Chipo Dhliwayo v Tinashe M. Zenda (In his capacity as the Executor Dative to Estate Late Rogers Dhliwayo DR2005/15) and The Master of the High Court N.O. and Shamiso Danisa (In her capacity as guardian for minor children Zandile E Danisa and Akhumuzi Justin Danisa)

### Preamble
1
HH 194-21
HC 492/19
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CHIPO DHLIWAYO

versus

TINASHE M. ZENDA

(In his capacity as the Executor Dative to

Estate Late Rogers Dhliwayo DR2005/15)

and

THE MASTER OF THE HIGH COURT N.O.

and

SHAMISO DANISA

(In her capacity as guardian for minor children

Zandile E Danisa and Akhumuzi Justin Danisa).

HIGH COURT OF ZIMBABWE

CHAREWA J

HARARE, 25, March & 28 April 2021

Opposed Application – Cancellation of agreement of sale

N Musviba, for the applicant

C Sakupwanya, for first respondent

CHAREWA J: This is an application for the cancellation of the agreement of sale of immovable property being Stand 1542 – 6 Hallen Drive, Athlone, Gweru, entered into in favour of third respondent’s minor charges Zandile E and Akhumuzi Justin Danisa. The sale was authorised by first respondent and consented to by second respondent, in the winding up of the estate of late Rodgers Dhliwayo.

Background

Applicant is the surviving spouse to the Late Rodgers Dhliwayo who died intestate at Harare on 18 June 2015. Letters of administration were initially issued in favour of applicant on 17 November 2015, but were withdrawn on allegations of concealment and misappropriation of estate assets. First respondent was then appointed executor dative on 27 January 2017. The law required him to lodge an account of his administration within six months of his appointment.

Prior to first respondent’s appointment, the second respondent had given his consent to the sale of all immovable assets in the Estate and that the proceeds would be distributed among the beneficiaries. These consents were never cancelled or withdrawn. However, the beneficiaries subsequently, on 17 February 2017, entered into an arrangement among themselves for a new distribution plan. Such re-distribution agreement was not approved by first respondent or confirmed by second respondent.

Consequently, in pursuit of finalising the estate within the time limits required, the first respondent sold the property (the subject of this claim), to settle Estate dues and recover estate monies allegedly misappropriated by applicant. The sale was authorised and confirmed by second respondent.

Parties’ submissions

Applicant’s case is basically that the consent to the sale granted by second respondent on 15 March 2016 could not be the legal basis for authorising first respondent to sell the property in issue as it was predicated on a distribution agreement which was novated by the subsequent distribution agreement between the beneficiaries dated 17 February 2017. Further, that subsequent distribution agreement allocated the property to her and therefore it was no longer available to the executor to sell as it was her property. It was her further submission that first respondent does not dispute novation of the first distribution agreement which had the effect of rendering nugatory the consents obtained thereunder. She also avers that it is the right of beneficiaries to decide how an estate is distributed and the executor cannot act contrary to their agreement. Further, while conceding that she owed the estate, it was her view that first respondent ought to have sought a court order to force her to refund the estate funds, rather than sell and recover the estate assets from the proceeds of the Gweru property. (See paragraph 12 of her founding affidavit). Finally, she submits that first respondent acted with malice or bias against her by selling a property allocated to her when there were other properties available and to which sale she had consented: viz Stands 1206 Gaza Township, 4357 Gaza Commercial Area and 1065 Commercial Area, Chipinge. To that end, first respondent obtained the second respondent’s confirmation of the sale through misrepresentation by presenting to him the first rather than the second distribution agreement. On these grounds, the sale to third respondent ought to be cancelled.

For his part, first respondent submits that until the second respondent approved the distribution plan, the property in question remained estate property and liable to be dealt with as such in settling estate liabilities. While admitting that applicant offered that the Chipinge properties be sold to defray estate expenses and repay estate funds owed by applicant, second respondent argued that they took long to sell, such that the sale of the Gweru property was eventually processed one year and nine months later when he was obliged to render an account to second respondent within six months of his appointment. Besides, he argues, the value of the Chipinge properties was such that they could not meet the estate fees of $40 000. The Gweru property, being estate property, was easier to sell and for a value which would allow finalisation of the estate administration, including paying back Estate funds owed by applicant. In addition, it is his averment that it was not necessary to seek a separate court order to force applicant to refund estate funds, given that the estate was still under administration and the distribution plan would account for what she owed. In any event, it was first respondent’s view that the law required applicant to surrender to the executor what estate property she had admittedly appropriated and agreed to refund. Finally, first respondent submits that the property having been sold to innocent third parties after due process and approvals in terms of the Administration of Estates Act, cancellation of the agreement of sale to third respondent is not warranted.

The Issue

Despite the parties having raised several peripheral issues such as whether NSSA funds are part of the estate, or whether applicant acted fraudulently in her administration of the estate among others, in my view, there is only one issue before the court: whether the sale to third respondent was improper and should be cancelled.

The law

The law obliges an executor to administer an estate with utmost good faith and transparency in accordance with the relevant legal provisions for the advantage of the beneficiaries and general good administration of justice. In that regard, the executor must always act with the consent and approval of the Master.

Consequently, s 120 of the Administration of Estates Act, [Chapter 6:01] (the Act) requires that before giving his consent and or approval to the sale of estate property, the Master must diligently satisfy himself, through inquiry that any intended act is in good faith, is necessary and is to the advantage of beneficiaries. And once the second respondent has given his consent it is an administrative justice decision which can only be set aside on review.

