Nyamukamadi Mukumela Denga (Mabirimisa) and Others v Mabirimisa Tshililo Arnold N N O and Others

The deceased, Mudzielwana Josiah Denga Mabirimisa, died intestate in April 1998, having concluded three customary marriages and leaving several children from each house. His estate was reported to the Dzanani Magistrate’s Court and registered under estate number 44/98. The first respondent, the deceased’s eldest son, was appointed as the estate representative under section 23(10) of the Black Administration Act 38 of 1927, apparently in line with the principle of male primogeniture. The estate assets included livestock, movable property, land, bank funds and a 50% shareholding in Mabirimisa Bus Services (Pty) Ltd. The appellants, members of the second house, alleged that the estate was never properly administered or finalised, that they received no benefit, and that the first respondent appropriated estate assets. They sought an order declaring that the estate had not been administered under the Black Administration Act and should instead be administered afresh under the Administration of Estates Act 66 of 1965. The respondents contended that the estate had been finalised pursuant to a settlement agreement concluded in 2006, made an order of the magistrate’s court, in terms of which R1.4 million was paid to representatives of the appellants. The High Court dismissed the application, finding that the estate had already been finalised. The appellants appealed to the Supreme Court of Appeal.

The appeal was dismissed. No order as to costs was made.

The case confirms that deceased estates reported and administered under section 23 of the Black Administration Act before its repeal and constitutional invalidation may validly be finalised under that regime. It clarifies that such estates cannot be reopened merely because section 23 was later declared unconstitutional, and it affirms the continuing validity of settlement agreements concluded during estate administration. The judgment also reinforces the application of the Plascon-Evans principle in disputes of fact in motion proceedings involving estate administration.