable property, that is, House Number 501 Nkulumane, Bulawayo registered under a Deed of Transfer number 3478/2001 (“the property”), would be sold with the consent of all the beneficiaries thereto.
The meeting was attended by the appellant and some of the cited beneficiaries.
The minutes of the above meeting, before the Deputy Master of the High Court of Zimbabwe, quote the appellant as having stated as follows in respect of the property:
“Rental was $120 per month to 2019, I have collected the rentals as the heir I was chosen by my father, I am responsible to bring these siblings together. I have archived (sic) to take care of my mother, share the cattle, buried my father. I was supposed to take care of my siblings; I am surprised that they say they do not know the Will. At law, the house can be sold according to my father legacy, they can share rent if possible. I agree to let the house be sold.”
On 12 March 2020, the Deputy Master of the High Court of Zimbabwe, upon the executor's application, issued a certificate of consent to sell the house otherwise than by public auction in terms of section 120 of the Administration of Estates Act [Chapter 6:01].
On 1 September 2020, the executor duly entered into an agreement of sale of the aforesaid property with the second respondent. He duly received the purchase price, and, it was submitted that he distributed the proceeds amongst the beneficiaries.
The appellant was aggrieved by the disposal of the immovable property.
He alleged, that, neither himself nor his other siblings, who are also beneficiaries, had been consulted and hence they had not consented to the sale.
Accordingly, on 9 March 2021, he approached the third respondent (the Deputy Master of the High Court of Zimbabwe) for a meeting.
During that meeting, he had an opportunity to peruse the file pertaining to the Estate Late Melusi Sibanda. He noted that a certificate, in terms of section 120 of the Administration of Estates Act [Chapter 6:01] (the Act) had been issued on 12 March 2020. He also noted, that, the immovable property had been valued at US$15,000.
Armed with this information, the appellant filed a court application “for unlawful disposal of deceased's immovable property.”
That application was essentially a challenge to the issuance of a certificate in terms of section 120 of the Administration of Estates Act by the Deputy Master of the High Court of Zimbabwe, which authorized the executor to sell, otherwise than by public auction, the deceased's only immovable property.
In his founding affidavit, the appellant alleged, that, no due inquiry was undertaken by the Deputy Master of the High Court of Zimbabwe before the issuance of the certificate and that not all of the children of the late Melusi Sibanda had given their consent for the disposal of the property. He averred, that, this was contrary to the agreement of 25 June 2019 that this property would only be sold with the consent of all the beneficiaries.
The application was opposed by the second respondent who averred, that, he was an innocent purchaser of the property in question. Further, he denied that the beneficiaries had not been consulted, and, in this regard, he attached affidavits from the beneficiaries consenting to the sale.
In the second respondent's view, the executor's action was bona fide as all the beneficiaries had consented to the sale.
At the hearing of the application, the appellant and the second respondent raised preliminary objections which were all dismissed by the court a quo.
On the merits, the court a quo held, that, the appellant could not competently challenge the sale because the deceased's property had been properly sold. It found, that, at the meeting of 25 June 2019, the appellant is recorded as having unequivocally accepted that the house be sold. In regards to the value of the property, the court a quo made a finding, that, no legal basis had been established for interfering with the decision of the Deputy Master of the High Court of Zimbabwe in issuing his authority under section 120 of the Administration of Estates Act. Accordingly, the court a quo dismissed the appellant's application with costs.
Aggrieved by the decision of the court a quo, the appellant noted the present appeal on four grounds of appeal. These are:
GROUNDS OF APPEAL
“1. The court a quo grossly erred in making a finding that the “applicant has not made a case for the relief he is seeking” yet the appellant's Court Application for Unlawful Disposal of the Deceased's Immovable Property was heard in contravention of peremptory rules of the High Court Rules 1971 for filing and serving the notice of opposition and peremptory rules of the High Court Rules 2021 for setting down opposed matters. The court a quo misunderstood and/or misinterpreted the appellant's points in limine.
2. The court a quo grossly misdirected itself in making a finding that “applicant has not made a case for the relief he is seeking” yet the court a quo conveniently mis-interpreted the resolution of the meeting held on 25 June 2020 (sic) and ignored the executor's letter.
3. The court a quo grossly erred in making a finding that “applicant has not made a case for the relief he is seeking” yet the court a quo did not apply the law according to section 5(1)(a) of the Deceased Estates Succession Act [Chapter 6:02].
