Tapiwa Komborerai Parirenyatwa v Oliver Masomera (in his capacity as the Executor Dative of the Estate Late Joseph Tawurayi Punungwe DR 29120/15) and Freedom Punungwe and Master of the High Court

### Preamble
1
HH 744-18
HC 4109/18
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TAPIWA KOMBORERAI PARIRENYATWA

versus

OLIVER MASOMERA

(in his capacity as the Executor Dative of the

Estate Late Joseph Tawurayi Punungwe DR 29120/15)

and

FREEDOM PUNUNGWE

and

MASTER OF THE HIGH COURT

HIGH COURT OF ZIMBABWE

TAGU J

HARARE, 7 and 14 November 2018

Opposed Application

C. Chipere, applicant

B C Maramba, for 2nd respondent

TAGU J: This is a court application for an order for eviction. The facts are that on 8  May 2017 the Master of the High Court acting in terms of s 120 of the Administration of Estates Act [Chapter 6.01] authorized the first respondent Oliver Masomera (in his capacity as the Executor Dative of the Estate Late Joseph Tawurayi Punungwe DR 2910/16) to sell the immovable property described as Stand No. 208 Malvern Township of Lot 1 of Stand 27 Malvern Township of Waterfall Villa of Waterfall also known as House No. 27A Cassino Avenue, Waterfalls, Harare.

On 17 July 2017 the applicant Tapiwa Komborerai Parirenyatwa entered into an Agreement of sale with Oliver Masomera in respect of the said immovable property for the purchase price of $75 000.00 (Seventy Five Thousand Dollars). The applicant duly complied with the terms and conditions of the Agreement in that he paid the full purchase price as agreed.

On 4 January 2018 transfer of the immovable property was effected in the applicant’s favour by the Deed of transfer prepared by CHATSANGA & PARTNERS who were the conveyancers. In terms of Clause 1 of the Agreement of sale the Executor Dative Oliver Masomera was obligated to give the applicant vacant possession of the immovable property upon payment of the full purchase price which was made on 9 October 2017, subject to three (3) months’ notice to sitting tenants to vacate.

In compliance with Clause 1 of the Agreement the applicant duly gave the requisite notice through his legal practitioners CHARAMBA & PARTNERS on 18 January 2018 to the tenant Freedom Punungwe the second respondent and other tenants. Despite notice to vacate the premises the second respondent and his tenants, assignees, invitees and other persons claiming right, title and occupation through the first and second respondent remained in occupation.

The applicant filed this court application for an order for eviction seeking the following order:-

“IT IS HEREBY ORDERED THAT:

The 2nd Respondent together with his tenants, assignees, invitees and any other persons claiming right, title and occupation through the 1st and 2nd Respondents be and are hereby forthwith ordered to vacate Applicant’s premises being Stand 208 Malven Township of Lot 1 of Stand 27 Malven Township of Waterfall Villa of Water also known as House No. 27A Cassino Avenue, Waterfalls, Harare.

In the event that the 2nd Respondent together with his tenants, assignees, invitees and any other persons claiming right, title or occupation through 1st and 2nd Respondents fail to vacate forthwith from Applicant’s premises described in paragraph (1) above, the Sheriff of Zimbabwe or his lawful deputy be and is hereby authorized to evict 2nd Respondent together with his tenants, assignees, invitees and any other persons claiming right, title or occupation through 1st and 2nd Respondents from Applicant’s premises described in paragraph (1) above.

1st and 2nd Respondents shall pay costs of suit on a higher scale, jointly and severally, one paying the other to be absolved.”

