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. At
the hearing before MAKARAU J the court found that the issue of the
first defendant's removal as executor was res
judicata
and referred the other issues to trial.
The
issues which were thus referred to trial are as follows:
(a)
Whether or not the marriage between the first defendant and the late
Vito Bhero was dissolved and the two separated in 1976?
(b)
Whether or not the second defendant was an innocent and bona fide
purchaser for value of the property called Stand 32 Manga Street, New
Mabvuku, Harare?
(c)
Whether or not the sale of the property to the second defendant
should be set aside?
The
plaintiff gave evidence.
She
told the court that she married the deceased in 1983. She stated that
at the time that she married the deceased he had divorced the first
defendant. She stated that although she saw the order for divorce it
was burnt when their house was burnt down in 2001. When the deceased
passed away she met the first defendant, for the first time, at the
funeral. After the funeral, the first defendant took the burial order
and made all the necessary arrangements for the registration of the
estate. She continued to reside on the property with her children and
was unaware of the sale of the property until the first defendant's
children came and attacked her. They demanded that she vacate the
property. She stated that at the time that the deceased died she was
staying in the property with him and the first defendant was staying
at her communal home.
In
cross examination, the witness reiterated that the first defendant
was divorced in 1976 and the first defendant was now living with
another man. She denied that the first defendant would ever visit the
deceased during his lifetime nor that they had stayed together in the
same house. The plaintiff admitted that the first defendant's name
was on the Municipal cards belonging to the City of Harare.
When
it was put to her that if it is found that they were both the wives
of the deceased would she not be entitled to a share of the house;
she conceded that the first defendant would be so entitled.
The
plaintiff denied that the first defendant had to process the estate
on her own because the plaintiff was being hostile. She also denied
that the first defendant had to sell the property because of the
hostility between them which made it impossible for them to stay
together and stated that she was never consulted. She denied that
they had ever stayed together at the house though the first
defendant's children would come to visit.
She
further denied that she was offered $10 million out of the sale price
of $40 million. She also stated that she had tried to obtain the
Divorce Order but had failed as she did not have the case reference
number.
In
my view, the plaintiff gave her evidence well. She was not shaken in
cross examination. Her story was both credible and believable and I
had no difficulty in believing her evidence.
I,
however, did not accept her evidence as it related to the divorce
between the first defendant and the deceased. It seems to me that her
evidence may have been influenced by the fact that the deceased had
married her, and, in her eyes, had divorced his first wife. She was
no longer living with them but she may not have appreciated that the
marriage was not dissolved by a court order and thus remained in
existence. Had the Divorce Order been granted the plaintiff's legal
practitioners would have been able to obtain it from the court
records.
The
second witness was Raiva Bhero. The plaintiff is his mother and the
deceased was his father.
He
told the court that he came to know the first defendant at his
father's funeral. He testified that he never lived with the first
defendant during his father's lifetime. After his father died, his
half-brother, by the name of Chaparira Mutasa, who is the first
defendant's son, came and asked for a room to stay at the house.
When he got the room the first defendant came and stayed in that room
for about a week. He came to know that the property had been sold
when they were served with an eviction order by the second defendant.
He denied that he or his mother had been consulted at any stage about
the appointment of an executor or the sale of the house.
During
cross-examination, he claimed that he had seen the Divorce Order
between his father and the first defendant when he was eight (8)
years old. He was adamant that he had never met the first defendant
before his father died but had been advised by his half brother and
sister that she lived in Mazoe. He further stated that the Divorce
Order had been burnt during a fire which took place at their home in
2001. He insisted that, after the fire, the plaintiff rebuilt the
house with the assistance of her employer, and, at the time they were
evicted, only the window panes were yet to be replaced. He also
denied that they had received a letter from Messers Marimba and
Partners asking his mother to come and collect $10 million as her
share from the proceeds of the sale of the property.
The
witness gave his evidence well. He was clear in his answers and was
not evasive in cross examination. He accepted that relations between
the two families were not good. He also conceded that in the event
that the court was to find that the first defendant was still married
to the deceased she would be entitled to a share in the estate. I
however did not believe him when he stated that he had seen the
Divorce Order between his father and the first defendant when he was
still a child.
The
third witness for the plaintiff was Agushita Sinati. She told the
court that she resides at 30 Tende Street in Mabvuku. She knows the
plaintiff as a sister-in-law as the late Vito Bhero was her brother.
