Edna Songore v Josiah Gweme and Joshua Songore and The Master of High Court

The immovable property at house number 1242 Unit A Chitungwiza formed part of the estate of the late Zebediah Tapera Songore who died on 5 May 1991. The deceased had two wives: Mirriem Songore (first wife) and Edna Songore (the applicant, second wife). On 21 May 1991, Joshua Songore (the second respondent and son of the first wife) was appointed heir to the estate at an edict meeting attended by both widows and other family members. On 14 August 2002, Joshua sold the property rights to Josiah Gweme (first respondent) for $2 million, paid in full into the first wife's bank account. The second respondent lodged a Final Administration Account and Distribution Plan which was advertised and approved by the Assistant Master on 3 September 2004, awarding the property to the first respondent and awarding the applicant a property at Mukamba Business Centre in Wedza. The applicant filed an application on 24 May 2007 to review the Master's decision of 3 September 2004, claiming she only became aware of it on 17 May 2007. The first respondent counterclaimed for the eviction of the applicant from the property.

• Whether the application for review was filed within the prescribed time limit under Order 33 Rule 259 of the Rules of Court
• Whether condonation was required for the late filing of the review application
• Whether the applicant had locus standi to bring the application
• Whether the sale of the property by the heir required the Master's prior consent under section 120 of the Administration of Estates Act
• Whether the applicant had any entitlement to the property in question
• Whether the first respondent was entitled to eviction of the applicant from the property

1. The application in convention is dismissed with costs. 2. The applicant and all those claiming occupation through her are evicted from Stand No. 1242 Unit A Seke Chitungwiza within 48 hours of service of the order. 3. The applicant shall pay the first respondent's costs of the counter application on the scale of legal practitioner and client.

The binding legal principles established are: (1) Under Order 33 Rule 259, the eight-week period for filing a review application runs from the date on which the applicant becomes aware of the decision sought to be reviewed, not from the date the decision was made, particularly where the applicant was not officially notified. (2) Failure to file a review application within the prescribed eight-week period requires an application for condonation on good cause shown; without such condonation, the application is a nullity. (3) Where an heir was appointed under customary law before the Administration of Estates Amendment Act No. 6 of 1997, the deceased's estate vested in the heir who inherited all immovable estate property in his own name and stood as the sole representative of the estate with powers equivalent to an executor. (4) A surviving spouse who is not a residual heir lacks locus standi to challenge the administration of an estate by a customary law heir appointed before the 1997 amendments, though such spouse retains rights to maintenance and other entitlements recognized in customary law. (5) An heir appointed under customary law before the 1997 amendments was entitled to dispose of estate property as it devolved to him upon appointment.

The court made several non-binding observations: (1) That even if the post-1997 provisions of section 68F(2)(c)(i) of the Administration of Estates Act and section 3A(a) of the Deceased Estates Succession Act were applicable, the surviving spouse entitled to the house would have been Mirriem (who resided there), not the applicant. (2) That section 120 of the Administration of Estates Act, requiring the Master's consent for certain transactions, appears to apply to cases where the deceased died testate rather than intestate. (3) The court noted that the applicant's claim that she was not consulted about the appointment of the heir was incorrect, as she had attended the edict meeting and was among those who appointed the second respondent as heir. (4) The court observed that the applicant had not been honest in the conduct of her defence and had put the first respondent to unnecessary costs, justifying an award of costs on a higher scale. (5) The court noted that the failure to cite Chitungwiza Municipality (the owners of the property) was also fatal to the application, though this became a secondary consideration given the other grounds for dismissal.

This case is significant in Zimbabwean law for clarifying several important principles: (1) the calculation of the eight-week period for review applications runs from when the applicant becomes aware of the decision, not from when it was made; (2) the requirement for condonation when review applications are filed outside prescribed time limits; (3) the legal position of heirs appointed under customary law before the 1997 amendments to succession legislation, particularly that such heirs had full power to administer and dispose of estate property as it vested in them; (4) the limited locus standi of surviving spouses who are not residual heirs to challenge estate administration by customary law heirs; (5) the interpretation of section 120 of the Administration of Estates Act as applying primarily to testate estates; and (6) the application of transitional provisions following the 1997 amendments to succession laws regarding the devolution of property to surviving spouses.