The court application is opposed by the second respondent on the grounds that Oliver Masomera the Executor Dative of the Estate Late Joseph Tawurayi Punungwe DR 2910/16 had been stopped from performing executorial duties on behalf of Estate Late Joseph Tawurai Punungwe way back on 30 November 2017. Further he alleged that there was connivance between the applicant and the Executor Dative to prejudice the Estate of $10 000.00 because someone was offering to buy the said immovable property for $85 000.00. He therefore submitted that the contract of sale and the transfer effected on 4 January 2018 is voidable for the reasons that the Executor executed documents on behalf of the Estate Late Joseph Tawurayi Punungwe against a court order of the 30th of November 2017 which had suspended the Executor Dative from performing his duties, and that the Registrar of Deeds transferred the property into applicant’s name despite a caveat that had been noted in his office by the deceased’s children who resided in this house on 28 August 2015, and a court order dated 6th August 2015.

In response the counsel for the applicant submitted that the sale in question went through way, way before the order of the 30th November 2017 was granted. He further submitted that there was no connivance between the applicant and the Executor Dative. He disputed the suggestion by the counsel for the second respondent that the Master of the High Court breached the court order and argued that transfer was done by the conveyancers in terms of the Agreement of Sale after the Sale of the property in question was properly advertised and there where no objections then. Hence the order granted later on 30 November 2017 had no effect on the Executor Dative. Everything was now in the hands of the conveyancers.

My perusal of the order granted on 30 November 2017 was to the effect that the Executor Dative was suspended from executing in the affairs of the Estate on 30 November 2017. By that date the Master of the High Court had already authorized the Executor dative to sell the house in question on 8 May 2017. This means the Master could not have breached a court order that was none existent. Further, the agreement of sale was concluded on 17 July 2017 again before the 30th November 2017 order. This sale Agreement also did not breach the 30th November 2017 order. It was only the transfer that was done on 4 January 2018. By that time the conveyancers were handling the issue of the house in question. For the Deed of transfer to be processed it means the Master had already confirmed the sale. When this was advertised, no objection was raised at the time. In my view the real source of disagreement with the second respondent was that the house should have been sold for $85 000.00 and not $75 000.00. The suspension of the Executor did not nullify what he had done before his suspension. A mere difference of $10 000 in my view cannot justify the nullification of the Sale when no opposition to the sale was raised timeously and in terms of the rules of this court. The second  respondent must have awaken from his slumber after receiving a notice to vacate the premises was served on him and other tenants on 18 January 2018. No submission were made as to whether or not the conveyancers were cited or alerted of case HC 10999/17 (the chamber application) and HC 10012/12 (the application for review). Again I found no proof that the conveyancers were alerted in any other manner to suspend processing of the transfer and or of the alleged irregularities. As to why the Registrar of Deeds proceeded to register the property in the names of the applicant in the face of any caveat is not clear since the same have not been cited in these proceedings. Prima facie the Agreement of Sale was regular and the 30th November Order did not nullify what the Executor Dative had done prior to that date same as the transfer because the Conveyancers were not stopped in any manner from processing the transfer. The only person who was being cited was the Master of the High Court who was by then not handling the transfers. For these reason I will grant the relief sought.

IT IS ORDERED THAT

The 2nd Respondent together with his tenants, assignees, invitees and any other persons claiming right, title and occupation through the 1st and 2nd Respondents be and are hereby forthwith ordered to vacate Applicant’s premises being Stand 208 Malvern Township of Lot 1 of Stand 27 Malvern Township of Waterfall Villa of Waterfall also known as House No. 27A Cassino Avenue, Waterfalls, Harare.

In the event that the 2nd Respondent together with his tenants, assignees, invitees and any other persons claiming right, title or occupation through 1st and 2nd Respondents fail to vacate forthwith from Applicant’s premises described in paragraph (1) above, the Sheriff of Zimbabwe or his lawful deputy be and is hereby authorized to evict 2nd Respondent together with his tenants, assignees, invitees and any other persons claiming right, title or occupation through 1st and 2nd Respondents from Applicant’s premises described in paragraph (1) above.

1st and 2nd Respondents shall pay costs of suit on a higher scale, jointly and severally, one paying the other to be absolved.

Charamba & Associates, legal practitioners for applicant

Hungwe And Partners, legal practitioners for 2nd respondent.