Bongani Ndlovu (in his capacity as the Executor Dative, Estate Late Kenneth Sithole) v Howard Sithole and Melody Sithole

Kenneth Sithole died on 6 February 2013 in Bulawayo. During his lifetime, he purchased Stand 15 Rangemore Township (Plot 15 Gramps Way, Rangemore). At the time of his death, Kenneth was survived by his widow Monica Sithole (with whom he had contracted a civil marriage) and their minor child Nozipho Sithole (aged six). He also had adult children from a previous marriage, including the respondents Howard and Melody Sithole. Prior to his death, Kenneth lived on the Plot with Monica and the minor child. None of the respondents lived there. After Kenneth's death and before the applicant's appointment as executor, the respondents and their families forced their way onto the Plot and despoiled the widow and minor child. The applicant was appointed executor dative on 15 October 2013. Despite advice from the Assistant Master and the executor to vacate the Plot, the respondents refused to leave, disrupting estate administration. The surviving spouse was not allowed back and tenants were forced to flee.

• Whether an executor dative has the authority to seek eviction of persons unlawfully occupying estate property
• Whether the respondents' occupation of the Plot was lawful
• Whether customary law or the general law of intestate succession applies to the administration of the estate
• Whether the respondents' conduct interfered with the proper administration of the deceased estate

1. The respondents and all those claiming occupation through them were ordered to vacate Plot 15, Gramps Way, Rangemore forthwith, failing which the Sheriff or his lawful deputy is authorized to evict them. 2. The respondents were interdicted from setting foot on the Plot. 3. The respondents were ordered to pay costs of suit jointly and severally, the one paying the other to be absolved.

An executor dative has the legal authority and duty to protect estate property from unlawful occupation that interferes with proper estate administration. Where a deceased contracted a civil marriage, the estate must be administered in accordance with the general law of intestate succession as contained in the Deceased Estates Succession Act [Chapter 6:02] and the Administration of Estates Act [Chapter 6:01], and not according to customary law. Adult children from a previous marriage have no right to forcibly occupy estate property to the exclusion of the surviving spouse and minor children, or to obstruct the executor in the performance of his duties. The court may grant eviction orders and interdicts to enable the executor to fulfil his functions of administering and winding up the estate.

The court made observations about the respondents' lack of understanding of the law, describing their opposing affidavit as demonstrating that "in their layperson's understanding of the general law of intestate succession, [they] have no clue as to how it operates." The court also commented on the "comical" nature of the second respondent's oral submissions and noted that the respondents appeared to be "entirely inimical to the widow benefitting from the estate." The court also noted the respondents' suspicions about the deceased's marriage being one of convenience (contracted when he was critically ill), but did not need to address this issue substantively as it was not properly raised or relevant to the eviction application.

This case affirms the authority of executors dative to protect estate property from unlawful occupation and interference during estate administration. It clarifies that estates involving civil marriages must be administered according to general law (the Deceased Estates Succession Act and Administration of Estates Act) and not customary law. The judgment reinforces that heirs from previous marriages cannot arbitrarily occupy estate property to the exclusion of the surviving spouse and minor children, and cannot obstruct proper estate administration. It demonstrates the court's willingness to grant eviction orders and interdicts to facilitate the lawful winding up of deceased estates.