Court name
Harare High Court
Case number
HC 12134 of 2011

Chirisa v Mugadzaweta & Ors (HC 12134 of 2011) [2014] ZWHHC 323 (25 June 2014);

Law report citations
Media neutral citation
[2014] ZWHHC 323
Coram
Mwayera J

HH 323-14

HC 12134/11

TAPFUMA CHIRISA

versus

MAKUFA MUGADZAWETA

and

MASTER OF THE HIGH COURT

and

THE REGISTRAR OF DEED

 

 

 

HIGH COURT OF ZIMBABWE

MWAYERA J

HARARE, 23 March 2014 & 26 June 2014

 

 

Opposed Application

 

 

Ms F. Chagadama, for the applicant

I.E.G Musimbe, for the respondent

 

           

            MWAYERA J: The dispute between the applicant and the first respondent is on inheritance of house number 6, 6th Avenue Mbare. The applicant’s daughter was married to the respondent’s brother.  Upon the death of the respondent’s brother the applicant’s daughter Shingaidzo Makorondo was awarded the house in question as the surviving spouse. After she passed on in 2007 the first respondent proceeded to register the deceased estate and was issued with letters of administration as executor dative on DR 683/07 the letters reflected that the said Shingaidzo Makorondo died on 17/11/1987. Thereafter the first respondent transferred the house number 6, 6th Avenue Mbare into his name. The applicant the father of the deceased Shingaidzo Makorondo also approached the Master and registered the estate of his late daughter and was issued letters of Administration DR 874/07 reflecting deceased died on 16 February 2007. It was during this process that the applicant realised that the first respondent had proceeded to register and distribute the estate without calling upon interested parties.

            The applicant being the father of the deceased Shingaidzo Mukorondo then approached the court to have the estate reopened since he alleged the first respondent had misrepresented to the second respondent the Master and had gone further to change ownership of the house into his name without involvement of the other interested parties.

            The background to the matter being that the first respondent’s brother was married to the late daughter of the applicant. The couple was not blessed with children. Upon the death of the first respondent’s brother the surviving spouse after going to court was awarded the house in question. The husband is the one who passed on, on 17 November 1987 and not the wife as presented by the respondent. After the death of the surviving spouse the estate was then administered in the manner occasioning the present dispute. The applicant’s basis of argument being that the first respondent misrepresented to the second respondent and at the exclusion of the applicant as an interested party the estate was administered and distributed. It is this distribution which the applicant seeks to be reversed so that the estate can be properly administered with involvement of all interested parties. The question of locus standi in judicio is clearly put to rest as clearly the applicant has the capacity to sue and be sued in the matter given the relationship between him and the late Shingaidzo Makorondo whose estate is in contention. The applicant was also appointed executor dative to the estate DR 874/07 although in trying to pursue the estate it emerged the same estate had another executor dative appointed in DR 683/07.

            The basis of the applicant’s claim as outlined is that the first respondent misrepresented the date of death of the late Shingaidzo Makorondo and gave on the earlier date of 17/11/87 which is when the husband that is the respondent’s brother had died. Further that the applicant as an interested party was not notified of the estate proceedings which culminated in the first respondent transferring the applicant’s daughter’s house into the respondent’s name. The representation as clearly conceded by the second respondent were bound to mislead to the prejudice of the applicant and those claiming through him. As clearly spelt out in Stanbic Bank Zimbabwe Ltd v Duran HH 54-2007 in order to found a cause of action on claim premised on fraud it is essential that certain and specific allegation of fraud be pleaded.  The applicant being a relative of the deceased discovered upon registering and seeking to pursue the estate that the estate had been wound up to his exclusion on basis of mispresentation. The application is premised on fraudulent misrepresentation and not review on basis of gross irregularity and such finds support in the Master’s report and existence of two letters of administration filed. The anomaly of having two letters of Administration in place for the same estate can be redressed by reopening of the estate and fully ventilating on the estate to appoint an executor with the involvement of all interested parties. Having pointed out that there was a fraudulent misrepresentation of death date and on position of interested relatives the appointment of executor dative is void and as such a nullity having no basis on which to stand. The crux of the matter is not as regards the duties or role of an executor dative as presented in argument by the first respondent but that there was material non-disclosure which led to appoint of executor dative and subsequent transfer of property without involvement of all the interested parties.

            It would be an absurdity to seek to perpetuate an illegality under the umbrella of the need to finalise as quickly as possible the administration of an estate. The basis of such need to finalise an estate as quickly as possible has to be put in perspective and not just view it in the abstract. The intention behind expedience in dealing with estates is to ensure that beneficiaries and dependents of the deceased do not undergo unnecessary hardship which would be occasioned by late processing of the estate. Dealing with the estate and finalizing it as quickly as possible does not connote processing of the estate in underhand and illegal manner for such would defeat the whole purpose of sound Administration of Estate as quickly as possible for the benefit of the recognised beneficiaries and dependents. The circumstances of this case were on executor dative in the form of the respondent was appointed through mispresentation and he transferred the only asset of value of the estate into his name without the involvement of the relatives of the deceased is not only un-procedural but illegal for it was based on a misrepresentation. The aggrieved parties to an estate have at their disposal open redress such as applying for review of the process or objection to the distribution plan and making an application on motion to the High Court for the court to make an appropriate decision. 

Given the circumstances of this case the court cannot fold its arms and perpetuate an illegality on the basis that the applicant should have approached the court earlier. The applicant upon registering the estate was also issued with letters of administration. However on pursuing further process he discovered the estate had already been distributed with the first respondent as executor dative taking over ownership of the house which forms part of the estate. The first respondent, it has been shown always desired such transfer even upon the death of his brother.

It is with this background that the applicant rightly approached this court for redress. Clearly the transfer obtained by misrepresentation cannot stand and as such it is ordered that:-

1.      Transfer of House number 6, 6th Avenue Mbare, Harare effected into the first respondent Makufa Mugadzaweta be and is hereby reversed to the estate late Shingaidzo Makorondo.

2.      The second respondent be and is hereby ordered to reopen the Estate of late Shingaidzo Makorondo for appointment of Executor dative and Administration of Estate with the involvement of all interested parties within 30 days of this order.

 

 

Legal Resources Foundation-Harare, applicant’s legal practitioners

IEG Musimbe & Partners, 1st respondent’s legal practitioners