Rosemary Damasi v Shadreck Zinyongo Damasi and Shylet Shayaneswako and Master of the High Court and Director of Housing and Community Services (N.O) and Deputy Sheriff (N.O)

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ROSEMARY DAMASI
versus
SHADRECK ZINYONGO DAMASI
and
SHYLET SHAYANEWAKO
and
MASTER OF THE HIGH COURT
and
THE DIRECTOR OF HOUSING AND COMMUNITY SERVICES (N.O)
and
DEPUTY SHERIFF (N.O)



HIGH COURT OF ZIMBABWE
CHITAKUNYE J
HARARE, 23 May and 17 November 2011


Family Court –Trial

T. Kanengoni, for plaintiff
D. Sheshe, for 1st and 2nd defendants


       CHITAKUNYE J: The plaintiff is the eldest daughter of the late Filmon Philemon
Damasi who died on 30 March 1989 and the late Esthery Damasi who died on 5 June 1990.

       First defendant is the eldest son but the youngest child to the late Filmon Philemon
Damasi and Esthery Damasi.

        The estate of late Filmon Philemon Damasi included an immovable property, that is,
House No. 3685 Old Highfield, Harare of which he was the registered owner.

       In 1989 the first defendant was appointed executor dative to the estate late Philemon
Damasi and issued with letters of administration under DRH. 389/89.

       The first defendant thereafter had the immovable property, house no.3685 Old Highfield,
Harare, left by the late Philemon Damasi, transferred into his name as heir and executor dative.
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   As the registered owner the first defendant sold house no. 3685 old Highfield to second
defendant in the year 2008. Cession was thereafter effected into second defendant’s name. As at
this point the second defendant is the registered owner. As the new owner he gave appropriate
notice to the occupants to vacate the house. The applicant refused to vacate. Instead the applicant
brought this action for an order that:-

   1. That the registration of the Estate of the late Philemon Damasi by the first defendant was
      fraudulently done.
   2. Consequently the said Registration be and is hereby declared null and void, of no legal
      force or effect.

   In bringing this action the plaintiff alleged that the first defendant had the property registered
in his name without the knowledge of other family members. He thereafter proceeded to sell the
property to the second defendant without the consent of other family members.

   The first defendant’s defence was to the effect that he was properly and legally appointed
heir and executor dative with the participation of his mother who was still alive and his other
sister Lizzy. His appointment was thus done in terms of the law. When he decided to sell the
property he advised the plaintiff and other family members. According to the first defendant
when the property was sold, it had been transferred to the first defendant with the full knowledge
and consent of the plaintiff and other beneficiaries.

   The second defendant’s defence was to the effect that he is an innocent purchaser. At the
time he purchased the property he did the necessary inquiries. Upon seeing papers and
documents confirming the registration of the estate and subsequent transfer of the property to the
first defendant, she had no reason to suspect any clandestine deals.

   Though in her pleadings the plaintiff had challenged the manner in which the first defendant
was appointed executor dative, the pre-trial conference minute states that:-

   “It was agreed that the first defendant was duly appointed administrator and executor of the
   estate and his appointment is no longer an issue.”

       The only issue that remained to be determined was identified as:-
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        “Whether the first defendant had the right to sell the property of the estate late Philemon
        and Estery Damasi.”

        The plaintiff gave evidence and called one witness. From the plaintiff’s evidence it was
apparent that she was basing her claim on the assertion that the house was a family house and so
the first defendant should not have sold it. She also maintained that she was not informed of the
first defendant’s appointment as administrator and of the subsequent sale of the property.

        The plaintiff’s witness, Zoroyo Soko, was of not much assistance as he was not involved
in the process that led to the first defendant being appointed administrator and executor dative.

        The first defendant, in his evidence, maintained his stance contending that he had every
right to register the property into his name and to subsequently sell to the second defendant. He
said after his father’s death his mother and his sister Lizzy went together with him to the courts
for the appointment of heir and executor dative. He was subsequently appointed heir and
executor dative. His appointment was never challenged till after he had sold the property to the
second defendant.

        Second defendant contended that he was an innocent purchaser. His explanation of how
he bought the property and the nature and extent of inquiries he made before buying the property
was not challenged.

         In their closing submissions counsel for the parties submitted that the law applicable
was the customary law obtaining prior to the promulgation of Amendment Act 6 of 1997. They
also referred to a number of authorities showing that the customary law position was that the
eldest son of the deceased was the one to be appointed heir.

     The question that arises is in what capacity did an heir at customary law inherit
immovable property?

        Section 6A of the Primary Courts Act 6 of 1981 which was the law applicable provided
that-

        “The heir at customary law of any deceased person to whom customary law was
        applicable shall succeed in his individual capacity to any immovable property or any
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        rights attaching thereto forming part of the estate of such deceased person and not
        devised by will.”

        This section was interpreted in Seva and Others v Dzuda 1992 (2) ZLR 34 (S) at p 36 by
KORSAH JA in these words-

        “This provision in my view is self evident and beyond question and requires no
        interpretation and explanation. It states in unambiguous language that where there is
        intestacy, the heir at African law of any deceased African succeeds to any immovable
        property of the deceased in his individual capacity. The heir does not hold such property
        in trust for any member or members of the family of the deceased. He succeeds to it as if
        the property was his own and is entitled to exercise all the rights of an absolute owner in
        respect thereof.”

        In the exercise of rights of ownership the heir is entitled to dispose or alienate the
property as he deems fit without recourse to any other members of the family. Other members
may only have personal rights against the heir such as to be provided with alternative
accommodation were they were dependant on the deceased person.

        In this regard at p 35 of Seva and Others V Dzuda (supra) KORSAH JA had this to say
on the parties’ rights-

        “..as the eldest son had inherited this house in his personal capacity, he had the right to
        dispose of it as he wished. He was entitled to sell it to the buyer, as he had done. The wife
        and remaining children had no enforceable rights against the buyer. The only rights they
        had, if any, were against the eldest son. They therefore had no defence to the action for
        eviction brought by the buyer.”

         See also- Magaya Magaya 1999 (1) ZLR 100, Vareta v Vareta S-126-90. Antonio v
Antonio 1991(2) ZLR 42.

        It is therefore clear that the first defendant by virtue of him having been appointed heir to
the estate in question, he succeeded in his individual capacity to any immovable property or any
rights attaching thereto. In this regard he had the right to transfer the property into his name as he
did in the year 2003. Having transferred the property to himself as heir without such conduct
being challenged he was entitled to dispose or alienate the property in any way he deemed fit. As
owner the first defendant had no legal obligation to consult any member of deceased’s family.
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His responsibility towards his father’s family was to provide them alternative accommodation if
they met the criteria for such provision.

       In casu it is noted that plaintiff indicated that she in fact has a communal home but for
her own reasons she wishes to remain in the urban area.

       From the above it is clear that the first defendant had the right to sell the property namely
house No. 3685 Old Highfield, Harare as he had inherited it in his personal capacity.

       The second defendant’s position was virtually unchallenged. The second defendant
argued that he was an innocent purchaser and so he should not be prejudiced by quarrels between
the plaintiff and the first defendant. The plaintiff conceded that the second defendant was an
innocent purchaser. She could not advance any reason why the second defendant should be
denied ownership of the property.

Accordingly the plaintiff’s claim is hereby dismissed with costs.




Munangati & Associates, plaintiff’s legal practitioners
Chadyiwa & Associates, 1st and 2nd defendants’ legal practitioners