She testified that she did not know the first defendant and further
stated that the deceased was not married prior to his marriage to the
plaintiff. She stated that at the time that the deceased lived at
Number 32 Manga Road they did not live with any one else other than
their children. In cross examination, she stated that she had come to
tell the court that the junior wife was suffering with the children
as they were staying in the open as they had been evicted from their
home.
This
witness did not give her evidence well. The evidence was very
disjointed and unclear. In one breath she would say the deceased was
not married to the first defendant and in the next breath she would
refer to the plaintiff as the junior wife. In my view, she was not a
credible witness and did not advance the plaintiff's case in any
way.
With
this evidence the plaintiff closed her case.
The
first
defendant testified that she was married to the deceased in terms of
the Customary Marriages Act on 4 December 1972. She knows the
plaintiff as her husband's junior wife. She stated that her original
marriage certificate was burnt when their house in Mabvuku burnt down
in 2001. She thus produced a duplicate original marriage certificate
before the court which she obtained after the death of the deceased.
She stated that she had three children with the deceased who are now
all majors. She indicated that when Number 32 Manga Street, Mabvuku
was purchased from the municipality her name was endorsed on the
municipal cards as the wife of the deceased. She stated that from the
time she married the deceased up until he died she was living with
him at that address. The deceased married the plaintiff in 1983 and
they all lived at the same house. She denied that she divorced the
deceased in 1976 and left the home. She also disputed that she
married another man by the name Kareto and had five children with
him.
She
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. She however stated that the
plaintiff and her children from a previous marriage would
continuously harass her, and, at some stage, she had to seek a peace
order from the Magistrates 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. She stated that she
sold the property for $40 million and instructed her legal
practitioner to give $10 million to the plaintiff as her share of the
proceeds. She further testified that if the plaintiff and her
children had not been harassing her she would not have sold the
house. The witness stated that she came to know the second defendant
after she told members of her church that she was looking for a buyer
for her house. The second defendant then came and viewed the house
and they agreed on the purchase price. When he came to view the house
the plaintiff and her children were not present.
In
cross examination she insisted that she had lived with the plaintiff
and the deceased at the house in Mabvuku until she sold it.
It
was however apparent that the witness did not know the names of the
plaintiff's children though she stated that they had lived together
for more than 20 years. She failed to explain the reason why she
would not know their names if they had all lived together. It was
also apparent that she did not know the second defendant until the
sale of the house although he lived just down the road and had lived
there all his life. However, she conceded that at the time she sold
the property the second defendant knew that the plaintiff was
objecting to the sale. She stated that she knew nothing about the
administration of estates. She sold the house after an application by
the plaintiff for her removal as executor had been dismissed.
I
was not impressed with the witness's evidence. I did not believe her
when she stated that she had been living at Number 32 Manga Street
until the death of the deceased. She did not know things which one
would expect a person living in the area to know. For instance, she
did not know the names of the plaintiff's children nor did she know
the second defendant who lived just a few houses from them on the
same street. I however accepted her testimony that at the time of the
deceased's death she was still married to him.
The
next witness for the defence was Chaparira Bhero. He stated that the
first defendant is his mother and the deceased was his father. He has
an elder brother and a sister. He knows the plaintiff as his step
mother. He came to know her in 1983 when she married his father and
moved in at 32 Manga Street in Mabvuku. At the time, he was living
elsewhere as a tenant and his brother was staying at their rural
home. His sister was married and living with her husband. When their
father died the estate was registered at the Assistant Master of the
High Court's office. The plaintiff was invited to attend the edict
meeting but she declined to do so. The first defendant was appointed
executor of the estate and transferred the property into her name.
She subsequently sold the property to the second defendant. He stated
that he did not know the second defendant until he came and saw the
house. After the second defendant purchased the house his brother,
Itayi, was asked to deliver a letter to the plaintiff advising her to
collect her share of the money. He was attacked by the plaintiff's
children and made a report to the police. He confirmed the first
defendant's testimony that she remained married to the deceased until
his death.
In
cross examination he confirmed that his mother remained married to
his father until he died. He denied that his mother ever left the
matrimonial home and stated that she lived there with the plaintiff.
He confirmed that the relationship between his mother and the
plaintiff was acrimonious. He confirmed that his mother was living
with his elder brother at their rural home in Madziva.
This
witnesses evidence, in my view, reinforced the fact that they did not
know the second defendant prior to the sale of the property because
they were no longer living in Mabvuku.
The
next witness was Regis Muverengi, the second defendant.