4. The court a quo grossly misdirected itself in making a finding that “the applicant has not made a case for the relief he is seeking” yet the Deputy Master of the High Court failed to conduct proper due diligence in terms of section 120 of the Administration of Estates Acts [Chapter 6:01].”
The appellant prayed for the appeal to be allowed and for the setting aside of judgment of the court a quo.
He also prayed for:
(i) The setting aside of the certificate issued by the Deputy Master of the High Court of Zimbabwe in terms of section 120 of the Administration of Estates Act;
(ii) The setting aside of the sale of the immovable property in question;
(iii) The placement of a caveat on the said property;
(iv) For the Deputy Master of the High Court of Zimbabwe to ensure, that, all beneficiaries consent to the sale before the property can be validly sold; and
(v) That, the Registrar of Deeds is forbidden from transferring the property to anyone without an order of the court and that if any transfer had occurred it be reversed.
The court holds, that, only two issues commend themselves for determination, and, these are:
1. Whether or not the court a quo erred in dismissing the appellant's preliminary points, that, the application was heard in contravention of Rule 233 of the High Court Rules 1971 and Rule 59 of the High Court Rules 2021.
2. Whether or not the court a quo erred and misdirected itself in finding, that, the immovable property was sold with the consent of all the beneficiaries and in accordance with the law governing the administration of deceased estates.
SUBMISSIONS BEFORE THIS COURT
The appellant submitted, inter alia, that, the court a quo erred in making a finding that he had failed “to make a case for the relief he was seeking” yet his application challenging the unlawful disposal of the deceased's immovable property was heard in contravention of peremptory rules of the High Court Rules 1971 for filing and serving the notice of opposition and peremptory rules of High Court Rules 2021 for setting down opposed matters. He submitted, that, the court a quo misunderstood and/or misinterpreted his points in limine.
On the merits, he submitted, that, the court a quo mis-interpreted the resolution of the meeting held on 25 June 2019 and ignored the executor's letter, resulting in it holding that the appellant failed to make a case for the relief he sought.
He further took issue with the court a quo's alleged failure to apply section 5(1)(a) of the Deceased Estates Succession Act [Chapter 6:02].
Lastly, he submitted that the Deputy Master of the High Court of Zimbabwe failed to conduct due inquiry in terms of section 120 of the Administration of Estates Act before issuing the authority to sell.
Per contra, counsel for the respondent submitted, that, regarding service of the notice of opposition, the appellant admitted that he was served with the first notice of opposition. He further submitted, that, the appellant also admitted to receiving the second notice of opposition as well.
In this regard, counsel submitted that the court a quo was correct in holding that the appellant did not suffer any prejudice.
Counsel further contended, that, rules are made for the benefit of the court and that the court, in terms of Rule 4C of the then applicable High Court Rules 1971, had the power to condone a departure from the rules as the appellant had been served. The infractions the appellant alluded to in his preliminary points were properly condoned by the court a quo.
On the merits, counsel submitted, that, at a meeting held on 25 June 2019, before the Deputy Master of the High Court of Zimbabwe, where it was resolved that the immovable property would be sold by consent of all beneficiaries, the appellant consented to the sale of the house.
He contended, that, the minutes of the said meeting were never challenged by the appellant; as such, he could not approbate and reprobate. He submitted that the court a quo correctly found, that, according to the minutes, the appellant had consented to the sale.
Further, counsel submitted that the other beneficiaries deposed to affidavits in which they consented to the sale of the house.
In this light, he averred that the Deputy Master of the High Court of Zimbabwe did carry out due inquiry as required of him. Counsel, as a result, prayed that the appeal be dismissed with costs.
ANALYSIS
2. Whether or not the court a quo erred in dismissing the appellant's application upon finding that the immovable property was sold with the consent of all the beneficiaries and in accordance with the Administration of Estates Act
This issue arises from the second to the fourth grounds of appeal. These grounds of appeal are essentially an attack on the court a quo's finding that the appellant did not prove his case for the relief he sought.
On the other hand, the second respondent averred, that, the court a quo correctly found that the appellant's case had no merit as all beneficiaries had consented to the sale.
It is trite, that, this court can only interfere with the findings of the court a quo on limited grounds.
