RICHARD MAMUTSE

and

PINIEL MAMUTSE

versus

ISAAC TICHAREVA

(In his capacity as the Executor of the Estate of the Late

SHINGIRAI MAMUTSE)

and

THE MASTER OF THE HIGH COURT

and

HEATHER DANAI MATIMADIYI

and

TENDAI PRINCE HILLARY MATIMADIYI

and

REGISTRAR OF DEEDS

HIGH COURT OF ZIMBABWE

MUNANGATI-MANONGWA J

HARARE, 15 May 2018

Opposed Matter

Ms L Gaba, for the applicants

Mr E Ngwerewe, for the respondents

Mr R Zimudzi for 3rd and 4th respondents

EX TEMPORE JUDGMENT

            MUNANGATI-MANONGWA J: The applicants who are siblings approached this court seeking a declaratory order viz the estate of their deceased mother on the following terms:

1. The sale and transfer of the immovable property described as Stand 1249 Rugare Township, Harare to the 3rd and 4th respondents is null and void and consequently set aside.
2. The 5th respondent should give effect to the provisions of Paragraph 1 and restore the property back into its previous owners’ name.
3. In the interim, pending the finalisation of the Estate, the Court Order obtained in HC10668/16 against the applicants be and is hereby suspended.
4. The 1st respondent pays costs of this application on an Attorney-client scale

            The application is opposed by the first respondent who is the Executor of the estate of the Late Shingirai Mamutse, and the third and fourth respondents a couple that purchased the only asset of the estate stand 1249 Rugare Township Harare. Suffice to state that the third and fourth respondents already hold title to the property.

            The grounds upon which the applicants rely for seeking the aforementioned relief are listed in paragraph 25 of the founding affidavit under the heading “Declaratur” and are that:

“(a)      the executor had sold the immovable property to the third and fourth respondents “precipitously” without their consent and “for debts that were not even due and payable.”

(b)        “that the first respondent acted capriciously in selling the property at grossly undervalued purchase price thereby prejudicing the estate and the beneficiaries of more than US$10 000-00.

(c)        other factors like greed and avarice seem to have motivated the actions of the first respondent.”

It is the applicant’s contention that the aforementioned grounds point to a conflict

between their interests and those of the Executor and the Master of High Court which therefore removes the matter from the realm of an ordinary appeal or review.

            In opposition the first respondent raised a point in limine that the applicants have used a wrong procedure, instead of applying for a declaratur an application for a review would have been appropriate. This is a clandestine attempt to seek a review of the Master’s decision via the back door by disguising same as an application for a declaratur.

            The third and fourth respondents raised several grounds in opposition including points in limine. At the hearing Mr Zimudzi abandoned the points. The simple facts of this case are. The late Shingirai Mamutse died intestate leaving stand No 1249 Rugare Township as the only meaningful asset. The first respondent was appointed neutral executor and proceeded to handle the estate. The estate had obligations amounting to US$4 404.00 consisting of electricity bills and City of Harare rates. The applicants raised an amount of US$640.00.  The first respondent applied to the second respondent for authority to sell the immovable property to meet the estate’s obligations, same was granted and the property was sold to third and fourth respondents. The latter now hold title to the property.

            It is common cause that the applicants applied for a review in Case No. HC 6902/16 seeking the setting aside of the sale on the basis that the sale was irregular. The application was dismissed with costs on 1 June 2017. Equally there is an extant order granted on 18 July 2017 against the applicants who then were respondents in Case No. HC 10668/16 which ordered that the applicants vacate stand 1249 Rugare Township within 48 hours of the order and pay rentals from the date of institution of the summons to the date they vacate the property. It is common cause that applicants have not complied with this order.

 Of note is the fact that the applicants have projected the notion that it is the Master’s decision to authorise the sale that is being impugned. Yet a look at the grounds that have been provided clearly attack the manner in which the Executor has disposed of the property. There are barely any details regarding the allegations against the Master being the second respondent. Ms Gaba for the applicant submitted that the applicants were not consulted by the first and second respondents in the whole process leading to disposal of the property. Evidence on the papers shows that there was exchange of information by way of letters being written to the applicants.

As the basis of the application is to challenge the Master’s decision a review would have been the appropriate application see Geddes v Tawonezvi 2002 (1) ZLR 479. A reading of the present application shows that the issues raised are the same ones raised in the review matter Case No. HC 6902/16. Even the relief sought is essentially the same, being the setting aside of the sale of the immovable property. Central to both applications is a complaint against the manner in which the executor conducted the sale or disposed of the estate’s asset. The parties are the same, the same grounds are relied upon and so is the relief sought. Clearly there is an attempt to disguise this application as something different from the previous one by calling it an application for a declaratur, but such efforts proved dismal.

                        That the application is a review in disguise is confirmed by the concession by Ms Gaba that a review would have been out of time and seeking condonation would have delayed justice as the third and fourth respondent would have dealt with the property as they wished. In that regard to protect the interests of the applicants they had to ask for a declaratur.

            Since the initial review proceedings were thrown out on technicalities the issue of res judicata would not arise. The applicants could have applied for condonation and started the whole process again. Given the aforegoing the applicants got mixed up viz the grounds relied upon in an attempt to have the application fit the requirements of a declaratur. In the process a wrong procedure was adopted. Consequently the application cannot succeed.

            Apart from that finding, the application cannot succeed on merits. The applicants are indeed beneficiaries to their mother’s estate together with their other siblings. It is common cause that they were given time to raise the US$4 404.00 which was required to pay obligations due by the estate. The applicants only raised $640.00. The executor sought the Master’s consent to sale and there is no evidence that the Master decision can be faulted in view of the fact that the applicants had been given time to raise the amount and failed to do so. The master and the executor did not require the beneficiaries to consent to the sale. That they were engaged to raise what was due is sufficient. The requirements of s 120 of the Administration of Estates Act were satisfied. Disposal of assets falls in the hands of the executor upon due authority from the Master. (See Dondi N.O v Muganhiri & Ors HH 77/15). Hence nothing was untoward viz the actions of the first and second respondents. Whilst there is an allegation that the property was grossly undervalued, no evidence was furnished by the applicants by way of a valuation to show what would have been a fair value for the property. Again no evidence supports the allegation that “greed and avarice” motivated the actions of the first respondent, the executor. US$4 404 was outstanding as an obligation against the estate and the estate only had one asset being an old house in a high density suburb with cracks on the front elevation (as per the valuation report). Faced with beneficiaries who could not raise the amount, coupled with five other beneficiaries who supported the sale in order to get their shares, the first respondent was within his mandate to seek consent from the 2nd respondent to dispose the asset. The consent was properly granted in the circumstances and the court finds nothing untoward in the manner the sale proceedings were conducted to declare them null and void.

            Equally the interim relief sought in the draft order to suspend the court order in HC 10668/16 which granted the eviction of applicants from the property in issue is not competent. This application is for a declaratur hence the application for an interdict is misplaced. Neither is there a legal basis to grant such relief in the absence of a pending review or an appeal let alone a proper application. I find that this application was ill-thought, reckless and constitutes an abuse of court process.

Accordingly the application is dismissed with costs on an attorney and client scale.

Takawira Law Chambers, plaintiff’s legal practitioners

Zimudzi & Associates, respondents’ legal practitioners