KUDZANAYI FRANK KATSANDE

versus

RAZMOND KATSANDE

(In his capacity as the executor Testamentary of the Estate late Norman Katsande)

and

WILFRED MAGWAZA

and

MASTER OF THE HIGH COURT N.O

and

CHITUNGWIZAMUNICIPALITY

HIGH COURT OF ZIMBABWE

CHITAKUNYE J

HARARE, 13 October 2009 and 1 July 2010.

Opposed Application

H. Mucheche, for applicant

No appearance for 1^strespondent

T. Hangazha, for 2^ndRespondent

CHITAKUNYE J: 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 third and fourth respondents are cited in their official capacities.

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 applicant House No. 18806 Unit L, Seke, Chitungwiza and Stand No. 2310 Lower Paradise Marondera, in these terms:-

        “I direct that:-

1. 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.
2. 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.
3. Ensure that the two of them share equally any cash or liquid assets of this Estate.”

On 26 September 2007, 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 sale from the Master of the High Court. In his report the Master indicated that the consent to sale was only obtained three months after the sale. The purported consent to 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 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 para 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 applicant and his sister destitute and with no accommodation.

The applicant also argued that the purported consent to sale by the Master 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. First respondent told him that the property was from a deceased estate. First respondent showed him all documents pertaining to the house except the Master’s consent to sale. They agreed on the purchase price but he indicated that he would only pay after the first respondent had obtained the consent to sale and shown him same. Later on the first respondent advised him that he had now obtained the consent to sale. Upon being shown the consent to sale document he duly paid the purchase price. He is therefore an innocent purchase whose rights can no longer be taken away. 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 sale. First respondent had indicated that he wished to buy 2 smaller houses for the minors but up to now nothing had been done. 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 Masters consent in terms of s 120 of the Administration of Deceased Estates Act [Cap 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.

1. Whether the second respondent is a bona fide or innocent third party.
2. 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 [Cap 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:-

1. 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 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 sell 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 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 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 stated that the first respondent represented that he wanted to sell the Seke House so that he could buy 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 Act.

Section 120 of the Administration of Estates Act, supra, 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’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 s 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 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 should have complied with s 122 of the Act. In his report the Master 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 HH 122/09).

I am of the firm view that the net effect of the anomalies pointed above as regards both the executor and the Master is that the purported sale of house no. 18806 Unit L Seke Chitungwiza by the first respondent to 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’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.

InF. Katirawu v D. Katirawu and 3 Others HH 58/07 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.”(See page 5 of the cyclostyled judgment)

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 what ever 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’s office needs to awaken to the serious duties and responsibilities bestowed on that office in deceased estates. As already alluded to s 120 of the Administration of Estates Act enjoins the Master 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 takes active or positive steps to verify the contents of the application before granting the consent. In cases were 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 would easily have realized that the request was contrary to the provisions of the Will as the house in question was unconditionally bequeathed to applicant. Through the inquiry the Master would have been further alerted to the fact that as the heirs/ beneficiaries were minors, s 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’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’s office had granted consent to sale well after the properties had been sold or where minors are the beneficiaries or interested persons without complying with s 122 of the Administration of Estates Act have become common.

Whenever a minor is involved as beneficiary or interested party the Master’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 first respondent as executor. 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. First respondent has lamentably failed to administer the estate for the benefit of beneficiaries. He instead did what ever 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 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 supra at page 4 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 alsoFey 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 MAKARAU JP went on to say at p 5 that:-

“While s 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 s 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 first respondent as executor. His grounds are clearly under common law. He has alleged fraudulent conduct on the part of first respondent in the manner in which he obtained the Master’s consent to sell. The Master also alluded to the same acts of dishonest on the part of first respondent. There is no denial that so far first respondent’s conduct has been to the prejudice of 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 second respondent to vacate within 48 hours. There is need to give 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.  

On costs applicant’s prayer was to the effect that the first respondent be ordered to pay costs of suit on a legal practitioner- client scale. The first respondent did not file any papers in opposition to that. In his heads of argument and submissions in court applicant’s counsel maintained that same stance that costs be paid by first respondent as per the draft order.

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.

1. The appointment of Razmond Katsande as the Executor Testamentary in the estate late Norman Katsande be and is hereby set aside.

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

1. 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.

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

1. 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.
2. The first respondent shall pay the costs of suit on a legal practitioner- client scale.

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

Matsikidze & Mucheche, applicant’s legal practitioners.

Hangazha & Partners, second respondent’s legal practitioners.