Section 4 of the Act provides that the Master’s office is an office of record. Therefore, whatever decision the Master makes must be based upon due inquiry and proper consideration so that it becomes a matter of record which cannot be unilaterally set aside by the parties without due process. Consequently, while the beneficiaries may make an input into how they intend a distribution of the estate to be done, at the end of the day, it is the fiduciary duty of the Master, in his supervisory capacity over the executor, to make an appropriate decision in accordance with the law. It is not the right of the beneficiaries to decide what must be given to them without due regard to the estate liabilities. The beneficiaries have more leeway in deciding what must be distributed to them where they have met the liabilities of the estate in order to safeguard the assets from any diminution.

The supervision of the executor by the Master is predicated on the general provisions of s 23 relating to letters of administration, which circumscribe the duties of the executor and the obligation to account to the Master within a specified period of time as provided for in ss 38-52. Thus s 52 gives power to the executor to do a valuation of estate assets and liabilities, dispose of assets to liquidate liabilities and ultimately distribute the net assets to the beneficiaries. In terms of s 53, an executor who fails to account to the Master within six months is liable to be sued by the Master or any interested party.

With regard to persons in possession of estate assets, the law obliges them to surrender the same to the executor or report the details thereof to the Master, failing which, apart from any liability they may incur, shall be liable for all dues payable to the public revenue in respect of those assets.

Analysis

In this case, the second respondent gave his consent to the sale of all the immovable property in the estate to meet liabilities of the estate and distribute the residue to beneficiaries predicated on an initial distribution agreement between the beneficiaries. That consent, by admission of both parties was never set aside, cancelled or withdrawn. No request was ever made to second respondent to revisit his consent. It remained extant. I cannot accept the applicant’s position that by virtue of the beneficiaries agreeing a second redistribution agreement, regardless of whether or not it novated the initial distribution agreement, the second respondent’s consent to the sale of the property was rendered nugatory. Parties or beneficiaries, cannot and do not have power to overturn the official decision of a quasi-judicial officer without following due process. In fact, applicant’s counsel does not even attempt to argue that.

The case of Nemuseso v Mashita & Ors cited by the respondent is in my view distinguishable. That case involved the sale of property belonging to minors which is governed under s 122 of the Act where the Master is required to obtain an order from a judge in chambers. In the instant case, s 120 governs the sale and the only requirement is that it should be in the interests of the beneficiaries that the property be sold. The applicant has not sought a review of the Master’s decision to consent to the sale on the grounds that that decision was made without due inquiry as to the best interests of the beneficiaries. The basis of the application is that the there was a novation of the distribution agreement entered into by the beneficiaries. By extension, while applicant concedes (see paragraph 4 of the Founding Affidavit) that no attempt was made to cancel the Master’s consent to the sale, she suggests that such novation of the first distribution agreement entered into be the beneficiaries thereby revoked the Master’s consent, which according to applicant, was overtaken by events. Such an argument is in my view bad in law and is insupportable for the reason that the decisions of the Master, his being an office of record, cannot be set aside by agreement of the parties and without due process.

Nor do I find the applicant’s submission that she was “garnished” without recourse to law sustainable. The property sold was and remains estate property until duly distributed. At the time of sale the property was not her personal property as the executor had not lodged a final distribution account. Nor am I persuaded that second respondent ought not to have allowed the sale on the basis of applicant’s objection to first respondent’s second interim account, for the reason that the objection was also predicated on the fallacious belief that the property belonged to applicant.

In that regard, I cannot find that first respondent made any misrepresentation at all inducing the second respondent to confirm the sale to third respondent. The decision to sell had long been made and remained extant.

Secondly, and in any event, I must reiterate my agreement with first respondent that the property sold was not the applicant’s property, but was estate property. An agreement between the beneficiaries that the property be distributed to her did not make it her property until the second respondent approved the distribution account. It was liable to be sold like any other estate asset, in terms of s 120, in order to wind up the estate. Only where the conduct of the executor shows gross dereliction of duty, negligence or bias in dealing with estate assets may the court interfere. In this case, the first respondent was appointed on 27 January 2017. He had six months to render an account. He did listen to beneficiaries and attempted to sell the Chipinge properties first. More than a year down the line, that sale had not materialised. In my view, first respondent acted diligently in order to expeditiously wind up the estate by seeking second respondent’s authority to sell the Gweru property in November 2018, which turned out to be quicker to sell and for a value more amenable to finalisation of the estate account. I therefore cannot fault his conduct, even if I accept, which I do not, that applicant is being truthful that she was not informed that the Chipinge properties were slow to sell and therefore resort would be made towards selling the Gweru property.

While I agree that Mamutse v Tichareva & 5 Ors is authority that circumstances surrounding the sale of estate property are relevant in deciding whether a sale in a deceased estate was valid or not, I do not see how that case helps the applicant in this case. The fact remains that the executor had an obligation to pay estate dues. The estate was not in a state of liquidity to enable him to do so.  He had to sell estate assets to raise the funds. He attempted to sell Chipinge properties which took too long to find a buyer, and would in any case, not have raised adequate funds. The property he sold was still estate property. It was easier and quicker to sell and for a value sufficient to meet the estate obligations. And to top it all, the Master gave his considered consent to such sale.

Further, I must agree with second respondent that cancellation of the agreement of sale in favour of third respondent is not the answer if there is any prejudice to applicant, as such prejudice can be adequately compensated for in the final distribution account. However, the prejudice to third respondent cannot be mitigated if the sale is cancelled because of the change in property values and loss of value of currency. In any event, it would be inequitable to punish an innocent purchaser who bought a property which apparently had all the necessary approvals for it to be sold in the winding up of an Estate, by cancelling her agreement of sale.

DISPOSITION

In the premises, I find no merit in this application and dismiss it with costs.

Messrs DNM Attorneys, applicant’s legal practitioners

Hungwe & Partners, first respondent’s legal practitioners