Daniel Mapenda v Doctor Stephen Masaire and Master of the High Court

### Preamble
1
HH 667-25
HCH 7939-23
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DANIEL MAPENDA

Versus

DOCTOR STEPHEN MASAIRE

AND

MASTER OF THE HIGH COURT

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

HARARE 2 June 2005 & 27 October 2025

Application for the reopening of a deceased estate

J. Koto for the applicant

T.T. G. Musarurwa for the respondent

DUBE-BANDA J:

[1] This is an application for the reopening of a wound-up deceased estate. The estate that is sought to be reopened is of one Stephen Nduna Gwenze (“Gwenze”), which was registered under DR546/17. The first respondent has been cited, first, as a beneficiary, and second, as the executor of the estate of Gwenze. The application is opposed only by the first respondent.

[2] The factual background of this matter is the following. The applicant contends that in June 1992, he entered into an agreement of sale with Gwenze, in terms of which he purchased an immovable property known as stand number 909 Hartfield Township (“the property”). He paid the purchase price and was given vacant possession of the property. He avers that he got all the original documents for transfer, and in May 1997, accompanied by the seller (Gwenze), to the conveyancers for the purposes of transferring the property into his name. However, the transfer was not effected, as it was discovered that there were some outstanding procedures, in respect of the property, that had not been done.  The applicant avers further that due to the nature of his job, he spent years outside Zimbabwe and lost communication with the seller. In 2021, he enquired from the conveyancers about the transfer of the property, and he was then informed of the death of the seller.

[3] The applicant contends further that he paid fees for the edict meeting and registered his claim against the estate with the Master. On 19 August 2022, the first respondent was appointed executor. The applicant contends that he attempted to register his claim with the executor, the executor refused to receive the claim, and directed him to the Master. In turn, it is contended that the Master directed the executor to consider the claim. On 17 November 2022, the executor filed a letter with the Master, rejecting the claim. It was only on 27 February 2023 that the Master informed the applicant that the executor had rejected the claim and that the Liquidation and Distribution Account had been confirmed.  The applicant contends that by the time the executor rejected the claim, the account had already been filed with the Master, and the executor had awarded the property to himself.

[4] The applicant argues that the executor intends to defraud him of the property. He alleges that had he known of the final distribution account before its confirmation, he would have lodged an objection. It is further contended that his claim was rejected on the pretext that he had not satisfied the requirements of the agreement. He avers that he has since complied with the requirements of the agreement and the subdivision permit issued by the City of Harare. The applicant contends further that his application for the reopening of the estate is predicated on the fact that circumstances have changed from the time his claim was rejected.

[5] Per contra, the first respondent contends that the applicant cannot seek an order for the reopening of the estate when he lodged his claim, and it was rejected. It is further contended that the applicant has failed to prove any special circumstances, i.e., fraud or misrepresentation on the part of the executor. It is averred that there is no proof of payment of the purchase price, except the applicant’s mere say-so.

[6] It is further averred that the applicant failed to meet the terms of the proposed subdivision. The conditions are submitted to be the following: the applicant was supposed to have applied for a separate water and sewer connection, and he failed to prove that he paid a 12.5% endowment fee to the council for the subdivision to be finalised. It is contended that stand number 909 Hartfield Township of Lots 182-185 Block C of Hatfield Estate does not exist. It is argued that the court cannot order a reopening of the estate, so that the applicant files a claim for a stand that does not exist.

[7] In his opposing papers, the first respondent had taken two preliminary objections, viz, res judicata and prescription. At the commencement of the hearing, Mr. Musarurwa, counsel for the first respondent, abandoned these objections. Therefore, no further reference shall be made to these preliminary objections in this judgment.

[8] It is important to state upfront what this application is not about; it is not about whether the applicant is entitled to the property he alleges he purchased from Gwenze.  In other words, it is not about whether he has proved that he purchased the property, paid the purchase price, and, therefore, he is entitled to it.  It is not about whether Stand 909 Hartfield Township of Lots 182-185 Block C of Hatfield Estate does exist. These are not issues that this court, as a court of first instance, can determine. The issue for determination is narrow.  This application is only about whether a case has been made, as required by the law, for the reopening of the estate of Gwenze, so that the executor receives and considers the applicant’s claim.

[9] The Administration of Estates Act [Chapter 6:06] does not provide for the reopening of a wound-up deceased estate. It is the common law that provides a very limited window, in exceptional circumstances, for the reopening of a wound-up estate, and for a limited purpose. The common law position was articulated per ZISENGWE J in Vandira v Estate Late George William Noble and 2 Others (10 of 2023) [2023] ZWMSVHC 12 (26 April 2023)  as follows:

“An application for the reopening of an estate is not there for the asking; it can only succeed if there are special circumstances justifying such reopening. The existence of acts of fraud or misrepresentation is an example of such special circumstances. See Ncube & Anor v Ncube 7 Others HB 19-16. Material non-disclosure in turn is a form of misrepresentation, Chirisa v Mugadzaweta (supra); Muzungu and Others v Muzungu and Others HH172-15; & Zvavanondiita v Ndlovu Others HB 82-16.