He
testified that he has lived at 17 Manga Street since 1973 when he was
10 years old. The property belongs to his parents. He knows the
plaintiff as a neighbour as she started living there in 1984. He knew
the first defendant facially and had known her since 1974. He
confirmed that the late Vito Bhero had two wives who both resided
with him at Number 32 Manga Street, Mabvuku. In 2005 he was advised
by his uncle that the house was being sold. He went and viewed the
house and agreed to buy it for $40 million. In his opinion it was a
fair price as it had been burnt at some stage and needed considerable
rebuilding. He conducted negotiations with the first defendant
because when he went to the Council offices he found that the
property was registered in her name. He paid the purchase price to
Marimba and Partners, a firm of legal practitioners who were involved
in drafting the sale agreement. After he obtained cession to the
property he then instituted proceedings to evict the plaintiff from
the house. She was evicted in March 2008 and he then moved into the
property.
He
further stated that when he signed the Agreement of Sale his
attention was drawn to clause 6.1 which stated that the sale was
subject to a resolution of a dispute on the property. It was
explained to him that the clause meant that there were people staying
in the property and he could not get immediate occupation.
In
cross-examination, the witness conceded that he was aware that the
plaintiff and her children lived on the property but he was of the
opinion that her problem with the first defendant was a family
dispute which did not involve him. He stood firm on his evidence that
he knew the first defendant from 1974.
When
questioned about the provisions in the Agreement of Sale that he
signed he explained that clause 6.1 was explained to him and he
understood it to mean that although there was a pending dispute on
the property the persons living thereon would be evicted.
In
assessing the evidence that was led before me it is clear that the
late Vito Bareto was married to the plaintiff and the first defendant
during his lifetime. The first defendant was his first wife and he
registered their marriage in terms of the then African Marriages Act.
This was quite apparent from the evidence of all the witnesses. The
deceased married the plaintiff in terms of customary law in 1983. The
plaintiff testified that the deceased had divorced the first
defendant in 1976 before he married her. In support of this assertion
the plaintiff called her son, Raiva Bhero, who told the court that he
saw the divorce papers when he was 8 years old.
How
an 8 year old would be able to identify and remember a Divorce Order
he had seen many years ago was, in my view, totally incredible.
The
evidence by Agushita Sinati was not reliable as she denied that the
deceased had been married to the first defendant; a point which was
common cause.
No
other evidence was called to show that the first defendant had been
divorced at customary law nor did she produce the Divorce Order or a
copy of the document. The explanation was that it had been destroyed
in a fire in 2001. The first defendant, on the other hand, produced
to the court a duplicate original marriage certificate issued by the
Registrar of Marriages and she denied that their marriage was ever
dissolved. In my view, that piece of evidence was conclusive in
determining the first defendant's status at the time of the
deceased's death.
The
first defendant and the deceased may very well have been living
separately - especially after the marriage of the plaintiff to the
deceased.
The
evidence led showed that the relationship between the plaintiff and
the first defendant was acrimonious. I believed the plaintiff's
testimony that she was living with the deceased whilst the first
defendant lived elsewhere. This evidence was, in my view,
corroborated by the fact that the second defendant knew the plaintiff
as a neighbor and only knew the first defendant when they entered
into the Agreement of Sale. This was further confirmed by Chaparira
Bhero who told the court that they only got to know the second
defendant because of the sale of the property, yet he lived just a
few houses down the road. This, in my view, confirms the evidence
that the person who was resident at 32 Manga Street was the
plaintiff. This position was further supported by the fact that, when
questioned in cross examination, the first defendant did not know the
names of the plaintiff's children and yet she claimed that they had
lived together under the same roof for close to 20 years.
However,
what is quite clear is that the marriage which was registered between
the deceased and the first defendant, on 4 December 1972, had not
been terminated. In my view, therefore, the late Vito Bhero was
survived by two wives who were both married in terms of customary
law.
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.
The
plaintiff has been successful in her claim and should be awarded the
costs. Whilst it is the practice in cases of deceased's estates to
award costs against the estate it would, in my view, cause an undue
hardship on this estate. The first defendant abused her position as
executor to unjustly enrich herself at the expense of the plaintiff
and should be punished with costs.
Accordingly,
I make the following order:
1.
The cession of Number 32 Manga Street, New Mabvuku from the name of
the late Vito Bero to the first defendant is hereby set aside.
2.
It is declared that the Agreement of Sale entered into by the first
and second defendants is null and void.
