Ernest Tekere v Precious Sihle Sibanda and Shepherd Chipadza

The plaintiff, a businessman running a security company and money-lending concern called Lien Enterprises, sued the defendants claiming that a sale agreement he entered into with the first defendant on 3 August 2010 for Stand Number 1701 Kumalo Township should take precedence over the first defendant's subsequent sale to the second defendant. The plaintiff claimed he purchased the property for $24,000, paying a deposit of $10,000 on 22 July 2010 and the balance in instalments. The property was registered in the name of the Ministry and belonged to the first defendant's deceased parents - Gordon Tapson Sibanda and Mary Sibanda (nee Murara). The first defendant pleaded that the document was not a sale agreement but a disguised loan agreement for $12,500 at 35% monthly interest. She stated she could not have sold the property in her personal capacity as it was jointly owned by her late parents. The first defendant sold the property to the second defendant in March/April 2014 in her capacity as executrix with consent from the Ministry and the Master of the High Court. The second defendant paid $41,000 and effected improvements costing $10,645.15.

• Whether the agreement between the plaintiff and first defendant was a valid sale agreement or a loan agreement
• Whether the first defendant had capacity to sell property belonging to deceased estates without complying with the Administration of Estates Act
• Whether the sale complied with clause 19 of the agreement with the Ministry requiring prior written consent
• Whether the plaintiff established a prima facie case warranting the defendants to respond (absolution from the instance)

Absolution from the instance was granted to the first and second defendants. The plaintiff was ordered to bear the costs of suit.

Any disposal of property belonging to a deceased estate without compliance with the Administration of Estates Act [Chapter 6:01] is invalid. An executor cannot validly sell estate property without: (1) proper appointment as executor; (2) compliance with section 41 (showing the sale is "absolutely necessary"); and (3) obtaining necessary consents including from the Master and any third parties with registered interests. Where property is registered in government's name and held under an agreement of sale, prior written consent of the relevant Ministry is required before alienation. On absolution from the instance, applying Gascoyne v Paul and Hunter, if there is no evidence upon which a reasonable court might find for the plaintiff, absolution should be granted regardless of what the defendant might say in defence.

The court observed that it is not within human experience that a purchaser who has paid the full purchase price would allow the seller to remain in occupation for over two years without paying rent and would not bother to take transfer of the property. The court noted that the use of the word "absolutely" in section 41 of the Act is significant and indicative of a higher standard than mere necessity. The court commented that while courts are generally loath to decide questions of fact without hearing all evidence, there is no wisdom in proceeding with a trial when nothing the defendant will say can change the established facts that will never result in a finding for the plaintiff.

This case reinforces the strict requirements under the Administration of Estates Act for disposing of property from deceased estates. It emphasizes that executors cannot dispose of estate assets without complying with statutory requirements, particularly section 41's requirement that sales be "absolutely necessary". The judgment also illustrates the application of the absolution from the instance test and demonstrates judicial scrutiny of disguised loan agreements presented as property sales, protecting vulnerable parties from predatory lending practices. It affirms the principle from Muchini v Adams (2013) that the Act prohibits distribution of deceased estates by persons other than properly appointed executors with appropriate authority.