If the application for reopening is premised on fraud or misrepresentation, it is incumbent upon the applicant to allege and prove specific acts of fraud. See Stanbic Zimbabwe Ltd v Duran HH-54-2007 as cited with approval in Chirisa v Mugadzaweta (supra).”

[10] The attack on the application that the applicant did not plead special circumstances is not borne out by the pleadings. In paragraph 24 of the founding affidavit, the applicant contends that the first respondent was trying to defraud him of the property. In paragraph 7.4 of the answering affidavit, it is further averred that the fraud was committed in that the executor, with full knowledge of the applicant’s contingency rights to stand number 909, did not act fairly, as he wanted to unjustly enrich himself. In addition, it is contended that he rejected the claim when he had already drafted a distribution plan awarding the property to himself. These are averments that speak to the allegation of fraud.

[11] A closer examination of this case shows that on 9 September 2022, the Master wrote to the applicant, informing him that an executor had been appointed in the estate of Gwenze. He was advised to forward his claim to the first respondent, as the executor. On 3 October 2022, the applicant lodged a claim with the executor and gave a history of the matter. He attached to his claim a copy of the agreement of sale; City of Harare Subdivision Permit; Surveyor General’s Approved Diagram; City of Harare rates account; copy of his National Identity Card; and the correspondence he has had with the Master. By letter dated 5 October 2022, the applicant informed the Master that the executor declined to receive the claim. The claim was then filed with the Master, who forwarded it to the executor. It was only on 5 January 2023 that the Master wrote to the applicant, advising him that the executor had rejected the claim and that the estate account had been confirmed.

[12] It is apparent that the executor declined to receive the claim while he was preparing the estate account and awarding the claimed property to himself. He knew or must have known at the time he was preparing the estate account and awarding the property to himself that the applicant had a claim on the property. The executor has a duty to receive and consider claims against the estate. He cannot, on one hand, decline to receive a claim, and on the other hand, award the claimed property to himself. The applicant was informed by the Master that his claim had been rejected. It is the same letter that informed the applicant that the estate account had been confirmed. The applicant neither had time to seek to review the decision to reject his claim, nor to object to the confirmation of the estate account. The executor has a duty to protect the interests of the estate, beneficiaries, and creditors. In casu, the conduct of the executor is not beyond reproach. He was conflicted, between his duty to receive and consider a claim, and his interest in the property claimed. It is for the above reasons that the argument that the applicant cannot seek to reopen an estate in which he participated cannot be sustained.

[13] The applicant has made a case of establishing special circumstances justifying the reopening of a wound-up estate. The conduct of the first respondent, as the executor, is not above reproach; he conflated his duties as executor and a beneficiary. In the process, he subordinated his duty as an executor, who must act fairly, to his interest in the property as a beneficiary. The applicant cannot be blamed for accusing the first respondent of fraudulent conduct. No system of the law can countenance such conduct from the executor. This is a textbook case for the reopening of a wound-up deceased estate. It is for these reasons that this application must succeed. The success of this application entails that whatever is predicated on the confirmation of the estate account falls by the wayside, this includes the discharge of the executor in terms of s52(11) of the Administration of Estates Act.

[14] However, the reopening of the estate cannot be effective when not preceded by the setting aside of the Master’s certificate. An order to that effect will of necessity be included.

[15] For completeness, the estate is reopened for the purposes of the applicant to lodge his claim with the executor, and that the claim be considered as required by the law. It is in this context that the relief sought in the draft order, predicated on the nitty-gritties of what must happen should the claim be accepted, is misguided. This court is keeping to its lane; it is not taking over the duties of the executor.

[16] There remains to be considered the question of costs. No good grounds exist for a departure from the general rule that costs follow the cause. The applicant is clearly entitled to his costs. The applicant seeks costs on the punitive attorney-client scale. No case has been made for such costs. See Kangai v Netone Cellular (Pvt) Ltd 2020 (1) 660 (H); Railings Enterprises (Pvt) Ltd Luwo & Ors 2020 (2) ZLR 51 (H).

In the result, it is ordered as follows:

The Master’s confirmation of the Liquidation and Distribution Account of Estate Late Stephen Nduna Gwenze Masaire DR546/17 is hereby set aside.

The Estate of Estate Late Stephen Nduna Gwenze Masaire DR546/17 is hereby reopened to allow the applicant to file his claim against the estate in respect of stand number 909, Hatfield Township, Harare.

The 1st respondent, as executor, is ordered to receive and consider the applicant’s claim against the Estate of Late Stephen Nduna Gwenze Masaire.

The applicant be and is hereby ordered to lodge his claim with the Executor within fifteen (15) days from the date of this order.

The 1st respondent to pay the costs of this application on a party-party scale.

Koto and Company; applicant’s legal practitioners

Matsikidze Attorneys At Law; 1st respondent’s legal practitioners