An Appellate Court will not lightly interfere with an exercise of discretion by a lower court unless it is shown, inter alia, that, some error was made in exercising the discretion, such as that it acted upon a wrong principle; that it allowed extraneous or irrelevant matters to guide it or affect it; that it mistook the facts or failed to take into account some relevant consideration: see Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S); Halwick Investments v Nyamwanza 2009 (2) ZLR 400 (S).
The nub of the appellant's case was that the Deputy Master of the High Court of Zimbabwe had not conducted a due inquiry before issuing a section 120 of the Administration of Estates Act certificate.
He submitted, that, had the Deputy Master of the High Court of Zimbabwe conducted such an inquiry he would have noted, that, not all beneficiaries had consented to the sale of the property as had been agreed to in the meeting of 25 June 2019. It is that agreement he said was binding on the Deputy Master of the High Court of Zimbabwe and the Executor in terms of section 5(1)(a) of the Deceased Estates Succession Act [Chapter 6:02].
Section 120 of the Administration of Estates Act pertains to the power granted to the Master of the High Court of Zimbabwe to authorise the sale of property otherwise than by public auction. The section provides:
“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 provisions to the contrary, grant the necessary authority to the executor so to act.”
The due inquiry the Master of the High Court of Zimbabwe is enjoined to conduct is an interrogation of the reasons why the executor would like to sell the property otherwise than by public auction and whether such would be in the interests of those interested in the estate, such as beneficiaries. The Master of the High Court of Zimbabwe must satisfy himself/herself that such a manner of sale would be to the advantage of persons interested in the estate. In the process, the Master of the High Court of Zimbabwe may take such steps as he/she deems fit, including engaging the beneficiaries, in order to arrive at an appropriate opinion: see Katsande v Katsande & Ors 2010 (2) ZLR 82 (H).
In casu, the appellant, and other beneficiaries, held a meeting with the Master of the High Court of Zimbabwe on 25 June 2019.
At that meeting, it was resolved that the immovable property of the deceased would be sold by consent of all the beneficiaries. The appellant is quoted as having stated, inter alia, that:
“At law, the house can be sold according to my father legacy they can share rent if possible. I agree to let the house be sold.”
The minutes of the meeting were in fact provided by the appellant.
It is clear that at that meeting the appellant gave his consent to the sale. It was in light of this that the court a quo made a finding, that, the resolution requiring consent from all beneficiaries applied to those beneficiaries who did not attend the meeting or who had not given their consent thereat, since the appellant had given his consent in the meeting.
The court a quo further noted, that, the other beneficiaries had given their consent through the affidavits filed of record. In the circumstances it could not be said that some of the beneficiaries had not given their consent.
The court is of the view, that, the finding by the court a quo, that, given the obtaining circumstances, the term “all beneficiaries” that were to still give consent as per minutes of 25 June 2019 meeting applied to those beneficiaries who did not attend the meeting or consent thereat, is not unreasonable or irrational so as to warrant this court's interference.
Surely, if there were some beneficiaries who attended the meeting on 25 June 2019 and had expressed their consent to the sale of the property, it was not unreasonable to conclude that the reference to “all” beneficiaries was intended to cover those beneficiaries who were not part of the meeting or were yet to give their consent.
The finding of the court a quo cannot be faulted in this regard.
The other leg of the appellant's attack of the court a quo's decision was that it had failed to appreciate that the Master of the High Court of Zimbabwe did not apply the law according to section 5(1)(a) of the Deceased Estates Succession Act [Chapter 6:02]. That section provides:
“5(1) Where as a result of a distribution in intestacy any property devolves upon any heirs in undivided shares —
(a) The heirs may agree upon an alternative division of the property, and such agreement shall be binding on the executor.”
In his view, the aforesaid section 5(1)(a) of the Deceased Estates Succession Act mandated the Master of the High Court of Zimbabwe, and the executor, to ensure that the consent of all the beneficiaries was obtained before the property was disposed of.
This is what he apparently considered as an alternative division or direction to sell the property.
This argument is again premised on his assertion, that, not all beneficiaries had consented to the sale. He was, however, unable to refute the existence of affidavits from all other beneficiaries consenting to the sale.
It was in this respect that the court a quo alluded to the fact, that, he had no authority to speak on behalf of the other beneficiaries in the light of the affidavits filed of record.
The other beneficiaries had in fact been cited as respondents in the application but had opted not to participate. It was apparent to all and sundry, that, it was only the appellant who had had a change of mind after his initial consent before the Master of the High Court of Zimbabwe.
