HH 192-14

HC4632/05

REF Case No.HC6230/05

LOVENESS MASEKO

versus

ESTATE LATE PHILLIP MUNEMO

and

PROSPER MUNEMO

and

EVANS MUNEMO

and

PORTIA MUNEMO

and
CHITUNGWIZA MUNICIPALITY

and

MASTER OF HIGH COURT

HIGH COURT OF ZIMBABWE

MAKONI J

HARARE, 26 January 2012 and 30 April 2014

Opposed application

C. Nhemwa, for the applicant

C.Chengeta, for the 1^st & 3^rd respondents

2^nd, 4^th, 5th & 6^th respondents’ in default

            MAKONI J: At the conclusion of the hearing, I gave an ex tempore judgement.  The respondents have appealed against the judgment and require written reasons.  These are they.

The applicant seeks an order that the sale agreement she entered into on 12 March 1996 with the second respondent be declared valid and binding on the parties.  She also seeks an order that the transfer of the property in issue, to the second, third and fourth respondents be set aside and the second respondent pass transfer of the property to the applicant.

The second, third and fourth respondents filed a counter application claiming the eviction of the applicant from the property.

The brief background to the matter is that the late Phillip Munemo during his lifetime, was the owner of Stand No. 16648 Unit M Seke.  He died on 8 October 1995.  On 29 May 1996 the estate of the late Munemo was registered under DR888/96.  The second respondent was appointed heir in terms of Letters of Administration issued to him.  Earlier on, on 12 March 1996 the second respondent, in his capacity as heir, entered into an agreement of sale to sell the property to the applicant.  The agreement was with the consent of the surviving spouse, the mother to the second respondent.  The applicant paid the purchase price in full in the sum of $39 000-00 to the Estate Agent who was handling the sale.  She also took occupation of the property.  The second respondent and his mother were given $29 000-00 leaving a balance of $10 000-00 in trust, to be paid upon cession of the property.

The surviving spouse died sometime in 1998.  The second respondent became envasire regarding the cession issue, misrepresenting that the Estate had not yet been registered.  At some point he was incarcerated.  When he came out of prison, he demanded that the applicant make further payments towards the purchase price and she refused.

Meanwhile on 24 November 2004 the third and fourth respondents registered the estate at Chitungwiza Magistrate Court under DR No5283/04.  The third respondent was appointed Executor Dative and was given authority to effect cession of the property into the names of the second, third and fourth respondents.  This was done on 8 February 2005.  In December 2004, the applicant was shocked to receive summons for eviction issued by the third respondent.  The matter was dismissed in the Magistrate’s Court.  The applicant then brought the present proceedings.

The issue is whether the agreement of sale entered into between the applicant and the second respondent is valid.

The Master of the High Court filed a report in which he supported the granting of the application.  He opined that the estate was administered in terms of customary law governing the administration of estate then i.e.1995.  The law then required that a heir be appointed and that such a heir was entitled to inherit property in his personal capacity.  He further commented that the second respondent was appointed heir and was subsequently issued with restricted letters of administration.

He also commented that the estate could not be registered again. If the other siblings were aggrieved by the second respondent’s decision then they should have followed the proper legal channels to challenge his actions.  He concluded by stating that the Master’s Office has no objection to regularize the sale in terms of s 120 of the Administration of Estates Acts [Cap 6:01]since cases where beneficiaries seek to renege from agreements of sale after benefitting, on the basis of non-compliance with s 120, are on the increase. He concluded by saying that he will abide by the decision of the court.

At the time of death of Phillip Munemo, where a person died intestate, his inheritance and succession was governed by the Administration of Estate Acts [Cap 6:01]. S 68 (2) of the Act provides;

“If any African who has contracted a marriage according to African law and custom -----dies intestate his estate shall be administered and distributed according to customs and values of the tribe or people to whom he belongs”

The custom was that the eldest son of the deceased would be the intestate heir of his father’s estate and would inherit the property in his personal capacity.  See Magaya v Magaya 1999 (1) ZLR 100.  This position changed with the coming into effect of the Administration of Estates Act No 6 of 1997.

In casu, the second respondent was the eldest son of the deceased and was the heir to his father’s estate in terms of custom. He went on to be appointed heir to his father’s estate and Executor of the estate.  He therefore had the capacity to conclude the sale.  The appointment of the third respondent as executor Dative was done when, the second respondent had not been removed as an executor. This can be done in terms of the provision of s 117 of the Administration of Estates Act [Cap 6:01].  The Master in his report states that the issuance of restricted Letters of Administration in favour of the heir, concluded the winding up of the estate.  Therefore the registration of the estate by the third respondent and the subsequent transfer of the property to him and the second and fourth respondents is null and void.

In view of the above I will make the following order;

1.      The sale of agreement entered into by the first respondent and the applicant on the 12^th of March, 1996 is hereby declared valid and binding on the parties.

2.      The transfer of Stand 16648 Unit M Seke to the 2nd, 3^rd and 4th respondent is hereby declared null and void.

3.      The second respondent be appointed heir to the late Phillip Munemo and that the proceeds to transfer stand 16648 Unit M, Seke to the applicant, within 14 days from the date of this order failing which the Deputy Sheriff is authorised to act on his behalf and transfer the said property to the applicant.

4.      The respondents pay the costs of this application each paying the other to be absolved.

5.      The counter application is dismissed with costs.

C. Nhemwa & Associates, applicant’s legal practitioners

MessrsPundu & Transport, respondents’ legal practitioners