Andrew Maloya v Rubbie Chitungo and Knowledge Mumanyi (In his capacity as Executor of the Estate Late Anderson Maloya) and Blessing Mazarura and Master of the High Court

The applicant was one of the sons of the late Anderson Maloya and was imprisoned at the time of his father's death and during the administration of the deceased's estate. The deceased owned House Number 2569 Takawira Avenue, Dzivaresekwa 2, Harare and had purportedly donated it to two of his sons (Amos Rombwa and Jethro Rombwa) on 24 May 2007. The deceased was married to the first respondent under the Marriages Act Chapter 5:11, who registered the estate. An independent executor (second respondent) was appointed due to family disagreements. The house was sold in terms of section 120 of the Administration of Estates Act and proceeds were to be shared among family members. The applicant was released from prison on 17 October 2017 but only filed an application for condonation of late noting of review of the Master's decision on 11 April 2019, some 18 months later. The applicant did not attach a draft application for review with his condonation application. The third respondent was an innocent third party purchaser of the property.

• Whether condonation should be granted for the late filing of an application for review of the Master's decision
• Whether the applicant provided a satisfactory explanation for the 18-month delay between his release from prison and filing the application
• Whether the applicant had good prospects of success on the merits of the intended review application
• Whether the applicant had locus standi to challenge a donation allegedly made to his siblings
• Whether the Master and executor acted improperly or with bias in authorizing and executing the sale of the property
• Whether an innocent third party purchaser's rights should be disturbed

The application for condonation of late filing of an application for review of the Master's decision was dismissed with costs.

For a condonation application to succeed, an applicant must: (1) demonstrate that the degree of non-compliance is not inordinate; (2) proffer a good, satisfactory, acceptable and reasonable explanation for the delay; (3) show good prospects of success on the merits; (4) demonstrate that the case is sufficiently important to justify condonation; (5) show that prejudice to other parties if condonation is granted is outweighed by prejudice to the applicant if refused; and (6) demonstrate that granting condonation will not unnecessarily delay the administration of justice. A draft of the intended application for review must be attached to enable the court to assess prospects of success. Where an executor acts in accordance with section 5(1)(b) of the Deceased Estates Succession Act (which permits sale of estate property upon the written direction of one or more heirs), such action is lawful and binding on all heirs. An incomplete donation that was never properly effected and where property remained in the deceased's name constitutes an estate asset that can lawfully be sold by the executor. The rights of innocent third party purchasers who acquire property in good faith after due diligence with the Master must be protected.

The court observed that the power to grant condonation is discretionary but must be exercised when principles of justice and fair play are considered in circumstances where reasons for delay have been satisfactorily explained. The court noted that section 52(8) of the Administration of Estates Act provides recourse for beneficiaries who dispute distribution of an estate. The court commented that the provision in section 5(1)(b) allowing sale upon direction of one or more heirs was designed to ensure finality in estate administration where consensus among beneficiaries cannot be obtained. The court expressed skepticism about the applicant's bona fides, suggesting he was "merely trying his luck" and noting the application "can only be termed spurious." The court observed that the applicant's allegation that the Master appointed the executor "secretly" was contradicted by his own siblings' letter lauding the Master's decision given family squabbles.

This case reinforces the strict requirements for condonation applications in Zimbabwean law, particularly in estate administration matters. It emphasizes that: (1) a draft of the intended application must be attached to a condonation application to enable assessment of prospects of success; (2) satisfactory explanations for delay are essential; (3) the rights of innocent third party purchasers who acquire property in good faith from estates will be protected; (4) executors acting in accordance with statutory provisions (particularly section 5(1)(b) of the Deceased Estates Succession Act allowing sale upon direction of one or more heirs) will be upheld; and (5) incomplete donations that were never properly effected cannot form the basis for challenging estate administration. The case demonstrates judicial reluctance to disturb finalized estate transactions on spurious grounds, particularly where family members had multiple opportunities to raise objections through proper legal channels but failed to do so.