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.
The
applicant also prayed for the removal of the first respondent as
executor.
The
first respondent, despite being properly served with the application,
did not deem it fit to file any opposing papers. This is despite the
fact that serious allegations were made against him regarding the
manner he administered the estate. As the applicant's allegations
were unchallenged I take that is the truth.
The
first respondent has lamentably failed to administer the estate for
the benefit of beneficiaries. He, instead, did whatever he did,
including the purported sale of the house in question, for his own
benefit much contrary to the law and provisions of the Will.
Where
an executor lamentably fails to perform his duties according to the
mandate given, can there be any good reason why he should remain in
the office?
In
my view, there is no good reason why the first respondent should
remain in the office. Any minute he remains in that office may be
used for self aggrandizement/enrichment at the expense of the
beneficiaries. It is only proper that he be removed from that office
forthwith. I find support for this from the words of MAKARAU JP in F.
Katirawu v D. Katirawu and 3 Others
HH58-07…, wherein, after discussing a number of cases on the
grounds for removal of an executor, she said that:-
“It
has been held that under Roman- Dutch Law, the court possesses
inherent power to remove a trustee or administrator (even one
appointed under a Will), on the ground that his continuance in office
will prejudicially affect the future welfare of the estate entrusted
to him.”
See
also
Fey
NO and Whiteford NO v Serfontein and Another
1993 (2) SA 6059 (AD).
After
considering whether the court can do so at the instance of a
beneficiary or only if such application for removal is brought by the
Master of the High Court, MAKARAU JP went on to say…, that:-
“While
section 117(1) empowers the Master to approach the court for the
removal of an executor for the listed grounds, in my view, such a
power granted to the Master was not intended to take away the right
of all those having an interest in the estate from approaching the
court at common law to have the executor removed if they can
establish, to the satisfaction of court, that the continuance in
office of the executor does not augur well for the future welfare of
the estate and beneficiaries. The power granted to the Master by
section 117 is, in my view, complementary to the inherent power of
the court at common law. In any event, if it was the intention of the
legislature to revoke the common law power of the court in this
regard, it would have done so in express language for the
jurisdiction of the court is not ousted other than in clear language.
Applying
the above law to the facts before me, it is my finding that the
applicant, as a beneficiary in the estate, has the capacity to
approach this court at common law to move the court for the removal
of the first respondent as an executor.”
In
the case before me, the applicant, as the beneficiary, has the
capacity to move this court for the removal of the first respondent
as executor. His grounds are clearly under common law. He has alleged
fraudulent conduct on the part of the first respondent in the manner
in which he obtained the Master of the High Court's consent to
sell. The Master also alluded to the same acts of dishonesty on the
part of the first respondent. There is no denial that so far the
first respondent's conduct has been to the prejudice of the
beneficiaries of the estate and clearly justice demands that he be
removed from that office.
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.
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.
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.
